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https://www.courtlistener.com/api/rest/v3/opinions/1190756/ | 38 Wash. 2d 140 (1951)
231 P.2d 312
In the Matter of the Application of CHRISTOPHER GEORGE CAMPBELL for a Writ of Habeas Corpus.[1]
No. 31487.
The Supreme Court of Washington, Department One.
March 1, 1951.
Robert F. Murray, for appellant.
Robert E. Conner and Norman L. Schwalb, for respondent.
PER CURIAM:
This is an appeal from an oral decision announced on the 24th day of March, 1950, by the superior court of Chelan county, Washington, denying petition for a writ of habeas corpus.
The matter was heard before the Honorable Fred Kemp, judge of the superior court of the state of Washington in and for the county of Chelan, on March 24, 1950, at which time the court orally announced that he would deny the writ. Whereupon, in open court, appellant gave oral notice of appeal. April 12, 1950, Judge Kemp signed and entered a written order dismissing the writ. No appeal was taken from this written order and the respondent has moved in this court for a dismissal on the ground that the appeal had been prematurely taken.
Our statute relating to appeals (Rem. Rev. Stat., § 1716 [P.P.C. § 5-1]) provides:
"Any party aggrieved may appeal to the supreme court in the mode prescribed in this title from any and every of *141 the following determinations, and no others, made by the superior court, or the judge thereof, in any action or proceeding.
"(1) From the final judgment entered in any action or proceeding, ..."
[1] It has been stated many times by this court that an appeal will not lie from anything other than a formal written final order or judgment signed by the judge and entered upon the records of the court, unless authorized by statute. State ex rel. Thomas v. Lawler, 23 Wn. (2d) 87, 159 P. (2d) 622; Dux v. Hostetter, 37 Wn. (2d) 550, 225 P. (2d) 210.
The order of March 24, 1950, was not a final judgment entered by the court and therefore was not appealable under the provisions of the above statute. The order which did finally dispose of appellant's writ was entered April 12, 1950. No appeal has been taken from that order and we must, in accordance with the statute and with our decisions, hold that this appeal was premature.
The appeal is accordingly dismissed.
NOTES
[1] Reported in 231 P. (2d) 312. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567264/ | 86 F.2d 510 (1936)
BARBOUR et al.
v.
THOMAS et al.[*]
CONNOLLY
v.
THOMAS.
Nos. 7116, 7117.
Circuit Court of Appeals, Sixth Circuit.
November 11, 1936.
*511 James Turner and J. O. Murfin, both of Detroit, Mich. (James Turner, J. O. Murfin, Frank E. Robson, George H. Klein, Lewis H. Paddock, Edwin C. Lewis, Charles B. Warren, Paul Voorhies, Angell, Turner, Dyer & Meek, Miller, Canfield, Paddock & Stone, Beaumont, Smith & Harris, Warren, Hill, Hamblen, Essery & Lewis, Clark, Klein, Ferris & Cook, Goodenough, Voorhies, Long & Ryan, and Lewis & Watkins, all of Detroit, Mich., of counsel), for appellants.
Robert S. Marx, of Cincinnati, Ohio (Nichols, Morrill, Wood, Marx & Ginter, of Cincinnati, Ohio, on the brief), for First Nat. Bank-Detroit.
William Henry Gallagher and A. W. Sempliner, both of Detroit, Mich. (S. Reymont Paul, of Detroit, Mich., on the brief), for Wm. F. Connolly, receiver.
Before HICKS and ALLEN, Circuit Judges, and WEST, District Judge.
HICKS, Circuit Judge.
Prior to 1929 there were in Detroit, Peoples Wayne County Bank, Bank of Michigan, and the Peninsular State Bank, banking corporations under the laws of Michigan; the Detroit & Security Trust Company, a trust company under the laws of that state; and the First National Bank. These corporations were independent units, though some of them operated numerous branches.
1929 was a year of bank consolidations and mergers in Detroit. As early as May, 1928, a bank stock holding company, the Union Commerce Investment Company, had been organized. Early in 1929, a second such holding company, the Guardian Detroit Group, Inc., was incorporated. Neither of these groups began business with capital. They simply issued shares of stock in exchange for the shares of the banks which they absorbed. By October, 1929, these two groups controlled forty different institutions and before the year was out had merged, and were known as the Guardian Detroit Group.
In this atmosphere the idea of the formation of the Detroit Bankers Company herein called the "holding company" was born. It was nurtured by the soaring market price of the stock of the two older companies and by notions of business expedience. It was thought that smaller independent banks were at a disadvantage in competing for the business of large concerns with huge monetary requirements. To continue to exist, these banks had to have business and to obtain it they had to operate as a unit large enough to meet the demands. The organizers were also impressed with the possibilities of more economical control and operation of grouped units through the elimination of duplicating facilities. Certain of their officers and stockholders believed it would be beneficial to organize a corporation under the general corporation law of the state of Michigan to acquire the stock of each of them. Committees were formed, meetings were held and a plan was formulated.
The purpose of this new corporation was stated in its articles of association as follows: "To acquire, own, hold, vote and exercise all rights of ownership of and to sell and dispose of shares of the capital stock of banks and trust companies, and of other companies or associations engaged in purchase and sale on their own account, or as agents of others, underwriting or dealing in corporate or other securities, or of any other corporation engaged in any business or activity incidental to or related to or of assistance in the conduct of any such business." Under the Michigan statute (Comp.Laws of Mich. 1929, § 9968) there was nothing per se illegal in the organization of the holding company for such a purpose.
It was not difficult for the organizing committee, consisting of two representatives from each of the units, to persuade the boards of directors to endorse the project and the stockholders later to acquiesce therein. The five boards met separately on September 27, 1929, and recommended the plan to the stockholders. It called for a capitalization of $50,000,000, $35,000,000 of which was to be issued immediately in exchange for the stock of the five constituent banks. The shares were valued at $20 each and of the 1,750,000 exchanged, the stockholders of the Peoples Wayne County Bank, the largest, were to get 825,000; those of the First National 335,000; of the Detroit and Security Trust Company 300,000; of the Bank of Michigan, 187,500; and of the Peninsular State 102,500. The proposed dividend rate was set at 17 per cent. or *512 $3.40 per share, which was slightly in excess of the rates then being paid on an equal value of the bank shares.
On September 27 and 28, 1929, the organizers announced through the newspapers that the new group would be one of the strongest institutions in the country, with a capital, surplus, and undivided profits of around $90,000,000, and resources of over $725,000,000.
On October 5, 1929, a joint letter was sent by the officers of the five banks to their stockholders, describing the proposed agreement and recommending the exchange of their stock for that of the holding company, and the signing of the agreement and of a power of attorney to a named committee to put the scheme into effect. The committees consisted of the president and vice president of the Peoples Wayne County Bank, the chairman of the board and presidents respectively of the First National Bank, the Detroit & Security Trust Company, and the Bank of Michigan, and the president of the Peninsular State Bank. The other three were directors of the Peoples Wayne County Bank.
The plan was to become effective as soon as two-thirds in amount of the stock of the units was deposited for exchange. More than 97 per cent. of the stockholders signed the agreement and power of attorney. This instrument designated the "committee" as the agent and attorney of all the stockholders signing it. It authorized the committee to organize the holding company for the initial purpose of acquiring the shares of the five several banks. It provided that in addition to the capital stock above referred to there should be 120 shares of no par value called "trustee shares" which should be issued, 10 shares each, to the persons composing the committee, for the benefit of all stockholders coming into the plan. These trustee shares could not participate in dividends, assets, or subscription rights, but they possessed the exclusive voting power in the election of directors until December 31, 1934, at which time they were to be redeemed and canceled upon the payment of $10 per share. The proceeds from these shares, a total of $1,200, represented the only capital which the holding company owned at the time of its organization. The trustee shares were not paid for by the trustees but by the banks. The only other assets the holding company had were the bank stocks transferred to it by the constituent units in exchange for its stock. This agreement also provided that, "The common stock issued by said corporation shall be subject to the same liability as shares of the capital stock of a bank and/or trust company organized in Michigan and/or shares of the capital stock of a national bank." (Italics ours.) It further provided that only persons holding trustee shares should be elected directors and that upon the removal of a director or his death, his shares should be surrendered and his successor selected from the unit company which he had represented. This agreement was subsequently modified to permit an increase in the number of directors made necessary by the acquisition of additional banks.
Following the agreement the committee issued a "declaration of trust" in which each member declared that the trustee shares should be held by them in trust for the use and benefit of the common stockholders of the holding company and their successors, representatives, and assigns; that the committee should thereafter be designated as "trustees" and that the principal trust upon which the trustee shares were created was that the same should be voted at all elections of directors for persons who were holders of 10 shares thereof, and that each trustee should have the right to vote for himself for director. The declaration embodied the phrase, to wit, "the spirit of the foregoing being to perpetuate a proportionate representation of each of the foregoing institutions or their successors during the period of the trust."
The committee functioned until the filing of the articles of association on January 8, 1930, when it succeeded itself as the board of directors. The first meeting of the board, made up of the same twelve men, was held on January 9, 1930. The board functioned until March 28, 1933, when it sought a dissolution of the company.
During its existence the holding company, as authorized by its charter, exchanged its stock for the stock of other banks in and around Detroit and thereafter many of these banks were consolidated with others of the group. Because of its position as the sole stockholder of record of these many institutions, the holding company prior to each annual meeting *513 listed the persons it wished elected to the various boards. These lists of proposed directors appeared in the minutes along with the designation of the men who should vote the stock of the holding company at the various annual meetings. There was never any doubt that the holding company's slate would be elected. The holding company would issue to newly elected directors qualifying shares of stock but by an agreement with the directors these shares remained the property of the holding company upon which it received dividends.
The expenses of the holding company were met by the levy of "Service Charges" on the various units. Two schemes were tried of allocating the charges. The first was on the basis of the proportion the gross income of each unit bore to the cost to the holding company but the one which prevailed charged each unit for the amount of the work that was actually done for it. This seems to have become somewhat a matter of form since the assessments came to be made periodically on the larger units (apparently whenever the holding company happened to need money) and in round numbers, rather than on any exact basis. This money went into a variety of avenues as shown by the treasurer's reports including salaries, certain stock purchases and liquidation of notes incident to the acquisition of small units throughout the state, donations, dinners, rentals, advertising, directors' fees, etc.
At first the holding company paid regular quarterly dividends of 85 cents per share, at the 17 per cent. rate fixed in the agreement. But these payments were reduced to sixty cents per share on March 31, 1932; and to 25 cents on June 30, 1932, and December 31, 1932. They were paid out of dividends received from the constituent units and to meet them the directors of the holding company would suggest to the various units the amount each would be expected to pay and without exception these recommendations were followed by the directors of the individual units, some of whom were always holding company directors.
The holding company set up numerous committees to study plans for effecting various economies in accounting, auditing, advertising, printing, etc. These committees had no power to impose their plans upon the units, but they took their suggestions to the various boards with the result that considerable uniformity was effected through the setting up of separate departments under the management of the holding company to which the units yielded their work. The holding company concerned itself with such matters as interlocking directorates with member banks of the Guardian group; and representation of the holding company on the boards of banking institutions in which First National Company (a subsidiary of First National Bank) had bought an interest. From the outset it was beset with the problem of helping the First National Company to carry charges on its investment of approximately $7,200,000 in the stocks of various banks throughout the state. The holding company borrowed money to liquidate this indebtedness of the First National Company upon which it made repayments from regular as well as special dividends received from the unit banks.
The record is replete with divers other activities of the holding company in behalf of various units which are set forth in the court's finding of facts.
Since the holding company had no substantial assets except the stock of its units, it was manifest that the creditors and depositors of the component banks were afforded no real protection either under the federal statute providing for double liability of shareholders (section 63, Tit. 12 U. S.C. [12 U.S.C.A. § 63]) or under a statute of the state of Michigan with similar provisions. This was a matter of vital importance not only to the holding company and the banks, but to the public. The Attorney General of Michigan, its Securities Commission, and its Superintendent of Banks were greatly concerned about it. After much discussion the signers of the "Agreement and Power," as an express condition upon which the holding company would be permitted to function, consented to incorporate into its articles of association the following clause:
"Article IX-A. The holder of each share of common stock of this corporation shall be individually and severally liable for such stockholders' ratable and proportionate part determined on the basis of their respective stock holdings of the total issued and outstanding stock of this corporation, for any statutory liability imposed upon this corporation by reason of its ownership of shares of capital stock of any bank or trust company, and the stockholders *514 of this company by the acceptance of their certificates of stock of this company, severally agree that such liability may be enforced in the same manner and to the same extent as statutory liability may now or hereafter be enforceable against stockholders of banks or trust companies under the laws under which said banks or trust companies are organized to operate."
"A list of the stockholders of this company shall be filed with the Banking Commissioner of Michigan or the Comptroller of the Currency whenever requested by either of those officers."
This clause was likewise printed on the reverse side of each certificate of stock issued by the holding company.
The First National Bank-Detroit, one of the units of the holding company which had grown out of a consolidation of two other units, closed its doors on February 11, 1933, and never reopened. On February 14 the Governor of Michigan declared a banking holiday. This proclamation was effective through February 21, 1933, on which date he issued a second one, permitting the opening of banks for very limited purposes. On March 6, 1933, the President ordered the suspension of all banking activity to and including Thursday, March 9. This holiday was extended indefinitely by a second proclamation on March 9, 1933. On March 13, 1933, the Comptroller of the Currency appointed Paul C. Keys conservator for the bank and he continued as such until March 21, when he was succeeded by C. O. Thomas, who acted in that capacity until he was appointed receiver on May 11, 1933. On May 16, 1933, the Comptroller levied assessments for the full amount of the capital stock of the bank, to wit, $25,000,000 upon its shareholders, but on May 10, 1933, the holding company had been dissolved by decree of an appropriate state court and Wm. F. Connolly had been appointed its receiver. Later, on July 28, 1933, a petition in bankruptcy was filed against it.
The receiver, Thomas, announced his intention of collecting from the stockholders of the holding company about $14 per share, calculated upon the estimate that each share of the holding company stock represented the ownership of .14055775 shares of First National Bank-Detroit stock.
He could not commence an action before July 31, 1933, since the assessments were not due until that date. George H. Barbour and some thirty others, representing about one and one-half millions of holding company stock, anticipated Receiver Thomas and brought suit on July 12, 1933, as a class action on behalf of themselves and all other stockholders to enjoin the threatened enforcement against them of any liability upon the assessments. They were later joined by other stockholders as interveners which brought the total amount of stock represented in the suit to over $4,000,000.
Paragraphs 6, 7, 8, 9, 11, 12, 13, and portions of 10 and 14 of the bill alleged, as a basis of nonliability, negligent and wasteful acts of interference by Keys, conservator, Thomas, conservator and receiver, and of the Comptroller and his agents during the months of February, March, and April 1933, which acts it was averred caused the insolvency of the bank; that its resources on February 11, 1933, the date it closed, exceeded its deposits by $73,259,224; that its assets then exceeded its liabilities by more than $25,000,000; that the agents of the Comptroller made a thorough examination of the bank in November and December, 1932, and reported it sound; that on December 31, 1932, its board paid a dividend of $2.10 per share, which payment was sanctioned by the agents of the Comptroller; that its financial condition did not materially change between that date and the 14th day of February, 1933; that the only authentic information possessed by the Comptroller on the 14th day of February, 1933, regarding its financial condition was derived from his representatives who made the examination in November and December, 1932; that if after that date and before May 12, 1933, the Comptroller received information tending to show that the bank was insolvent on February 14, 1933, such information was misleading and fraudulent; that the bank remained closed in compliance with the proclamations of the Governor and the President and that the conservator and other agents of the Comptroller would not permit it to do a banking business or carry on its affairs in the usual and normal way; that the unusual and unprecedented circumstances occurring between February 11, and May 11, 1933, the date upon which the Comptroller declared the bank to be insolvent, were not *515 caused by any act or failure on the part of the officers and directors of the bank, and were not within the legal contemplation of the stockholders of the Detroit Bankers Company when they accepted their stock upon which article IX was indorsed.
The bill made Wm. F. Connolly, receiver of the holding company, a party defendant, and sought to enjoin him from bringing suit against its stockholders on account of the aforesaid assessment. Exhibit 6 to the bill was a "Contract for the Sale of Assets by Conservator for First National Bank-Detroit to National Bank of Detroit" made on April 12, 1933, which plaintiffs asserted was in violation of the Bank Conservation Act and which they claimed transferred the assets at a valuation far below their real worth.
A restraining order issued against both Thomas and Connolly which was later superseded by an interlocutory injunction. Receiver Connolly answered and stated that before proceeding to enforce any assessment against the stockholders of the holding company he would seek the instruction of the state court which appointed him but denied that the stockholders of the holding company were responsible for the debts of the bank. Receiver Thomas answered and also filed a cross-bill or counterclaim. The answer denied generally the averments of the bill but admitted that as conservator he had sold certain assets. He denied, however, that they were sold below their worth. He denied any waste, but asserted that, even so, the plaintiff's allegation to that effect was immaterial.
In his cross-bill or counterclaim Receiver Thomas alleged that the Comptroller had made the assessments on the shareholders of the capital stock of the bank; and that he, Thomas, had notified plaintiffs and intervening petitioners, owners of record of the stock of the holding company. He further alleged that the stockholders of the bank and trust company, in order to assure depositors and creditors that they remained the real and beneficial stockholders, notwithstanding they had gone to the pretense of changing their unit shares for those of the holding company, caused to be inserted in the articles of association of the holding company article IX, whereby each of the plaintiffs, intervening petitioners and approximately 9,000 other shareholders of the holding company by the acceptance of their certificates of stock, entered into a contract to pay their ratable and proportionate part of any assessment on the shareholders of the bank. He alleged that the list of the shareholders of the holding company was filed with the Comptroller; that they exercised all the rights and privileges of shareholders of the bank and controlled, operated, and manipulated it to their own ends; that to obtain and hold the public confidence and insure depositors and creditors of the bank they published statements and advertisements to the effect that the liabilities imposed by the laws of the United States and of Michigan for the protection of depositors and creditors were enforceable against the shareholders of the holding company just as against shareholders of other banks.
Plaintiffs' answer to the cross-bill or counterclaim raised no new issue, but closed with a motion to dismiss. The answer of Receiver Connolly thereto was that he, only, had a right to enforce the assessment and he likewise moved to dismiss the cross-bill or counterclaim. Certain interveners also filed an answer which adopted the answer of plaintiffs.
The court dismissed plaintiffs' bill and all intervening petitions, together with all motions to dismiss the cross-bill or counterclaim of Receiver Thomas, and rendered a decree against plaintiffs and interveners for the assessment upon the stock of the bank in proportion to the number of shares of the holding company stock held by each of them. It further decreed that Receiver Connolly had no interest in these judgments.
Plaintiffs and interveners, appealing, made numerous assignments of error, which in the briefs are compressed into a very few issues. The first was that the court erred in granting the motion of Thomas, receiver, to strike out paragraphs 6, 7, 8, 9, 11, 12, 13, and parts of 10 and 14 of the bill, hereinbefore condensed, and in denying proposed evidence in support thereof.
We cannot yield to this insistence. These averments and the evidence offered to sustain them could not have been put in issue here. They constitute a purely collateral attack upon the action of the Comptroller (not a party litigant) in declaring the bank insolvent, and upon his judgment as to the necessity for the assessments and the amount thereof. His *516 determination of these matters was conclusive. U.S.C. tit. 12, § 191 (12 U.S.C. A. § 191); Kennedy v. Gibson, 8 Wall. 498, 505, 19 L. Ed. 476; Germania National Bank v. Case, 99 U.S. 628, 634, 25 L. Ed. 448; Casey v. Galli, 94 U.S. 673, 677, 24 L. Ed. 168; Crawford v. Gamble, 57 F.(2d) 15, 16 (C.C.A.6) and cases there cited; Silk et al. v. Ake, Rec'vr, 83 F.(2d) 618, 620 (C.C.A.6); Miller v. Stock, 65 F.(2d) 773, 90 A.L.R. 1061 (C.C.A.3); Liberty Nat. Bank v. McIntosh, 16 F.(2d) 906, 909 (C.C.A.4); and B. V. Emery & Co. v. Wilkinson, 72 F. (2d) 10 (C.C.A.10).
Appellants concede the widely adjudicated immunity of the Comptroller from collateral attack on the wisdom of his determination of insolvency, etc., but their argument is that the statute (section 191 supra) should have no application where insolvency was caused by unwarranted interference and control of governmental agencies and where the circumstances were so extraordinary as not to have been anticipated.
We are not in accord with appellants' contention. It must be observed that the holiday proclamations and regulations were supplemented and supported by the emergency bank act which has been held valid (City of East Cleveland v. Fidelity & Deposit Co. (D.C.) 5 F. Supp. 212); but apart from this, the liability of a stockholder in a national bank does not depend upon a judicial determination, whether the banking holidays were well advised, whether the conservator discreetly managed the assets, or whether crucial and unforeseen circumstances led to insolvency. His obligation is fixed by statute. Title 12 U.S.C. § 64 (12 U.S.C.A. § 64); Page v. Jones, 7 F.(2d) 541, 544 (C.C.A.8). When he subscribes for his stock he agrees to be "responsible for all contracts, debts, and engagements of such association, each to the amount of his stock therein, at the par value thereof, in addition to the amount invested in such stock." Upon the insolvency of the bank he agrees to discharge his obligation in such amounts and in such manner as shall be determined by the Comptroller. The statute admits of no exception and we can make none. Creditors and depositors have a right to expect that it will be observed and complied with as it is written. Bailey v. Tillinghast, 99 F. 801, 808 (C.C.A.6); Crawford v. Gamble, supra; Silk v. Ake, supra; DeWeese v. Smith, 106 F. 438, 442, 66 L.R.A. 971 (C. C.A.8); Meeker v. Baxter, 83 F.(2d) 183, 186 (C.C.A.2); United States Nat. Bank of La Grande v. Pole, 2 F. Supp. 153, 157 (D.C.); Bailey v. Sawyer, 2 Fed.Cas. p. 382, No. 744 (D.C.).
The Congress probably did not foresee the cataclysmic conditions existing in and around Detroit in the early part of 1929, but we see no logic in, nor necessity for, abrogating the statute simply because the circumstances were unusual. On the other hand, it seems to us that the more unparalleled the situation, the greater the need for depositors' protection. If assets of the bank were being wasted by the alleged illegal action of state and federal officials it occurs to us that the directors of the holding company, instead of acquiescing, would have resorted to the courts to stop it. Bailey v. Tillinghast, supra, 99 F. 801, 808. They do not seem to have thought of that relief.
We have proceeded upon the assumption that appellants were stockholders of the bank. They insist that they were not, that they had exchanged their certificates for those of the holding company, the stockholder of record. Ninety-one and three-tenths per cent. of appellants were signers of the "Agreement and Power" and owners of their holding company stock by original exchange, one-half of one per cent. obtained their stock in exchange for the stock of others of subsequently acquired institutions. The remainder obtained their certificates in other ways. But the statute (section 64, tit. 12 U.S.C. [12 U.S.C.A. § 64]) does not restrict liability for assessments to stockholders of record or to those holding certificates. Congress wisely declined to limit the term "stockholders." It recognized that bank stock is capable of ownership without any certificate therefor having been either issued, recorded, or delivered; and, further, that stock might be owned by one person and the certificate registered in the name of another. See Pacific Nat. Bank v. Eaton, 141 U.S. 227, 334, 11 S. Ct. 984, 35 L. Ed. 702. It has been uniformly and wisely held that the actual owners of the capital of a national bank, that is, those who have their money invested therein, are "shareholders" and liable to assessment. Forrest v. Jack, 294 U.S. 158, 162, 55 S. Ct. 370, 371, 372, 79 L. Ed. 829, 96 A.L.R. 1457; Early v. Richardson, 280 U.S. 496, 499, 50 S. Ct. 176, 177, 74 L. Ed. 575, 69 A.L.R. 658; *517 Ohio Valley Nat. Bank v. Hulitt, 204 U.S. 162, 168, 27 S. Ct. 179, 51 L. Ed. 423. The law fixes the obligation upon those who profit from the confidence of the depositors and from the use of their money.
We concur in the finding that appellants are "actual owners" of the stock of the bank upon which the assessment was levied. The stockholders never sold their stock. They simply exchanged it for holding company shares. The holding company certificates represented the interests which the shareholders of each unit held or acquired in the assets of the group. None of its stock was sold to the public nor issued to any persons other than the stockholders of the banks or their assignees. Article III of the articles of association clothed it only with the ordinary powers of a holding company. The stockholders of the banks had no intention of retiring from the banking business. They organized the holding company for the protection and promotion of their common interests because they realized that the banks acting separately were at a disadvantage in competing with the Guardian-Detroit Union group. Their primary purpose was to centralize the control and operation of the five unit banks and from time to time acquire control of additional ones by the exchange of holding company stock for other stocks. They were careful to provide that the holding company should be under the exclusive control of officers and agents of the component banks at least until December 31, 1934.
Article IX must be considered in the light of the circumstances under which it was adopted. The Michigan statute imposing individual liability upon the stockholders of state banking institutions to the extent of the amount of their stock, was quite similar to the federal statute applicable to national bank stockholders. The stockholders of the bank signing the "Agreement and Power" as well as the organizing committee, knew that each stockholder was liable for assessment under either the Michigan or federal statutes and that if they should be allowed to transfer their stock to the holding company outright the vital purpose of the statute, that is, the protection of creditors and depositors, would be nullified because the holding company, without assets other than the bank stocks, would fail if the banks should fail. They knew that such a contrivance would not be permitted, or, if permitted, would result in disaster because cautious depositors would hesitate or decline to continue their patronage. So, by article IX, they assumed the statutory liability of the holding company as the record holders of the bank stocks and agreed that such liability might be enforced against them. They evidenced their obligation by the acceptance of their certificates in the holding company upon the reverse side of which article IX was printed and which was referred to in the face thereof. Apparently it was expected that the liability of shareholders would shift as new banks were acquired, or as old ones were merged, so that depositors would always be protected. There was no hardship on new stockholders or transferees because all were warned by the provision in the certificates.
Appellants urge upon us the case of Backus v. Connolly, 268 Mich. 495, 256 N.W. 496, decided after the decree below. In that case stockholders of the holding company sought to enjoin Connolly, its receiver, from enforcing any liability against them based on article IX upon the ground that it was void. The Michigan Supreme Court declined to hold it void, but ruled that the holding company was the owner of the banks' stock and liable to assessments thereon under both federal and state statutes; that article IX constituted an agreement between the holding company and its stockholders, enforceable by the receiver; and that they would be liable for the holding company's statutory liability. The holding company was of course the record owner of the stock of the bank as listed with its president and cashier (U.S.C. tit. 12, § 62 [12 U.S.C.A. § 62]) but the court did not hold that an assessment under the federal statute was not enforceable against its stockholders as the real or actual owners of the banks' stock. That question was not in issue and neither the Comptroller nor receiver was a party to that suit.
We have no quarrel with the ruling that, as between the stockholders of the holding company and its receiver, article IX-A constitutes a contractual obligation. It seems to us that this "super-added" liability (Backus v. Connolly, supra) imposed by the stockholders upon themselves constitutes additional evidence that they *518 regarded themselves in their relationship to the creditors and depositors of the bank as the true and real owners of its stocks; and designed that the creditors and depositors should have that real protection which the law demanded rather than an irresponsible promise, and that this vitally important matter should not be subject to any doubtful interpretation.
The signers of the "Agreement and Power" no doubt had this purpose in mind when they included therein the provision that the stock of the holding company should be subject to the same liability as stock of a state or national bank, to be enforced in the same manner and to the same extent as statutory liability was enforceable against stockholders of banks by the laws under which they were organized and that a list of the stockholders should be filed with the Banking Commissioner of Michigan or the Comptroller of the Currency whenever requested.
But, all this to one side, we are applying a federal statute in a suit by the receiver of a national bank to enforce the personal liability of its real shareholders for the benefits of its creditors and depositors. From this viewpoint the insistence that article IX-A was in violation of the Michigan statute of frauds is unimportant.
From the same reason the claim of cross-appellant Connolly, receiver, that he has the right to collect the assessments, is foreclosed. The statute (title 12, § 192 U. S.C. [12 U.S.C.A. § 192 and note]) specifically vests this right in Receiver Thomas under the direction of the Comptroller. See Richmond v. Irons, 121 U.S. 27, 49, 7 S. Ct. 788, 30 L. Ed. 864; and Forrest v. Jack, supra.
The decree of the District Court is affirmed.
NOTES
[*] Writ of certiorari denied 57 S. Ct. 513, 81 L. Ed. ___. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2270917/ | 336 S.W.3d 879 (2009)
2009 Ark. App. 534
Charles HARRIS, Appellant,
v.
STATE of Arkansas, Appellee.
No. CA CR 08-1494.
Court of Appeals of Arkansas.
July 1, 2009.
*880 Harrelson Law Firm, P.A., by: Jeff Harrelson, Texarkana, for appellant.
Dustin McDaniel, Att'y Gen., by: Nicana C. Sherman, Ass't Att'y Gen., for appellee.
DAVID M. GLOVER, Judge.
On January 2, 2008, the State filed a petition to revoke Charles Harris's probation in connection with the underlying offense of nonsupport for failing to pay back child support. Following a hearing, the trial court granted the petition, revoked appellant's probation, and sentenced him to ten years' imprisonment in the Arkansas Department of Correction. Pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and Rule 4-3(k) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant's attorney has filed a motion to withdraw as counsel on the ground that the appeal is wholly without merit. The motion is accompanied by an abstract, brief, and addendum referring to everything in the record that might arguably support the appeal, including all motions, objections, and requests decided adversely to appellant and a statement of reasons why none of those rulings would be a meritorious ground for reversal.
The clerk of this court furnished appellant with a copy of his counsel's brief and notified him of his right to file a pro se statement of points for reversal within thirty days. Appellant filed his statement of points, but none of the points that he relies upon were properly preserved below and cannot serve as a basis for reversal of the revocation of his probation. Summarizing those points, he contends primarily that his counsel was ineffective; he requests "that this court just grant me my plea" of six years and get rid of the fines and restitution; and he alleges that the warrant was dated incorrectly.
The trial court determined that appellant had violated the terms and conditions of his probation based upon his admission that he had failed to pay and report as ordered by the court. The violation of one condition is sufficient to support a revocation. Therefore, his failure to report alone would be enough, and his only excuse for not doing so was that he was stressed. Ark.Code Ann. § 5-4-309(d) (Repl.2006).
From our review of the record, the brief submitted by appellant's counsel, and appellant's statement of points, we find that there has been compliance with Rule 4-3(k) and that the appeal is wholly without merit. Accordingly, counsel's motion to withdraw is granted, and the revocation of appellant's probation is affirmed.
Affirmed; counsel's motion to be relieved is granted.
HART and MARSHALL, JJ., agree. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1903375/ | 257 B.R. 770 (2001)
In re FARM FRESH SUPERMARKETS OF MARYLAND, INC., et al., Debtors.
Terry L. Musika, Chapter 7, Trustee, Plaintiff,
v.
Arbutus Shopping Center Limited Partnership ASCLP c/o AMCAP, Inc., Defendant.
Bankruptcy Nos. 95-5-8431-JS, 95-5-8441-JS. Adversary No. 98-5770-JS.
United States Bankruptcy Court, D. Maryland, at Baltimore.
January 12, 2001.
Richard A. Goldberg, Shapiro, Sher and Guinot, Baltimore, MD, for Plaintiff.
Joyce A. Kuhns, Saul, Ewing, Weinberg & Green, Baltimore, MD, for Defendant.
*771 MEMORANDUM OPINION DISMISSING COMPLAINT
JAMES F. SCHNEIDER, Bankruptcy Judge.
On Friday, November 17, 1995, an involuntary Chapter 7 bankruptcy petition was filed in this Court against the debtor, Farm Fresh Supermarkets of Maryland, Inc. ("Farm Fresh"). On the same day, the appointment of an interim trustee was authorized by this Court and Terry L. Musika was appointed to that position by the United States Trustee. On Sunday, November 19, 1995, Beckenheimer's, Inc., a wholly-owned subsidiary of Farm Fresh, filed a voluntary Chapter 7 petition in Case No. 95-5-8441 on an emergency basis at the home of the undersigned bankruptcy judge. On that occasion, Mr. Musika was appointed interim trustee in that case as well. On the same day, this Court approved Mr. Musika's motion that the two cases be jointly administered, Farm Fresh having consented to adjudication as a Chapter 7 debtor. Thereafter, the United States Trustee appointed Mr. Musika as Chapter 7 trustee in both cases. On April 28, 1998, the trustee filed the instant complaint for avoidance of a postpetition transfer, turnover and other relief, against Arbutus Shopping Center Limited Partnership ("Arbutus" and/or "landlord"), the landlord of one of the debtor's stores. For the following reasons, the instant complaint will be dismissed.
FINDINGS OF FACT
Arbutus leased certain real property to Farm Fresh pursuant to a lease dated July 15, 1956. Pursuant to Section 11 of the lease amendment dated September 1, 1981, as set forth in the second amendment to the lease dated January 26, 1984, an irrevocable standby letter of credit was posted for the benefit of the landlord in the amount of $38,000, which the landlord was entitled to draw upon in the event of the debtor's default under the lease. The letter of credit was issued by Signet Bank and was automatically renewable from year to year unless canceled.
On the date of the filing of the involuntary petition, Farm Fresh was advised by the landlord's agent that it had committed monetary and nonmonetary defaults under the lease. The debtor's check for the November, 1995, rent payment in the amount of $13,044.15, had been returned for "insufficient funds."
By letter dated December 1, 1995, the trustee warned the landlord that the letter of credit was property of the estate and that a "draw-down" of its proceeds would constitute a violation of the automatic stay.
After making proper demand upon the debtor for the cure of defaults under the lease, Arbutus notified Signet Bank of the default by letter dated December 7, 1995, and drew down the entire $38,000 under the standby letter of credit by check issued by Signet on December 14, 1995.
On January 3, 1996, the trustee filed a motion to sell and assign virtually all of the debtors' property, including the lease at issue here, to Richfood Holdings free and clear of all liens, claims and encumbrances. Arbutus filed an objection to the motion on a variety of grounds, including the allegation that the lease could not be assumed and assigned until the trustee cured past due arrearages for the nonpayment of rent. The objection was later withdrawn and the sale motion was approved by this Court. The sale was consummated, with settlement occurring on February 16, 1996. On February 22, 1996, the trustee paid to Arbutus the sum of $13,044.15, representing one month's rent which was required to cure postpetition defaults in order to have the executory lease assumed by the trustee and assigned to Richfood. The payment was made notwithstanding the fact that the landlord had already drawn down the $38,000 under the standby letter of credit. Nearly one year later, on January 24, 1997, the trustee demanded that Arbutus pay him the sum of $13,044.15, the amount of the cure payment made by the trustee to the landlord.
After the demand was refused, this suit was filed which sought turnover of the *772 $13,044.15 paid by the trustee as property of the estate, turnover of the $38,000 from the letter of credit as unjust enrichment, and the avoidance of the payment of he $13,044.15 as an unauthorized postpetition transfer.
CONCLUSIONS OF LAW
The trustee may not recover either the $38,000 drawn down under the letter of credit or the $13,044.15 paid as a cure payment to the landlord. The trustee properly assumed and assigned the lease on behalf of the estate, and with that assumption and assignment went all the rights and obligations that came with the lease. Having obtained the approval of this Court for the assumption and assignment of the lease, the trustee cannot now recover either the amount that the trustee paid to cure the defaulted rent or the amount that was paid to the landlord by Signet under the standby letter of credit when the debtor failed to cure the defaults after timely demand was made by the landlord.
The complaint involves a standby letter of credit which is a distinct type of financing document that is more akin to a guarantee than to the usual letter of credit. See Christopher Leon, Letters of Credit: A Primer, 45 MD.L.REV. 432, 442-43 (1986). The letter of credit at issue is a tripartite agreement that gave the landlord upon demand the right to obtain payment from a third party for which the debtor may be ultimately liable, but which the trustee cannot recover. The landlord did not reap a windfall when the letter of credit was paid or when the cure payment was made because the failure to pay rent is not the only event upon which the letter of credit could be drawn down. Whether or not the nonmonetary defaults under the lease were significant events is irrelevant because the lease and the letter of credit permitted the funds to be drawn down in the event of nonmonetary defaults.
The proceeds of the letter of credit were properly drawn down by Arbutus pursuant to the terms of the lease and the letter of credit. This opinion holds that neither the letter of credit nor its proceeds were property of the debtor's estate, and therefore the trustee may not maintain the instant lawsuit to recover them. See Willis v. Celotex Corporation, 978 F.2d 146 (4th Cir.1992) (Automatic stay did not apply to an irrevocable letter of credit issued by bank to debtor's surety, and because the letter of credit was not property of the estate, the surety could draw down on the letter of credit in the event of the debtor's default on a supersedeas bond posted by the surety on the debtor's behalf without violating the automatic stay.).
Were the trustee entitled to recover on this cause of action, he would be able to overturn court-approved sales of estate assets or at least disavow selected provisions of sale agreements that he might, upon further reflection, determine to have been improvident. It is now too late to do so.
The payment under the letter of credit was not a postpetition transfer that required court approval. This is because "property of the estate does not include the proceeds of a letter of credit paid to a creditor of the debtor who is a beneficiary of the letter." 5 Collier on Bankruptcy ¶ 549.04[1] (15th ed. rev.2000), citing In re Page, 18 B.R. 713 (D.D.C.1982); In re Originala Petroleum Corp., 39 B.R. 1003 (Bankr.N.D.Tex.1984). Because the proceeds are not property of the estate, they do not constitute a postpetition transfer avoidable by the trustee pursuant to Section 549 of the Bankruptcy Code.
One of the purposes of this letter of credit and all such letters of credit is to assure prompt payment to the beneficiary, in this case, the landlord, in the event of defaults. It was more of a guarantee than a regular letter of credit which is typically issued in sales of goods. See American National Bank and Trust Company of Chicago v. Hamilton Ind. International, Inc., 583 F. Supp. 164 (N.D.Ill.1984); Consolidated Aluminum Corp. v. Bank of Virginia, 544 F. Supp. 386 (D.Md.1982), aff'd, 704 F.2d 136 (4th Cir.1983).
Likewise, the postpetition cure payment tendered by the trustee was not *773 an unauthorized postpetition transfer because it was authorized by the Court pursuant to 11 U.S.C. § 365.
As counsel to the trustee conceded, the sale of substantially all of the debtor's assets, including the assumption and assignment of this lease, was a major transaction in terms of the bankruptcy estate. The amount of the cure payment and the proceeds from the letter of credit were minuscule compared to the benefit obtained by the estate from the sale. The letter of credit is a side issue in a side agreement and is now being held as a security deposit on behalf of the assignee which is a benefit to the debtor's estate by reason of the fact that it permitted the sale to be approved and consummated in a timely fashion without further costly litigation, including possible appeals. That the landlord withdrew its objection to the sale benefitted the trustee's speedy liquidation of the estate. If this action had been brought before the proceeds of the letter of credit had been drawn down, this Court would not have enjoined it based upon established legal precedent. See Willis, 978 F.2d 146 (4th Cir.1992).
The opinion of the Sixth Circuit in the case of Demczyk v. Mutual Life Insurance Company of New York (In re Graham Square, Inc.), 126 F.3d 823 (6th Cir.1997), cited by the trustee, presents a different issue from the one involved here. In Graham Square, the trustee did not challenge the "draw down" of the standby letter of credit, but rather was suing on the underlying contract between the debtor as buyer and the defendant as seller, in order to recover a loan commitment fee. The court allowed the suit to be maintained, even though the letter of credit had been used to pay the commitment fee to the seller. The court said that while the result might be the same, namely the recovery of the money paid under the letter of credit, the suit was based not on the wrongful "draw down" from the letter of credit, but rather represented the plaintiff's challenge to an unreasonable liquidated damage clause in the underlying contract. The court held that the commitment fee was reasonable as representing liquidated damages. In reversing the district court's holding that proceeds of the letter of credit were not property of the estate, the Sixth Circuit did not hold that the proceeds were property of the estate, but that the estate's interest in the trustee's cause of action brought on the underlying contract was property of the estate under the broad umbrella of 11 U.S.C. § 541(a).
In the instant case, the underlying contract was assumed and assigned and the trustee now cannot go back and claim that he has any further interest in it. The result is the same as if the estate has abandoned the cause of action and the trustee has no further standing to raise the issue.
WHEREFORE the instant complaint will be dismissed.
ORDER ACCORDINGLY. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1966486/ | 8 N.J. 543 (1952)
86 A.2d 192
BELLA TURON, EXECUTRIX OF THE LAST WILL AND TESTAMENT OF HERMAN M. TURON, DECEASED, PLAINTIFF-APPELLANT,
v.
J. & L. CONSTRUCTION CO., A BODY CORPORATE, AND EDWIN SMITH, INC., LIKEWISE A BODY CORPORATE, DEFENDANTS, AND JAMES W. PETERSON, DEFENDANT-RESPONDENT.
The Supreme Court of New Jersey.
Argued November 19, 1951.
Decided January 28, 1952.
*548 Mr. Isaac C. Ginsburg argued the cause for appellant.
Mr. William G. Bischoff argued the cause for respondent (Messrs. Carroll, Taylor & Bischoff, attorneys).
*549 The opinion of the court was delivered by HEHER, J.
Plaintiff's decedent died November 29, 1950, as the result of injuries sustained the prior August 29 through the wrongful acts of defendants, as is said; and the action was brought to recover the pecuniary loss suffered by his widow and next of kin in accordance with R.S. 2:47-1 et seq., as amended (the Death Act, so-called), and as well damages for the consequent pain and suffering endured by the decedent himself.
The fatal injury came from the fall of a portion of a temporary wooden fence surrounding a school construction project then in process at the northwest corner of Maryland and Pacific Avenues in Atlantic City, New Jersey, which had been removed and put to one side by the defendant Peterson's servants, at rest on the sidewalk against the adjoining fence, to afford access to the building site. The fence was erected by defendant J. & L. Construction Co., the general contractor. Peterson was a subcontractor for the brick work and masonry. At the time of the mishap, the defendant Edwin Smith, Inc., was engaged in delivering material by truck through the open gateway, which was approximately eight feet wide.
The gravamina of the complaint are the insecurity of the removed gate section of the fence, laid against both the general contractor and the subcontractor, and careless contact with the fence by Smith's truck as it moved through the passway, whereby the gate fell and struck decedent as he proceeded along the sidewalk. The general contractor and the subcontractor each paid $6,000 to plaintiff in exchange for a covenant not to sue; and the issue was then tried as to Peterson.
The jury were instructed that plaintiff was entitled "to only a single satisfaction" for the losses sustained, if occasioned by negligence, and in case the issue of liability be resolved in favor of plaintiff, the assessment of damages must take into account the payments made by Peterson's co-defendants and cover the difference only if the damages be found to exceed that sum, but if less than the sum so paid, *550 then there should be "a special verdict, stating that the plaintiff is entitled to recover but that she has received full satisfaction"; and if Peterson was not guilty of negligence, the verdict should be "no cause for action." The jury returned a verdict of "no cause for action." In the absence of the trial judge for the performance of judicial duties elsewhere, one of the county judges, by the former's designation with the consent of counsel, received the verdict of the jury. The judge inquired: "You do that, ladies and gentlemen of the jury, because you think the estate has received sufficient moneys by the settlement in the other cases?" The record shows that "The jury" answered: "We do"; and that upon a poll of the jury at the instance of plaintiff's attorney each juror answered that "his or her verdict is `no cause for action.'"
A motion by the plaintiff for a new trial was denied. Her appeal to the Appellate Division of the Superior Court was certified here for decision on this court's own motion.
I.
The first insistence is that the verdict is "inconsistent" and "irreconcilable" and of doubtful meaning, and therefore inadequate to sustain the judgment. The reasoning, in a word, is that there was a "general verdict" in favor of defendant on the issue of liability, but that the jury's response to the inquiry of the judge who received the verdict constitutes a finding of liability which "had been adequately compensated." It is argued contra that the jury returned a general verdict in favor of the defendant Peterson as to liability, and that the answer to the inquiry of the judge who received the verdict suggests that the jury "improperly considered the plaintiff had already been sufficiently compensated by settlements with the other defendants in arriving at the verdict of `no cause for action,'" and "merely reflects improper processes of reasoning or incorrect application of the legal principles stated in the charge of the Court." and *551 cannot be received to impeach what in form and substance and intent constitutes a general verdict. In disposing of the rule to show cause, the trial judge expressed the view that the "leading question" addressed to the jury by the judge who took the verdict was "out of time" and that, at all events, "the court does not analyze the processes by which jurors determine facts, except where it must necessarily conclude that the verdict was reached against the weight of the evidence or the result of mistake, bias and prejudice."
But it is obvious that the jury's response to the judge's interrogation as to the intent and significance of the deliverance cannot be ignored in determining the quality and content of the verdict. It is elementary that a verdict is to be read as a whole, in the light of the pleadings and the pertinent instructions of the judge, and given effect according to its plain intendment. The intent controls, if ascertainable from the jury's return. Malinauskas v. Public Service Interstate Transportation Co., 6 N.J. 269 (1951). And this without regard to whether the action was abortive or had the elements of a special verdict within the submission adequate to sustain a final judgment.
It is a rule of general acceptance that, barring a statute contra, a trial court may in its discretion inquire of a jury, upon the return of a verdict, as to the grounds or principle upon which the verdict is based, and that no exception lies to the exercise of such discretion. The inquiry is to determine the intention of the arbiters of the facts, in aid of a proper judgment. Pierce v. Woodward, 6 Pick. 206 (Sup. Jud. 1828): Dorr v. Fenno, 12 Pick. 520 (Sup. Jud. 1832); Smith v. Putney, 18 Me. 87 (Sup. Jud. 1841); Sporr v. Spooner, 12 Metc. 281 (Sup. Jud. 1847); Lawler v. Earle, 5 Allen 22 (Sup. Jud. 1862); Walker v. Bailey, 65 Me. 354 (Sup. Jud. 1876); Norris v. Haverhill, 65 N.H. 89, 18 A. 85 (Sup. 1889); Germond's Adm'r. v. Central Vermont R. Co., 65 Vt. 126, 26 A. 401 (Sup. 1893); Hart v. Brierley, 189 Mass. 598, 76 N.E. 286 (Sup. Jud. 1905). The practice does not depend upon the consent of the parties. Yet the power *552 is to be exercised sparingly and with great caution. Walker v. Bailey, supra; Dorr v. Fenno, supra. The purpose of the inquiry is to insure the recording of the verdict "intended to be rendered and actually rendered by the jury." Jones v. Pennsylvania R.R. Co., 78 N.J.L. 571 (E. & A. 1910). In that case, the interrogation was made by the clerk of the court in the absence of the trial judge. Where the verdict rendered is general in form, inquiry as to the ground of the verdict is not precluded by the direction of the judge, in the charge, to return a special verdict in the event of particular findings. Compare Mair v. Bassett, 117 Mass. 356 (Sup. Jud. 1875). And, generally, the answer of the foreman of the jury to the inquiry of the court is to be taken as the answer of the jury in the absence of objection by an individual juror. Walker v. Sawyer, 13 N.H. 191 (Super. Ct. of Jud. 1842). The foreman's response, in which his fellow jurors have joined, may be made a part of the record and given the effect of special findings of the facts so stated. Spurr v. Inhabitants of Shelburne, 131 Mass. 429 (Sup. Jud. 1881). Vide Rule 3:49-2 of this court.
Here, the verdict is not vague or indefinite. The special finding thus related to the trial court is not at variance with the general conclusion that plaintiff had no cause of action against the defendant Peterson in respect of the subject matter of the complaint. These findings are entirely consistent and certain in their intendment and meaning, and adequate to support a judgment for this defendant. It seems to have been so regarded by the parties at the time. There was no suggestion of a need for clarification.
A verdict may be molded in consonance with the plainly manifested intention of the jury, and judgment entered accordingly. Rossman v. Newbon, 112 N.J.L. 261 (E. & A. 1934); State v. Jankowski, 82 N.J.L. 229 (Sup. Ct. 1912); Humphreys v. Mayor and Council of Woodstown, 48 N.J.L. 588 (E. & A. 1886); Stewart v. Fitch & Boynton, 31 N.J.L. 17 (Sup. Ct. 1864). And a judgment may be *553 amended in this court to conform to the jury's verdict. While some of the cases deem it an inherent attribute of courts of general appellate jurisdiction proceeding according to the common law, the power of amendment to prevent miscarriages of justice for errors and mistakes in matters of form not constituting an invasion of the province of the jury or the substantial rights of the parties has long had statutory recognition in New Jersey. Within that range, the amendatory power has been liberally exercised. Where the amendment was within the competency of the trial court, the appellate court either allowed the amendment or considered it as made. American Popular Life Insurance Co. v. Day, 39 N.J.L. 89 (E. & A. 1876); Holt v. United Security Life Insurance Co., 76 N.J.L. 585 (E. & A. 1908); Boniewsky v. Polish Home of Lodi, 103 N.J.L. 323, 336 (E. & A. 1927). The amendatory function now has a constitutional basis in the grant to this court by article VI, section V, paragraph 3 of the Constitution of 1947 of original jurisdiction for the complete determination of the cause on review, declared in general terms in the complementary Rule 1:4-10, and specifically applied in Rule 1:2-20(b), providing that on such a review a new trial shall not be granted, inter alia, for errors in procedure, unless it appears, after a view of the whole case, that the error injuriously affected the substantial rights of the party appellant. This provision of the Constitution vests the same authority in the Appellate Division of the Superior Court. Vide Rules 4:2-6 and 4:4-7, making applicable the cited rules governing this court; also Rules 3:60 and 3:61, regulating civil practice in the Superior Court.
It will not be amiss to say, in passing, that what transpired here proves the policy of Rule 3:38-2, directing that every verdict be returned by the jury to the judge in open court. But in the particular circumstances, we find no occasion to invoke the regulation. The parties consented that the verdict be taken by the county judge in the absence of the trial judge, and non-compliance with the rule is not *554 assigned for error. But this does not mean that the rule may be waived by the consent of the parties. It is a regulation designed to avert abortive trials in the interest of administrative economy and efficiency and wholly beyond the control of the parties.
II.
But it is urged that, even so, there was prejudicial error in the overruling of evidence tending to show pecuniary loss suffered by an adult son of the deceased as the result of his death, in that such proof would enhance the damages found by the jury to have been fully compensated by the co-defendants.
The question concerns the meaning of the amendment of section 4 of the Death Act (R.S. 2:47-4) effected by chapter 429 of the Session Laws of 1948 (L. 1948, p. 1670), considered in relation to the preexisting section 5 of the original act. The amendment provides that the recovery under the act shall be for "the exclusive benefit of the widow, surviving husband, dependent children of the decedent, or the descendants of any such children, the dependent natural parents of the decedent, the dependent adopting parents of a legally adopted child and the dependent next of kin of the decedent," excluding "the natural parents of a decedent who was legally adopted." The distribution is thereby directed to be made "in the proportions provided by law for the distribution of personal property of intestates, except that where the decedent leaves a surviving widow or husband, but no dependent children or descendants of such children, the widow or surviving husband shall be entitled to the whole of the amount so recovered." It is said that "there is no relationship between the damage suffered by specific next of kin and the amount actually distributed to them, as under the English Death Act"; and that the rule of damages set down in section 5 is not affected by the amendment of section 4, and so dependency has no place in assessing the damages *555 sustained by "the widow, surviving husband and next of kin of the deceased," even though the right to share in the fund is conditioned on dependency by the amended section 4. The reasoning is that these sections are "entirely independent of each other"; that the design of the statute "is to compel the tort-feasor to pay all the damages that he has caused by his wrongful act," and therefore the damages are measured by the formula contained in the unchanged section 5, but are distributed as provided by the 1948 amendment of section 4. We take a different view of the amendment.
The intent of the original statute was to give a right of action for the present value of the "pecuniary injuries" suffered by the "widow and next of kin" of the deceased. L. 1848, p. 151. In 1913, the act was amended to include the "surviving husband" in the beneficiary class. L. 1913, p. 586. See, also, L. 1917, p. 531. The pertinent provisions of the act were incorporated in the Revision of 1937, in two separate sections. Section 4 defined the beneficiary class; section 5 prescribed the rule of damages. In both sections the references to the beneficiaries are in identical terms. Recovery was to be had for the pecuniary injuries sustained by the "widow, surviving husband and next of kin" of the deceased, and distributed to them according to the statute of distribution. The 1948 amendment of section 4 redefined and qualified the beneficiary category to include only the enumerated dependent next of kin. The right of the widow or surviving husband to partake of the benefits of the statute is not conditioned on dependency. The amendment of section 4 necessarily modified pro tanto the provision of section 5. This rule of interpretation serves the indubitable reason and spirit of the amendment. It is not to be supposed that the Legislature designed to measure the worth of the beneficiaries' expectancies by pecuniary losses sustained by non-beneficiaries. The evident policy of the statute is the recovery of damages for the pecuniary injury sustained by the designated beneficiaries. The act is essentially remedial rather than penal. Damages are assessed to compensate *556 for the injuries sustained by the persons to whom they are payable. Compare Boott Mills Co. v. Boston & M.R., 218 Mass. 582, 106 N.E. 680 (Sup. Jud. 1914); Wilder v. Charleston Transit Co., 120 W. Va. 319, 197 S.E. 814, 117 A.L.R. 948 (Ct. Apps. 1938). The original statute of 1848 made recoverable "the pecuniary injury the designated beneficiaries * * * sustained by reason of the death"; and the "cause of action" thus created enured "to such persons as a vested right," and to them alone. Cooper v. Shore Electric Co., 63 N.J.L. 558 (E. & A. 1899); Myers v. Holborn, 58 N.J.L. 193 (E. & A. 1895); Gottlieb v. North Jersey St. Ry. Co., 72 N.J.L. 480 (E. & A. 1906); Soden v. Trenton and Mercer County Traction Corp., 101 N.J.L. 393 (E. & A. 1925). Chief Justice Beasley said of the first act:
"It also seems to me that the literal language of the statute is to be followed, that is, a right of action exists in all cases in which such right would have existed in the party injured if death had not ensued, and that all the next of kin who would take in case of intestacy belong to the class of persons who, it is competent for a jury, under the given circumstances, to say, have sustained a pecuniary injury resulting from the death of their kinsman." Paulmier, adm'r. of Carhart, v. Erie R. Co., 34 N.J.L. 151 (Sup. Ct. 1870).
This is not a mere survival statute. It does not abolish the rule that a personal action dies with the person injured. The act creates new causes of action for the loss suffered by the designated beneficiaries, measured by the reasonable expectation of pecuniary advantage from the continuance of the life of the deceased. Paulmier, adm'r., v. Erie R.R. Co., cited supra; Carter v. West Jersey & Seashore R. Co., 76 N.J.L. 602 (E. & A. 1908); McStay v. Przychocki, 7 N.J. 456 (1951). It is a corollary of these considerations that if none of the specified class of beneficiaries has sustained a recoverable pecuniary loss, the action will not lie. Compare Wilder v. Charleston Transit Co., cited supra. This is fundamental in the statute. The wrongdoer is not answerable for the injury suffered by the next of kin *557 of the deceased not within the statutory category. Damages are given "for injuries resulting from the severance of a relation of kinship." Demarest v. Little, 47 N.J.L. 28 (Sup. Ct. 1885). The design of section 5, from the very beginning, was the limitation of the measure of damages to the "pecuniary injuries" sustained by the statutory beneficiaries as the result of the death. The statutory policy was remedial and not punitive. The recovery was confined to the pecuniary loss suffered "by the persons for whose benefit the action was brought" which "would have been the proper rule of damages if it had not been prescribed by the act." Telfer v. Northern Railroad Co., 30 N.J.L. 188 (Sup. Ct. 1862); May, adm'r. v. West Jersey and Seashore R.R. Co., 62 N.J.L. 67 (Sup. Ct. 1898). This is the general view of the statutes of this class. Brown v. Chicago & N.W.R. Co., 102 Wis. 137, 77 N.W. 748 (Sup. 1899); Webster v. Norwegian Min. Co., 137 Cal. 399, 70 Pac. 276 (Sup. 1902).
But, in virtue of the specific terms of the amendment of section 4, the recovery is for the "exclusive benefit" of the enumerated beneficiaries; and section 5 is qualified accordingly. For the force of this provision, see Wilder v. Charleston Transit Co., cited supra. Section 5 is applicable only insofar as it is consistent with the later expression of the legislative will embodied in the amendment of section 4. Sutherland's Statutory Construction (3d ed.), section 1935. Consistency is the element which determines the operation of an amendment upon related sections of the same statute and acts in pari materia. Farrell v. State, 54 N.J.L. 416 (Sup. Ct. 1892). The sections are to be read together and reconciled in keeping with the reason and policy of the amendment. In re Huyler, 133 N.J.L. 171 (Sup. Ct. 1945); In re Cole's Estate, 235 N.Y. 48, 138 N.E. 733 (Ct. Apps. 1923). The reconciliation of apparently conflicting statutes, judged by the letter alone, to conform to the spirit of the legislation as a whole is a common exercise of the judicial interpretive function.
*558 It is of the essence of the statutory remedy that the damage shall represent not the value of the life lost, but the sum of the present worth of the pecuniary loss of each of the beneficiaries occasioned by the death. The right of action thus given is not grounded in the injury sustained by the estate, but rather in the loss suffered by the statutory beneficiaries. As said, it is in no sense the enforcement of an action by survival. The damages which the deceased might have had had he lived are not includable in the award; and by the same token the pecuniary loss ensuing from the death to others than the designated beneficiaries is not recoverable. By the amended section 4, the recovery is ex vi termini had for the exclusive benefit of the widow, surviving husband and dependent next of kin as therein declared. A cause of action is created in favor of the persons thus designated, and if there be none such, there can be no recovery. It is their pecuniary injury that is to be recompensed, not the loss suffered by persons outside of the beneficiary class. An intention to deviate from this fundamental principle of the prior law is not indicated. Compare Lewis v. Hunlock Creek & M. Turnpike Co., 203 Pa. 511, 53 A. 349 (Sup. 1902).
Being remedial in nature, the statute is to be liberally construed and applied to effectuate its beneficent object. Haggerty v. Central Railroad Co., 31 N.J.L. 349 (Sup. Ct. 1865); Cooper v. Shore Electric Co., cited supra; Gottlieb v. North Jersey St. Ry. Co., cited supra. But the act is in derogation of the common law; and the terms definitive of the persons or classes of persons for whom the remedy is provided are not to be expanded beyond their fair intendment. Ross v. Miller, 115 N.J.L. 61 (Sup. Ct. 1935). So, also, barring a definite expression contra, the restriction of the class of beneficiaries to certain dependent next of kin constitutes a limitation of damages to the pecuniary loss sustained by such beneficiaries, in keeping with the pre-existing statutory policy. A purpose to enlarge the damages beyond the actual pecuniary loss suffered by the designated beneficiaries cannot be left to inference more or less uncertain. *559 The statutory rule is ordinarily given a strict construction in favor of damages compensatory rather than punitive in character. At common law, no civil action is maintainable for the death of a human being occasioned by the wrongful act or neglect of another, or for any damages suffered by any person in consequence of such death. Grosso v. Delaware, L. & W.R.R. Co., 50 N.J.L. 317 (Sup. Ct. 1888); Soden v. Trenton and Mercer County Traction Corp., cited supra. The amendment is to be construed with reference to this well established principle of the common law and as well the terms of the old statute, and effectuated according to its plain and obvious meaning. The old law, the mischief and the remedy are the guiding considerations in determining the quality and scope and the reason of the legislative expression. Singer Sewing Machine Co. v. New Jersey Unemployment Compensation Commission, 128 N.J.L. 611 (Sup. Ct. 1942), affirmed 130 N.J.L. 173 (E. & A. 1943); City Affairs Committee of Jersey City v. Department of Taxation, 134 N.J.L. 198 (Sup. Ct. 1946).
It follows that the remedy provided by the statute, as thus amended, is not available to an adult child unless he was a dependent of the deceased parent at the time of the parent's death. Damage is not implied from the relationship alone. And pecuniary loss is not in itself enough to bring such a child within the beneficiary category. There cannot be a recovery of the reasonable value of the expectancy unless there be dependency in fact. The dependency of the adult child must be actual, and not legal merely, although partial dependency in substantial degree will meet the statutory criterion. Benefit and dependence are not synonomous terms. Compare Havey v. Erie R.R. Co., 88 N.J.L. 684 (E. & A. 1916). Dependency in the statutory intendment has reference to maintenance. It is requisite that there be some degree of dependency in this sense or the statutory condition is not met. Occasional gifts or contributions made by the parent to the child do not, without more, establish such dependency as will give rise to a pecuniary interest in *560 the life of the parent essential to a right of action under the statute. Compare State, to Use of Elder v. Baltimore & Ohio R. Co., 126 Md. 497, 95 A. 65 (Ct. Apps. 1915); Mulhall v. Fallon, 176 Mass. 266, 57 N.E. 386 (Sup. Jud. 1900); Willis Coal & Mining Co. v. Grizzell, 198 Ill. 313, 65 N.E. 74 (Sup. 1902); Illinois Central R.R. Co. v. Barron, 72 U.S. 90, 18 L.Ed. 591 (1867).
It is conceded that here there was no dependency between the adult child and his deceased parent; and the exception therefore is devoid of substance.
This is the sense of the 1948 amendment of section 4. The statute has lately been revised to provide that the recovery shall be for the exclusive benefit "of the persons entitled to take any intestate personal property of the decedent," measured by their pecuniary injuries as a result of the death, and that if "any of the persons so entitled were not dependent on the decedent at his death, the remainder of the persons so entitled shall take the same as though they were the sole persons so entitled," but that if "all or none of the persons so entitled were then dependent on him, they shall all take as aforesaid." Title 2A:31-4, 2A:31-5. This revision did not become effective until January 1, 1952, and therefore has no application here.
III.
The remaining assignments of error relate to the adequacy of the instructions as to the responsibility of the defendant Peterson under the doctrine of respondeat superior and the sufficiency of the evidence to sustain what is deemed to be a verdict for this defendant on the issue of liability. Since there was a special verdict which resolved that issue in favor of plaintiff, there is no occasion to consider the sufficiency of the charge.
The special verdict returned by the jury subjects the defendant Peterson to a judgment for nominal damages of six cents and costs. Ordinarily, nominal damages are recoverable where the evidence establishes the breach of a *561 legal duty or the invasion of a legal right, although there were no ensuing actual damages or none shown. The rule obtains in some jurisdictions that while nominal damages are allowable in actions in tort for strict trespass in vindication of the right, an action in case merely i.e., for damages actually sustained is not maintainable without proof of actual damage. Butterworth v. Butterworth (1920), Prob. (Eng.) 126, 10 B.R.C. 352; Sullivan v. Old Colony St. Ry. Co., 200 Mass. 303, 86 N.E. 511 (Sup. Jud. 1908). But it is the settled view in New Jersey that nominal damages may be had in an action in tort for personal injuries, even though no actual damages be sustained from the violation of the right or none proved. Klein v. Shryer, 106 N.J.L. 423 (E. & A. 1930). See, also, Weber v. Morris & Essex R.R. Co., 35 N.J.L. 409 (Sup. Ct. 1872); A. & S. Silk Dyeing Co. v. East Jersey Water Co., 88 N.J.L. 273 (E. & A. 1915); Spiegel v. Evergreen Cemetery Co., 117 N.J.L. 90 (Sup. Ct. 1936); Culver v. Dziki, 123 N.J.L. 66 (Sup. Ct. 1939); Moeller v. Weston Trucking & Forwarding Co., Inc., 136 N.J.L. 643 (Sup. Ct. 1948). This is the general rule elsewhere, applicable also to actions for wrongful death. 15 Am. Jur., 393, 395, 396; 25 C.J.S., Damages, § 10, page 468; Id., Death, § 96, page 1238. And nominal damages will be awarded in vindication of the right even where reparation of the loss was subsequently made. Dow v. Humbert, 91 U.S. 294, 23 L.Ed. 368 (1875); Macomber v. Moor, 128 Me. 481, 148 A. 682 (Sup. Jud. 1930).
The judgment is accordingly amended to conform to the special verdict as molded to effectuate the expressed intent of the jury, and, as so amended, affirmed, with costs to plaintiff in the County Court. Neither party shall have costs in this court.
For amendment and affirmance Chief Justice VANDERBILT and Justices CASE, HEHER, OLIPHANT, WACHENFELD, BURLING and ACKERSON 7.
For reversal None. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2024932/ | 793 N.E.2d 1063 (2003)
OLCOTT INTERNATIONAL & CO., INC., Appellant-Cross-Appellee,
v.
MICRO DATA BASE SYSTEMS, INC., Appellee-Cross-Appellant.
No. 79A05-0211-CV-544.
Court of Appeals of Indiana.
August 19, 2003.
*1068 David Feinsilver, The Feinsilver Law Group, P.C., Millburn, NJ, Jacqueline Chosnek, Pearlman Chosnek & Hopson, P.C., Lafayette, IN, Attorney for Appellant.
William P. Kealey, Elizabeth B. Searle, Stuart & Branigin, LLP, Lafayette, IN, Attorney for Appellee. *1064 *1065 *1066
*1067 OPINION
BARNES, Judge.
Case Summary
Olcott International ("Olcott") appeals the trial court's entry of judgment in favor of Micro Data Base Systems ("MDBS") in MDBS' breach of contract action. MDBS raises several cross-appeal issues. We affirm in part, reverse in part, and remand.
Issues
We consolidate and restate the issues before us, including MDBS' cross-appeal issues, as:
I. whether some or all of MDBS' breach of contract claims are barred by the applicable statute of limitations;
II. whether the trial court erred in calculating MDBS' damages;
III. whether the trial court erred in its calculation of pre- and post-judgment interest; and
IV. whether the trial court awarded an unreasonable amount of attorney fees to MDBS.[1]
Facts
MDBS is a software company that develops database management modules, or components, that software application developers, such as Olcott, integrate into their own database programs for distribution to third parties. Olcott created a database management program for its clients for the purpose of tracking patents and trademarks that it called Olcott Intellectual Property Management System II ("OIPMS II"), which utilized MDBS modules. The MDBS modules at issue in this *1069 case are data management system modules ("DMS"), report and transaction logging modules ("RTL"), query and reporting system modules ("QRS"), interactive data manipulation language modules ("IDML"), and database restructuring system modules ("DBRS"). All of these modules were available in either single-user ("SU") or multi-user ("MU") versions, with the latter also referred to as a local area network ("LAN") version.
In 1984, MDBS and Olcott executed a software licensing agreement pursuant to which Olcott was granted permission to utilize MDBS version III software modules in its own software applications. This contract did not specify whether the license was for SU or MU versions of the modules. Olcott agreed to pay royalties to MDBS for each copy of each MDBS module included in an Olcott program distributed to third parties. To track Olcott's distributions and ensure that MDBS received its royalties, the contract required Olcott to pre-purchase "tokens" from MDBS, which were similar to postage stamps; these tokens were to be placed on each copy of Olcott software that it distributed to its customers, corresponding with the number and types of MDBS modules included in the program. For example, an Olcott program that included MDBS' DMS, QRS, RTL, IDML, and DBRS modules was supposed to have five tokens affixed to it, corresponding to each type of module, before it was distributed to Olcott's customer.[2] The 1984 contract provided as a remedy to MDBS in the event of Olcott's breach, "three times the then current license fee for the corresponding components involved, per occurrence of violation...." Appellee's App. p. 5. The contract also granted MDBS the right to inspect Olcott's records to monitor its compliance with the contract and obligated Olcott to maintain records of its software distributions for up to five years after the contract's termination.
In 1988, the parties executed a second contract that specifically referred to the MDBS III LAN system. This contract retained the token system for paying royalties. It was not as detailed as the 1984 contract as to Olcott's record-keeping requirements, but it still required Olcott to maintain and make records available for inspection and "to provide reasonable assistance to mdbs in enforcing mdbs' rights to the System." App. p. 1144. Additionally, the 1988 contract omitted the treble damages provision found in the 1984 contract.
Until 1995, MDBS had an affirmative business policy of not attempting to ascertain whether Olcott or any of its other licensees were in full compliance with their licensing contracts with MDBS, for fear of alienating the licensees. However, MDBS began then attempting to audit and inspect the records of its licensees. On November 11, 1996, MDBS made its first request for information from Olcott regarding its distribution of MDBS modules. For nearly three years, Olcott refused to provide any information to MDBS. Finally, on June 22, 1999, Olcott sent a fifty-pound box to MDBS that purportedly contained all of Olcott's records relating to MDBS.
On August 2, 1999, MDBS sued Olcott for breach of contract and for an accounting. It was eventually ascertained and agreed to by both parties that Olcott distributed at least forty-five copies of its OIPMS II system containing MDBS modules between 1984 and 1995, some as SU versions and others as MU versions; there was a dispute as to whether Olcott distributed *1070 software containing MDBS modules to Westinghouse in 1988, with whom Olcott worked but who also had its own direct licensing agreement with MDBS. MDBS sought to collect damages for breach of contract for every time Olcott distributed a MDBS module without physically affixing a corresponding token to the OIPMS II software product delivered to Olcott's customers. It alleged a total principal damages amount of $438,850, consisting of forty-six tokenless IDML SU and DBRS SU distributions, thirty-five tokenless QRS SU distributions, thirty-six tokenless RTL SU distributions, thirty-seven tokenless DMS SU distributions, ten tokenless DBRS MU distributions, and nine tokenless distributions each of DMS MU, RTL MU, QRS MU, and IDML MU. MDBS applied the module prices in effect for 1995 for all of the distributions, and multiplied the price times three for the SU distributions in accordance with the 1984 contract.
As its first line of defense, Olcott argued that MDBS' breach of contract claims were barred by the statute of limitations or by the doctrine of laches. Olcott's motion for summary judgment on this basis was denied. Alternatively, Olcott calculated MDBS' damages very differently, arriving at a total sum of $14,550. It admitted that it failed to physically affix MDBS tokens to every copy of OIPMS II software it distributed, as required by the parties' contracts. However, it claimed to be entitled to credit for tokens that it had purchased or otherwise received from MDBS, but which were not physically affixed to outgoing software programs. Olcott also claimed that the QRS and IDML modules were not essential to the OIPMS II program and that it therefore owed no royalties for those modules; that the DBRS module was not present in the software at all; that the proper method of calculating the royalties Olcott owed was the module price at the time a particular distribution occurred, not the much-inflated price in 1995;[3] and that the treble damages clause in the 1984 contract was unenforceable.
A bench trial was first held on January 16-18, 2002. Unfortunately, the judge who presided over that trial died shortly thereafter, before entering judgment. Olcott moved for and was granted a mistrial, and a second bench trial was held on June 19-21, 2002. On August 21, 2002, the trial court entered judgment, with accompanying findings and conclusions, in favor of MDBS in the principal amount of $83,295. It again rejected Olcott's statute of limitations defense. It also found that thirty-four SU OIPMS II sales occurred between 1984 and 1992, two SU OIPMS II sales occurred in 1995, and ten MU OIPMS II sales (including the sale to Westinghouse) occurred between 1988 and 1990. It required Olcott to pay royalties for every tokenless distribution of a MDBS module, regardless of whether Olcott had actually paid for or otherwise received a token but merely failed to affix it. It also enforced the treble damages provision with respect to the SU distributions and found that Olcott was required to pay for the QRS and IDML modules. It also found, however, that the OIPMS II program did not contain the DBRS module, and in calculating damages it applied the price for each module in effect on the date each improper distribution occurred, not the 1995 price list for every distribution. The trial court awarded pre-judgment interest to MDBS, but only dating from the filing of the lawsuit in 1999. Finally, it awarded attorney fees and costs to MDBS in the full amount it requested, $159,567.14. The trial court's *1071 award of post-judgment interest only expressly applied to the damages award, not the attorney fees award. Olcott now appeals, and MDBS cross-appeals.
Analysis
The trial court here entered findings of fact and conclusions thereon sua sponte. In such a case, we apply the following two-tier standard of review: whether the evidence supports the findings, and whether the findings support the judgment. Learman v. Auto Owners Ins. Co., 769 N.E.2d 1171, 1174 (Ind.Ct.App. 2002), trans. denied. Findings and conclusions will be set aside only if they are clearly erroneous, that is, when the record contains no facts or inferences supporting them. Id. "A judgment is clearly erroneous when a review of the record leaves us with a firm conviction that a mistake has been made." Id. We consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom, and we will neither reweigh the evidence nor assess witness credibility. Klotz v. Klotz, 747 N.E.2d 1187, 1190 (Ind.Ct.App. 2001). Sua sponte findings control only as to the issues they cover, and a general judgment standard of review controls as to the issues upon which there are no findings. Learman, 769 N.E.2d at 1174. A general judgment will be affirmed if it can be sustained on any legal theory supported by the evidence. Id.
I. Statute of Limitations
We first address Olcott's argument that the statute of limitations barred MDBS from bringing a cause of action for breaches of contract that occurred many years before MDBS filed suit on August 2, 1999. MDBS claimed damages for each purported instance in which Olcott breached the 1984 and/or 1988 contracts by distributing copies of MDBS software modules without physically affixing a pre-paid "token" to the OIPMS II software program distributed to Olcott's customers. Both parties' evidence establishes that the earliest of these distributions occurred on November 12, 1984, and the latest occurred on April 1, 1995.
Neither party devotes any effort arguing as to the appropriate statute of limitations to apply in this case. Olcott asserts in a footnote in its brief that the appropriate statute is Indiana Code Section 26-1-2-725, which establishes a four-year statute of limitations for breaches of contract involving the sale of "goods" under Article 2 of the Uniform Commercial Code ("UCC"). MDBS does not refute this claim, and our review of available Indiana precedent indicates that this is indeed the correct statute of limitations for this case. This court has held that a contract for the development of a software program to meet a customer's specific needs is a contract for services, not goods, and does not fall under Article 2 of the UCC. Data Processing Services, Inc. v. L.H. Smith Oil Corp., 492 N.E.2d 314, 318-19 (Ind.Ct.App.1986). In so holding, however, we also noted that such a contract is unlike a contract for the purchase of "generally-available standardized software," which other jurisdictions have held to constitute a sale of goods. Id. at 319. Here, Olcott contracted to purchase pre-existing, standardized software modules from MDBS, which were not created especially for Olcott. Therefore, consistent with Data Processing Services, the contracts at issue here were ones for the sale of goods, not services, and Article 2 of the UCC applies.[4] Thus, unless the statute of *1072 limitations was tolled at some point, every one of MDBS' breach of contract claims is time-barred because it filed suit more than four years after the last purported breach.
MDBS correctly observes that Section 26-1-2-725(4) specifically provides that it does not alter generally applicable laws governing the tolling of statutes of limitations. In that regard, MDBS directs us to Indiana Code Section 34-11-5-1, which states, "If a person liable to an action conceals the fact from the knowledge of the person entitled to bring the action, the action may be brought at any time within the period of limitation after the discovery of the cause of action." MDBS claims that Olcott's failure to disclose its breaches of contract to MDBS, combined with its failure to maintain adequate records regarding software distributions and its refusal to cooperate with MDBS beginning in 1996, served to toll the four-year statute of limitations for every one of Olcott's alleged breaches of contract dating back to 1984.
The concealment tolling statute was first enacted in 1881 and, therefore, there is a significant amount of case law interpreting it. The law narrowly defines concealment, and generally the concealment must be active and intentional. Ludwig v. Ford Motor Co., 510 N.E.2d 691, 697 (Ind.Ct.App.1987), trans. denied (1988). "The affirmative acts of concealment must be calculated to mislead and hinder a plaintiff from obtaining information by the use of ordinary diligence, or to prevent inquiry or elude investigation." Id. "There must be some trick or contrivance intended by the defrauder to exclude suspicion and prevent inquiry." Id. Mere lack of knowledge of a cause of action is not enough to constitute concealment and toll the running of the statute. Id. A plaintiff bears the burden of proving that a statute of limitations should be tolled, which includes demonstrating the use of reasonable care and diligence to detect the alleged cause of action.[5]See Lambert v. Stark, 484 N.E.2d 630, 632 (Ind.Ct.App. 1985), trans. denied (1986).
MDBS cites cases for the proposition that "concealment" of a cause of action under the tolling statute need not be affirmative and active and may be satisfied by mere silence, "[w]here a defendant has a duty to disclose material information...." Appellee's Br. p. 34. It claims this duty on Olcott's part arose out its contracts with MDBS. MDBS, however, fails to acknowledge language in the cases it cites and numerous other Indiana cases that is fatal to most of its tolling claims: to toll the statute of limitations, a defendant's concealment of a cause of action must be active and intentional unless the parties are in a fiduciary relationship[6] that imposes a duty to disclose, in which case mere silence may be sufficient to toll the limitations period. See Malachowski v. *1073 Bank One, Indianapolis, 590 N.E.2d 559, 563 (Ind.1992) (addressing trustee-beneficiary relationship); see also, e.g., Guy v. Schuldt, 236 Ind. 101, 109, 138 N.E.2d 891, 895 (1956); Ludwig, 510 N.E.2d at 697; Lambert, 484 N.E.2d at 632; Forth v. Forth, 409 N.E.2d 641, 645 (Ind.Ct.App. 1980).
Here, the trial court made no finding that MDBS and Olcott were in a fiduciary relationship, nor is there any evidence in the record that would support such a finding. Specifically, it has been held in the context of constructive fraud that "[c]ontractual agreements do not give rise to a fiduciary relationship creating a duty." Morgan Asset Holding Corp. v. CoBank, ACB, 736 N.E.2d 1268, 1273 (Ind. Ct.App.2000). When two parties are involved in an arm's length, contractual arrangement, a fiduciary relationship may not be predicated on such an arrangement. Comfax Corp. v. North American Van Lines, Inc., 587 N.E.2d 118, 125-26 (Ind. Ct.App.1992); see also French v. Hickman Moving & Storage, 400 N.E.2d 1384, 1389 (Ind.Ct.App.1980) (holding bailor-bailee relationship was not a fiduciary or confidential one that obligated bailees to disclose their conversion of bailor's property for purposes of tolling statute). To the extent Olcott owed contractual obligations to MDBS regarding royalty payments for copies of MDBS software that it distributed to third parties, this was insufficient to give rise to any fiduciary obligations of disclosure. There is no indication of a close-knit, intertwined business relationship between Olcott and MDBS, which may give rise to a fiduciary relationship between two businesses. See Knauf Fiber Glass, GmbH v. Stein, 615 N.E.2d 115, 124 (Ind.Ct.App.1993), summarily aff'd, 622 N.E.2d 163, 166 (Ind.1993). There is no indication of a disparity in power and influence between Olcott and MDBS or that they had anything other than an arm's-length business relationship.
Thus, it is clear that in order to toll the statute of limitations, it was not enough that Olcott failed to disclose its contract breaches; MDBS was required to demonstrate that Olcott actively concealed them. There is no finding by the trial court, nor evidence in the record, to suggest that Olcott did so until November 11, 1996. There are no indications that Olcott affirmatively misrepresented to MDBS its compliance with the contracts by statements, conduct, or otherwise; the most that happened is that Olcott distributed copies of MDBS software without keeping appropriate records, without paying the appropriate royalties, and without informing MDBS of these breaches of contract. Although this breached the Olcott-MDBS contracts and arguably also breached Olcott's obligation of honest dealing, this was not enough to toll the statute of limitations in the absence of any "trick or contrivance" intended to exclude suspicion and prevent inquiry by MDBS. See French, 400 N.E.2d at 1390 (holding bailees' breach of duty of honest dealing did not preclude them from relying on the statute of limitations). In fact, the evidence as to why MDBS delayed investigating compliance with its contracts for so many years was because it made a business decision not to do so, not because it was misled by Olcott's affirmative acts to dissuade it from conducting any investigation.
Similarly, as for "due diligence," the trial court specifically found that "[u]ntil 1995 MDBS had a practice of not exercising its contractual rights to demand the information of its customers in order to determine compliance.... MDBS made its first inquiry as to software distributions in a letter addressed to Olcott's employee, Nick Scarano on November 11, 1996." App. p. 35. Clearly, MDBS exercised no diligence *1074 with respect to assuring that Olcott was complying with the contract until November 11, 1996. The trial court found that "MDBS made a pragmatic business decision not to exercise its auditing rights out of concern of alienating customers...." Id. MDBS must suffer the adverse consequences of that decision. It cannot, years later and after the statute of limitations has passed, alter its course of conduct as to what constituted a "pragmatic business decision" and now decide that it wants to vigorously enforce its contract rights. Otherwise, one of the key purposes behind statutes of limitation, to encourage the prompt presentation of claims, would be defeated. See Havens v. Ritchey, 582 N.E.2d 792, 794 (Ind.1991). MDBS failed to prove that it used due diligence and reasonable care to monitor its contracts with Olcott.
MDBS also argues that the 1984 contract essentially extended the statute of limitations for bringing an action for its breach to anytime within five years after the contract's termination, because Olcott was contractually obligated to maintain records regarding the distribution of MDBS software for five years after the contract's termination. To the extent the 1984 contract, prepared by MDBS, can be read as extending the statute of limitations in such a way, however, it would run directly afoul of the UCC. Indiana Code Section 26-1-2-725(1) provides that "[b]y the original agreement the parties may reduce the period of limitation to not less than one (1) year, but may not extend it." (Emphasis added). The official comment to this section also clearly states, "The parties may not ... extend the statutory period." "It is a well settled rule of contract law that the parties to an agreement cannot enforce terms which contravene statutory law." Meehan v. Meehan, 425 N.E.2d 157, 160 (Ind.1981). Although the UCC generally allows freedom by the parties to a contract to vary the "effect" of the UCC's provisions, see I.C. XX-X-X-XXX(3), it contains no provision allowing parties to directly contradict a clear and unequivocal code section. Even if we were to conclude that the 1984 contract purported to extend the statute of limitations, we could not uphold the enforcement of such a term contravening a black-letter provision of the UCC.
We do agree that Olcott's failure to comply with MDBS' information requests after November 11, 1996, may fairly be characterized as "stonewalling" or active and intentional concealment of its breaches of contract that would toll the statute of limitations.[7] However, MDBS *1075 cites no authority supporting its implied proposition that "active concealment" of a cause of action that only occurs after the statute of limitations has already run can resuscitate that cause of action. We are only aware of authority stating the opposite: "Acts of concealment coming after the statute has run do not remove the bar." 54 C.J.S. Limitations of Actions § 90 (1987). "The conduct or misrepresentation upon which a plaintiff's claim of estoppel to assert the statute of limitations is based must occur prior to the expiration of the limitation period, not after the right of action has been barred by the running of the statute." 51 Am.Jur.2d Limitation of Actions § 382 (2000).
As of November 11, 1996, the four-year statute of limitations had run on all but two of the improper Olcott software distributions that the trial court found to have occurred. These two distributions occurred in 1995 and involved MDBS SU modules, and are the only breaches of contract for which Olcott may be held liable. The trial court found the existence of forty-four other distributions, but the latest of these forty-four occurred on August 11, 1992, more than four years before November 11, 1996, and the earliest point at which Olcott can be said to have actively concealed its breaches of contract. MDBS' claims as to breaches of contract arising out of any of these forty-four distributions were time barred before Olcott engaged in any active concealment, and they remain time barred despite Olcott's later conduct. Except with respect to the 1995 distributions, the trial court's findings do not support its judgment that MDBS' causes of action for breach of contract were not barred by the statute of limitations.
Our resolution of this issue renders several of the parties' claims moot. We need not address Olcott's argument that the trial court should have deducted from the damages awarded to MDBS the value of tokens that Olcott had in inventory but had not actually affixed in some way to software distributed to Olcott's customers. Assuming this argument has merit, it would not apply to the 1995 software distributions. To the extent Olcott could have received a "credit" for tokens purchased but not affixed, it would have applied to the distributions that occurred earlier in time. By the time of the 1995 distributions, any "credit" would have been used; the damages calculation of Olcott's own employee did not allow any offsetting token "credit" for the 1995 distributions. See Defendant's Ex. H. As for MDBS' cross-appeal, we need not address its claim that with respect to Olcott's distribution of MU software products, the trial court erroneously failed to find that such distributions necessarily included MDBS SU modules for which Olcott was required to pay royalties as well as MDBS MU modules; the 1995 distributions were of SU products. We also need not address whether the trial court was required to assess damages for pre-1995 unauthorized module distributions based on MDBS' 1995 list prices, obviously because the only non-time-barred distributions occurred in 1995. With this in mind, we now turn to the remaining issues related solely to the 1995 distributions.
II. Calculation of Damages
Each party cites reasons why it believes the trial court's assessment of damages stemming from Olcott's 1995 breaches of contract is clearly erroneous. Olcott contends the trial court should not have concluded that it was required to pay royalties for QRS and IDML modules. MDBS disagrees and additionally contends the trial *1076 court should have required Olcott to pay royalties for the DBRS module. On these points, we conclude both parties are asking this court to reweigh the evidence.
There was no direct evidence of precisely which MDBS modules were included within the two OIPMS II software programs Olcott distributed in 1995, or within almost all of the programs Olcott distributed since 1984. The trial court, however, found that a copy of OIPMS II SU software shipped to Pitney Bowes in 1985 was "a fair representation" of the SU software Olcott shipped to all of its customers. App. p. 37. This program contained MDBS' DMS, RTL, QRS, and IDML modules. Supporting the trial court's finding that the Pitney Bowes' software was a "fair representation" of all of Olcott's SU OIPMS II distribution is the testimony of Olcott employee Thomas Bado, who testified that he found a copy of OIPMS II on an old computer and indicated that it contained the DMS, RTL, QRS, and IDML modules. Additionally, an internal Olcott document with a copyright date of 1991 lists DMS, RTL, QRS, and IDML as known components of OIPMS II. Although Bado testified that OIPMS II could function without the QRS and IDML modules, the parties' contract required Olcott to pay royalties for all module distributions, not just for module distributions that were necessary for a software program's functioning. Thus, the trial court's finding that the two 1995 distributions of OIPMS II contained QRS and IDML modules, and that Olcott was required to pay for those distributions, is not clearly erroneous.
As for the DBRS module, MDBS essentially contends that the 1985 Pitney Bowes distribution was not a "fair representation" of OIPMS II SU because it failed to include the DBRS module. This module was present in a copy of Westinghouse's own intellectual property management system, which was a MU program; it was not found in the Pitney Bowes SU program, nor on the program found at Olcott's offices according to Bado's testimony, nor on the OIPMS II internal document file listing with the 1991 copyright date, which document MDBS relies upon as being accurate with respect to the QRS and IDML modules. Additionally, Westinghouse had its own direct licensing agreement with MDBS. Although it also worked in conjunction with Olcott in developing an intellectual property management system, there was some confusion at trial as to the source of each of the MDBS modules found in the Westinghouse program. The evidence most favorable to the judgment clearly supports the finding that the typical OIPMS II SU program, including those distributed in 1995, did not include the DBRS module, and that Olcott accordingly was not required to pay any royalties for that module.
Olcott also argues that the trial court erred in applying MDBS' 1995 price list, purportedly only for MDBS version IV modules, to Olcott's 1995 software distributions, which contained MDBS version III modules that Olcott claims were not covered by the 1995 version IV price list. We conclude Olcott invited any error on this point, if there was error. Specifically, the trial court utilized the same pricing for the 1995 distribution of DMS and RTL modules that Olcott itself used in its Exhibit H, which was its proposed damages calculation. These prices, $1000 for each DMS module and $725 for each RTL module, reflected the 1995 MDBS IV price list. The trial court also included QRS and IDML modules in its damages calculation and also used the 1995 MDBS IV price list for those modules, consistent with the DMS and RTL modules. By proposing to utilize the 1995 MDBS IV *1077 price list with respect to the 1995 distributions, Olcott invited any error on this point. A party cannot invite error and then request relief on appeal based upon that ground; such an error cannot be reviewed by this court. Beeching v. Levee, 764 N.E.2d 669, 674 (Ind.Ct.App.2002).
We now address whether the treble damages provision of the 1984 contract is enforceable. Initially, we observe that although the 1988 contract does not contain a parallel treble damages provision, the 1984 contract controls the 1995 SU module distributions. The 1988 contract specifically references MDBS LAN, or MU, modules, and on its face does not appear to apply to SU modules. Consequently, any distributions of SU modules were still controlled by the 1984 contract. To the extent Olcott argues on appeal that the 1988 contract entirely superseded the 1984 contract, it never raised such an argument at trial, meaning the argument is now waived. Troxel v. Troxel, 737 N.E.2d 745, 752 (Ind.2000).
Contrary to Olcott's characterization, MDBS claims the 1984 contract's treble damages provision is not one for liquidated damages because it is based on a proportion of actual damages, i.e. three times the royalties due for each particular module that Olcott improperly distributed. We observe that "[a] typical liquidated damages provision provides for the forfeiture of a stated sum of money upon breach without proof of damages." Gershin v. Demming, 685 N.E.2d 1125, 1127 (Ind.Ct. App.1997). Under this definition, the treble damages provision is clearly a liquidated damages provision, because it allows MDBS to collect not only unpaid royalties, but also three times that amount without having to prove actual damages in that amount. Properly labeling the provision as a liquidated damages clause also resolves the dispute between Olcott and MDBS as to the appropriate standard of review: the question whether a liquidated damages clause is valid, or whether it constitutes an unenforceable penalty, is a pure question of law for the court. Id. at 1128.
"In determining whether a stipulated sum payable on a breach of contract constitutes liquidated damages or a penalty, the facts, the intention of the parties and the reasonableness of the stipulation under the circumstances of the case are all to be considered." Id. If the sum sought by a liquidated damages clause is grossly disproportionate to the loss that may result from a breach of contract, we should treat the sum as a penalty rather than liquidated damages. Rogers v. Lockard, 767 N.E.2d 982, 991 (Ind.Ct.App. 2002). "Liquidated damages provisions are generally enforceable where the nature of the agreement is such that when a breach occurs the resulting damages would be uncertain and difficult to ascertain." Gershin, 685 N.E.2d at 1127. However, to be enforceable the stipulated sum must fairly be allowed as compensation for the breach. Id. at 1127-28. Additionally, we construe any contract ambiguity against the party who drafted it. Rogers, 767 N.E.2d at 990. If there is uncertainty as to the meaning of a liquidated damages clause, classification as a penalty is favored. Id. at 992.
We hold that the treble damages provision in the 1984 contract is an unenforceable penalty. The primary damages MDBS suffered by Olcott's failure to pay royalties for its distribution of MDBS' software, or to keep proper records of the distributions, were the royalties themselves, or MDBS' lost profits, which is a relatively easily ascertainable amount. We have previously held that a damages provision for the breach of a covenant not to compete, which purported to triple the amount of any client fees earned by the breaching party stemming from a breach, was an unenforceable *1078 penalty. Hahn v. Drees, Perugini & Co., 581 N.E.2d 457, 463 (Ind.Ct.App. 1991). MDBS attempts to minimize the precedential value of Hahn by noting that our decision was based in part on the fact that the damages provision applied regardless of whether the ex-employer suffered any harm from an ex-employee's breach of the covenant not to compete, a situation it claims is not present here. Even if we were to accept that argument,[8] that was not the only basis for our decision. We also unequivocally stated, "our decision in this respect is fully supportable upon the ground that the treble damages exacted by the covenants bear no reasonable relationship to the amount of damages incurred" in the event of a breach. Id. (emphasis added). Instead, the ex-employer was limited to recovering lost profits. Id.
MDBS should be similarly limited. To the extent MDBS claims, as a justification for the treble damages provision, that it suffered incidental damages caused by Olcott's "stonewalling" and failure to readily provide information to MDBS when it was requested, we observe that the 1984 contract also allows MDBS to recover attorney fees and collection costs associated with enforcing the agreement, and also allows the imposition of "exemplary" damages. Where a contract allows a party to pursue liquidated damages and other legal and equitable remedies, the purported liquidated damages clause serves as a penalty and not an estimation of actual damages. See Rogers, 767 N.E.2d at 992. MDBS may be made whole for Olcott's breach by recovering the royalties due, attorney fees and collection costs associated with the breach, and an appropriate amount of pre-and post-judgment interest. Any sum above this amount is a penalty that goes beyond compensating MDBS for Olcott's breach and, as such, is unenforceable. See id. Additionally, any doubt as to whether the provision serves as a penalty must be resolved against MDBS as the drafter of the contract. See id. We therefore reverse the trial court's damages calculation to the extent it tripled the amount of royalties due for Olcott's 1995 distributions.
III. Pre- and Post-Judgment Interest
MDBS claims on cross-appeal that the trial court erred in its calculation of pre-and post-judgment interest. As for pre-judgment interest, the trial court only awarded it from the date MDBS filed its lawsuit, or August 2, 1999, "because for many years MDBS did not pursue collection." App. p. 38. Although we understand the trial court's sentiment, the proper remedy for MDBS' failure to pursue collection for many years was to conclude that most of its claims were time-barred, not to adjust the amount of pre-judgment interest awarded.
An award of pre-judgment interest in a breach of contract action is warranted if the amount of the claim rests upon a simple calculation and the terms of the contract make such a claim ascertainable. Noble Roman's, Inc. v. Ward, 760 N.E.2d 1132, 1140 (Ind.Ct.App.2002). "The test for determining whether an award of prejudgment interest is appropriate is whether the damages are complete and may be ascertained as of a particular time." Id. Importantly for purposes of our review, "an award of prejudgment interest is generally not considered a matter of discretion." Id.
Here, MDBS' damages for Olcott's 1995 distributions are easily calculated and *1079 clearly arose at a particular time. They arose on the date of the improper distributions, January 19 and April 1, 1995, and are calculated simply by determining the number of modules Olcott distributed without paying royalties and multiplying that number by the applicable module prices in effect at the time of the distributions. The trial court lacked discretion to deprive MDBS of a significant amount of pre-judgment interest. We reverse the trial court's decision to do so and remand for a recalculation of pre-judgment interest, beginning at the appropriate times.
MDBS also contends that the trial court erred in not expressly including its award of attorney fees and costs in the accrual of post-judgment interest. However, the language of the post-judgment interest statute, Indiana Code Section 24-4.6-1-101, "does not require a specific award of post-judgment interest." Grubnich v. Renner, 746 N.E.2d 111, 115 (Ind. Ct.App.2001), trans. denied. Rather, a successful litigant is automatically entitled to such interest, with or without a specific court order to that effect. See id. at 114-15. Although MDBS is entitled to post-judgment interest on any attorney fees and costs it may be awarded, the trial court was not required to specifically state as much in its judgment.[9]
IV. Attorney Fees and Costs
This brings us to the final issue: whether the attorney fees and costs award of $159,567.14 to MDBS is excessive. The 1984 contract between the parties allows MDBS to recover attorney fees incurred in enforcing the contract and there is no claim that MDBS could not recover any attorney fees; Olcott only argues as to the amount. What constitutes a reasonable attorney fee is a matter largely within the trial court's discretion. Dougherty v. Leavell, 582 N.E.2d 442, 443 (Ind.Ct.App. 1991). In determining what is "reasonable," the court may consider such factors as the hourly rate, the result achieved, and the difficulty of the issues. Id.
In the present case, we have made conclusions that will result in a significant reduction in the damages awarded to MDBS. MDBS originally sought damages, not including interest, in the amount of $438,850, based upon forty-six occasions on which Olcott allegedly distributed copies of MDBS software without attaching the appropriate tokens to the OIPMS II software. We estimate that the modified damages, without interest, will be in the neighborhood of $5450.[10] Additionally, we have concluded that because of the statute of limitations, Olcott can be liable for improper distributions occurring on only two of the forty-six occasions claimed by MDBS.
Because of our holding, we direct the trial court on remand to reconsider the question of what would constitute a reasonable attorney fees award in this case. "An excessive attorney fee award can be avoided when fees are apportioned according to the significance of the issues upon which a party prevails, balanced against those on which the party does not prevail." Stepp v. Duffy, 686 N.E.2d 148, 153 (Ind. Ct.App.1997), trans. denied (1998); cf. also Gershin v. Demming, 685 N.E.2d 1125, *1080 1131 (Ind.Ct.App.1997) (holding party was "only entitled to recover the amount of appellate attorney fees that can be attributed to that portion of the appeal upon which she has prevailed" pursuant to contract provision allowing attorney fees).
This is not to say there must be a strict proportion between the total amount of fees MDBS incurred and the amount it eventually recovered. "The United States Supreme Court has held that where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorneys' fees reduced merely because the court did not adopt every contention raised." Citizens Action Coalition of Indiana, Inc. v. PSI Energy, Inc., 664 N.E.2d 401, 409 (Ind.Ct.App.1996) (citing Hensley v. Eckerhart, 461 U.S. 424, 440, 103 S.Ct. 1933, 1943, 76 L.Ed.2d 40 (1983)). Here, each of MDBS' claims were related. "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, 461 U.S. at 440, 103 S.Ct. at 1943. In light of the fact that MDBS ultimately will recover little more than one percent of the damages it sought, on only two of the forty-six breaches of contract it claimed occurred, MDBS' success may accurately be described as limited. Hence, MDBS' attorney fees award must be reconsidered.
Conclusion
We hold that the statute of limitations bars MDBS from recovering damages for any purported breaches of contract occurring more than four years before November 11, 1996. This leaves only two 1995 distributions of OIPMS II software containing MDBS modules for which Olcott may be liable. The trial court did not err in assessing damages for those distributions, except for enforcing the treble damages clause of the 1984 contract between the parties. The trial court erred in not assessing pre-judgment interest from the dates of Olcott's 1995 breaches of contract, but was not required to specifically provide for post-judgment interest in its order. Finally, we direct the trial court, after it has recalculated the damages and pre-judgment interest Olcott properly owes to MDBS, to reassess the amount of attorney fees to which MDBS is entitled. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
RILEY, J., and SHARPNACK, J., concur.
NOTES
[1] We will not address Olcott's argument that the trial court made erroneous evidentiary rulings. It fails to present any cogent analysis on this issue and fails to cite any pertinent authority, most notably the Indiana Rules of Evidence and how the trial court's rulings ran afoul of them. Likewise, Olcott fails to provide any cogent analysis with respect to its claim that the trial court "should have fashioned a remedy" on its counterclaim alleging fraud by MDBS. Appellant's Br. p. 40. Olcott fails to specify what such a remedy would be, nor does it list the elements of fraud and explain how MDBS' alleged bad faith conduct satisfied them. Olcott's failure to make cogent arguments and cite relevant authority waives these issues for our review. See Ind. Appellate Rule 46(A)(8)(a); Loomis v. Ameritech Corp., 764 N.E.2d 658, 668 (Ind.Ct.App. 2002), trans. denied.
[2] Olcott claims that it was impossible to physically affix tokens in many cases because it often electronically transmitted programs to its customers.
[3] The 1995 price list increased the cost of MDBS modules 350 to 400 percent, after the ten previous years had seen a total price increase of ten percent.
[4] We observe that Data Processing Services has been overruled to the extent it advocated a "bifurcated" approach to whether a contract is for the sale of goods or services, instead of a "predominant thrust" approach. Insul-Mark Midwest v. Modern Materials, 612 N.E.2d 550 (Ind.1993). This does not lower Data Processing Services' precedential value for this case, however, because we held the contract was one for services, not goods, under either approach.
[5] Additionally, Indiana Code Section 26-1-2-725(2) expressly provides, "A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach." Clearly, the UCC places a burden on parties to monitor the performance of contracts or risk losing the right to sue for their breach.
[6] The term "confidential relationship" is also used, although this term appears to be interchangeable with "fiduciary relationship." See Epperly v. Johnson, 734 N.E.2d 1066, 1074 (Ind.Ct.App.2000); see also Black's Law Dictionary 294 (7th ed.1999) (for definition of "confidential relationship," "See FIDUCIARY RELATIONSHIP").
[7] Even this conduct by Olcott is not a perfectly clear-cut example of active or fraudulent concealment, however. An older case decided by our supreme court addressed a factual scenario very similar in some respects to the facts in this case. Fidelity & Casualty Co. of New York v. Jasper Furniture Co., 186 Ind. 566, 117 N.E. 258 (1917). In Fidelity, the defendant allegedly breached a contract with the plaintiff by failing to pay an additional insurance premium when due. The plaintiff sued for breach of contract after the applicable statute of limitations had run, but claimed the statute had been tolled because the defendant had repeatedly refused to allow the plaintiff to inspect its books and records in relation to the alleged breach, which refusal was also a breach of the parties' contract. Our supreme court rejected the plaintiff's tolling argument. It held, "Appellee's refusal to permit an examination of its books may have constituted a breach of contract, but it was not a fraudulent concealment within the meaning of the law, and could not affect the running of the statute of limitations." Id. at 569, 117 N.E. at 259. This language would suggest that Olcott's "stonewalling" was insufficient to toll the statute of limitations. The Fidelity court, however, also stated, "The present action does not appear to be based on any facts which have not long been in possession of appellant...." Id. MDBS, however, did not know of Olcott's breaches of contract because of Olcott's refusal to cooperate, and we do not believe Fidelity is controlling here.
[8] Although we need not resolve the issue, as noted, there is some merit to Olcott's argument that MDBS suffered no measurable harm from any failure to physically affix "tokens" to a software program so long as Olcott had actually paid for or properly received the tokens, thus ensuring that MDBS received the royalties to which it was due.
[9] Because we are ordering the judgment amount to be modified but are not entirely reversing judgment in MDBS' favor, on remand post-judgment interest will accrue from the date of the trial court's original judgment but on the modified amount only. See Beam v. Wausau Ins. Co., 765 N.E.2d 524, 534 (Ind. 2002).
[10] This is based upon Olcott distributing two copies each of the DMS, QRS, RTL, and IDML modules in 1995, with module prices of $1000, $500, $725, and $500 respectively, and without trebling the damages. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1444596/ | 46 Cal.2d 891 (1956)
THE PEOPLE, Respondent,
v.
LAWRENCE GENE DOTSON, Appellant.
Crim. No. 5925.
Supreme Court of California. In Bank.
Aug. 10, 1956.
Lawrence Gene Dotson, in pro. per., Donald D. Connors, Jr., under appointment by the Supreme Court, and J. Stewart Harrison, for Appellant.
Edmund G. Brown, Attorney General, Clarence A. Linn, Assistant Attorney General, and Arlo E. Smith, Deputy Attorney General, for Respondent.
SHENK, J.
The defendant Lawrence Gene Dotson appeals from a judgment of conviction in violations of sections 187 (murder), 459 (burglary) and 211 (robbery) of the Penal Code, and from an order denying his motion for a new trial. He was sentenced to life imprisonment.
The defendant and an accomplice were interrupted by Francisco Herrera while in the act of ransacking his home. At gunpoint, Herrera and his party of two other men and women were herded into a bedroom, where the women were barricaded in a closet and the men were bound and gagged. The men were forced to empty their pockets and all members of the party were required to give up the valuables on their persons, after which the defendant and his companion left. Herrera, who had been bound and gagged with strips of bedding and further secured with a blanket tied over his head and the upper part of his body, strangled to death before the other members of the party could extricate themselves and summon aid.
On the first day of November, 1954, the defendant and his companion appeared for arraignment upon an indictment in the Superior Court in and for the City and County of San Francisco. It appears in the record of that proceeding that the defendant and his companion were represented by counsel from the public defender's office and that they were "duly arraigned." They did not enter a plea. When it was learned that they were minors proceedings were suspended and they were taken before the juvenile court for possible proceedings therein pursuant to section 833.5 of the Welfare and Institutions Code. Following a hearing in the juvenile court for which no transcript of the proceedings was made, the following order was entered on the 5th day of November: "It appearing to the satisfaction of the Court that the above-named Gene Lawrence Dotson, a minor of the age of eighteen *894 years, was on the 25th day of October, 1954, certified to the Juvenile Court by Department No. 12 of the Municipal Court of this City and County, and that criminal proceedings pending in said Municipal Court have been suspended against said minor by reason of his age;"
"And it further appearing to the Court that the Grand Jury of this City and County has presented and filed in the Superior Court of this City and County on October 29, 1954, an indictment charging said Gene Lawrence Dotson with the same offense upon which he has been certified herein;"
"And it further appearing to the Court, after consideration of the report of the Probation Officer, the prior record of the minor, the minor's character, the type of his offense, his actual age, and other relevant factors, that the said minor is not a fit subject for consideration under the Juvenile Court Law;"
"It Is Hereby Ordered that the said minor Gene Lawrence Dotson be remanded to the Superior Court in order that criminal proceedings be instituted against him under the General Law and the aforesaid Indictment."
As indicated by the order it must be assumed that the juvenile court, in disposing of the matter, considered that the defendant although a minor in years had been conducting himself as an adult. It appears in the record that he was married, had been moving about the country from job to job, had enlisted and been discharged from the Marine Corps, had a prior record of criminal conviction and had served at least one jail sentence.
On the 10th day of November the interrupted proceedings in the superior court were resumed and the defendant, represented again by counsel, pleaded not guilty to the offenses charged in the indictment and the case was set for trial. Continuances were granted on the 16th of November and on the 13th of December. Counsel for the defendant consented to the continuance in each instance. Trial was commenced on the 10th of January, 1955. At all stages of the trial the defendant was represented by counsel. On February 2 the defendant was found guilty in the first degree of each of the three counts. On appeal he assigns as error a claimed lack of representation by counsel in the juvenile court; that counsel was not provided until shortly before trial in the superior court, and that certain conduct on the part of the district attorney resulted in an unfair trial. *895
In an affidavit submitted by the defendant and referred to in his briefs the defendant states that he was without counsel in the juvenile court; that at that time he had no knowledge of the so-called felony murder doctrine; that he did not intend to harm the deceased; that he thought that he had as good an opportunity to defend in the superior court as in the juvenile court; that he therefore made no effort to have the matter retained in the juvenile court, and that he was thereby prejudiced by being subjected to the felony murder doctrine and the possibility of sentences of death or life imprisonment which would not be imposed in the juvenile court.
[1] There can be no question but that a defendant is entitled to be represented by counsel at all stages of a criminal proceeding. (Pen. Code, 858.) [2] But proceedings before the juvenile court, even in cases where a criminal charge is pending in the superior court, are not criminal in nature. They are in the nature of guardianship proceedings in which the state as parens patriae seeks to relieve the minor of the stigma of a criminal conviction and to give him corrective care, supervision and training. (In re Daedler, 194 Cal. 320 [228 P. 467]; In re Dargo, 81 Cal.App.2d 205 [183 P.2d 282].) [3] While such minors are as much entitled to constitutional guarantees as when subjected to criminal proceedings (In re Poff, 135 F.Supp. 224; In re Contreras, 109 Cal.App.2d 787 [241 P.2d 631]) nevertheless, because of the nature of the proceedings, the denial of those requirements which have been recognized as elements of a fair trial does not necessarily deprive one of due process of law in juvenile court proceedings. [4] The fact that a minor is not represented by counsel need not be a denial of due process in the juvenile court. (People ex rel. Weber v. Fifield, 136 Cal.App.2d 741 [289 P.2d 303]; In re O'Day, 73 Cal.App.2d 339 [189 P.2d 525].) It is only when by such lack of representation of the minor undue advantage is taken of him or he is otherwise accorded unfair treatment resulting in a deprivation of his rights that it can be said he has been denied due process of law. There is nothing in the present case to suggest such deprivation or unfair treatment.
In re Contreras, supra, 109 Cal.App.2d 787, is relied on by the defendant as holding that the absence of counsel in juvenile court proceedings is so grave an error as to justify release of the accused. The case does not stand for that broad proposition. It appeared in that case that the juvenile court considered improper and questionable evidence on which *896 it declared the minor a ward of the court and committed him to the Youth Authority. It was pointed out by the court that the adjudication in that case thus deprived the minor of his liberty, confined him in a state institution and in the eyes of society was tantamount to a criminal conviction of acts which would have amounted to a felony in a proceeding under the general law. The court concluded that under the guise of acting to protect the minor the juvenile court had deprived him of constitutional guarantees which might have been preserved had he been represented by counsel. It ordered his release and quoting from In re Hill, 78 Cal.App. 23 [247 P. 591], held that the "regular processes of the law provided to produce evidence, and the ordinary rules established to aid courts in testing and weighing it, are not scrapped because the proceeding" is one in the juvenile court. (In re Contreras, supra, 109 Cal.App.2d at p. 790; see also In re Poff, supra, 135 F.Supp. 224; In re Tahbel, 46 Cal.App. 755 [189 P. 804].)
[5] In the present case the juvenile court made no attempt to determine the defendant's complicity in any wrongdoing or to punish him within the scope of its statutory power. It merely ascertained that the defendant was not a "fit subject" for consideration in that court, and declined to exercise further jurisdiction over him. The determination of that question rested within the sound discretion of the juvenile judge. [6] The law recognizes that a minor may have such a record of delinquency or his derelictions may be of such a character that to make him a ward of the juvenile court would not aid him or serve the purposes of the court. (People v. Renteria, 60 Cal.App.2d 463 [141 P.2d 37]; 15 Cal.Jur.2d 631.) It appears from the order of the juvenile court that the judge exercised his discretion with such considerations in mind, and in doing so under the circumstances here shown the defendant was not deprived of any constitutional right. We are aware of no authority which would deem the proceedings in the juvenile court in this particular instance to have been a stage in the criminal proceedings or to have resulted in a denial of due process of law.
[7] As to the claimed lack of adequate representation by counsel in the superior court the defendant states that about 4:30 p. m. on January 9, 1955, an attorney from the public defender's office advised him that he would represent him; that he talked with the attorney for approximately 15 minutes at that time; that the felony murder doctrine was not mentioned, *897 and that he did not talk with counsel again until the trial commenced on the following morning. As previously stated, the record shows that the defendant was represented by counsel from the public defender's office at the arraignment on November 1, 1954, at the second arraignment on November 10, at the continuance on the 16th of November, at the continuance on the 13th of December, and at all other stages of the criminal proceedings. While the trial commenced on January 10, one day after the claimed initial consultation, the opening statements of counsel and the questioning of witnesses did not begin until January 13.
The defendant does not contend, and the record does not show in any respect, that there was a need for a conference longer than that which is claimed to have taken place; that a request was made for a longer or additional conference by either the defendant or his counsel; that consultation was in any way limited by the court or by the defendant's counsel; that counsel was not adequately prepared for trial, or that the defendant was in any way prejudiced by not having consulted counsel for a longer period. On the other hand, a review of the record affirmatively shows that the evidence of the defendant's guilt was so overwhelming that no adequate defense could have been interposed; that his attorney conducted the defense against the charges as well as could reasonably have been expected, and that there is no evidence of a lack of preparation or of insufficient time in which to prepare. In this latter regard it appears that more than two months elapsed between arraignment and trial during which time the public defender was active in the case and had available to him the record of the proceedings before the grand jury. What further benefit may have accrued to the defendant by continued consultations with his attorney does not appear.
The cases relied on by the defendant are all cases in which a defendant was shown to have been prejudiced by an appointment of counsel in a manner or at a time which made adequate representation impossible (Powell v. Alabama, 287 U.S. 45 [53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527]; People v. Chesser, 28 Cal.2d 815 [178 P.2d 761, 170 A.L.R. 246]), or by the appointment of counsel who failed to conduct himself in the best interests of the defendant (People v. Avilez, 86 Cal.App.2d 289 [194 P.2d 829]), or by the affirmative denial of the right to consult with or be represented by counsel of the defendant's own choice at all stages of a criminal proceeding *898 (In re Ochse, 38 Cal.2d 230 [238 P.2d 561]; People v. Havel, 134 Cal.App.2d 213 [285 P.2d 317]; People v. McGarvy, 61 Cal.App.2d 557 [142 P.2d 92]; People v. Simpson, 31 Cal.App.2d 267 [88 P.2d 175]; In re Snyder, 62 Cal.App. 697 [217 P. 777]; In re Rider, 50 Cal.App. 797 [195 P. 965].) In the present case a fair trial was not denied the defendant for any of the foregoing reasons.
The defendant's contention that the district attorney was guilty of prejudicial misconduct is based upon three instances complained of. [8] It is contended first that it was misconduct to question the defendant on cross-examination concerning bad check passing in the State of Oregon. The defendant first raised this question when he testified on direct examination that he had passed a check in Oregon, and on cross-examination the district attorney further pursued the subject. Two of the questions asked concerning the number of checks passed were not answered on the advice of the court, and the district attorney succeeded in bringing out no information not testified to on direct examination.
[9] It is next contended that the district attorney improperly asked whether the defendant had received an undesirable discharge from the Marine Corps. On direct examination the defendant had testified that he had been a member of the Marine Corps and had been discharged at the age of 17, and on cross-examination the district attorney brought out that the defendant had received a dishonorable discharge, later substituted by a general discharge under honorable conditions.
[10] It is finally contended that the district attorney improperly brought to the jury's attention the fact that the defendant had served time in jail. Again this was first brought out on direct examination when the defendant testified that he had served six months in a county jail in Oregon, and denied having made statements that he had served time elsewhere. On cross-examination the district attorney obtained no further admissions from the defendant.
[11] It is well established that the scope of proper cross- examination may extend to the whole transaction of which the witness has testified, or it may be employed to elicit any matter which may tend to overcome, qualify or explain the testimony given by a witness on his direct examination. (People v. Westek, 31 Cal.2d 469, 476 [190 P.2d 9]; People v. Tyren, 179 Cal. 575, 580 [178 P. 132].) The defendant has failed to show that he was not adequately represented by counsel at all stages of the criminal proceedings; that any *899 error occurred in the conduct of his trial, or that the district attorney was guilty of misconduct. He received a fair trial and his guilt was established beyond question.
The judgment and order denying the motion for a new trial are affirmed.
Gibson, C.J., Traynor, J., Schauer, J., Spence, J., and McComb, J., concurred.
CARTER, J.
I dissent.
It is my opinion that the minor here involved was deprived of due process of law because of lack of counsel in the juvenile court proceedings.
Defendant was accused of a serious felony; he was remanded to the juvenile court because of his age. In the juvenile court, the only question determined, so far as the record shows, is whether or not defendant was a fit subject for the consideration of that court. Since he was undoubtedly a minor, he was within that court's jurisdiction if that court, in the exercise of its discretion, saw fit to retain its jurisdiction over him. It cannot be denied that defendant's future would have been an entirely different matter had the juvenile court retained jurisdiction rather than remanding him to the superior court for trial on the felony charges. If defendant had been provided with counsel at that time so that he could have defended himself on the issue then involved, it is very probable that the outcome would have been different. The California Constitution (art. I, 13) provides that in criminal prosecutions "in any court whatever" the party accused shall have the right to appear and defend in person and with counsel. It has been said, and is said again here in the majority opinion, that proceedings in the juvenile court are not criminal in nature even though the charge is a criminal one. It appears to me that when the charge is a criminal one, and particularly when it is as serious as the one involved here, the proceedings should be considered criminal in nature and the accused be accorded all the safeguards intended for his protection. In In re Contreras, 109 Cal.App.2d 787, 789 [241 P.2d 631], it was said: "While the juvenile court law provides that adjudication of a minor to be a ward of the court shall not be deemed to be a conviction of crime, nevertheless, for all practical purposes, this is a legal fiction, presenting a challenge to credulity and doing violence to reason. Courts cannot and will not shut their eyes and ears *900 to everyday contemporary happenings." It was also said (at p. 790): "Surely, a minor charged in the juvenile court with acts denounced by law as a felony does not have lesser constitutional, statutory rights or guarantees than are afforded an adult under similar circumstances in the superior court. ... In practically all of the cases affecting juvenile court proceedings that have come to our attention, the minor has admitted the charge lodged against him and the only problem presented to the court was how to best guide and control the minor with a view to his rehabilitation and further development. In the case at bar however, the minor emphatically and at all times denied his alleged delinquency. Under such circumstances his liberty should not be taken from his [sic] until his guilt of the charges judged against him was established by legal evidence. That however praiseworthy, according to the viewpoint of the individual, may be the motives of the juvenile court, that tribunal may not impinge upon the legal rights of one brought before it is emphatically set forth in In re Tahbel, 46 Cal.App. 755, 760, 761, 762, 763 [189 P. 804]; in In re Hill, supra, pp. 26, 27, 28 [78 Cal.App. 23 (247 P. 591)]; and in In re Rauch, 103 Cal.App.2d 690, 698 [230 P.2d 115]. In the final analysis the juvenile court is a judicial institution." (Emphasis added.) In In re Poff, 135 F.Supp. 224, 227, the Contreras case was approved, and it was held that the legislative intent was to enlarge, not to diminish the constitutional protections afforded a minor. The court there concluded: "I hold only that where a child commits an act, which act if committed by an adult would constitute a crime, then due process in the Juvenile Court requires that the child be advised that he is entitled to the effective assistance of counsel, and this is so even though the Juvenile Court in making dispositions of delinquent children is not a criminal court."
In the majority opinion it is said that there is nothing in the present record to show that the minor defendant here was deprived of his rights or denied due process of law. When the gravity of the charge is taken into consideration, it seems to me that the lack of counsel to advise defendant was a deprivation of due process in the juvenile court proceedings which are judicial proceedings.
I would therefore reverse the judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/250049/ | 274 F.2d 696
Estes F. BRIGHT, Appellant,v.UNITED STATES of America, Appellee.
No. 16229.
United States Court of Appeals Eighth Circuit.
Feb. 11, 1960.
Estes F. Bright, pro se.
Osro Cobb, U.S. Atty., and Walter G. Riddick, Jr., Asst. U.S. Atty., Little Rock, Ark., for appellee.
Before JOHNSEN, Chief Judge, and SANBORN and VAN OOSTERHOUT, Circuit judges.
JOHNSEN, Chief Judge.
1
The McNabb case (McNabb v. United States), 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, held that incriminating statements elicited from one in custody, during unnecessary delay in taking him before a United States Commissioner, may not be received as evidence to convict.
2
This represents a procedural presciption laid down by the Supreme Court, under its 'supervisory authority over the administration of criminal justice in the federal courts' (318 U.S. at page 341, 63 S.Ct. at page 613), and is without relation to whether the circumstances of obtaining the statement may make it vulnerable by the test of due process.
3
The exclusion, however, as the Court has made clear in Mallory v. United States, 354 U.S. 449, 452-455, 77 S.Ct. 1356, 1358-1360, 1 L.Ed.2d 1479 has as its basis of application, not an abstract measuring of time and opportunity to have taken the prisoner before a commissioner, but a scrutiny of whether the statement in its circumstances seems to be the product of an artificial delay.
4
Under Rule 5(a), Federal Rules of Criminal Procedure, 18 U.S.C.A., a prisoner's right to an appearance before a commissioner is legally encroached on whenever he is not taken before the commissioner 'without unnecessary delay'. Such an encroachment, however, if only the prejudice of naked delay is involved, will not have any significance or consequence in relation to his trial and conviction. But if the delay has involved circumstances of official attempt to induce statements on the part of the prisoner, while his right to be brought before a commissioner was capable of being effected, and an incriminating statement so induced is sought to be used against him on the trial, there will be present the rationality and basis for the McNabb exclusion.
5
It is the attempt of officers to take advantage of a prisoner, through imposed interrogation or other custodial pressure (such perhaps even as a deliberate isolation or psychological ignoring intended to have effect of inducing him to make expression), at a time when there exists a responsibility on their part to accord him some prescribed legal step or process, at which the McNabb rule is aimed.
6
Thus, as previously noted, delay in taking a prisoner before a commissioner does not per se require the exclusion of a statement made during custody. For example, a prisoner may have acknowledged his guilt before there has been time and opportunity in fact to take him before a commissioner, so that a subsequently occurring delay in this respect would bear no relationship to his statement. The McNabb rule does not require the exclusion of such a statement. See United States v. Mitchell, 322 U.S. 65, 69-70, 64 S.Ct. 896, 898, 88 L.Ed. 1140. And beyond this, as Mallory, supra, declares, 'Circumstances may justify a brief delay between arrest and arraignment, as for instance, where the story volunteered by the accused is susceptible of quick verification through third parties'. 354 U.S. at page 455, 77 S.Ct. at page 1360. Other elements of uninduced cooperation may perhaps also make some particular situation one that can properly be regarded as having been 'without unnecessary delay'.
7
Application of the McNabb rule thus involves a scrutiny and evaluation by the trial court of whether the circumstances and incidents of a statement made by a prisoner, as related to time and opportunity for taking him before a commissioner, constitute the statement as a product of improper encroachment on his right to such an appearance.
8
But since the rule is a procedural or evidential prescription only, the court's appraisal of the situation and its ruling on the admissibility of the statement, if wrong, are errors merely in the trial proceedings. They do not render the judgment void but simply erroneous. The only right to have the ruling reviewed, therefore, is through the process of an appeal. The way is not open to challenge the ruling by any other means such as a collateral attack upon the judgment.
9
What has been said is dispositive of the proceeding that is immediately before us. Appellant Bright had been convicted and sentenced on a trial, in which a statement made by him while in custody prior to his being taken before a commissioner was held by the court to be admissible in evidence, as not being within the ban of the McNabb rule. He took no appeal from the judgment but later sought to have his sentence vacated by a motion under 28 U.S.C.A. 2255, on the ground of the admission of the statement in evidence. The motion was denied by the court on its face, on the basis that what was being attempted to be presented was a matter which was cognizable only on an appeal taken from the judgment of conviction.
10
The remedy provided by 2255 cannot, of course, be used to serve the functions and purposes of an appeal. Kaplan v. United States, 8 Cir., 234 F.2d 345; Shobe v. United States, 8 Cir., 220 F.2d 928.
11
The situation with which the court was confronted on appellant's trial was, on the facts as asserted by him in his present motion and brief, one where the court was at most called upon to engage in appraisal of the circumstances and make ruling as a trial incident on the applicability of the McNabb rule thereto. Whether the court's appraisal and ruling were factually and legally correct or incorrect is here immaterial, for McNabb provides no basis for collateral attack upon a sentence as constituting one that has, within the language of 2255, been 'imposed in violation of the Constitution or laws of the United States'.
12
The denial of appellant's motion to vacate his sentence is affirmed. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2024850/ | 385 Mass. 87 (1982)
430 N.E.2d 828
COMMONWEALTH
vs.
JOSEPH T. MALONEY.
Supreme Judicial Court of Massachusetts, Suffolk.
October 7, 1981.
January 14, 1982.
Present: HENNESSEY, C.J., WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH, & O'CONNOR, JJ.
Hugh W. Samson for the defendant.
Michael J. Traft, Assistant District Attorney (Peter Muse, Legal Assistant to the District Attorney, with him) for the Commonwealth.
HENNESSEY, C.J.
The defendant appeals from his conviction in the Superior Court for assault by means of a dangerous weapon, on the ground that he was previously placed in jeopardy for the same offense in the Municipal Court of the Roxbury District. The appeal was transferred to this court on our own motion. We conclude that jeopardy had attached *88 and thus we reverse the judgment of conviction and order that the indictment be dismissed.
The facts are not in dispute. The defendant was arraigned on April 21, 1977, in the Municipal Court of the Roxbury District on a complaint charging assault by means of a dangerous weapon. Also arraigned that day was one Willie Perretti, who was charged with assault and battery by means of a dangerous weapon. Both charges emanated from a racial altercation involving at least four persons; however, the incidents themselves were separate. There was testimony that Perretti threw a bottle at one Merrill Boyd and injured his eye. There was further testimony that the defendant Maloney tried to hit Boyd and another person, William Beck, with his automobile. The cases were called jointly before a District Court judge on July 11, 1977. At that time a District Court had jurisdiction over an assault by means of a dangerous weapon concurrently with the Superior Court (G.L.c. 218, § 26, as amended through St. 1976, c. 235; G.L.c. 265, § 15B); it did not have jurisdiction over the crime of assault and battery by means of a dangerous weapon (G.L.c. 218, § 26[1]), charged against Willie Perretti. G.L.c. 265, § 15A. The defendant's attorney presumed that there was about to be a trial on the merits. However, when he approached the attorney's table, the clerk stated, "Most likely the court would decline jurisdiction on the assault by means." Neither the judge nor the prosecutor said anything regarding whether the hearing was to be a trial on the merits or a probable cause hearing. Upon hearing the clerk's statement, defense counsel "was not sure what was happening"; nevertheless, he proceeded as if the hearing were a trial, apparently thinking that the judge would accept jurisdiction because there were two separate incidents involved. At the conclusion of the hearing the District Court judge stated that, with respect to each defendant, *89 he would "find probable cause on the assault and battery [as to Perretti] and decline jurisdiction on the assault [as to Maloney]." The defendant was bound over to the grand jury who subsequently returned an indictment charging the defendant with assault by means of a dangerous weapon.
The defendant moved in the Superior Court to dismiss the indictment on the ground that he had already been tried in the District Court, and that another trial would place him in double jeopardy. The motion was denied, and thereafter the defendant was tried (along with Perretti) and convicted of assault by means of a dangerous weapon. The defendant was sentenced to five years' probation.
This case presents the same issue faced by this court in Commonwealth v. Clemmons, 370 Mass. 288, 290-291 (1976), namely, whether the proceeding in a District Court constituted a trial on the merits. If a probable cause hearing was being conducted, no jeopardy would attach. Id. Commonwealth v. Britt, 362 Mass. 325, 330 (1972). Commonwealth v. Mahoney, 331 Mass. 510, 511-512 (1954). See Burhoe v. Byrne, 289 F. Supp. 408, 411 (D. Mass. 1968). Under the rule, as first stated in Corey v. Commonwealth, 364 Mass. 137, 141-142 n. 7 (1973), if a District Court has jurisdiction of a case concurrently with the Superior Court, a District Court judge must indicate, before the hearing commences, whether he is conducting a probable cause hearing or a full trial on the merits. In Commonwealth v. Clemmons, supra at 291, we inferred that a trial on the merits was being held where the judge gave no indication that he might decline jurisdiction, and where the defendant had every reason to believe that a trial was being conducted. See Commonwealth v. Mesrobian, 10 Mass. App. Ct. 355 (1980); Commonwealth v. Crosby, 6 Mass. App. Ct. 679 (1978). The Commonwealth argues that the instant case is distinguishable because two factors served to put the defendant on notice that a probable cause hearing was being conducted. First, the clerk of the court expressly stated that the judge would most likely decline jurisdiction over the defendant *90 Maloney's case. Second, it argues, and we take notice, that it is not unusual, in a case where there are codefendants and one of them is charged with a crime that is not within the jurisdiction of a District Court, that both defendants will be bound over for trial in the Superior Court. See K.B. Smith, Criminal Practice and Procedure § 686 (1970).
We do not agree with the Commonwealth's arguments. We affirm our prior decisions requiring a District Court judge to announce, before a hearing commences, whether he is conducting a probable cause hearing or a trial on the merits. We note that this requirement is also emphasized in the Standards of Judicial Practice, Trials and Probable Cause Hearings in the District Court Department § 1:03 (November, 1981). The result here is controlled by our reasoning in Clemmons. The surmise of the clerk, expressed privately to defense counsel, was not sufficient to satisfy the Corey requirement. We add that, of course, it would be sufficient under Corey if the clerk, in the judge's presence, had informed counsel and the defendant that the proceeding was a probable cause inquiry.
We conclude that a trial on the merits was conducted in the District Court, and that, therefore, jeopardy attached. Accordingly, the judgment of the Superior Court is reversed, the verdict set aside, and the indictment is to be dismissed.
So ordered.
NOTES
[1] General Laws c. 218, § 26, has since been rewritten to include assault and battery by means of a dangerous weapon as being within the jurisdiction of the District Courts. St. 1980, c. 122. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2898458/ | NO. 07-08-0175-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
NOVEMBER 23, 2009
______________________________
EDWIN DEGRAFF,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 64TH DISTRICT COURT OF HALE COUNTY;
NO. B16020-0505; HON. ROBERT W. KINKAID, JR., PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
In one issue, appellant Edwin DeGraff appeals his conviction for aggravated sexual
assault of a child by challenging the factual sufficiency of the evidence. We find the
evidence sufficient and affirm the judgment.
The pertinent standard of review is explained in Watson v. State, 204 S.W.3d 404
(Tex. Crim. App. 2006) and its progeny. We refer the parties to them.
Next, appellant was convicted of aggravated sexual assault by intentionally and
knowingly causing the penetration of the female sexual organ of his nine-year-old daughter
by his finger. See TEX . PENAL CODE ANN . 22.021(a)(2)(B) (Vernon Supp. 2009). Appellant
attacks the sufficiency of the evidence illustrating that he penetrated the complainant with
his finger. Furthermore, though he admitted that he touched the child’s vagina with his
hand and acknowledged the impropriety of that act, he denied having committed a criminal
offense. Yet, in that statement he also said that the tips of two fingers “touch[ed] the
interior part of the outside lips but didn’t go inside of them.” So too did he draw a picture
illustrating the relationship between those two fingers and the interior part of the labia
touched.
We have held that the slightest penetration is sufficient to sustain a conviction.
Green v. State, 209 S.W.3d 831, 832 (Tex. App.–Amarillo 2006, pet. ref’d). Furthermore,
penetration includes pushing aside and reaching beneath a natural fold of skin into an area
of the body not usually exposed even when one is naked. Vernon v. State, 841 S.W.2d
407, 409 (Tex. Crim. App. 1992). Appellant’s statement and his drawing are sufficient for
a rational trier of fact to determine beyond a reasonable doubt that penetration occurred.
That finding is neither against the great weight of the evidence or otherwise manifestly
unjust.
Accordingly, the judgment of the trial court is affirmed.
Brian Quinn
Chief Justice
Do not publish.
2 | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1688463/ | 717 So.2d 444 (1998)
Daryl Ramon WRIGHT
v.
STATE.
CR-97-0016.
Court of Criminal Appeals of Alabama.
February 13, 1998.
Eugene Spencer II, Dothan, for appellant.
Bill Pryor, atty. gen., and Jean A. Therkelsen, asst. atty. gen., for appellee.
BROWN, Judge.
The appellant, Daryl Ramon Wright, appeals from the trial court's order revoking his probation. In 1994 the appellant pleaded guilty to assault in the second degree, a violation of § 13A-6-21, Ala.Code 1975. He was sentenced to 10 years' imprisonment, but the trial court suspended his sentence and placed him on probation for 5 years. On March 18, 1997, the appellant pleaded guilty to disorderly conduct. On August 22, 1997, the appellant's probation officer issued an arrest warrant for the appellant because he had failed to report as directed pursuant to the terms of his probation. In a drug test performed on August 25, 1997, the appellant tested positive for the presence of drugs. On September 4, 1997, the appellant's probation officer recommended that his probation be revoked. On September 12, 1997, a probation revocation hearing was held; after the hearing the trial court revoked the appellant's probation. The trial court's revocation order reads:
"The Court finds that [the defendant] has used drugs while on probation, has avoided drug testing, has broken the law (Disorderly Conduct conviction), while on probation. Probation revoked."
(C.R.10.)
The appellant maintains that the trial court erred because, he says, his probation was revoked based on "charges that were inaccurate and misleading." The appellant's claim is, in essence, an attack on the sufficiency of the evidence on which the revocation of his probation was based. Because the appellant failed to object to this evidence before, or during, the probation hearing, this issue was waived. Wadsworth v. State, 706 So.2d 858 (Ala.Cr.App.1997).
The appellant also contends that the trial court's written order is inadequate. Specifically, he claims that the trial court failed to set forth the evidence relied upon and the reasons for revoking his probation. The state concedes that the trial court's written order revoking probation is inadequate. See Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975); Rule 27.6(f), Ala. R. Crim. P.
*445 In Davidson v. State, 686 So.2d 1312 (Ala. Cr.App.1996), this Court stated:
"`In Wyatt v. State, 608 So.2d 762, 763 (Ala.1992), the Alabama Supreme Court held that "Armstrong v. State [, 294 Ala. 100, 312 So.2d 620 (1975),] requires a written order setting forth the evidence relied upon and the reason for the revocation." This requirement obtains even where "the transcript of the proceeding, coupled with the order, indicates the evidence relied upon by the trial court and the trial court's reason for the revocation."'"
Davidson, 686 So.2d at 1313, quoting Martin v. State, 681 So.2d 1110 (Ala.Cr.App.1996) (emphasis added). This Court has held that an objection to the adequacy of the written order revoking probation need not be raised at trial to be preserved for appellate review. Puckett v. State, 680 So.2d 980, 983 (Ala.Cr. App.1996).
The trial court's revocation order states the reasons for revoking the appellant's probation; however, the order fails to state the evidence the court relied upon in revoking his probation. Although an examination of the transcript of the revocation hearing reveals the evidence the trial court relied on to revoke the appellant's probation, we are required to follow the holding of the Alabama Supreme Court in Wyatt v. State, 608 So.2d 762, 763 (Ala.1992). In Wyatt, the Supreme Court mandated that the trial court issue a written order setting forth its reasons for revoking probation and the evidence relied upon, even where "the transcript of the proceeding, coupled with the order, indicates the evidence relied upon by the trial court and the trial court's reason for the revocation." See also Springfield v. State, 717 So.2d 445 (Ala.Cr.App.1998).
We respectfully urge the Alabama Supreme Court to reconsider its holdings in Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), and Wyatt v. State, supra, requiring a separate written order setting forth the evidence relied upon and the reason for the revocation, even in those cases in which this information can be determined from the transcript of the revocation hearing, coupled with the court's revocation order. We would urge the Alabama Supreme Court to instead follow Rule 27.6(f), Ala.R.Crim.P., and those jurisdictions that permit a statement on the record from the proceedings to provide the evidence relied on and the reasons for revoking probation. See Trice v. State, 707 So.2d 294 (Ala.Cr.App.1997).
For the foregoing reasons, we remand this case to the trial court with directions to enter an order setting forth the evidence relied upon, together with the reason for the revocation of the appellant's probation. The trial court shall take necessary action to ensure that the circuit clerk makes due return to this Court at the earliest possible time and within 42 days of the release of this opinion.
REMANDED WITH DIRECTIONS.[*]
All the Judges concur.
NOTES
[*] Note from the reporter of decisions: On May 29, 1998, on return to remand, the Court of Criminal Appeals affirmed, without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3101640/ | COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Iris Williams v. VRM-Vendor Management Duly Authorized Agent
for Service Office of Veteran Affairs
Appellate case number: 01-14-00272-CV
Trial court case number: 13-CCV-051775
Trial court: County Court at Law No. 4 of Fort Bend County
This case involves an appeal from a final judgment in a forcible detainer suit, signed on
January 22, 2014. Appellant, Iris Williams, filed her amended notice of appeal on March 31,
2014. See TEX. R. APP. P. 25.1, 26.1. The clerk’s record was filed on May 1, 2014. A reporter’s
record has not been filed.
On April 11, 2014, the Clerk of this Court notified appellant that the court reporter
responsible for preparing the record in this appeal had informed the Court that appellant had not
requested a reporter’s record or paid, or made arrangements to pay, for the reporter’s record. See
TEX. R. APP. P. 35.3(b). The Clerk further notified appellant that unless she provided written
evidence that she had paid, or made arrangements to pay, for the reporter’s record, or provided
proof that she is entitled to proceed without payment of costs by May 12, 2014, the Court might
consider the appeal without a reporter’s record. See TEX. R. APP. P. 37.3(c). Appellant has not
adequately responded. Accordingly, the Court will consider and decide those issues or points that
do not require a reporter’s record for a decision. See id.
Appellant’s brief is ORDERED to be filed within 30 days of the date of this order. See
TEX. R. APP. P. 38.6(a). Appellee’s brief, if any, is ORDERED to be filed within 30 days of the
filing of appellant’s brief. See TEX. R. APP. P. 38.6(b).
It is so ORDERED.
Judge’s signature: /s/ Jim Sharp
Acting individually Acting for the Court
Date: July 10, 2014 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1875914/ | 260 S.W.3d 426 (2008)
Ronald WILLIAMS, Movant/Appellant,
v.
STATE of Missouri, Respondent.
No. ED 90252.
Missouri Court of Appeals, Eastern District, Division Two.
August 12, 2008.
Timothy Forneris, St. Louis, MO, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen. Jefferson City, MO, for respondent.
Before LAWRENCE E. MOONEY, P.J., BOOKER T. SHAW and KURT S. ODENWALD, JJ.
Prior report: 209 S.W.3d 10.
ORDER
PER CURIAM.
The movant, Ronald Williams, appeals the denial, without an evidentiary hearing, of his Rule 29.15 motion for post-conviction relief. We have reviewed the parties' briefs and the record on appeal and find no clear error. Rule 29.15(k). An opinion *427 would have no precedential value. The parties have been provided with a memorandum, for their information only, setting forth the reasons for this decision.
The motion court's order and judgment denying the movant's Rule 29.15 motion for post-conviction relief is affirmed. Rule 84.16(b)(2). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609888/ | 866 P.2d 82 (1993)
Richard L. REESE, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).
No. 93-89.
Supreme Court of Wyoming.
December 22, 1993.
Public Defender Program, Leonard D. Munker, State Public Defender, Deborah Cornia, Appellate Counsel, Cheyenne, for appellant.
Joseph B. Meyer, Atty. Gen., Sylvia L. Hackl, Deputy Atty. Gen., D. Michael Pauling, Sr. Asst. Atty. Gen., Cheyenne, for appellee.
Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.
GOLDEN, Justice.
Appellant appeals the district court's order revoking his probation on a forgery conviction, alleging that the district court's failure *83 to hold the revocation hearing within thirty days of his initial appearance as prescribed by Wyo.R.Crim.P. 39 deprived the court of jurisdiction to revoke his probation.
We affirm.
ISSUES
Appellant presents one issue for our review:
Did the trial court have jurisdiction to revoke appellant's probation?
The state, as appellee, rephrased the issue as:
Did the timing of appellant's revocation hearing deprive the district court of jurisdiction to revoke his probation?
FACTS
In July, 1992, appellant Richard Reese, was arrested and charged with five counts of forgery in violation of WYO.STAT. § 6-3-602(a)(ii) (1988). In November, 1992, pursuant to a plea agreement, appellant pled guilty to one count of forgery. The district court sentenced appellant to not less than four nor more than six years in the Wyoming State Penitentiary. The sentence was suspended on the conditions that appellant successfully complete a drug and alcohol treatment program, attend the Community Alternatives of Casper program in Casper, Wyoming, and serve two years of supervised probation.
In February, 1993, the state filed a petition seeking revocation of appellant's probation. In a separate proceeding the state also filed criminal charges against appellant for two counts of larceny. The petition for revocation of appellant's probation alleged that appellant committed two acts of larceny by bailee, that he possessed and consumed alcohol, furnished alcohol to a minor, and tested positive for cocaine and alcohol. On February 4, 1993, appellant had his initial appearance on the revocation petition simultaneous with a bond hearing. Following the February 4, 1993 hearing appellant was released on bond. On February 22, 1993, the state requested a setting for appellant's revocation hearing, and on February 25, 1993, the district court set the revocation hearing for March 9, 1993, thirty-one days after appellant's initial appearance.
At the conclusion of the March 9, 1993 revocation hearing, the district court revoked appellant's probation. This appeal followed.
DISCUSSION
We will first address appellant's contention that the time limits set forth in Wyo. R.Crim.P. 39 are jurisdictional. In pertinent part, the rule reads as follows:
(B) A hearing on the petition shall be held within the following time limits:
(i) If the probationer is in custody because of the probation revocation proceedings, a hearing upon a petition for revocation of probation shall be held within 15 days after the probationer's first appearance before the court following the filing of the petition. If the probationer is not in custody because of the probation revocation proceedings, a hearing upon the petition shall be held within 30 days after the probationer's first appearance following the filing of the petition. For good cause the time limits may be extended by the court.
(ii) Where it appears that the alleged violation of conditions of probation consists of an offense with which the probationer is charged in a criminal proceeding then pending, the court may continue the probation revocation proceedings until the termination of the criminal proceeding if the probationer consents, or regardless of consent, if the probationer is not in custody because of the probation revocation proceedings.
Wyo.R.Crim.P. 39(a)(4)(B)(i) & (ii).
Appellant concedes that no sanction of dismissal is provided in Rule 39, but contends that the rule's use of mandatory language requires strict compliance with the time limits. We disagree and hold that the time limits set forth in Rule 39 are advisory in nature rather than mandatory.
We find Rule 39 similar, both in purpose and in language, to former Rule 204 of the Uniform Rules for the District Courts of the State of Wyoming. Rule 204 outlined the time frame within which a trial was to be *84 brought to satisfy a defendant's right to a speedy trial. It read, in relevant part:
(b) A criminal charge shall be brought to trial within 120 days following the filing of information or indictment.
(Emphasis added).
Despite the rule's mandatory language, this court deemed the 120-day time frame advisory only, persuaded in part by its failure to provide for the sanction of dismissal, and in part by the purpose to be served by the rule. Robinson v. State, 627 P.2d 168, 172 (Wyo. 1981).
The Fourteenth Amendment right to a speedy trial "is intended to spare an accused those penalties and disabilitiesincompatible with the presumption of innocence that may spring from delay in the criminal process." Cherniwchan v. State, 594 P.2d 464, 468 (Wyo.1979) (quoting Dickey v. Florida, 398 U.S. 30, 41, 90 S. Ct. 1564, 1570, 26 L. Ed. 2d 26, 34 (1970)). The purpose of Rule 204 was to safeguard a defendant's right to that speedy trial. Robinson, 627 P.2d at 172; see also Harvey v. State, 774 P.2d 87, 93 (Wyo.1989). However, this court held that the length of delay is only one factor to consider in determining whether a defendant's right to a speedy trial has been violated, and thus concluded the time frame set forth in Rule 204 was advisory only. Harvey, 774 P.2d at 93-94.
We conclude the same with respect to the time limits outlined in Rule 39. Rule 39 does not establish the district court's jurisdiction to revoke probation. WYO.STAT. §§ 7-13-301 through 307 provide the district court with its authority to place a person on probation, and the district court retains jurisdiction of an individual granted probation throughout the probationary period. Wlodarczyk v. State, 836 P.2d 279, 293 (Wyo. 1992); Smith v. State, 598 P.2d 1389, 1390 (Wyo.1979). The time limits prescribed by Rule 39 do not establish the parameters of the district court's jurisdiction, since the district court retained its original jurisdiction, but rather seek to prevent delays in contravention of a defendant's constitutional right to a speedy disposition of the charges against him. Federal due process requires that a probationer be afforded an opportunity for a revocation hearing within a reasonable time after he is taken into custody. Morrissey v. Brewer, 408 U.S. 471, 488, 92 S. Ct. 2593, 2603-04, 33 L. Ed. 2d 484, 498 (1972).
As noted earlier, the due process requirement prevents imposition of punishment before a finding of guilt and prevents prejudice to the probationer's defense through loss of evidence. The fifteen and thirty-day time limits set forth in Rule 39 provide reasonable times within which to hold a probation revocation hearing. This time frame affords greater protection than that outlined in Morrissey which held reasonable a lapse of two months from the date the probationer was placed in custody. Morrissey, 408 U.S. at 488, 92 S. Ct. at 2604, 33 L.Ed.2d at 498. The shorter period within which to hold the hearing prescribed by Rule 39 may have been motivated by an interest in securing greater protection of a probationer's due process rights than that afforded by federal law, or it could have been motivated by the state's interest in expediting the revocation of probation when the terms of that probation have been violated. Whatever the motivation, the court may, as indicated by the rule, deviate from the prescribed times for good cause. Rule 39(a)(4)(B)(ii) also permits deviations from the time limits if the alleged probation violation consists of an offense with which the probationer is charged in a pending criminal proceeding.
We therefore conclude that, while the thirty and fifteen-day time limits set forth in Rule 39 should be adhered to, failure to do so will not divest the trial court of its jurisdiction, nor will it result in an automatic dismissal of the revocation petition. In determining whether the revocation hearing was provided within a reasonable time, this court will consider the length of the delay (against the prescribed time frame), the cause of delay, and whether the delay prejudiced the probationer. See Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); Smith v. United States, 577 F.2d 1025 (5th Cir.1978); United States ex rel. Sims v. Sielaff, 563 F.2d 821 (7th Cir.1977); McNeal v. United States, 553 F.2d 66 (10th Cir.1977). The probationer carries the burden *85 of proving the unreasonableness of the delay and the prejudice imposed by the delay. See United States v. Williams, 558 F.2d 224, 226-28 (5th Cir.1977); McNeal, 553 F.2d at 68-69; Kartman v. Parratt, 535 F.2d 450, 455 (8th Cir.1976); NEIL P. COHEN & JAMES J. GOBERT, THE LAW OF PROBATION AND PAROLE § 14.04 (1983 & Supp.1992).
Having determined that Rule 39 is not jurisdictional, we next address whether the delay in this case was unreasonable and as such denied appellant his due process right to a speedy disposition of the charges against him.
Since Rule 39 advises what constitutes a reasonable time within which to hold the revocation hearing, we must conclude, absent a showing otherwise, the hearing was held within a reasonable time if the delay in this instance was the type of delay permitted by the rule. Rule 39(a)(4)(B)(ii) provides that the district court may continue the revocation hearing until termination of pending criminal proceedings, if it appears the charge in the proceedings also constitutes the alleged violation of the probation conditions. If, as Rule 39 provides, a hearing could reasonably be continued until termination of the pending criminal proceedings, then a continuance to a point prior to termination must also be deemed reasonable.
Subsection (a)(4)(B)(ii) applies in this case. The state charged appellant with two counts of larceny and sought revocation of appellant's probation at least partially upon the same ground. We do not agree with appellant's contention that the district court could not continue the hearing under this subsection without a formal motion and order. This court has held that when a case is initially set for trial or hearing beyond the time prescribed by the applicable rule, such an act is to be deemed a continuance upon the trial court's own motion and properly grounded in concerns of docket management and the due administration of justice. Cook v. State, 631 P.2d 5, 10 (Wyo.1981); Robinson, 627 P.2d at 172.
Appellant's revocation hearing took place thirty-one days after his initial appearance before the trial court, a delay of one day. Since the trial court initially scheduled the hearing with the one-day delay, we will presume the delay was a continuance upon the court's own motion and properly grounded in concerns of docket management and due administration of justice, particularly the trial court's concerns regarding the pending larceny proceedings. Appellant has not demonstrated otherwise, and he has failed to carry his burden of proving the delay of one day was unreasonable and prejudiced him.
CONCLUSION
We hold the time limits prescribed by Wyo.R.Crim.P. 39 are not jurisdictional. In light of appellant's failure to demonstrate the unreasonableness of the one-day delay and his failure to prove prejudice resulting from the delay, we must conclude the delay was reasonable and did not violate appellant's due process right to a speedy disposition of the charges against him.
The decision of the district court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1852699/ | 184 So. 2d 861 (1966)
In the Interest of Curtis Lee LONG, a child.
No. 43882.
Supreme Court of Mississippi.
March 28, 1966.
*862 Alvin J. Bronstein, Malcolm Farmer, III, Jackson, Miss., William G. Kopit, Scarsdale, N.Y., R. Jess Brown, Jackson, for appellant.
Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
JONES, Justice.
On July 2, 1965, Curtis Lee Long, a minor, thirteen years of age, was committed to the Oakley Training School at Oakley, Mississippi, until further order of the court. From this order the case was appealed to this Court. We reverse the case for the reasons hereinafter stated.
The petition filed charged "that said child has been charged as delinquent-neglected child." The petition as worded did not bring the child within the Youth Court Act. Sharp v. State, 240 Miss. 629, 127 So. 2d 865, suggestion of error overruled, 240 Miss. 646, 129 So. 2d 637, 90 A.L.R. 2d 284 (1961). In The Interest of Mary Alice Slay, A Child, 245 Miss. 294, 147 So. 2d 299 (1962).
An order was entered setting the cause for hearing on July 2, 1965, at 9:00 a.m. Summons was issued and the return shows that it was served on June 29, 1965, commanding the appearance of the parties in this cause at said time. Mississippi Code Annotated section 7185-06 (1952) provides that summons in these cases shall not be served less than three days before the date set for the hearing. The process here failed to meet this requirement. See, Slay, supra.
The above two questions were embodied in the assignment of errors, and there was also assigned the fact that the minor was not represented by legal counsel.
While this question may be moot now, since the minor has representation in this Court, it may not be amiss to call attention to Mississippi Code Annotated section 7185-08 (1952). In this section the legislature recognizes that these matters may be adversary proceedings as it authorizes the court to have the district attorney or county attorney present the petition and if it shall not be practicable for them to do so, then the court may appoint some reputable attorney to present the petition.
The same section provides that any person interested shall have the right to appear and be represented by legal counsel of his own choosing.
In cases wherein a minor is charged with being a delinquent and subject to being deprived of his liberty, we think it only fitting and proper to advise the minor and his parents that they are entitled to legal representation, and that the court in such delinquency proceedings should so advise them.
The case is reversed and remanded for further proceedings not inconsistent herewith.
Reversed and remanded.
GILLESPIE, P.J., and RODGERS, SMITH and ROBERTSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609878/ | 866 P.2d 547 (1993)
Glen P. WILLEY, Plaintiff and Appellee,
v.
Rosalind Ann Johnson WILLEY, Defendant and Appellant.
No. 920091-CA.
Court of Appeals of Utah.
November 29, 1993.
*548 Roger D. Sandack, Salt Lake City, argued, for defendant and appellant.
Ellen Maycock, Salt Lake City, argued, for plaintiff and appellee.
Before BILLINGS, P.J., and BENCH and ORME, JJ.
BILLINGS, Presiding Judge:
Rosalind Willey appeals the trial court's decisions in this divorce action on alimony, division of marital property, and the award of *549 attorney fees. Because of insufficient findings, we reverse and remand the court's rulings on alimony and the award of attorney fees. We also reverse and remand the property division to give the court the opportunity to reconsider these related financial aspects of the divorce. We otherwise affirm.
FACTS
Appellant Rosalind Ann Johnson Willey and appellee Glen Paul Willey were married on April 29, 1982. The parties had no children together, and both had been married previously. Mrs. Willey had custody of three children from her former marriage who, at the time of the Willeys' divorce, were twenty, seventeen, and thirteen years old.
During the marriage, Mr. Willey worked as a stockbroker, receiving commissions instead of regular wages. Since 1986, Mr. Willey's annual income ranged from a high of $138,052 in 1987, to a low of $73,096 in 1989. In addition, Mr. Willey earned deferred bonuses in 1987 (approximately $14,200), 1990 (approximately $11,000) and 1991 (projected at $16,219), payable in 1992, 1995 and 1996, respectively, as long as he remained employed by the same firm.
At the time of their marriage, Mrs. Willey was employed full-time in retail clothing sales and earned approximately $10,000 annually. After the marriage, Mrs. Willey worked sporadically part-time. Her income ranged from a high of $6871 in 1985 to nothing in 1989. In 1990, she earned gross wages of $4412, working for five dollars an hour as a part-time salesperson in a bookstore and occasionally leading literary discussion groups formed through the bookstore. Mrs. Willey also received $332 per month in child support from her first husband.
To finance their lifestyle, the parties liquidated assets and incurred debts. Mrs. Willey owned a home at the time of her marriage to Mr. Willey. The parties sold this home in 1983, using the $29,164 in equity to purchase and improve a new home in their joint names. In 1986, the parties sold their joint home and purchased the home in which they lived at the time of their divorce. At the time of trial, they owed $232,000 to Zions Bank on the first mortgage on the marital home. In addition, the parties had consolidated loans from Mrs. Willey's parents into an approximately $80,000 second mortgage on the home.
The parties separated in November of 1990. In February of 1991, they reached a stipulation regarding temporary support. Under the agreement, Mr. Willey made most of the payments on the marital debts, including the $2492 monthly payment to Zions Bank on the first mortgage for their home and an approximately $360 monthly payment against a First Interstate Bank line of credit (the First Interstate debt). He also paid $1500 in monthly support to Mrs. Willey. The monthly payments for the second mortgage were deferred temporarily by agreement. Mrs. Willey remained in possession of the marital home.
After a two-day trial, the trial court entered findings of fact and conclusions of law and a final decree of divorce. We review the court's decision only as it affects the issues on appeal.
The court ordered each party to assume one-half of the approximately $12,000 First Interstate debt. The court denied Mrs. Willey's claim that she should receive $29,164 from the sale of her premarital home as premarital property, finding that these proceeds had lost their separate identity. The court awarded Mrs. Willey $5000 of her documented $19,215 in attorney fees. Furthermore, the court set alimony for Mrs. Willey at $1500 a month for one year to be reduced to $1000 a month for the next three years and then to terminate. Relevant to that award, the court found that Mrs. Willey could earn $1500 to $2000 monthly and that Mr. Willey earned an average of $110,000 annually, or approximately $9000 a month. In addition, the court ordered the marital home to be listed at $350,000 and sold as soon as possible. The court ordered the sale proceeds to be used to retire both mortgages on the home and cover the costs of sale. Any remaining proceeds were to go to Mrs. Willey if the home sold within ninety days after trial. If the home sold after ninety days, the court ordered the parties to divide equally any loss or gain. At oral argument, *550 the parties agreed the home sold for a loss, resulting in a debt of approximately $37,000.
On appeal, Mrs. Willey argues the court abused its discretion in: (1) setting the alimony award; (2) ordering her to be responsible for one-half of the marital debts; (3) failing to recognize her premarital equity in the marital home; and (4) failing to award her a significant contribution toward her claimed attorney fees of $19,215. In addition, Mrs. Willey requests attorney fees on appeal.
I. ALIMONY AND PROPERTY DIVISION
Mrs. Willey contends the trial court abused its discretion in setting the alimony award. She claims the court failed to make sufficient findings regarding either party's financial need, ignored both her actual needs and her ability to support herself, and erroneously imputed $1500 to $2000 a month to her as income. Because the trial court failed to make sufficient findings regarding the parties' needs and resources, we reverse and remand for a redetermination of the amount of the alimony award and the entry of findings necessary to support the revised award.
A. Legal Standard
We will not overturn a trial court's alimony ruling as long as the court supports its ruling with adequate findings and exercises its discretion according to the standards we have set. Bell v. Bell, 810 P.2d 489, 491 (Utah App.1991). In Bell, this court reiterated the well-settled standard for alimony set forth by the Utah Supreme Court in Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985), which stated:
"[T]he most important function of alimony is to provide support for the [spouse] as nearly as possible at the standard of living she [or he] enjoyed during the marriage, and to prevent the [spouse] from becoming a public charge." English v. English, 565 P.2d [409] at 411 [(Utah 1977)].... [T]hree factors ... must be considered in fixing a reasonable alimony award:
[1] the financial conditions and needs of the [spouse seeking support];
[2] the ability of the [spouse seeking support] to produce a sufficient income for [himself or] herself; and
[3] the ability of the [payor spouse] to provide support.
Jones, 700 P.2d at 1075.
"Failure to consider the Jones factors in fashioning an alimony award constitutes an abuse of discretion." Bell, 810 P.2d at 492 (citations omitted). Thus, "the trial court must make sufficiently detailed findings on each factor to enable a reviewing court to ensure that the trial court's discretionary determination was rationally based upon" the three Jones factors. Id. (citations omitted). "If sufficient findings are not made, we must reverse unless the record is clear and uncontroverted such as to allow us to apply the Jones factors as a matter of law on appeal." Id. (citation omitted).
B. Trial Court Findings
In its findings of fact and conclusions of law on alimony, the trial court stated:
The court finds that a reasonable average income to use for plaintiff in determining alimony to be paid in this matter is $110,000. Because of plaintiff's employment as a stock broker, his income has fluctuated. In 1987 and 1991, plaintiff had unusually good income years. The court further finds that defendant is capable of earning an income of between $1,500 and $2,000 per month, based on her education and qualifications. Accordingly, the court finds that it is equitable that plaintiff pay alimony to defendant of $1,500 per month for one year from the date of trial herein, and $1,000 per month for three years thereafter. The court further finds that plaintiff has been supporting defendant during the parties' separation of approximately one year, and it is appropriate to take that time period into account in determining the term of alimony. Alimony shall terminate at the end of four years from the date of trial, or when defendant remarries, cohabits with a member of the opposite sex, or dies, whichever first occurs.
In setting the alimony award, the court made no findings on Mrs. Willey's financial *551 need as the first Jones factor requires. Nor did it make findings on Mr. Willey's financial need, which underlying factual determination is required for an assessment of the third Jones factor, the ability of the payor spouse to provide support.[1]
We have previously reversed an alimony award in a similar case when the trial court failed to address the parties' financial needs. In Bell v. Bell, 810 P.2d 489 (Utah App.1991), because the parties "dissipated and lived on credit," the trial court did not give "much weight ... as to what the needs and abilities of the parties might be." Id. at 492. Thus, the trial court failed to determine the reasonableness of the expenses each party claimed. This court reasoned that "[w]ithout a finding on reasonable expenses, we are unable to determine the true needs of Wife, or to determine Husband's actual ability to pay and, therefore, to balance Wife's needs against Husband's ability to pay as required in Jones." Id. at 493.
We face the identical problem here. At trial, both parties testified about their financial needs. Mr. Willey claimed monthly expenses totalling $3623, including $360 for repayment of the First Interstate debt, but excluding mortgage payments and expenses for the marital home. Mrs. Willey countered that his expenses were approximately $2400 because they should exclude attorney fees, credit card repayments, and the $360 First Interstate debt repayment. On the first day of trial, Mrs. Willey claimed expenses of $6905, including payment of the first mortgage on the marital home. Alternatively, she claimed expenses of $5405, which excluded the mortgage payment but included rent. On the second day of trial, Mrs. Willey presented revised expense figures of $4754 for herself and her children, or alternatively, $2678 for herself alone. The court made no findings on which, if any, of the expenses claimed by the parties were appropriate. Thus, as in Bell, we remand for findings on each party's reasonable needs so we can determine if the court abused its discretion in setting the amount and duration of the alimony award. See id. at 493.
Because several issues raised on appeal are relevant to the Jones alimony analysis, we reach them to aid the trial court on remand.
C. Division of Debt as it Affects Alimony Award
The trial court made no findings that would enable us to conclude it considered either the impact of its division of the First Interstate debt or the probable result of the sale of the marital home in assessing the parties' respective needs.
Regarding the First Interstate debt, Mrs. Willey argues that distribution of one-half of the debt to her was inequitable, given her resources and the disparity in the parties' income. She argues this is especially true in light of the court's alimony award. She correctly notes that Mr. Willey conceded that she would be incapable of assuming a portion of this debt, and that he agreed to pay the full amount.[2] We vacate the court's allocation of the First Interstate debt to allow the court to reconsider its assignment when establishing the appropriate amount of alimony. If the trial court determines that Mrs. Willey is still obligated to pay a portion of the debt, the court should factor in her share of the debt payment when calculating the alimony award. The court may, of course, reallocate the debt if it deems that appropriate.
In order to effectuate repayment of the two mortgages, the trial court ordered:
The house should be sold as soon as feasible because it constitutes a substantial financial burden on the parties. The house *552 should be listed at $350,000 with a new real estate agent to be agreed upon by the parties as soon as the present listing agreement expires. Upon sale of the house, the first mortgage in the approximate amount of $232,000 to Zion's Bank should be paid in full, and the second mortgage in the approximate amount of $80,000 to Beverly Johnson should be paid in full, together with all costs of sale. Any net proceeds of the sale then remaining should be divided as follows:
(a) If the house is sold within 90 days of the date of November 22, 1991, all remaining net proceeds of sale should be awarded to defendant.
(b) If the house is sold after the expiration of 90 days from November 22, 1991, the parties should divide any net proceeds equally.
(c) In the event that the sales price of the house is not sufficient to pay the first and second mortgages and costs of sale, the parties shall be equally responsible for payment of any short fall or deficiency.
Although it set a listing price, the court did not include any specific finding regarding the value of the home.[3] At oral argument on appeal, counsel for both parties agreed that the sale incurred a debt of approximately $37,000. Again, we conclude the trial court should consider this debt when it reexamines the alimony award on remand, because this debt has a direct bearing on all three of the Jones criteria. See Burt v. Burt, 799 P.2d 1166, 1172 (Utah App.1990).[4]
D. Mrs. Willey's Financial Obligation to Her Children by a Previous Marriage
Mrs. Willey also contends the court misapprehended her financial situation because it refused to consider evidence concerning her obligation to her children in calculating her alimony award. The extent to which an individual's needs and ability to support himself or herself are affected by that person's legal obligation to support children from a prior marriage is an issue Utah's appellate courts have not directly considered.
We note, however, the Utah legislature has imposed a duty of support on stepparents only during the duration of the marriage. Utah law expressly provides that a stepparent's obligation to support a stepchild terminates upon divorce.
A stepparent shall support a stepchild to the same extent that a natural or adoptive parent is required to support a child. Provided, however, that upon the termination of the marriage or common law relationship between the stepparent and the child's natural or adoptive parent the support obligation shall terminate.
Utah Code Ann. § 78-45-4.1 (1992).
Mr. Willey's former stepchildren's expenses should not be considered in awarding Mrs. Willey alimony. The children's expenses are properly addressed under the Uniform Civil Liability for Support Act, Utah Code Ann. §§ 78-45-1 through -13 (1992). As calculated from the income of the children's parents (not former stepparents), the guidelines presumptively cover the children's living expenses, including basic needs. Cf. Christiansen v. Christiansen, 667 P.2d 592, 593 (Utah 1983).
The children's father, Mrs. Willey's previous husband, is paying the support required under the guidelines. If circumstances have changed since the support was calculated, Mrs. Willey can seek modification *553 of the support order. She should not, however, be able to require Mr. Willey to help support the children through an alimony award. See, e.g., Baker v. Baker, 866 P.2d at 546 (considering expenses of grandchildren living with spouse receiving alimony "would be tantamount to giving a child support award for the grandchildren"); see also Needel v. Needel, 15 Ariz.App. 471, 489 P.2d 729, 732 (1971) (rejecting attempt to introduce testimony about expenses of children from prior marriage); Brendel v. Brendel, 566 So. 2d 1269, 1273 (Miss.1990) (disallowing portion of alimony that would have gone to expenses of child by former spouse); Skribner v. Skribner, 153 N.J.Super. 374, 379 A.2d 1044, 1045 (Ct.Ch.Div.1977) (holding wife "should not be permitted to obtain through the back door what she cannot obtain directly").
E. Imputation of Income to Mrs. Willey
Mrs. Willey contends the court improperly imputed to her a monthly income of $1500 to $2000 in setting her alimony award. She argues that the court's finding is based solely upon speculation. We agree.
At trial, Mr. Willey called Mrs. Willey's current employer, who testified that if Mrs. Willey were employed full-time in the same position, she would make $800 per month gross income, but that no full-time sales or managerial positions were available for Mrs. Willey. Mrs. Willey called the director of human resources from a large Utah company to testify. This expert testified that a forty-two-year-old woman with an outdated bachelor of arts degree, without marketable skills, and who had not been employed full-time for ten years, needed at least three years of education to upgrade her skills, unless she is to be relegated to an unskilled sales or similar position. The trial court rejected this witness's testimony, finding it not credible in light of the witness's prior relationship with Mrs. Willey and the fact that she was planning to charge Mrs. Willey $1100 for her services. Mrs. Willey testified that to earn a teacher's starting salary of $1333 to $1500 a month,[5] she would need to complete thirty-eight to forty hours of a forty-five hour university program, which could be done in one year only if she attended school full-time. She also testified that a teacher's salary was not enough income for her to live on and thus she hoped to pursue other avenues of employment.
Regarding Mrs. Willey's ability to earn income, the trial court stated:
The court finds that the defendant is capable of earning income substantially in excess of that which is proposed here. Her earnings projection are at the level of $860.00. While there is not testimony of her having actively sought other income she described herself as a hobbyist. The court finds that she has previously worked in sales, in retail sales and clothing, that she works in a bookstore in sales, that she conducts classes ... with interested persons, and those yield greater income. The court believes that it would not be unreasonable to expect that her income could or should be in the range of $1,500 to $2,000 per month based upon her education and her circumstances. I recognize that there may be a little bit of time necessary to get to that level, that starting a job takes a little time at a lower rate, but it should not be below $860.00 and should certainly be within that level within 12 to 24 months.
We cannot say the trial court abused its discretion in setting Mrs. Willey's earnings at $860 per month based on a projection of full-time work at her present salary. See Thronson v. Thronson, 810 P.2d 428, 435 (Utah App.), cert. denied, 826 P.2d 651 (Utah 1991). However, there is no basis for the trial court's finding that Mrs. Willey could earn $1500 to $2000 per month within a year or two. We have previously held such a finding improper. In Bell v. Bell, 810 P.2d 489 (Utah App.1991), the trial court imputed a $1500 income to Mrs. Bell, despite undisputed testimony that she earned $863 per month as a part-time teaching assistant at Utah State University. Id. at 492 n. 2. The imputed income was based on the level she had *554 previously earned as a full-time school teacher in another state, approximately two years before she filed for divorce from her husband of ten years. Id. We noted that "[n]o explanation was offered for this unusual [income] adjustment." Id.
Mrs. Willey's circumstances are similar to Mrs. Bell's. Like Mrs. Bell, who began working part-time two years prior to filing for divorce, Mrs. Willey worked part-time during her marriage. Both possessed college degrees. However, unlike Mrs. Bell, Mrs. Willey never utilized her twenty-year-old education degree in an employment capacity. In Mrs. Bell's case, the trial court imputed an income she had actually earned on a full-time basis three years before trial. However, for Mrs. Willey, the trial court first imputed an income based on full-time employment at her current wage ($860 per month), and then, without any factual basis, speculated that she could raise her income to $1500 to $2000 per month.
The only evidence presented to suggest that she could earn income greater than $860 per month came from Mrs. Willey herself and from the witness whose testimony the court found not credible. If the trial court relied on Mrs. Willey's testimony, it appears the court failed to take into account her statement that she could earn $1333 to $1500 monthly as a starting teacher only after attending school for one year on a full-time basis, and then only if jobs were available. Furthermore, she had never taught school before, and there was no historical record of other earnings on which to base this finding.
We do not question the trial court's authority to impute income to Mrs. Willey. Imputing income to an unemployed or underemployed spouse when setting an alimony award is conceptually appropriate as part of the determination of that spouse's ability to produce a sufficient income. See Bell, 810 P.2d at 491-92. However, it cannot be premised upon mere conjecture; instead, it demands a careful and precise assessment requiring detailed findings. We have examined imputation in other contexts and outlined a detailed approach that, while not expressly applicable to the instant situation, should inform the trial court's assessment upon remand. See, e.g., Hall v. Hall, 219 Utah Adv.Rep. 29 (Utah App.1993) (implementing statutory guidelines and articulating necessary findings for imputation of income to parents in determining child support obligations); State v. Vincent, 845 P.2d 254 (Utah App.1992) (describing findings underlying assessments of earning capacity and other financial factors in determining indigency for appointment of counsel).
Such findings, however, are notably absent from the record before us. Without them we are unable to see how the trial court's imputed income level follows from or is supported by the evidence. Based on the facts in the record, we conclude that the trial court's jump to the higher salary range was an abuse of discretion. See Rasband v. Rasband, 752 P.2d 1331 (Utah App.1988). On remand, the trial court may base its award on Mrs. Willey's $860 per month projected earnings or, should it wish to use an imputed income figure, hold further evidentiary hearings to receive evidence on Mrs. Willey's future earning capacity consistent with the cases cited above.
F. Rehabilitative Alimony
It is clear from the structure of the alimony award that it was intended to achieve a rehabilitative purpose. We have no difficulty with a properly fashioned rehabilitative award under the facts of this case. However, to the extent the alimony award is intended to be rehabilitative, its goal is "to close the gap between actual expenses and actual income to enable the receiving spouse to then be better able to support [himself or] herself when the alimony and schooling end." Bell v. Bell, 810 P.2d 489, 492-93 n. 3 (Utah App.1991). Thus, the court must make realistic assessments of actual current income and actual expenses. The court must also consider the time demands and expenses of attending school. Absent such an assessment and appropriate findings, there is no basis on which to determine the proper amount and duration of alimony needed to achieve a rehabilitative outcome.
G. Summary
A thorough review of the record reveals that the court made no findings regarding *555 either party's reasonable financial needs. The court also failed to adjust either party's financial needs to account for the debt payments each would owe to First Interstate after the court's property distribution. Further, the trial court did not incorporate the contemplated debt arising from the sale of the marital home in the alimony determination. However, the court did not err in excluding evidence of the impact of Mrs. Willey's obligation to support her children from her previous marriage in assessing the appropriate alimony award. Finally, the court imputed income to Mrs. Willey that is unsupported by the record. Given the record before us, we are simply unable to balance Mrs. Willey's need and her ability to support herself against Mr. Willey's ability to pay as required by Jones; consequently, we cannot determine whether the trial court abused its discretion in setting the amount and duration of the alimony award. We therefore reverse and remand the alimony award for additional findings on each of the Jones factors and a reassessment of the alimony award in light of those findings and our decision.
II. PREMARITAL EQUITY
Mrs. Willey next contends the trial court abused its discretion by failing to recognize her equity in the marital home derived from proceeds of the sale of her premarital home. Mr. Willey responds that the evidence supports the trial court's finding that Mrs. Willey's premarital equity has lost its separate character as premarital property. We affirm the trial court's ruling on the basis that any premarital equity was consumed during the marriage.
"Generally, the rule for premarital property is that each party retain the separate property he or she brought into the marriage." Dunn v. Dunn, 802 P.2d 1314, 1321 (Utah App.1990). However, if the "property has been consumed or its identity lost through commingling or exchanges" it no longer falls within the rule. Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988) (emphasis added).
Although the trial court found the funds had lost their identity through commingling, the evidence shows that they were actually consumed, i.e., the equity was used for various expenses during the course of the marriage. Therefore, we affirm the court's rejection of Mrs. Willey's claim on that basis.
III. ATTORNEY FEES
A. Fees Through Trial
Mrs. Willey maintains that the trial court abused its discretion in awarding her only $5000 in attorney fees when she submitted evidence supporting her claim for $19,215. A trial court may award attorney fees in divorce proceedings. Utah Code Ann. § 30-3-3 (Supp.1993). "The award must be based on evidence of the financial need of the receiving spouse, the ability of the other spouse to pay, and the reasonableness of the requested fees." Bell v. Bell, 810 P.2d 489, 493 (Utah App.1991). "The decision to make such an award and the amount thereof rest primarily in the sound discretion of the trial court." Id. However, "[t]o permit meaningful review of the trial court's discretionary ruling, `[w]e have consistently encouraged trial courts to make findings to explain the factors which they considered relevant in arriving at an attorney fee award.'" Id. at 494 (quoting Regional Sales Agency, Inc. v. Reichert, 784 P.2d 1210, 1215 (Utah App. 1989)).
A court may consider, among other factors, the difficulty of the litigation, the efficiency of the attorneys, the reasonableness of the number of hours spent on the case, the fee customarily charged in the locality, the amount involved in the case and the result attained, and the expertise and experience of the attorneys involved.
Id. 810 P.2d at 493-94.
Mrs. Willey testified that she thought her attorney fees were reasonable. Counsel for Mrs. Willey made a proffer at trial concerning his $19,215 bill for legal services and testified that he had spent 128.1 hours on the case. Counsel's documented time was billed at $150 per hour. Counsel for Mr. Willey challenged the reasonableness of opposing counsel's expenses, activities, and billing rate. However, the trial court did not independently assess either this testimony or *556 the reasonableness of Mrs. Willey's fees. The court merely noted in its oral ruling that combined attorney fees of $31,000 to $32,000 was a "very unfortunate use of funds." While this statement may indicate the trial court believed both parties' fees were unreasonable, it does not constitute a finding addressing the reasonableness of Mrs. Willey's attorney fees according to the Bell factors. We, therefore, are unable to determine whether Mrs. Willey met her burden to show the reasonableness of her fees. On this basis alone, remand is appropriate. See Morgan v. Morgan, 795 P.2d 684, 688 (Utah App.1990).
Furthermore, the trial court made no findings regarding either Mrs. Willey's ability to pay her own attorney fees or Mr. Willey's ability to pay her fees. Coupled with the court's failure to make findings as to the reasonableness of her fees, we have no explanation why the court awarded Mrs. Willey approximately twenty-five percent of her request.
We therefore reverse the attorney fees award and remand the matter. If the court on remand concludes that attorney fees should be awarded, appropriate findings on the reasonableness of the fees and each party's ability to pay should be included.
B. Fees for Appeal
Mrs. Willey seeks an award of attorney fees incurred on appeal. "Ordinarily, when fees in a divorce were awarded below to the party who then prevails on appeal, fees will also be awarded to that party on appeal." Burt v. Burt, 799 P.2d 1166, 1171 (Utah App.1990). If the trial court again awards Mrs. Willey attorney fees after making the appropriate findings on remand, we award her attorney fees for this appeal in an amount to be determined by the trial court.
CONCLUSION
Because the trial court failed to make adequate findings of fact, we remand for the entry of appropriate findings, and a reassessment of the awards in light of those findings and our opinion, on (1) the award of alimony, (2) the allocation of debt, and (3) the award of attorney fees at trial and on appeal. We otherwise affirm.
BENCH and ORME, JJ., concur.
NOTES
[1] The trial court should consider a payor spouse's reasonable needs when determining that spouse's ability to provide support to a former spouse; in short, the payor spouse's reasonable needs are a necessary subsidiary step in determining the ability to provide support. See Baker v. Baker, 866 P.2d 540, 547 (Utah App.1993).
[2] Arguing Mr. Willey incurred most of the First Interstate debt after separation, Mrs. Willey challenges the trial court's finding that it was incurred for family expenses. However, Mrs. Willey has failed to marshal the evidence in support of the trial court's finding and then show why this evidence is insufficient to support that finding. See Utah R.Civ.P. 52(a). Thus, we accept the court's finding.
[3] The trial court could have taken evidence on and made a specific finding regarding the value of the home. If that valuation was proven incorrect after the sale, either party could have petitioned the court for a modification based on a change of circumstances. Following this procedure would allow the court to make an informed decision based on the best data available.
[4] As a side argument regarding the debt on the marital home, Mrs. Willey argues that a portion of the money borrowed from her parents, secured by a trust deed against the house, was used for the purchase of the couple's Mercedes Benz. She contends the trial court should therefore have made Mr. Willey individually responsible for the second mortgage. We cannot say the court abused its discretion in dividing this debt. However, on remand, if the court chooses to allocate a portion of this marital debt to Mrs. Willey, that decision must be considered in setting the alimony award.
[5] There is no evidence that Mrs. Willey had any foundation on which to base her estimate of a teacher's starting salary. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1796548/ | 886 F. Supp. 306 (1995)
Bruce SMITH, as personal representative of Ingrid Smith, deceased, Plaintiff,
v.
The SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA et al., Defendants.
Paul S. HUDSON, as personal representative of the Estate of Melina K. Hudson, deceased, Plaintiff,
v.
The SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, Defendant.
Nos. 94-CV-5556 (TCP), 94-CV-5557 (TCP).
United States District Court, E.D. New York.
May 17, 1995.
Memorandum Correcting Decision June 12, 1995.
*307 *308 Douglas E. Rosenthal, Timothy C. Russell, and Daniel N. Segal, of Sonnenschein, Nath & Rosenthal, Washington, DC, Alan Gerson and Mark Zaid, of Shapiro & Olander, Washington, DC, for plaintiff Bruce Smith.
Richard D. Emery, P.C., of Lankenau, Kovner & Kurtz, New York City, for the plaintiff Paul S. Hudson.
John R. Bartels, Jr., of Bartels & Feureisen, White Plains, NY, for defendants Socialist People's Libyan Arab Jamahiriya et al.
MEMORANDUM & ORDER
PLATT, District Judge.
Plaintiffs Bruce Smith and Paul Hudson, as personal representatives of victims who died in the bombing of Pan American Airways, Inc. (Pan Am) Flight 103 over Lockerbie, Scotland, on December 21, 1988, seek to recover civil damages.[1] Smith sues the Socialist *309 People's Libyan Arab Jamahiriya, the Libyan Arab Airlines, The Libyan External Security Organization, Abdel Basset Ali Al-Megrahi and Lamen Khalifa Fhimah as agents and instrumentalities of Libya. Hudson sues the Socialist People's Libyan Arab Jamahiriya (heretofore defendants for both cases are referred to as "Libya").[2] For the purposes of this motion, the claims of Mr. Smith and Mr. Hudson will be considered in tandem. Pursuant to Federal Rule Civil Procedure 12(b), Libya moves this Court to dismiss plaintiffs' claims. Defendants' motion to dismiss both actions is granted as the Federal Sovereign Immunities Act precludes the plaintiffs from bringing this action in the United States courts against the State of Libya and its agents.
BACKGROUND
On December 31, 1988, Pan Am Flight 103 left Frankfurt, Germany bound for Detroit with stops in London and New York. At about 7:00 p.m., Flight 103 exploded over Lockerbie, Scotland killing all 270 persons aboard, including passengers Mrs. Smith and Mrs. Hudson.
Plaintiff Smith alleges that Pan Am Flight 103 was destroyed by a bomb and that "[t]he actions of Libya in encouraging and sustaining these private acts [of terrorism] led to the deliberate and willful destruction of [the plane]." (Smith Complaint ¶ 11). Smith asserts tort claims for wrongful death, battery, infliction of emotional distress, loss of consortium and violation of international law. Plaintiff Hudson claims the alleged bomb "was placed on board the aircraft and detonated by and at the direction of Libya...." (Hudson Complaint ¶ 11). Hudson seeks to recover for the intentional torts of wrongful death and personal injury. (H.Complt. ¶¶ 15-20).
Mr. Smith and Mr. Hudson have sued previously to recover for the injuries alleged in this matter. In June, 1993, Smith filed a wrongful death action against Libya in Scotland. Hudson joined in the multidistrict tort action (MDL 799) against Pan Am before this Court in which the jury held Pan Am responsible for the destruction of the airplane.
DISCUSSION
Pursuant to FRCP Rule 12(b) the defendants move this Court to dismiss plaintiffs' claims for (i) lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA); (ii) lack of subject matter jurisdiction under principles of International Law; (iii) lack of personal jurisdiction on the grounds of Constitutional due process; (iv) pendency of prior parallel actions; and (v) as time barred.
Plaintiffs contend the FSIA sovereign immunity defense does not foreclose their claims because (i) the United States is party to certain international agreements within the United Nations system which authorize United States Courts to exercise subject matter jurisdiction over Libya; (ii) the injuries tortiously inflicted by Libya occurred in the United States for the purposes of applying the FSIA; and (iii) Libya impliedly waived sovereign immunity under FSIA when it provided a guaranty to pay certain compensation and/or when it violated the jus cogens norm.
As the FSIA controls whether a foreign sovereign is to be denied sovereign immunity, this Court only considers the issues raised here in the context of the FSIA. See, Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439, 109 S. Ct. 683, 690, 102 L. Ed. 2d 818 (1989) (the FSIA is the "sole basis for obtaining jurisdiction over a foreign state in federal court").
Foreign Sovereign Immunities Act
The Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-11, provides that "[s]ubject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of *310 the United States and of the States except as provided in sections 1605 and 1607 of this chapter." 28 U.S.C. § 1604 (1988). The excepted categories which preclude foreign nations from using the sovereign immunity defense are:
§ 1605 General exceptions to the jurisdictional immunity of a foreign state.
28 U.S.C. § 1605 (1988).
(a) A foreign state shall not be immune from the jurisdiction of the courts of the United States ... in any case
(1) in which the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect in accordance with the terms of the waiver.
(2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States
(3) in which rights in property taken in violation of international law are in issue
...
(4) in which rights in property in the United States acquired by succession
...
(5) not otherwise encompassed in paragraph (2) above, in which money damages are sought against a foreign state for personal injury or death ... occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment; except this paragraph shall not apply to
(A) any claim based upon the exercise or performance ... [of] a discretionary function regardless of whether the discretion be abused, or
(B) any claim arising out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights ...
§ 1607. Counterclaims ...
1. Subject Matter Jurisdiction Based on the 28 U.S.C. § 1604 Existing Agreement Exception.
As noted, FSIA preserves jurisdiction over a foreign state to the extent such jurisdiction exists under any international agreement to which the United States was a party at the time the statute was enacted. 28 U.S.C. § 1604. This "existing agreement" exception "applies when international agreements `expressly conflic[t] with the immunity provisions of the FSIA.'" Amerada Hess, 488 U.S. at 442, 109 S.Ct. at 692 (citing and quoting H.R.Rep. No. 94-1487, p. 17 (1976) (H.R.Rep.); S.Rep. No. 94-1310, p. 17 (1976) (S.Rep.), U.S.Code Cong. & Admin.News 1976, p. 6604).
a. Time Limit
Plaintiffs assert that the United Nations ("UN") Charter of 1945 (Charter), entered into by the United States prior to the passage of the FSIA in 1976, is an agreement which could preserve jurisdiction over a foreign nation pursuant to § 1604.[3] Plaintiffs seek to expand the jurisdiction provided by § 1604 to include resolutions passed by the UN Security Counsel, pursuant to Article VII, regardless of the date of passage, on the theory that such resolutions are "elaborations" of the terms of the Charter and therefore should be accorded the same status as the Charter.[4] U.N. CHARTER art. VII. Specifically, plaintiffs request that Security Council Resolutions 731 and 748, which call on Libya to accept responsibility for the bombing of Pan Am 103, be deemed international agreements which confer jurisdiction under § 1604. S.Res. 731, U.N. SCOR, 3033rd Mtg. (1992); S.Res. 748, U.N. SCOR, 3063rd Mtg. (1992).
Security Counsil Resolutions 731 and 748 do not confer jurisdiction upon this Court as *311 they do not meet the criteria set forth in the "existing agreement" exception in § 1604. The plain language of § 1604 requires that the international agreement at issue be in existence in 1976 when the FSIA was passed. Security Council Resolutions 731 and 748 were passed in 1992. This Court does not adopt plaintiffs' broad view that because the Resolutions were passed pursuant to powers created by the UN Charter that they are an "elaboration" of the Charter so that this Court should treat them as being passed on the same date as the Charter.
b. Conflict with FSIA Immunity Provisions
Even if the plaintiffs convinced this Court that the Security Council Resolutions related back to the Charter so as to meet the time requirement, plaintiffs claims would fail as Article VII of the UN Charter and Resolutions 731 and 748 do not conflict expressly with the FSIA immunity provisions. See, Id. Article VII addresses the UN's police powers in the face of actual or threatened armed aggression and makes no mention of how victims of such armed aggression can seek civil relief. The Resolutions at issue condemn terrorism and seek to impose diplomatic and economic sanctions against Libya. As neither Article VII nor the Resolutions address the FSIA immunity provisions, there is no conflict between the provisions at issue which could provide the basis for jurisdiction.
c. Private Right of Action
If jurisdiction was granted on the basis of the U.N. Resolutions plaintiffs' claims would not survive because the "agreement" at issue creates no private right of action. Plaintiffs argue that the incorporation of S/23308[5] into Resolution 748, which calls on Libya to accept responsibility for the actions of Libyan officials and pay appropriate compensation, provides the basis for a private right of action against Libya for the victims of Pan Am # 103.
"Treaties of the United States, though the law of the land do not generally create rights that are privately enforceable in courts." Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 808 (D.C.Cir.1984) (Bork, J. concurring) (citations omitted), cert. denied, 470 U.S. 1003, 105 S. Ct. 1354, 84 L. Ed. 2d 377 (1985). If there is no legislation providing an individual right of action, the Court may entertain a private claim only if the treaty is self-executing.[6]Id. (citations omitted). To determine if a treaty is self-executing the court examines "the intent of the signatory parties as manifested by the language of the instrument, and, if the instrument is uncertain, recourse must [be determined by examining] the circumstances surrounding its execution." Diggs v. Richardson, 555 F.2d 848, 851 (D.C.Cir.1976) (citing Sei Fujii v. State, 38 Cal. 2d 718, 721-22, 242 P.2d 617, 620 (1952)).[7] The Diggs action was not viable because the provisions of the Resolution "were not addressed to the judicial branch of our government ... [and did not] by their terms confer rights upon individual citizens." Id. Rather, "they call[ed] upon governments to take certain action." Id.
Upon a careful reading of Article VII of the UN Charter and Security Counsel Resolutions 731 and 748, this Court holds that the Resolutions are not self-executing. As noted above, the Resolutions at issue condemn terrorism and impose economic and diplomatic sanctions against Libya. This Court finds that the primary purpose of S/23308 is to demand Libya participate in the criminal investigation of the Lockerbie disaster. The vague directive that Libya must "pay appropriate compensation" does not refer to our *312 judiciary system or confer upon an individual the right to sue Libya to recover "appropriate compensation." Cf., Amerada Hess, 488 U.S. at 442, 109 S.Ct. at 692 (The fact the Geneva Convention on the High Seas and the Pan American Maritime Neutrality Convention set forth substantive rules of conduct and state that compensation shall be paid for certain wrongs does not create private rights of action.)
2. Subject Matter Jurisdiction Based on the 28 U.S.C. § 1605(a)(2) Commercial Activity Exception.
FSIA § 1605(a)(2) grants an exception from sovereign immunity for claims based on commercial activity by the foreign nation that has a sufficient connection to the United States. As the plaintiffs' seek recovery for solely tortious injury, the commercial activity exception is not applicable in this case.[8]
3. Subject Matter Jurisdiction Based on the 28 U.S.C. § 1605(a)(5) Non Commercial Tort Exception.
As noted above, § 1605(a)(5) denies foreign sovereign immunity in any case "in which money damages are sought against a foreign state for personal injury occurring in the United States and caused by the tortious act or omission of that foreign state...." Defendants contend that the plaintiffs' case does not meet the requirement that the injury occur in the United States because Pan Am Flight 103 exploded in Scottish airspace and crashed on Scottish soil. Plaintiffs response is that the street locality test should not be used in aviation cases and that as Pan Am was an American airline the plane was actually part of the United States.
a. Strict Locality Test
Plaintiffs claim that airplanes are "geographically unrestrained" so that the locality rule should be replaced with a flexible analysis, analogous to either maritime law principles or the modern approach for deciding conflicts of laws issues,[9] to determine where an aviation disaster occurred for the purpose of assigning jurisdiction. Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249, 266-68, 93 S. Ct. 493, 503-04, 34 L. Ed. 2d 454 (1972) (In both death and injury cases ... it is evident that while distinctions based on locality often are ... relevant where water vessels are concerned, they entirely lose their significance where aircraft ... are concerned." (quoting 7A J. Moore, Federal Practice, Admiralty ¶.330(5), at 3772-3 (2d ed. 1972)).
Plaintiffs' reliance on the reasoning employed in Executive Jet to come to the conclusion that the locality rule should not be applied in aviation tort cases is unfounded. The Executive Jet case wrestled with the issue of whether maritime tort law should apply when a domestic flight crashes into navigable waters within state territorial limits and in determining that issue the Court discussed the random nature of the location of aviation accidents. 409 U.S. at 261-65, 93 S.Ct. at 501-03. That case does not reach the issue of how to determine jurisdiction if the plane crashes over land and it does not touch upon the issue of foreign sovereign immunity. Furthermore, the admiralty jurisdiction of the federal courts in relation to foreign governments in now ruled by the *313 FSIA, which was not in effect in 1972 when the Executive Jet decision was rendered. 28 U.S.C. § 1605(b); Amerada Hess, 488 U.S. at 438, 109 S.Ct. at 690.
The remainder of the cases relied upon by the plaintiffs relate to issues of conflicts of law which arise from domestic aviation disasters. See, In re Air Crash at Washington, D.C., 559 F. Supp. 333, 340-42 (D.C.Cir.1983) (which state's law should apply when residents of various states are involved in the same disaster); O'Keefe v. Boeing Company, 335 F. Supp. 1104, 1110-11 (S.D.N.Y.1971) (which state's conflicts law should apply when an Air Force plane stationed in Massachusetts crashed in Maine and the wrongful death action was brought in New York). In accordance with plaintiffs' use of conflicts of law principles they claim that because the plane was destined for the United States, Pan Am was an American airline and the majority of passengers were citizens of the United States the situs of the tort was actually the United States.
This Court finds plaintiffs' call for a flexible approach for determining the location of an international aviation tort for the purposes of determining jurisdiction unpersuasive as the law to be applied in this action is the FSIA, not federal maritime law or conflicts law. The plain language of § 1605(a)(5) states that foreign immunity is excepted only when the tort occurs in the United States. The Supreme Court restricts the definition the "United States" for the purposes of this statute to "the continental United States and those islands that are part of the United States or its possessions...." Amerada Hess, 488 U.S. at 440, 109 S.Ct. at 691. As this flight exploded above Lockerbie, Scotland and crashed into Scottish soil, and there is no authority which stands for the proposition that the locality test should not be used, this Court finds this tortious injury was inflicted in Scotland, not the United States.
b. Pan Am Flight 103 as "Territory" of the United States
Plaintiffs seek to expand the maritime law principle that ships are the territory of their flag nation to include commercial airplanes. See, e.g., United States v. Flores, 289 U.S. 137, 155, 53 S. Ct. 580, 585, 77 L. Ed. 1086 (1933) ("a merchant vessel ... is deemed to be a part of the territory" of "the sovereignty whose flag it flies."); United States v. Cordova, 89 F. Supp. 298, 302 (E.D.N.Y.1950) ("American flag vessel is itself territory of the United States"). Applying this territorial approach, the plaintiffs argue that Pan Am Flight 103 was American territory so that the tortious activity injury inflicted on Mrs. Hudson and Mrs. Smith "occurred in the United States."
Adopting plaintiffs' approach would require this Court to expand Supreme Court precedent and overstep the bounds of judicial authority. As noted above, for the purpose of enforcing the FSIA the Supreme Court has defined the United States as "the continental United States and those islands that are part of the United States or its possessions. ..." Amerada Hess, 488 U.S. at 440, 109 S.Ct. at 691. This Court has no authority to broaden that clear definition to include American commercial aircraft. If this Court were to rule in plaintiffs' favor it would be interfering with foreign relations as each nation has the right to regulate the land on which a distressed plane might crash and its own air space. See, e.g., 49 U.S.C.App. § 1348 (1988) (authorizing Secretary of Transportation to regulate use of navigable air space). This Court reiterates that the tortious injury suffered in this case occurred on foreign soil and therefore does not fall within the non-commercial tort exception to the FSIA.
4. Subject Matter Jurisdiction Based on an Implied Waiver Pursuant to 28 U.S.C. § 1605(a)(1).
According to § 1605(a)(1), a foreign state can waive immunity "either explicitly or by implication...." In interpreting the FSIA "[f]ederal courts have been virtually unanimous in holding that the implied waiver provision of Section 1605(a)(1) ... is to be construed narrowly." Shapiro v. Republic of Bolivia, 930 F.2d 1013, 1017 (2nd Cir.1991). Plaintiffs claim that Libya impliedly waived immunity when (1) Libya agreed to guaranty satisfaction of any civil damage awards against its operatives as a result of the bombing of Pan Am Flight 103 and (2) when Libya acted in a "non-sovereign" manner.
*314 a. The Guaranty
On February 27, 1992, Ibrahim M. Bishari, Secretary of the Libyan government's "People's Committee for Foreign Liaison and International Cooperation", sent a letter to the Secretary of the United Nations which stated:
Despite the fact that discussion of the question of compensation is premature, since it would only follow from a civil judgment based on a criminal judgment, Libya guarantees the payment of any compensation that might be incurred by the responsibility of the two suspects who are its nationals in the event that they are unable to pay. S/23672, Report of Secretary-General (1992).
The plaintiffs contend this guaranty necessarily means that Libya contemplated the possibility of being haled into an United States court and therefore impliedly waived its right to sovereign immunity.
This Court disagrees with plaintiffs' self-serving interpretation of Mr. Bishari's letter. The above quoted clause indicates the Libyan government only agrees to guaranty civil damages which the Libyan criminal suspects cannot afford to pay when and of those suspects are convicted of criminal activity. The letter, read in totality, makes it clear that Libya does not intend to activate the provisions of that letter unless and until certain conditions are met. Specifically, the correspondence states "[t]he proposals contained in this draft shall be binding [when] ... State terrorism against Libya shall end, there shall be a halt to threats and provocations against it ... the economic boycott shall be ended ... and its name shall finally be removed from the roster of terrorism." S/23672. As those conditions have not been met, this letter does not represent a true "international agreement" and therefore no provision therein can create an implied waiver of sovereign immunity.
Even if the Libyan government had guaranteed civil damages it does not necessarily follow that this Court would find Libya had impliedly waived its right to sovereign immunity pursuant to FSIA. "[B]y signing an international agreement that contains no mention of a waiver of immunity to suit in United States courts or even the availability of a cause of action in the United States" a foreign nation may not waive its immunity pursuant to § 1605(a)(1). Amerada Hess, 488 U.S. at 442-43, 109 S.Ct. at 693. As the letter makes no reference to our judicial system or the creation of a private right of action to be adjudicated in the United States, it does not necessarily impliedly waive Libya's right to immunity.
b. Violations of the Jus Cogens Norm
To interpret the language of § 1605(a)(1) plaintiffs argue that the implied waiver of immunity provision codified pre-FSIA case law which held a state is divested of its sovereign character, including immunity, when it participates in non-sovereign acts. See, United States v. Deutsches Kalisyndikat Gesellschaft, 31 F.2d 199, 203 (S.D.N.Y.1929) (The Government of France's role as a shareholder in a private French corporation was not sovereign activity so that the corporation was not immune from suit in the United States). To define those acts which amount to an implied waiver plaintiffs look to "standards recognized under international law." H.R.Rep. No. 1487, 94th Cong., 2d Sec. 18, reprinted in 1976 U.S.Code Cong. & Admin.News 6604, 6617. Particularly, plaintiffs assert that Libya's alleged involvement in this bombing impliedly waived immunity, as it was a non-sovereign action in the form of a violation of the jus cogens norm.
Jus cogens norm is an international law principle which is "accepted by the international community of States as a whole as a norm from which no derogation is permitted ..." Committee of U.S. Citizens in Nicaragua v. Reagan, 859 F.2d 929, 940 (D.C.Cir. 1988) (quoting Vienna Convention on the Law of Treaties, May 23, 1969, art. 53, U.N.Doc. A/Conf. 39/27, 8 I.L.M. 679). Jus cogens violations include "a handful of heinous activities each of which violates definable, universal and obligatory norms." Tel-Oren, 726 F.2d at 781 (Edwards, J., concurring).
There is no authority which provides federal courts with the discretion to determine whether a nation has impliedly waived immunity by examining if that nation was acting in a "sovereign" or "non-sovereign" manner. The legislative history indicates that to decide whether immunity is impliedly *315 waived courts are to inquire as to the foreign government's subjective intent to avail itself to American jurisdiction. Shapiro, 930 F.2d at 1017. Congress provided three examples of activity which would warrant the finding of an implied waiver: (1) an agreement to arbitrate in another country, (2) an agreement that the laws of another nation will govern a contract, and (3) the filing of a responsive pleading without raising the sovereign immunity defense. Id. (citing H.R.Rep. No. 1487, 94th Cong., 2d Sec. 18, reprinted in 1976 U.S.Code Cong. & Admin.News 6604, 6617). As the instant case is not analogous to these three examples and because participating in "terrorist" activity does not indicate a foreign sovereign's amenability to suit, Libya has not impliedly waive its immunity pursuant to § 1605(a)(1).
The District of Colombia Circuit recently determined that the violation of the jus cogens norm is not an implied waiver of sovereign immunity. Prinez v. Federal Republic of Germany, 26 F.3d 1166, 1174 (D.C.Cir. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 923, 130 L. Ed. 2d 803 (1995). That case concerned an American Jewish Holocaust survivor who was seeking to sue Germany for war reparations. Id. at 1168. The Circuit Court found the atrocities inflicted in the Nazi concentration camps were definitely horrendous violations of the jus cogens norm, but that such actions did not create an implied waiver of sovereign immunity as neither the Third Reich nor the modern. German government ever indicated "its amenability to suit." Id. at 1168-69, 1174. This Court adopts the reasoning in Princz. Libya's alleged behavior was inhumane and violative of the jus cogens principle, but such actions do not demonstrate that Libya purposefully availed itself to our courts.
CONCLUSION
Although Libya's alleged participation, if true, in this tragedy is outrageous and reprehensible and the human suffering involved is heartbreaking, this Court may not rightly obtain jurisdiction over Libya for the purposes of these private rights of action. Libya's alleged terrorist actions do not fall within the enumerated exceptions to the Foreign Sovereign Immunities Act and therefore Libya must be accorded sovereign immunity from suit.
SO ORDERED.
CORRECTING MEMORANDUM & ORDER
On May 17, 1995, this Court granted defendants' motion to dismiss the above captioned actions. Although Abdel Basset Ali Al-Megrahi and Lamen Khalifa Fhimah, the two individual defendants named in plaintiff Smith's original complaint[1], did not join in the motion to dismiss filed by the other defendants, this Court inadvertently named them as defendants whose motion to dismiss had been granted.
This Court now corrects its Order dated May 17, 1995 to state that the motion to dismiss filed by the Socialist People's Libyan Arab Jamahiriya, the Libyan External Security Organization and the Libyan Arab Airlines is granted. As Messrs. Al-Megrahi and Fhimah did not join in that motion the complaint against them is not dismissed.
SO ORDERED.
NOTES
[1] Bruce Smith represents the estate of his deceased wife Ingrid Smith. Paul Hudson represents the estate of his deceased wife Melina K. Hudson.
[2] Since the filing of this Motion to Dismiss, plaintiff Hudson has filed an Amended Complaint in which he sues additional parties. This Court will consider the Motion to Dismiss as to the defendants named in the original complaint, as that was the complaint at issue at the time of the filing of the Motion.
[3] The United Nations Charter "is part of the supreme law of the land." United States v. Steinberg, 478 F. Supp. 29, 33 (N.D.Ill.1979).
[4] Article VII of the Charter specifies the U.N.'s Police Power.
Article 25 of the Charter provides "[t]he members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter."
[5] S/23308: JOINT DECLARATION OF THE UNITED STATES AND UNITED KINGDOM The British and American Governments today declare that the Government of Libya must:
surrender for trial purposes all those charged with the crime; and accept responsibility for the actions of Libyan officials:
disclose all it knows of this crime ...
pay appropriate compensation.
We expect Libya to comply promptly and in full. G.A. S/23308, U.N. GAOR, 46th Sess., U.N.Doc. A/46/827 (1991).
[6] A treaty is self-executing when it expressly or impliedly provides a private right of action.
[7] Diggs v. Richardson considered whether a Security Council Resolution is self-executing. The Court found individual plaintiffs could not maintain a suit against the United States when the U.S. allegedly violated Security Council Resolution 301, which prohibited certain relations with South Africa.
[8] The plaintiffs included this claim in their complaint but did not argue it in the Plaintiffs' Memorandum of Points and Authorities in Opposition to Defendants' Motion to Dismiss. This Court interprets the plaintiffs' decision not to include this matter in their motion papers as an indication of the weakness of this claim.
[9] 145 of the Restatement of Conflicts of Law, Second provides the basis for the modern approach to conflicts law.
(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred.
(b) the place where the conduct causing the injury occurred.
(c) the domicil, residence, nationality, place of incorporation and place of business of the parties,
(d) and the place where the relationship, if any, between the parties is centered.
These contacts are to be evaluated according to their relative importance with respect to the particular issue.
[1] Plaintiff Hudson's amended complaint, which was filed after the motion to dismiss, names these two individuals as defendants. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2051512/ | 35 N.J. 62 (1961)
171 A.2d 295
IN THE MATTER OF THE APPLICATION OF THE WATERFRONT COMMISSION OF NEW YORK HARBOR, TO PUNISH WILLIAM MURPHY FOR FAILURE TO OBEY A SUBPOENA. IN THE MATTER OF THE APPLICATION OF THE WATERFRONT COMMISSION OF NEW YORK HARBOR, TO PUNISH JOHN MOODY, SR. FOR FAILURE TO OBEY A SUBPOENA.
The Supreme Court of New Jersey.
Argued April 11, 1961.
Decided May 22, 1961.
*63 Mr. Robert Wall argued the cause for the appellant, William Murphy.
*64 Mr. Samuel L. Marciano argued the cause for the appellant, John Moody, Sr. (Messrs. Florio, Dunn, Marciano & Lypinski, attorneys; Mr. Samuel L. Marciano, on the brief).
Mr. Robert A. Pin argued the cause for the respondent, Waterfront Commission of New York Harbor (Mr. William P. Sirignano, of the New York Bar, General Counsel; Mr. Irving Malchman, of the New York Bar, Assistant to General Counsel).
The opinion of the court was delivered by PROCTOR, J.
This case turns on whether the Waterfront Commission of New York Harbor has jurisdiction to investigate a work stoppage by longshoremen, when the Commissioners have reason to believe that the stoppage was designed to inhibit effective operation of the port watchman system. The defendants, John Moody, Sr. and William Murphy officials of the striking union appeal from a judgment of the Superior Court, Law Division, ordering that they be incarcerated until they are willing to answer certain questions addressed to them by the Commission during the course of its investigation. Each was also fined $50. We certified the appeal before argument in the Appellate Division.
The events leading up to the judgment from which defendants appeal are as follows: One James H. Markley was an investigator for the Commission, assigned principally to cover the piers and terminal of the American Export Lines in Hoboken. On or about May 16, 1960, Markley left the employ of the Waterfront Commission in order to work for American Export as a security officer. To fulfill his security functions, Markley obtained a license from the Commission permitting him to operate as a port watchman. On May 16, 1960, the day Markley was to commence work for American Export, the longshoremen and checkers employed by American Export in Hoboken did not report for work. With the exception of the morning of May 17, the work stoppage continued until May 25. The striking employees were members of Hoboken Local No. 2 of the International *65 Longshoremen's Association (ILA). Defendant Moody is an organizer for the ILA in New Jersey; and defendant Murphy is business agent for Local No. 2.
The Waterfront Commission had information that the work stoppage was "a concerted effort to keep James H. Markley off the piers of the American Export Lines." Accordingly, it instituted an investigation to determine whether any persons registered or licensed by the Commission were violating the Waterfront Commission Act (N.J.S.A. 32:23-1 et seq.) by coercing an employer to limit the functions of, or discharge, a licensed port watchman. In connection with the investigation, the Commission served subpoenas ordering the defendants to appear and testify. When defendants appeared, they were informed of the above-described purposes of the investigation. They were also informed that the Commission was proceeding under its statutory authority to make investigations and collect and compile information concerning waterfront practices generally, and all matters relating to the accomplishment of the objectives of the act. The defendants were also told that the Commission was "asking questions to determine the true nature of this work stoppage, to see whether it's a labor dispute or whether there's violation of both the criminal law or the * * * [Waterfront Commission Act]."
Defendant Moody gave his name and address, testified that he was a union official, and refused to answer any other questions. Defendant Murphy testified that he was business agent of Local No. 2 and represented members of the Local working at the American Export facilities in Hoboken. He stated that he knew the longshoremen did not work on May 16, 1960, and that it was common knowledge for the ten days preceding May 16 that things were not normal at the American Export piers. Murphy refused to say whether the abnormal conditions were related to the employment of Markley as port watchman, and he refused to answer any other questions. Neither defendant asserted his privilege against self-incrimination; but each stated, inter *66 alia, as a reason for his refusal to answer that the Commission did not have jurisdiction to conduct the investigation.[1] The Commission interrogator overruled the defendants' objections to the questions, directed them to answer, and informed them that continued recalcitrance would subject them to "contempt proceedings." Defendants persisted in their refusal; and subsequently the Law Division, pursuant to a motion by the Commission, and after a hearing, rendered the judgment which imposed a fine upon the defendants and directed their incarceration.
Defendants urge reversal of the judgment below on the ground that, even assuming the purpose of the work stoppage was to subvert the port watchman system, the Commission does not have jurisdiction to investigate it. They argue (1) that the investigation adversely affects or limits "the right to strike" which is expressly reserved by the Waterfront Commission Act (N.J.S.A. 32:23-68); and (2) that the Commission's power to investigate is in conflict with and therefore pre-empted by the Labor Management Relations Act (LMRA) (29 U.S.C.A. § 141 et seq.). Defendants' first argument is encompassed by their pre-emption argument. Article XV, section 1, par. 1 of the Waterfront Commission Act provides:
"* * * nothing contained in this compact shall be construed to limit in any way the right of employees to strike." N.J.S.A. 32:23-68.
Assuming, arguendo, that investigation and the concomitant power to punish recalcitrant witnesses is in itself regulation, the effect of this statutory provision upon the Commission's power to investigate necessarily depends upon what is meant by the "right to strike." Like most rights, that right is not absolute. A strike is not immune under all conditions from any form of governmental regulation. The Waterfront Act does not purport to define the dimensions of the *67 right to strike. It therefore merely declares a rule of interpretation which prevents any use of the act to qualify or impede whatever right exists under New Jersey or Federal law. Cf. International Union v. Wisconsin Empl. Rel. Bd., 336 U.S. 245, 259, 69 S.Ct. 516, 93 L.Ed. 651, 665 (1948) (interpreting § 163 of the LMRA, which provides that "Nothing in this subchapter * * * shall be construed so as either to interfere with or impede or diminish in any way the right to strike * * *." 29 U.S.C.A. § 163.)
We do not know of any New Jersey law which prevents state investigation of a strike intended to inhibit effective functioning of a security system. If that right exists, it must come from federal law. The applicable federal law is the LMRA and its amendments. By the "right to strike," therefore, defendants must mean that under the federal statute the alleged union activity is either immune from limitation or subject to limitation only by the federal government. So viewed, the argument is that because the work stoppage falls within the purview of the LMRA, the National Labor Relations Board has exclusive primary jurisdiction to deal with it. This is the same as defendants' pre-emption argument and shall be discussed together therewith.
Defendants' pre-emption argument goes as follows: The power to investigate is the power to regulate. A state may regulate union activity only when the activity is clearly not protected by § 7 or prohibited by § 8 of the LMRA. 29 U.S.C.A. §§ 157, 158. Otherwise stated, if union activity is arguably protected or prohibited by the federal legislation, the National Labor Relations Board has exclusive primary jurisdiction to deal with it. See San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). The Waterfront Commission states that the purpose of its investigation is to determine whether defendants' union struck to cause an employer (American Export) to discriminate against one of its employees (Markley). Defendants contend that such a strike is an unfair labor practice under section 8(b) (2) of the LMRA (29 *68 U.S.C.A. § 158(b) (2)). Accordingly, the Waterfront Commission has no primary jurisdiction to investigate it.
For reasons subsequently to be discussed, it is unnecessary for us to decide whether the strike by defendants' union arguably falls within the protections or proscriptions of the LMRA. The constitutional doctrine of pre-emption the exclusion of state power over a particular matter because it is the subject of comprehensive federal regulation is designed to implement congressional purpose. See De Veau v. Braisted, 363 U.S. 144, 153, 80 S.Ct. 1146, 4 L.Ed.2d 1109, 1116 (1960); Garner v. Teamsters, C. & H. Union, 346 U.S. 485, 488, 74 S.Ct. 161, 98 L.Ed. 228, 238 (1953). If by its regulation of a particular activity Congress has exhibited a purpose which is incompatible with the exercise of state power over the same activity, the state power must give way. San Diego Bldg. Trades Council v. Garmon, supra; Garner v. Teamsters, C. & H. Union, supra. The applicability of the doctrine to the present case therefore depends upon an answer to the question: Would Congress regard a Commission investigation of a strike designed to limit the effectiveness of the port-watchman system as incompatible or in conflict with federal regulation of labor relations?
The answer to the above question turns on the nature of the Waterfront Commission Act. Our act is a counterpart of one contemporaneously adopted by New York. L. 1953, cc. 202, 203 (N.J.S.A. 32:23-1 et seq.; N.Y. Laws 1953, cc. 882, 883, McKinney's Unconsolidated Laws, §§ 6700-aa et seq. It has three parts. Part I (N.J.S.A. 32:23-1 to 73) is a compact of sixteen articles entered into by the two states with the consent of Congress (67 Stat. 541, Act of Aug. 12, 1953, c. 407) as required by Article I, section 10 of the Federal Constitution. This part establishes the Waterfront Commission as a bi-state agency, sets forth the purposes of the legislation, and gives to the Commission certain powers essential to fulfillment of those purposes. Part II (N.J.S.A. 32:23-74 to 77.3) primarily concerns the *69 financial administration of the Commission and its programs. And Part III (N.J.S.A. 32:23-78 to 108) contains provisions supplementing and implementing the compact of Part I.
A recent United States Supreme Court case relies on congressional approval of the bistate Compact to show that the congressional purpose manifested in federal labor legislation is not incompatible with the exercise of a state power asserted under the Waterfront Act. De Veau v. Braisted, 363 U.S. 144, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960). At issue in De Veau was the validity of a provision in Part III of the New York Act (New Jersey's Act has a similar provision) which prohibits a waterfront union from collecting dues if any officer of the union has been convicted of a felony and has not been pardoned or given a certificate of good conduct by the parole Board. McKinney's Unconsolidated Laws, § 6700-ww (N.J.S.A. 32:23-80). The plaintiff, a local union official who had been convicted of grand larceny, was suspended from office because the defendant district attorney threatened to prosecute any person collecting dues for the local so long as the plaintiff remained an officer. The plaintiff sought to have the statutory provision declared unconstitutional and its operation enjoined. His primary argument was that the disputed section of the Waterfront Act was in conflict with and therefore pre-empted by the LMRA, specifically sections 1 and 7 thereof. 29 U.S.C.A. §§ 151, 157. Section 1 of the LMRA declares a congressional purpose to protect "the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection." 29 U.S.C.A. § 151. Section 7 grants employees "the right * * * to bargain collectively through representatives of their own choosing." 29 U.S.C.A. § 157. The plaintiff argued that pre-emption resulted from the fact that the employees' right to select representatives of their own choosing guaranteed by the *70 LMRA was interfered with or limited by the Waterfront Act provision disabling them from collecting dues if they select a convicted felon as a representative.
The court rejected the pre-emption argument on the ground that "in light of the purpose, scope and background of * * * [the Waterfront Commission Act] and Congress' relation to it, * * * an inference of incompatibility has no foundation." 363 U.S., at p. 153, 80 S.Ct., at p. 1151, 4 L.Ed.2d, at p. 1116. It noted that the Waterfront Act was passed primarily to eliminate criminal domination of waterfront labor; that its passage followed extensive study of waterfront conditions by New York, New Jersey and Congress; and that Congress concurred in the states' conclusion that statutory measures to control waterfront labor practices were essential to eliminate the then prevailing crime-infested conditions. The court reasoned that by approving the bistate Compact and thus endorsing its goals, Congress manifested an intent not to pre-empt regulation of union officials by the Waterfront Commission.[2]
The principle of De Veau that congressional approval of the bistate Compact indicates the inapplicability of the pre-emption doctrine to a state power derived from the Waterfront Act applies with even more force to the case before us. For in De Veau the disputed section of the Waterfront Act was not part of the Compact expressly consented to by Congress.[3] An examination of the history and structure of *71 the Waterfront Act shows that the power here asserted by the State is not only essential to fulfillment of the statutory objectives but is accorded by the Compact which Congress approved.
As previously noted, submission of the Compact to Congress was preceded by extensive studies, undertaken by the states and Congress, of conditions on the New York-New Jersey waterfront. For a discussion of these studies, see Hazelton v. Murray, 21 N.J. 115 (1956), and state and congressional reports cited therein.
The legislative reports all indicate that the act was passed to eliminate racketeering and other evils on the New York-New Jersey waterfront. One evil of specific concern was the domination of the Port Watchmen's union by the ILA. Criminal elements in control of the ILA were thus able to neutralize the effectiveness of the security system, and commit crimes without fear of disclosure. "Through their power as union officials, they [criminal leaders of the ILA] place their confederates in key positions on the docks * * * and carry on such activities as pilferage, loansharking and gambling." Fourth Report, N.Y. State Crime Commission, N.Y. State Leg. Doc. No. 70, pp. 23-24 (1953). The extent and effect of former ILA control over watchmen is illustrated by the following excerpts from pages 57, 59, and 63 of the New York report adopted by the New Jersey Law Enforcement Council (Report of the New Jersey Law Enforcement Council, p. 3, June 19, 1953.):
"Prior to the Taft-Hartley Act (1947) the Port Watchmen's Union, Local 1456, which represented the New York port watchmen, was an ILA local dominated and controlled by Joseph P. Ryan, John J. (Ike) Gannon, Charles P. Spencer, and their associates. Since the port watchmen were supposed to stop thievery, loansharking, gambling and extortion, and to preserve the peace, they could hardly expect and did not receive any support from the officials of the ILA or of its locals.
* * * * * * * *
The close connection of the watchmen's union with the ILA has resulted in watchmen being reprimanded by their union leaders for *72 reporting a longshoreman for stealing. This situation was developed in the testimony of C. Gulizia, a port watchman (3168-3169):
Q. And did you have occasion during that time to pick up a longshoreman for stealing cargo on that pier? A. Right, sir.
* * * * * * * *
Q. Turned the man in? To whom? A. To the superintendent, of course. The man, I hear, got four days suspension. The same man went to the union and complained about it.
Q. And he came back to work? A. Well, he didn't come back. Maybe he went to another pier.
Q. But he got a four-day suspension? A. As far as I was told.
Q. He wasn't prosecuted criminally, so far as you know? A. Never.
Q. He wasn't sentenced to jail for larceny, anything of that kind? A. Never. None of them were sent to jail.
* * * * * * * *
Q. And what did Gannon say about it? A. Well, he says, `That isn't the right way to do things,' and he says, Gannon says `If you were to get four days' suspension, how would you like it?'
Q. You mean the president of the Watchmen's Union? A. That's right.
Q. Told you it wasn't right to turn in a man you'd seen actually stealing cargo on the pier? A. That's right. That's right.
The port watchman, next to the rank-and-file longshoreman, is the most tragic figure on the piers.
* * * * * * * *
When some steamship companies have attempted to increase the effectiveness of their security service they have been met with objections on the part of ILA officials and forced to give up the project. An example was given by F.M. Rohrer of the Grace Line. Rohrer explained what happened when he tried to hire Vincent Tierney to head the Grace Line port police (371):
Q. Did you then tell Mr. Tierney that you had to clear the hiring of Mr. Tierney to replace Mr. English with Gene Sampson, the delegate of 791, and Jay O'Connor, the delegate of 791, and others? A. I don't know as it was mentioned by name, but I probably did tell him that it had to be cleared through the union.
Q. That the hiring of the head watchman had to be cleared A. (interposing) With the union delegates.
Q. ILA union delegates? A. That's right.
Q. Not the watchmen's delegates? A. No.
Tierney was then employed to make a security study on the piers operated by the Grace Line, but even this met with violent union opposition. In fact, Tierney, an ex-policeman, testified that he had been threatened with death (3889)."
To combat the above-enumerated and other evils, the Compact (the part of the act approved by Congress) grants to the Waterfront Commission authority to license or register *73 waterfront workers and to regulate hiring practices. Of particular significance to the present case is the fact that the Compact requires port watchmen to be licensed by the Commission (N.J.S.A. 32:23-39) and establishes as a condition for receiving and holding a license that a watchman not be a member of a union which represents longshoremen. N.J.S.A. 32:23-41(d) and 44(a). To make effective the provisions of the act, the Compact grants the Commission the powers, among others, (1) "to make investigations, collect and compile information concerning waterfront practices generally within the port of New York district and upon all matters relating to the accomplishment of the objectives of this compact." N.J.S.A. 32:23-10(11) [Emphasis added]; (2) "to administer oaths and issue subpoenas throughout both States to compel the attendance of witnesses and the giving of testimony and the production of other evidence." N.J.S.A. 32:23-10 (8) [Emphasis added]; and (3) "to make annual and other reports to the Governors and Legislatures of both States containing recommendations for the improvement of the conditions of waterfront labor * * * for the alleviation of the evils described * * * and for the effectuation of the purposes of this compact." N.J.S.A. 32:23-10(13). N.J.S.A. 32:23-62, also contained in the Compact approved by Congress, provides that failure of any witness when duly subpoenaed to attend or give testimony shall be punishable by the Superior Court, Law Division, in New Jersey, and the Supreme Court in New York in the same manner as such failure is punishable by those courts in a case pending therein. See In re Application of Waterfront Com., 32 N.J. 323, 332 (1960).
It is clear from a reading of the legislative reports which preceded passage of the Waterfront Act and a reading of the Compact itself that the creation and maintenance of an independent port watchman system was regarded by both the states and Congress as essential to the creation and preservation of a crime-free waterfront. It is equally clear *74 that power to investigate any activity which reasonably appears designed to inhibit the effectiveness of the port security system is essential to the maintenance of the watchman's independence and thus to the fulfillment of the ultimate statutory goal. We can think of no sensible reason why Congress would expressly approve the states' effort to rid the waterfront of crime by creating, among other things, an independent watchman system, and yet pre-empt and thus bar application of the expressly granted power to investigate activities which appear detrimental to accomplishment of that goal. Cf. De Veau v. Braisted, supra, 363 U.S., at p. 153, 80 S.Ct., at p. 1151, 4 L.Ed.2d 1109, at p. 1116.
Applying the principle of De Veau to the case before us, we find that by its express approval of the bistate Compact Congress indicated that exercise of the Commission's investigatory power over a strike which appears designed adversely to affect the port security system does not conflict with the policies and goals of federal labor legislation and that therefore the states' power is not pre-empted by the LMRA.[4] We note that our conclusion is consistent with all other cases we know of in which some provision of the Waterfront Act was alleged to have been pre-empted by federal legislation. In each case the act survived the pre-emption attack. Staten Island Loaders v. Waterfront Commission, 117 F. Supp. 308 (D.C.S.D.N.Y. 1953), affirmed Linehan v. Waterfront Comm., 347 U.S. 439, 74 S.Ct. 63, 98 L.Ed. 826 (1954); Linehan v. Waterfront Commission of New York Harbor, 116 F. Supp. 683 (D.C.S.D.N.Y. 1953), affirmed 347 U.S. 439, 74 S.Ct. 623, 98 L.Ed. 826 (1954); Bell v. Waterfront Commission of New York Harbor, 279 F.2d 853 (2 Cir. 1960); Bradley v. Waterfront Comm. of New York Harbor, 130 F. Supp. 303 (D.C.S.D.N.Y. 1955); O'Rourke v. Waterfront Commission, *75 118 F. Supp. 236 (D.C.S.D.N.Y. 1954); Applegate v. Waterfront Comm. of New York Harbor, 184 F. Supp. 33 (D.C.S.D.N.Y. 1960); Hazelton v. Murray, supra.
We hold that the Commission may investigate a waterfront work stoppage when the Commissioners have reason to believe that the stoppage is designed to inhibit effective operation of the act. The Commission is entitled to know all of the facts surrounding such a stoppage so that it may intelligently determine whether persons registered or licensed by the Commission have violated any provision of the act and so that it may fulfill its statutory duty of recommending to the state governments measures for the improvement of the conditions on the New York-New Jersey waterfront.
Accordingly, the judgment of the Superior Court, Law Division, is affirmed.
For affirmance Chief Justice WEINTRAUB, and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN 7.
For reversal None.
NOTES
[1] Defendants' other stated reasons for their refusals to answer are not related to the grounds for reversal urged on this appeal.
[2] The plaintiff in De Veau also argued that pre-emption derived from a provision of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C.A. § 401 et seq., which imposed less restrictive limitations on union officers than the Waterfront Act. The court rejected that argument on the ground that when Congress meant pre-emption to flow from the 1959 act, it expressly so provided.
[3] As previously noted, the disputed section was contained in Part III. Part II and III were not part of the Compact. The Supreme Court reasoned, however, that since Congress was aware of the provisions in Part III when it approved Part I, and since Part III was essential to implementation of Part I, congressional approval extended to the disputed section.
[4] The defendants do not urge a conflict between the Commission's power to investigate this strike and any provision of the Labor-Management Reporting and Disclosure Act of 1959. 29 U.S.C.A. § 401 et seq. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1875926/ | 260 S.W.3d 427 (2008)
Sarrah PENNY, Appellant,
v.
ST. LOUIS DEVELOPMENTAL DISABILITIES TREATMENT CENTER and Division of Employment Security, Respondents.
No. ED 90638.
Missouri Court of Appeals, Eastern District, Division Two.
August 12, 2008.
Lisa B. Bartlett, St. Louis, MO, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Yvette Guerra Hipskind, Asst. Atty. Gen., St. Louis, MO, Larry R. Ruhmann, Jefferson City, MO, for respondents.
Before ROY L. RICHTER, P.J., LAWRENCE E. MOONEY and GEORGE W. DRAPER III, JJ.
ORDER
PER CURIAM.
The claimant, Sarrah Penny, appeals the decision of the Labor and Industrial Relations Commission finding her disqualified *428 from receiving certain unemployment-compensation benefits. A written opinion would have no precedential value. We have furnished the parties with a memorandum, for their information only, explaining the reasons for our decision. We affirm. Rule 84.16(b)(4) & (5). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1750939/ | 165 F. Supp. 738 (1958)
STATE OF TEXAS,
v.
W. A. DORRIS.
STATE OF TEXAS
v.
W. E. MAYFIELD.
United States District Court S. D. Texas, Corpus Christi Division.
September 20, 1958.
*739 Gerald Weatherly, Laredo, Tex., for petitioning defendants.
ALLRED, District Judge.
Counsel for the named defendants have asked the clerk of this court to file a removal petition under 28 U.S.C.A. § 1446 so as to transfer the trial of two misdemeanor criminal cases originating in the Justice Court and appealed to the County Court of Brooks County. Counsel claims that these criminal cases can be removed under Section 1443 of Title 28, which authorizes removal of civil or criminal actions against any person who is denied, or cannot enforce, in the state courts a right under any law providing for equal civil rights.
Defendants were convicted in the justice court on a charge of hunting deer at night,[1] in violation of Article 887 of the Vernon's Ann.Penal Code of Texas. The minimum punishment for which is a fine of not less than $25 nor more than $100. They appealed to the County Court and allege here that the complaints were filed by an employee and representative of an organization of ranchers in the county who are aiding and abetting the prosecution; that defendants cannot secure a fair and impartial trial because these ranchers own about 34% of the land in the county, have many employees, and control the county judge and county attorney; that these ranchers have conspired to bring about the conviction of the defendants; that the county judge *740 will appoint jury commissioners who have selected and will continue to select prospective jurors who will probably convict defendants; that the jurors available to try the case at the present term are employees of, or closely associated with members of the association.
Defendants assert that, since Texas law does not provide for a change of venue in a misdemeanor case[2] and no appeal is allowed from the County Court to the Texas Court of Criminal Appeals in a case of this type[3] they are denied and cannot enforce their right under the Fourteenth Amendment to be not deprived of life, liberty or property without due process of law and not to be denied the equal protection of the laws.
When counsel for defendants tendered the so-called petition for removal for filing, the Clerk searched the rules and statutes and, being understandably puzzled, asked the Court for instructions. The Court directed that the actions not be docketed for the following reasons:
This is not the first time that counsel for defendants has attempted to remove misdemeanor cases to this court. In 1950 a number of alleged election law violation cases were pending in Starr County, Texas, against M. A. Guerra, Antonio Ramos, Jr. and Lauro Salinas. There it was contended that there was a conspiracy on the part of members of a new political party to persecute members of the old party and deprive them of their life, liberty and property without due process of law and deny them protection, in violation of the Fourteenth Amendment. The first proposition put forward here, that the State law does not authorize a change of venue in a misdemeanor case, was also pressed in that case. This court remanded the Guerra cases[4] to the Starr County court, pointing out that change of venue in a misdemeanor case is not a constitutional right.[5]
In the Brownsville cases this court quoted from 2d Cyc.Fed.Proc. 398, pp. 283, 288 (now 2d Cyc.Fed.Proc. 3.82), reading in part as follows:
"§ 3.82Denial by acts of Judges or officers.
"Denials of equal rights resulting from the constitution or laws of a state must be distinguished from those caused by the acts of judicial or administrative officers. The wrong in the one case is the direct and necessary result of the state law, of its necessary operation proprio vigore, while in the other it results from the administration of the law. In the former case, the action is removable, and in the latter it is not * * *.
"Since the denial of equal rights which will justify a removal must be the result of the constitution or laws of the state, there is no right of removal where the alleged discrimination against defendant, in respect of his equal rights, is due to illegal or corrupt acts of administrative officers, unauthorized by the state constitution or laws. It is incumbent upon the state court to see to it that the accused has a fair trial, and its failure so to do is remediable in the state courts or ultimately in the highest court of the nation. The removal provision under consideration does not contemplate a removal *741 where neither the constitution nor laws of the state deny the litigant his civil rights, but where there is a criminal misuse or violation of the state law by some subordinate officer which results in depriving the litigant of the rights which the state law accords to him. Alleged existence of race prejudice, interfering with a fair trial, is not ground for removal, where the prejudice cannot be attributed to the state constitution or laws. It is not cause for removal that jury commissioners or other subordinate officers have, without authority derived from the constitution or laws of the state, excluded colored citizens from juries because of their race, or excluded from the jury every person, however competent, who belonged to the same political party as the accused. * *" (Emphasis supplied.)
Com. of Kentucky v. Powers, 201 U.S. 1, 26 S. Ct. 387, 50 L. Ed. 633, is cited in a footnote as authority for most of the preceding quotation. It is the leading case on the right to remove civil rights cases. In that case the alleged willful and corrupt action was a hundredfold worse than the facts alleged here. There is no right of removal in such cases, the remedy being by certiorari to the United States Supreme Court as has been done in many cases where convictions were set aside because of the systematic exclusion of colored citizens from grand or petit jurors.
There remains then the single additional contention here that defendants, in the event they are convicted, will have no right of appeal to the Texas Court of Criminal Appeals. There is nothing unconstitutional about this. Due process does not mean that a state must provide for a trial by jury or right of appeal. 16A C.J.S. Constitutional Law, § 569(4), p. 579, citing, among other cases, Dohany v. Rogers, 281 U.S. 362, 50 S. Ct. 299, 74 L. Ed. 904. As stated by the Supreme Court in Reetz v. Michigan, 188 U.S. 505, 23 S. Ct. 390, 392, 47 L. Ed. 563, many years ago:
"* * * Neither is the right of appeal essential to due process of law. In nearly every state are statutes giving, in criminal cases of a minor nature, a single trial, without any right of review. For nearly a century trials under the Federal practice for even the gravest offenses ended in the trial court, except in cases where two judges were present and certified a question of law to this court * * *."
A state is free to set up such appellate court procedure as it sees fit.[6] "There is a class of cases where the right of appeal ends with the County Court, however great the seeming hardship may be to the party interested. Among these cases may be classed criminal proceedings commenced before justices' courts, mayors and recorders of incorporated cities and towns, and taken to the County Court by appeal or otherwise."[7]
In cases appealed from the justice or corporation court to the County Court, where the fine assessed does not exceed $100 the County Court is the court of appeals. It is the Texas court of last resort in such cases. There is no reason why defendants, if they are convicted in the County Court, cannot petition for a writ of certiorari to the United States Supreme Court just as they could if their cases were affirmed by the Texas Court of Criminal Appeals, just as many colored defendants have been compelled to proceed when they contended that they had been denied due process and equal rights in the selection of grand or petit jurors.
Here there can be no denial of equal rights to defendants on either ground since no one can have a change of venue in a misdemeanor case; and no one can appeal to the Texas Court of Criminal Appeals in cases of this type. If defendants *742 are unfairly convicted by selection of prejudiced jurors, at the hands of a prejudiced County Judge, they can make a record in that Court and petition the United States Supreme Court for a writ of certiorari.
This Court does not believe that defendants cannot secure a fair trial in Brooks County. Defendants do not even assert here that they are not guilty of hunting deer at night. But even if they did, there simply is no right of removal of justice or county court criminal cases to this court. "When the constitution and laws of a state, as interpreted by its highest judicial tribunal, do not stand in the way of the enforcement of rights secured equally to all citizens of the United States, the possibility that, during the trial of a particular case the state court may not respect and enforce the right to the equal protection of the laws constitutes no ground, under the statute, for removing the prosecution * * * in advance of trial." Gibson v. Mississippi, 162 U.S. 565, 16 S. Ct. 904, 907, 40 L. Ed. 1075, quoted with approval in Com. of Kentucky v. Powers, supra, and State of New Jersey v. Weinberger, D.C.N.J., 38 F.2d 298, 300.
This court stated in the Guerra, Ramos and Salinas cases:
"If cases like these can be removed, then the Federal courts will be swamped with petitions to take jurisdiction in police court cases and political controversies of every kind. It is a well-known fact that political factions exist in almost every county in Texas; that the `ins' are kicked out periodically and that bitter feeling follows. Congress never intended for the United States Courts to be cluttered with cases growing out of such controversies * * *."
At that time the Court could not conceive of being asked to take over cases involving game law violations filed in "J.P." courts. It is difficult to envision a serious threat of "deprivation of life or property without due process of law" because alleged "headlighters" may have to pay a small fine. The contention is frivolous. In any event there is a vast difference between the right to file an original action for damages or other relief under the civil rights statute (28 U.S.C.A. § 1343) and the right to remove a criminal case from a state court under section 1443. No such right exists here.
The Clerk is directed not to file the so-called petitions for removal. If counsel really feels he has the right to remove, he may petition for mandamus in the Court of Appeals, whereas if this Court authorizes the Clerk to docket and then remands, defendant would have no right of appeal from the order of remand. 28 U.S.C.A. § 1447(d).
The Clerk will notify counsel and also furnish a copy of this memorandum to the County Judge and County Attorney of Brooks County, at Falfurrias, Texas.
NOTES
[1] "* * * between one-half hour after sunset and one-half hour before sunrise * * *."
[2] 12 Tex.Jur. 453, sec. 161, Duffield v. State, 118 Tex. Crim. 191, 43 S.W.2d 104; Patton v. State, 124 Tex. Crim. 656, 65 S.W.2d 308; Privitt v. State, 150 Tex.Cr. R. 524, 202 S.W.2d 681; Adams v. State, Tex.Cr.App., 301 S.W.2d 101.
[3] Art. 53, Vernon's Ann.Tex.Code of Cr. Proc., denies appellate jurisdiction to the Court of Criminal Appeals in any case appealed from an inferior court to the county court in which the fine imposed does not exceed $100.
[4] Cr. Nos. 22,578, '579, '580, '581 and '582, Brownsville Division.
[5] 12 Tex.Jur. 452, sec. 161, Barnes v. State, 36 Tex. 639; Cotton v. State, 32 Tex. 614; Patton v. State, footnote 2 supra. Since that time the following authority may be added: McIntyre v. State, 190 Ga. 872, 11 S.E.2d 5, 134 A.L.R. 813, certiorari denied 312 U.S. 695, 61 S. Ct. 732, 85 L. Ed. 1130.
[6] Ex parte Killam, 144 Tex. Crim. 606, 162 S.W.2d 426, 428.
[7] Ex parte Boland, 11 White & W. 159. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609886/ | 866 P.2d 228 (1993)
Clayton E. DeVOE, Petitioner and Respondent,
v.
DEPARTMENT OF REVENUE OF the STATE OF MONTANA, Missoula county, and Fern Hart, as Missoula County Treasurer, Respondents and Appellants.
No. 92-510.
Supreme Court of Montana.
Submitted on July 29, 1993.
Decided December 28, 1993.
As Amended on Denial of Rehearing February 3, 1994.
*230 David L. Nielsen (argued), Tax Counsel, Montana Depat. of Revenue, Office of Legal Affairs, Helena, Michael W. Sehestedt, Deputy Missoula County Atty., Missoula, for respondents and appellants.
George C. DeVoe (argued), Missoula, for petitioner and respondent.
TRIEWEILER, Justice.
Petitioner Clayton E. DeVoe petitioned the District Court for the Fourth Judicial District of the State of Montana in Missoula County pursuant to § 15-2-303, MCA, for review of an adverse decision by the State Tax Appeal Board (STAB). After considering written and oral arguments of the parties and the record from the STAB, the District Court concluded that the STAB's decision was not supported by substantial credible evidence, and therefore, was clearly erroneous. The court reinstated the State Department of Revenue's (DOR) prior appraisals of petitioner's properties, and ordered the DOR to pay petitioner's attorney fees. The DOR appeals from the judgment of the District Court. We affirm in part and reverse in part.
On appeal, the DOR raises the following issues:
1. Did the District Court err when it ordered the DOR to assess the value of DeVoe's property for the appraisal cycle beginning in 1986 based on its assessed value prior to that date?
2. Did the District Court err when it ordered the DOR to apply the assessed value of DeVoe's property for 1986 to subsequent years during the same appraisal cycle?
3. Did the District Court err when it ordered the Missoula County Treasurer to provide DeVoe with a refund for 1986 and subsequent years during the same appraisal cycle?
4. Did the District Court err when it awarded attorney fees to DeVoe?
FACTUAL AND PROCEDURAL BACKGROUND
Clayton DeVoe owned two pieces of property located in Missoula County. Property No. 1 included a duplex and a 28 unit apartment complex. For the appraisal cycle ending on December 31, 1985, the land and improvements had been appraised at a combined value of $255,360. For the appraisal cycle beginning January 1, 1986, the assessed value was increased by the DOR to $529,800.
Property No. 2 included a 67 unit apartment complex. The DOR's appraised value for that property for the cycle ending on December 31, 1985, was $645,550. However, for the cycle beginning January 1, 1986, the appraised value was increased by the DOR to $1,340,200.
DeVoe appealed these changes in the valuation of his real property to the Missoula County Tax Appeal Board on the grounds that the newly assessed values did not reflect the actual market value of either property as required by § 15-8-111, MCA. He asked that the appraised value be reduced to an amount no greater than the previous appraisals.
*231 In a one-sentence decision, his appeals pertaining to both Property No. 1 and Property No. 2 were denied. The County Board stated that:
Based on testimony and evidence, the Missoula County Tax Appeal Board finds that your taxable valuation has been reduced and your presentation indicates that your complaint has been fairly and equitably addressed and therefore, your appeal is denied. [Emphasis added].
While the County Board referred to the "taxable valuation" of DeVoe's property, no reference was made in its decision to the "assessed valuation" which was the subject of his appeal.
On July 1, 1986, DeVoe timely appealed the County Board's decision to the STAB pursuant to § 15-2-301, MCA. Among other things, he contended on appeal that the County Board had not addressed the issue that he raised, which was whether the DOR's increase in the appraised value of his property was correct.
At the first hearing before the STAB, which was held on August 5, 1986, DeVoe testified on his own behalf, and Jim Fairbanks, who is employed by the DOR as an appraisal assessment administrator in Missoula County, testified on behalf of the DOR. No other witnesses were called.
DeVoe contended through his testimony that the 1986 appraisal did not reflect true market value of his property, based on testimony given by witnesses from the DOR during appeals that resulted from his previous appraisals.
Fairbanks testified that for the appraisal cycle beginning in 1986, the DOR used a target year of 1982 for the class of property to which DeVoe's property belonged. He did not specifically discuss the method of appraisal that he employed. However, he offered two exhibits (one pertaining to each property) which he said supported the values he had arrived at.
Exhibit A, which pertained to Property No. 1, compared the cost per square foot that Fairbanks had arrived at for DeVoe's property with appraised values that he or the DOR had arrived at for four other properties which he contended were similar. It also listed four additional properties which he contended were similar, and the cost per square foot at which those properties had sold. For Property No. 2, Fairbanks submitted an exhibit which listed appraisals of three properties he considered similar, and sales of 12 other properties.
On cross-examination by DeVoe, Fairbanks was asked whether he had any records which would document the sale prices of any of the pieces of property listed on the two exhibits he had offered. Fairbanks answered that he had nothing to document the comparable sale values he had relied on, other than his own list of values included in the exhibits. He explained that he had gotten the information about the sales from appraisers, realtors, and principals involved in the sales, but that he had no written documentation of those values.
Based on further questioning, Fairbanks then explained that a lot of the information pertaining to sales was available on realty transfer certificates (RTCs) but that those could neither be disclosed to the STAB nor to DeVoe because they were confidential pursuant to § 15-7-308, MCA. Realty transfer certificates are documents which indicate the consideration paid when real estate is transferred and which must be filed with the county clerk and recorder, along with any instrument or deed evidencing the transfer of real estate. The form of the RTC is established by the DOR, and after filing, the clerk and recorder is required by statute to provide each certificate to the DOR. Section 15-7-305, MCA. They have been required since 1975. Their purpose is to provide sales data to the DOR to further its interest in uniformity of real estate assessments and give a reliable indication of market value. Section 15-7-302, MCA.
DeVoe objected to Fairbanks' testimony about the value for which other properties had been sold on the grounds that it was hearsay and that without production of the RTCs pertaining to each of those properties, DeVoe could not confirm the accuracy of Fairbanks' testimony.
*232 At the conclusion of his testimony at the first STAB hearing, when addressing the reliability of his statements regarding comparable sales, Fairbanks testified that:
The sales are authenticated much the same way any appraiser goes out and determines that the sales did, indeed, take place. We know, of course, from deed transfers that the date is accurate and the principals are accurate ... and through realty transfers about the value that they put on the property... . Often that is not always the same and we must confirm before any of that is before this board.
Fairbanks left no doubt that, not only did the DOR depend on RTCs to document the value for which comparable properties had exchanged hands, but that the RTCs were absolutely necessary for that purpose in order to avoid inaccuracy.
On October 15, 1986, the STAB issued its opinion and order in which it concluded that DeVoe had failed to prove that the County Board's decision was erroneous, and therefore, had failed to sustain his burden on appeal. For that reason, his appeal was denied. No other findings or conclusions were provided.
DeVoe petitioned the District Court in Missoula County to review the STAB's decision pursuant to § 15-2-303, MCA. On appeal, DeVoe contended that the STAB decision was clearly erroneous and that he was denied a fair hearing when he was not permitted to confirm the accuracy of the DOR's comparable sales evidence by examining the RTCs which pertained to those sales. In this first appeal, the DOR responded that it had relied on the cost of construction method of appraisal which, in itself, was sufficient evidence to sustain the STAB decision, and that DeVoe did not have a right to examine the RTCs because they were not, in fact, relied on by the DOR to arrive at the consideration paid for comparable sales.
On July 22, 1988, the District Court held that DeVoe was not entitled to examine the RTCs pursuant to our decision in O'Neill v. Department of Revenue (1987), 227 Mont. 226, 739 P.2d 456, because in that case the DOR had actually relied on RTCs to establish the value of comparable sales, whereas in this case, they had not. Since the District Court concluded that the DOR could rely on evidence of comparable sales without producing copies of the RTCs pertaining to those sales, it concluded that there was sufficient evidence to support the decision of the STAB.
Subsequent to the District Court's decision, on August 9, 1988, we decided DeVoe v. Department of Revenue (1988), 233 Mont. 190, 759 P.2d 991, involving the same parties now before the Court. In that case, we held that the DOR did have an obligation to produce the RTC information pertaining to the comparable sales on which it relied when it appraised DeVoe's property. Based on that decision, DeVoe moved the District Court, with John S. Henson presiding, to alter or amend its previous order. The District Court granted DeVoe's motion pursuant to Rule 59(g), M.R.Civ.P., and held that without production of the RTCs in question there was not substantial evidence sufficient to sustain the decision of the STAB. The District Court ordered the DOR to disclose to DeVoe the relevant RTCs and remanded this case to the STAB for consideration of whatever RTCs were produced, and to consider whether they formed an appropriate basis for the valuation of DeVoe's property. The District Court also ordered the STAB to make specific findings of fact regarding the applicability of each RTC which it considered, and to make other specific findings of fact and conclusions of law which were necessary to support its decision.
The second hearing was held before the STAB on July 22, 1991. At that hearing, DeVoe pointed out that nine RTCs were produced by the DOR and that only one of them actually pertained to those properties listed by the DOR as comparable sales.
At the second hearing, DeVoe also called Robert Lovegrove, a licensed real estate broker in Missoula, as a witness. He testified that for 13 years he had conducted appraisals of commercial properties in Missoula. He also taught real estate courses offered through the Business School at the University of Montana.
*233 Lovegrove reviewed the RTCs provided by the DOR and agreed that six out of the nine dealt with four- or eight-plex apartment units. He testified that those were not a valid basis for appraising large apartment complexes like the properties which were the subject of DeVoe's appeal. He also testified that he had reviewed all of the properties listed on the RTCs, except for one transaction which involved the sale of three four-plexes. Based on his review, it was his opinion that they did not provide a basis for comparison to DeVoe's property.
Lovegrove also testified that in 1982 (the year in which DeVoe's property was appraised for the 1986 cycle) Missoula was in a significant recession and property values were not increasing from what they had been in the 1970s. He testified that they had leveled off and begun to decline. Specifically, he testified that the market for large multi-family complexes (like those owned by DeVoe), as opposed to four unit or eight unit buildings, was nonexistent, that no transfers had even occurred during the time frame of the DOR's appraisal, and that was why no comparable sales had been relied on.
Jim Fairbanks was again called as the DOR's only witness at the second STAB hearing. He testified that the previous appraisal cycle for DeVoe's property began in 1978 and ended in 1986, and that the current cycle, which was the subject of DeVoe's appeal, began in 1986 and would end in 1993. The base year for appraising the property for the cycle beginning in 1978 was 1972. The base year for the cycle beginning in 1986 was 1982.
Fairbanks described three approaches to valuation of real estate. They included the cost approach, the market data approach, and the income approach. He testified, for the first time, that in appraising DeVoe's property he used the cost approach and then used the market data approach to check the validity of his appraisal. He explained that the cost approach measures the cost of replacing the property and then allows a deduction from that value for wear, tear, and depreciation.
Fairbanks testified that he had been unable to find RTCs for all of the properties he had originally listed as comparable sales. However, he then explained that he had not relied on RTCs when he put together the list of comparable sales in the first place. He testified that he came by that information from others during the normal course of his appraisal activities. He also acknowledged that there were no sales of larger multi-family units, such as those owned by DeVoe, during the early 1980s when he prepared his appraisal of DeVoe's property.
The second STAB decision was entered on August 7, 1991. The extent of its findings and conclusions entered pursuant to the District Court's order on remand were as follows:
FINDINGS OF FACT
1. RTCs identified as 1-4, 2-10, 3-11, 4-12, 5-13, 6-21, 7-24, 8-24, and 9-28A were received in evidence.
2. The taxpayer presented evidence to show that the RTCs in question were not sufficiently similar properties to use as a comparable basis for valuing the taxpayer's property.
3. The DOR presented evidence to show that the RTCs were used only as a cross-check of the values it had already placed on the subject property and were not used in any way to form a basis for valuing the subject property.
4. The RTCs referred to above were not used to form a basis for valuation of the taxpayer's property and for that reason are irrelevant to the issue of valuation.
CONCLUSIONS OF LAW
1. The Board will not rely on any of the RTCs referred to above as evidence of the valuation of the subject property.
2. The previous determination of the Board as to the value of the subject property remains unchanged.
On October 7, 1991, DeVoe filed a second petition for review in the District Court for Missoula County. This time his petition was assigned to the Honorable Ed McLean. He alleged that the STAB had rendered a final decision denying his appeal of the appraised *234 valuation of his properties, and that therefore, he had exhausted his administrative remedy for all of the years included in the appraisal cycle to which those valuations applied. He also alleged that the appraised valuation had not changed during any year since his original appeal, which was brought in 1986.
In his petition for review, DeVoe also alleged that he had filed appeals to the Missoula County Board and the STAB from the appraised values of these same properties for the years subsequent to 1986, but that both boards refused to render a decision following those appeals based on administrative rules which provide that final decisions of the STAB are binding on subsequent years during which the same valuations are applicable unless altered by judicial review, change in use of the property, or reevaluation by the DOR.
Finally, DeVoe contended on appeal that because the first STAB decision was reversed and remanded based on insufficiency of the DOR's evidence, and because no additional relevant evidence was offered by the DOR, that neither is the second STAB decision based on credible evidence. He contended that the DOR value was contrary to the requirements of § 15-8-111, MCA, and asked the District Court to reverse the STAB's final decision and reinstate an appraised value for his properties equal to the value prior to the DOR's 1986 reappraisal. He also asked, pursuant to § 15-1-402, MCA, for an order directing the county treasurer to refund those excess taxes which he had paid under protest.
The DOR filed a motion to dismiss DeVoe's petition on the grounds that it was untimely, but did not otherwise respond by pleading to the allegations of his petition.
On June 25, 1992, the District Court entered its opinion, order, and judgment reversing the second decision of the STAB, granting the relief sought by the petitioner, and in addition, awarding DeVoe his attorney fees incurred through this extended appeal process.
The District Court observed that even though the STAB concluded that the RTCs which were ultimately produced were irrelevant to the issue of valuation and could not be relied on as evidence, it did not hear any additional credible evidence to support its original decision, but instead summarily concluded that its original October 15, 1986, decision was correct.
The District Court concluded that Judge Henson's original order correctly concluded that the STAB's original decision was not supported by substantial credible evidence, and that since no additional evidence was provided during the remand hearing, the STAB's decision was clearly erroneous pursuant to § 2-4-704(2)(a)(v) and (vi), MCA. The court concluded that no evidence of multi-family apartment complexes similar to DeVoe's were produced during the relevant time period, and that the comparable sales evidence which was offered involved properties which were not really comparable.
In light of the testimony by Robert Lovegrove that large multi-family apartment complexes had not increased in value from the late 1970s to the early 1980s when this appraisal was done, and in the absence of credible evidence to the contrary, the District Court concluded that DeVoe had met his burden of proving that the increased valuation of his property was not based on substantial evidence.
Based on these findings and conclusions, the District Court reversed the decision of the STAB and ordered that the valuation of DeVoe's property which was in effect prior to 1986 be continued to the present date.
The District Court further held that this result was justified by the STAB's failure to issue specific findings of fact and conclusions of law which it had been directed to issue by Judge Henson's original order.
Finally, the District Court expressed concern over the DOR's inconsistent positions regarding the use of RTCs. It cited the DOR's original argument that they were confidential and not available; its subsequent production of nine RTCs, most of which were irrelevant; and its final position that RTCs are a nonissue because they were not relied on when the property was originally valued. Based on what the court perceived to be the *235 inconsistency of the DOR's conduct and the protracted nature of these proceedings which it concluded resulted from that conduct, the court concluded that DeVoe was entitled to an award of costs and attorney fees.
In summary, the DOR's reappraisal was reversed; it was ordered to reinstate the value of DeVoe's property as it had been prior to 1986; the Missoula County Treasurer was ordered to refund taxes paid by DeVoe for all years included in that appraisal cycle to the present time; and the DOR was ordered to pay costs and attorney fees to DeVoe which were incurred during the series of appeals from the DOR's appraisal.
I.
Did the District Court err when it ordered the DOR to assess the value of DeVoe's property for the appraisal cycle beginning in 1986 based on its assessed value prior to that date?
The DOR's first contention on appeal is actually two-fold. First, it contends that the District Court's scope of review of the STAB decision was limited pursuant to § 2-4-704, MCA, to a determination of whether the STAB's decision was clearly erroneous, and that the District Court may not substitute its judgment for that of the STAB. Second, the DOR contends that even if the STAB's decision was clearly erroneous, the District Court erred by independently determining the correct valuation for DeVoe's properties because according to our prior decisions, the STAB is uniquely qualified to perform that fact-finding function.
In support of its contention that the District Court exceeded its proper scope of review when it reversed the decision of the STAB, the DOR contends that it offered substantial credible evidence of the value of DeVoe's property pursuant to the cost of replacement method, and that since that method of appraisal is specifically authorized by § 15-8-111(2)(b), MCA, the STAB's decision based on that evidence was not clearly erroneous.
Before we discuss the merits of the DOR's argument, we make the following observation regarding the District Court's scope of review pursuant to § 2-4-704, MCA. That section provides in relevant part that:
(2) ... The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because:
... .
(b) findings of fact, upon issues essential to the decision, were not made although requested.
In this case, the District Court's reversal of the STAB was justified on the basis of this provision alone. When he first remanded this case to the STAB, Judge Henson instructed the STAB to make specific findings of fact which supported its decision. However, other than those findings which related to realty transfer certificates, the STAB made no findings which supported its decision. After six and one-half years of litigation and still no satisfactory explanation for the STAB's decision, the District Court was fully justified when it concluded that substantial rights of the taxpayer were prejudiced because of the STAB's refusal to support its decision factually.
With regard to the DOR's argument that evidence of cost alone was sufficient to support its appraisal, we note that § 15-8-111(1), MCA, establishes the basis upon which all property must be assessed in Montana. It provides that:
(1) All taxable property must be assessed at 100% of its market value except as otherwise provided.
(2)(a) Market value is the value at which property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell and both having reasonable knowledge of relevant facts.
It is true that the very next paragraph found at § 15-8-111(2)(b), MCA, states that the DOR may use "construction costs as one approximation of market value." However, we hold that evidence of construction costs alone, without consideration of any market factors, does not satisfy the requirement of § 15-8-111(1), MCA, that the assessed value equal market value. To the extent that this holding is inconsistent with our decision in Northwest Land v. State Tax *236 Appeal Board (1983), 203 Mont. 313, 661 P.2d 44, that decision is overruled.
Market value depends on the price that a willing buyer would pay a willing seller, taking into consideration relevant facts. Presumably, relevant facts would include the market and economic conditions prevailing at the time of sale.
Logic tells us that there may not be a buyer willing to purchase every 30-unit apartment complex that contractors in Missoula can build at the cost for which they are constructed. If there was, there would be no reason to ever end construction of new apartment houses.
We further hold that when market data is relied on by the DOR to establish assessed value of real property in Montana, and when the taxpayer whose property is being assessed appeals that assessment and requests copies of the RTCs pertaining to the properties that are being compared, they must be produced according to the procedures set forth in our decision in O'Neill, whether or not they were the source from which the DOR arrived at the values of comparable sales. These documents were created by statute to provide sales price data which would promote uniformity of real estate assessments in an efficient, economic, and reliable manner. The DOR is required by statute to retain the RTCs as records. Because they are the most uniform and efficient way for the DOR to establish market value, they are also the most effective and efficient way for the taxpayer to verify the values relied on by the DOR. There is no other practical way for the taxpayer to verify information informally gathered by the appraiser during the normal course of his duties. Therefore, we conclude that fairness and procedural due process require that where market value is established by the DOR based on sales of comparable property, and because the DOR is required by statute to keep a specific record of the consideration for which real property changes hands in Montana, this information should be provided to a taxpayer who appeals the appraised value of his or her property.
In this case, the STAB concluded that the RTCs provided by the DOR to DeVoe were irrelevant to his appraisal, and for the most part, did not pertain to those comparable sales on which it relied to corroborate the appraisal it arrived at through the cost approach. Furthermore, no other evidence of market value was offered by the DOR to rebut the testimony offered by DeVoe to the effect that his property had not increased in value, but had probably declined in value since the previous appraisal cycle. Therefore, we affirm the District Court's conclusion that there was not substantial evidence to support the STAB's decision and that it was, therefore, clearly erroneous.
As the second part of its first argument, the DOR contends, relying on our prior decisions in Department of Revenue v. Paxson (1983), 205 Mont. 194, 666 P.2d 768, and Department of Revenue v. Grouse Mountain Development (1985), 218 Mont. 353, 707 P.2d 1113, that the District Court exceeded its authority when it arrived at the proper valuation of DeVoe's properties, instead of remanding his appeal to the STAB for that purpose. However, the facts in this case are distinguishable from the facts in the cases relied on by the DOR. In both Paxson and Grouse Mountain, we found fault with district courts which assumed the fact-finding function by resolving factual issues related to taxable valuation. In this case, the District Court did not impose its own opinion regarding taxable valuation. The District Court held that, as a matter of law, the DOR presented no credible evidence to justify increasing the appraised value of DeVoe's property by an amount in excess of 100 percent from one appraisal cycle to the next. The District Court held that neither did the DOR offer evidence that the appraised value of DeVoe's property should be increased at any other rate, and therefore, that the appraised value should remain at the amount previously established by the DOR based on its own appraisal.
The approach taken by the District Court is similar to the approach adopted by this Court in Department of Revenue v. Barron (1990), 245 Mont. 100, 115, 799 P.2d 533, 542, where we held that:
*237 (3) The valuation for tax year 1990 of the residential property of Patricia C. Barron in Area 2.1 established by STAB should be and is hereby reversed, and STAB and all agents of the DOR shall fix the appraised value of said residential property of Patricia C. Barron at the valuation which was obtained in the tax year 1989.
We conclude that the District Court did not err when it ordered the DOR to establish the appraised value of DeVoe's property in the amount at which it had been appraised by the DOR prior to 1986.
II.
Did the District Court err when it ordered the DOR to apply the assessed value of DeVoe's property for 1986 to subsequent years during the same appraisal cycle?
The DOR contends that because this appeal, which began in 1986 and was finally resolved in 1991, dealt only with the appraised value of DeVoe's property for that year, that the District Court should not have considered subsequent years during the same appraisal cycle because DeVoe had not fully exhausted his administrative remedies by appeals to the County Board, then to the STAB, then to the District Court for each subsequent year. The DOR relies on our decision in DeVoe v. Missoula County (1987), 226 Mont. 372, 735 P.2d 1115, for the principle that administrative remedies had to be exhausted for each year during which taxes were paid under protest.
DeVoe, however, in the petition which gave rise to the second District Court decision, alleged that he had attempted to appeal assessments for years subsequent to 1986 to the County Board and to the STAB, but that those boards would not consider his appeals because of an administrative rule which made the STAB's decision affirming the DOR's appraisal binding for the remaining years of the appraisal cycle. The DOR did not deny this allegation.
We conclude that the prior decision relied on by the DOR is distinguishable on its facts, and that based on the DOR's administrative rule 2.51.403(2), ARM, the District Court's conclusion was correct as a matter of law.
In the earlier DeVoe decision, the taxpayer had filed a complaint in the District Court challenging the appraisal of his real property for the year 1985, even though he had not administratively appealed the appraisal of his property for that year. We held that because the complaint did not allege that he had exhausted his administrative appeals, the complaint was inadequate on its face. However, in this case, DeVoe alleged that he had paid taxes under protest for 1986 and each year subsequent thereto, and that his taxes during each year were based on the same appraised valuation which was the subject of his original administrative appeal begun in 1986.
He also alleged that he had filed appeals during subsequent years, but that subsequent to their original decisions, both the County Board and the STAB refused to render a decision in those appeals pursuant to the DOR's administrative rules which provide that final decisions of the STAB are binding on all interested parties for subsequent years during which the same valuations are applicable.
The administrative rule referred to in DeVoe's petition for review is 2.51.403(2), ARM, which provides as follows:
With respect to taxable real property and improvements thereon, the decision of the state tax appeal board shall be final and binding unless reversed or modified by the district court upon judicial review. If the decision of the state tax appeal board is not reviewed by a district court, it is final and binding for subsequent tax years unless there is a change in the property itself or other circumstances surrounding the property which affect its value. Statutory reappraisal by the department of revenue pursuant to 15-7-111, MCA, is a circumstance affecting the value of real property and improvements thereon.
In this case, the District Court reversed the STAB's decision and ordered the DOR to reinstate the appraised value that it had arrived at prior to the appraisal cycle which began in 1986. That, then, became the appraised value of DeVoe's properties for 1986, *238 and according to the DOR's own administrative rules, was binding on subsequent years during the same appraisal cycle. The only exceptions were for a change in the property itself which affected its value, or reappraisal by the DOR. However, there was no indication in the record that anything changed about the nature of the property which would have affected its value. The DOR did not deny that the same appraised values applied for each year in question subsequent to 1986, and the DOR's appraiser, Jim Fairbanks, testified that there would be no reappraisal of DeVoe's property until 1993.
Therefore, in this case, DeVoe attempted to exhaust his administrative appeals but was unable to do so based upon the DOR's administrative rule which precluded appeals during the same appraisal cycle. Furthermore, pursuant to that same rule, the appraised value which the DOR was ordered to reinstate by the District Court was applicable to the subsequent years in question, and therefore, applied as a matter of law as a result of the District Court's decision which we have affirmed. To require DeVoe to exhaust more administrative remedies than he has already exhausted would be a useless act, and neither law nor equity require useless acts.
We affirm the District Court's application of the 1986 appraisals of DeVoe's property to subsequent years during the same appraisal cycle.
III.
Did the District Court err when it ordered the Missoula County Treasurer to provide DeVoe with a refund for 1986 and subsequent years during the same appraisal cycle?
The DOR contends that neither the County Treasurer nor the County was served with a copy of DeVoe's second petition, and therefore, pursuant to § 15-1-402, MCA, the District Court had no authority to order the County to refund taxes to DeVoe.
DeVoe contends that the County was given notice of his petition for review when it was served with his first petition and that the ultimate decision of the District Court ordering repayment of taxes paid under protest was simply a result of the same appeal process begun in 1986. DeVoe contends that if there was a requirement of notice to the County, it was satisfied when the County was served with his first petition.
Section 15-1-402, MCA, does not require notice to the county or the county treasurer when an appeal is filed pursuant to § 15-2-303, MCA. It requires that a taxpayer who pays taxes under protest must specify to the county treasurer the specific grounds for the protest when the taxes are paid and before the taxes are due. That statute then provides, at § 15-1-402(6)(b), MCA, as follows:
If the action is finally determined adversely to the department of revenue, a county, a municipality, or the treasurer of the county or a municipality, then the treasurer shall, upon receiving a certified copy of the final judgment in the action from the state tax appeal board or from the district or supreme court, as appropriate, if the final action of the state tax appeal board is appealed in the time prescribed, refund to the person in whose favor the judgment is rendered the amount of the protested portions of the property tax or fee deposited in the protest fund, and not released pursuant to subsection (5), as the person holding the judgment is entitled to recover, together with interest from the date of payment under protest... .
The only reference in the appeal statutes to notice to the treasurer or the county is found at § 15-2-303(3), MCA, which provides as follows:
If the judicial review involves a taxpayer who is seeking a refund of taxes paid under protest, the appealing party shall provide a copy of the petition to the treasurer of the county in which the taxable property or some portion of it is located, but failure to do so has no effect on the judicial review.
The plain language of the only statute which required DeVoe to provide the County or its Treasurer with notice, provides that lack of notice is not fatal to the relief sought on review.
Therefore, we conclude that even if a second notice to the County was required, *239 DeVoe's failure to provide that notice did not legally deprive him of the right to a refund of those taxes he paid under protest pursuant to § 15-1-402, MCA.
IV.
Did the District Court err when it awarded attorney fees to DeVoe?
As part of its decision, the District Court concluded that the DOR had acted in bad faith by taking inconsistent positions with regard to the relevance of RTCs, and therefore, that DeVoe was entitled to recover his attorney fees pursuant to § 25-10-711, MCA. That section allows the court to award attorney fees to a successful person in any action against the State if he or she prevails and the court finds that the State's defense or claim was frivolous or pursued in bad faith.
The DOR contends that by awarding attorney fees the District Court exceeded the issues framed by the parties because DeVoe neither requested attorney fees in his petition nor in any of the written briefs filed with the District Court. Furthermore, the DOR argues that its position could not have been in bad faith when it was upheld by the Missoula County Tax Appeal Board, by the STAB on two separate occasions, and on one occasion by the District Court. The District Court, acting through Judge Henson, only changed its position based upon this Court's decision in DeVoe v. Department of Revenue, 759 P.2d at 991, which was decided subsequent to the District Court's original decision.
DeVoe responds that attorney fees under the circumstances in this case are specifically authorized by § 25-10-711, MCA, and were appropriate based upon the DOR's inconsistent legal and factual arguments. He also contends that the District Court was authorized to impose an award of attorney fees under its equitable power when justice so requires.
We have reviewed the record on appeal and understand the District Court's frustration with the DOR over what appear to be inconsistent positions at various stages of this appeal, and the incredible delay which has occurred as a result of these seemingly contradictory positions. We also agree that when attorney fees are sought in tax appeals, and the necessary facts are established, they may be awarded pursuant to § 25-10-711, MCA. However, we conclude that when relief that is as substantial as the attorney fees which are at issue in this case is sought by a party to litigation, the other party is entitled to prior notice that such relief is being sought and an opportunity to address the merits of granting such relief. Therefore, based on DeVoe's failure to notify the DOR that he, in fact, sought an award of attorney fees in either his petition or his arguments to the District Court, and based upon the DOR's lack of opportunity to address the issue of attorney fees prior to the time they were awarded, we reverse that part of the District Court's judgment.
We reverse the District Court's award of attorney fees, and otherwise affirm the order, findings, and judgment of the District Court in all respects. This case is remanded to the District Court for entry of judgment consistent with this opinion.
JUSTICES HARRISON, HUNT, NELSON and DISTRICT JUDGE HONZEL, sitting for CHIEF JUSTICE TURNAGE concur.
JUSTICE GRAY, specially concurring.
I specially concur in the result reached by the Court on issue one.
I would affirm the District Court on that issue based on § 2-4-704(2)(b), MCA, which allows the reviewing court to reverse a decision of STAB if substantial rights of an appellant have been prejudiced because findings of fact, on issues essential to the decision, were not made, although requested. Here, two hearings were held by STAB. On judicial review after the first hearing, the District Court directed STAB to hold another hearing and, thereafter, to make specific findings of fact and conclusions of law in support of its decision. STAB totally failed to comply with the directive from the court to make specific findings. As a result, DeVoe has been in litigation for more than six years over one tax challenge. *240 It would be unfair and inequitable to DeVoe to permit this case to drag on any longer because of STAB's neglect of its duty. Nor should this Court countenance such responses or failures to respond to district court orders by any agency or arm of state government, particularly when the adverse impacts would fall on individual Montana taxpayers. Indeed, the conduct of both STAB and the DOR in this case falls far short of the performance Montanans are entitled to expect from their government. I conclude that DeVoe's substantial rights have been prejudiced because of STAB's failure to follow the court's order and would affirm the District Court on that basis.
I also agree with the Court that the District Court correctly determined that the DOR did not produce substantial credible evidence in support of its appraisal, even though I disagree with the Court's rationale in reaching that conclusion. Here, the DOR contends that it assessed DeVoe's property using the cost approach outlined in § 15-8-111(2)(b), MCA. Its assessment included a physical depreciation factor, although no testimony explained or supported the amount of physical depreciation included in that assessment. More importantly, the record does not contain evidence that the DOR considered functional and economic obsolescence in assessing the property at issue, much less that it "fully considered" those factors as required by § 15-8-111(2)(b), MCA. I conclude that the failure to present evidence that those factors were fully considered requires affirming the District Court on the basis that substantial credible evidence does not support the DOR's assessment or STAB's decision upholding that assessment against DeVoe's challenge. Because the DOR did not comply with the requirements of § 15-8-111(2)(b), MCA, in assessing DeVoe's property, I do not believe it is necessary to reach the question of whether the cost approach can be utilized without regard to "market factors."
Because the Court does so, however, I must state my disagreement with its conclusion that the cost approach even assuming all statutory requirements are met is an insufficient method of assessing property. It is my view that § 15-8-111(2)(b), MCA, does authorize the DOR to use the cost approach on a stand-alone basis in assessing property. To me, enactment of that subsection reflects legislative recognition and approval of the DOR's long-standing use of the cost approach to market value, while requiring the purely cost approach to be "softened" by reductions in value caused by physical depreciation and functional and economic obsolescence.
Moreover, I am concerned with the Court's departure from the wisdom of Northwest Land, where we stated that "[i]t is not a judicial function to act as an authority on taxation matters. We will not evaluate the advantages and disadvantages of a particular assessment method as applied to a taxpayer." 661 P.2d at 45. The Court concludes that the cost approach as defined by § 15-8-111(2)(b), MCA, does not provide a sufficient basis for property assessments by the DOR. It does not, however, provide any guidance as to how the DOR can properly assess property when faced with circumstances like those in the present case.
As the record before us reflects, the other common valuation methods for properties of the kind at issue here are the income approach and the comparable sales approach. Here, no income approach information is of record; indeed, DeVoe's own "expert" did not have the information necessary to make an assessment on that basis. Such information generally would be in the hands of the taxpayer and unavailable to the DOR absent voluntary submission of that data by the taxpayer. In addition, the "comparable sales" evidence offered by the DOR in this case was properly rejected as dissimilar and irrelevant by both STAB and the District Court; the record is clear that no truly comparable sales occurred during the applicable time period. I am at a loss to understand how, under these circumstances, the DOR is to meet its duties in periodically assessing property if it cannot rely solely on the cost approach which is, in my view, specifically sanctioned by statute.
Notwithstanding my differences with the Court, however, I do agree that the District Court did not err in reversing STAB on the *241 basis of § 2-4-704(2)(b), MCA, and the lack of substantial credible evidence to support the DOR's assessment. Thus, I would affirm on those bases.
JUSTICE WEBER joins in the foregoing special concurrence of JUSTICE GRAY. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609889/ | 866 P.2d 486 (1994)
125 Or. App. 596
STATE of Oregon, Respondent,
v.
Kevin Todd JEFFERS, Appellant.
C91-09-34482; CA A74370.
Court of Appeals of Oregon.
Argued and Submitted May 28, 1993.
Decided January 5, 1994.
*487 David C. Degner, Deputy Public Defender, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.
Youlee Yim You, Asst. Atty. Gen., argued the cause for respondent. With her on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen.
Before ROSSMAN, P.J., and De MUNIZ and LEESON, JJ.
ROSSMAN, Presiding Judge.
Defendant appeals his conviction for delivery of a controlled substance. ORS 475.992(1). He assigns as error the trial court's denial of his motion to suppress evidence seized from his car, arguing that his consent to the search of the car was invalid. We affirm.
While parked in the parking lot of a motel at approximately 12:30 a.m., on September 8, 1991, Portland police officers Kelley and King saw defendant drive into the lot in a car that did not have a front license plate. They stopped him for the traffic infraction of failure to display registration plates. ORS 803.540(1)(b). Because defendant was unable to produce either a driver's license or any identification with his picture, the officers placed him under arrest for failure to present a license. ORS 807.570. King advised defendant of his Miranda rights, handcuffed him and placed him in the back of the patrol car, which was parked about 15 feet from defendant's car. In the meantime, Kelley had spoken with defendant's girlfriend, who was an occupant in one of the motel rooms. She expressed some concern about the possibility of the car being stolen.
While defendant sat in the patrol car, Kelley searched the driver's area of defendant's car for weapons, vehicle registration and some form of personal identification. During the search, he saw a box under the driver's seat that he believed could have contained a gun. He opened it and discovered several syringes and some marijuana. He immediately closed the box, put it back under the driver's seat, walked back to the patrol car and, without informing King of what he had found, told King to ask for defendant's consent to search the car. King told defendant that the officers
"were interested in searching the vehicle so [they] could find out who he was, interested in identifying him for the issuing of a citation for the traffic violation, and interested in obtaining * * * any relevant information about vehicle ownership, and whether or not he had any insurance."
Defendant consented to the search. At trial, King further explained the circumstances surrounding defendant's consent:
"I explained that our intention for the search of the vehicle was to help us find out who he was, and find out who the vehicle belonged to, and that if we were to obtain information from anything in the car about him or the car, that a citation at the scene may be the way in which we could resolve * * * this traffic matter. And that that was our intention for the search of the car. And with that understanding, he said that it was okay if we looked in the car."
The officers searched the car and found, among other things, methamphetamine, a scale, drug records and a pager. Defendant ultimately confessed to being a methamphetamine dealer.
At the outset, the state acknowledges, and we agree, that Kelley's initial search of defendant's car was unlawful. Defendant contends that that illegality rendered the evidence obtained in the later consent search inadmissible under ORS 133.683[1] and Article *488 I, section 9, of the Oregon Constitution,[2] because the officers exploited their knowledge acquired during the illegal search to obtain defendant's consent. The state maintains that the unlawful search does not require suppression of the evidence seized during the consent search, because defendant's consent was not obtained through exploitation of that illegality.
In State v. Rodriguez, 317 Or. 27, 38, 854 P.2d 399 (1993), the Supreme Court recently explained that "unlawful police conduct"[3] that precedes a consent search may have an impact on the admissibility of evidence seized during the search in two ways. In some instances, the illegal conduct may relate to the issue of whether the person's consent was "voluntary" under the circumstances, i.e., whether the consent was the product of the person's own free will or the result of coercion, express or implied. See State v. Kennedy, 290 Or. 493, 502, 624 P.2d 99 (1981); State v. Johnson, 120 Or.App. 151, 155, 851 P.2d 1160 (1993). Here, defendant does not argue that his consent was involuntary.
The Supreme Court in Rodriguez also held that, if evidence is recovered during a consent search that is preceded by unlawful police conduct, the evidence must be suppressed when there exists a causal connection between the unlawful police conduct and the evidence discovered during the ensuing consent search, and the police "exploited" their unlawful conduct to secure the person's consent. "Exploitation occurs when the police take advantage of the circumstances of their unlawful conduct to obtain the consent to search." 317 Or. at 39-40, 854 P.2d 399.
In Rodriguez, following a purportedly unlawful arrest,[4] a federal agent asked the defendant if he had any drugs or guns in his apartment. He replied, "No, go ahead and look." After confirming that the defendant had given consent to a search of the premises, the agent searched the apartment and found two guns. The defendant sought suppression of the guns, claiming that his consent was gained by exploitation of the illegal arrest. The court disagreed:
"[I]t is apparent that the [federal] agent did not trade on or otherwise take advantage of the arrest to obtain defendant's consent to the search. Indeed, there is absolutely nothing in the encounter between the agent and defendant that can be construed as exploitation of the purportedly unlawful arrest. The mere fact that, but for the arrest, the agent would not have been standing in the doorway of defendant's apartment, in a position to ask defendant about drugs and guns, does not render the evidence discovered in the subsequent consent search inadmissible." 317 Or. at 41, 854 P.2d 399.
Here, it is undisputed that the evidence seized during the consent search might not have been discovered had Kelley not previously conducted an illegal search of the car. The remaining and dispositive issue, then, is whether defendant's consent was procured by exploitation of that illegality.
The Supreme Court faced a set of circumstances similar to those presented here in State v. Quinn, 290 Or. 383, 623 P.2d 630 (1981), which defendant neglects to cite or discuss in his brief. In Quinn, a police officer illegally searched the defendant's car for the fruits of a burglary of a business establishment. *489 Those fruits were discovered and seized. During the search, the officer also found several items of women's intimate apparel. Because those items were unrelated to the burglary, he left them in the car. Unbeknownst to the searching officer, defendant was also a suspect in a residential burglary and homicide. The detectives who were investigating the homicide were told about the undergarments in defendant's car. They met with defendant in jail and questioned him about the burglary of the business establishment. The defendant knew before being questioned that the police had found evidence of the business establishment burglary. He was, however, unaware of the discovery of the undergarments and during the interrogation there was no mention of their discovery. The detectives asked for and received defendant's consent to search his car. Pursuant to that consent, the car was searched again and the undergarments were seized. In holding that the undergarments were admissible, the court reasoned:
"[T]he women's underwear might not have come to light had the officer not [conducted the prior illegal search], but when the police sought defendant's consent to search, they did not do so by exploitation of that illegal discovery. Rather, the consent was sought and given by defendant for reasons entirely distinct from that primary illegality." 290 Or. at 396, 623 P.2d 630.
That same reasoning applies here. As previously discussed, the evidence seized during the consent search might not have been discovered had Kelley not illegally searched defendant's car. However, neither King nor Kelley mentioned that the car had been searched, and when defendant gave his consent, he was unaware that the car had been searched or that any incriminating evidence had been found. In these circumstances, it cannot be said that either officer traded on or took advantage of the illegal search to obtain defendant's consent. See, e.g., State v. Williamson, 307 Or. 621, 626, 772 P.2d 404 (1989). Indeed, nothing occurred during the encounter between the officers and defendant that can be viewed as exploitation of the illegal search. Here, as in Quinn, defendant's consent was sought and given for reasons that were separate and distinct from the initial illegality. We therefore hold that the items discovered during the consent search were properly seized and that the trial court did not err in denying defendant's motion to suppress.[5]
Affirmed.
NOTES
[1] ORS 133.683 requires the suppression of evidence discovered as a result of a search that is "carried out in such a manner that things seized in the course of the search would be subject to suppression." The statute is Oregon's codification of the "fruit of the poisonous tree" doctrine. State v. Munro, 96 Or.App. 238, 243, 772 P.2d 1353 (1989).
[2] On appeal, defendant also argues, under the Fourth Amendment to the United States Constitution, that his consent was invalid because the initial illegal search was not sufficiently attenuated from the consent. The state argues that that contention was not raised in the trial court and should not be considered on appeal, and we agree. Defendant's argument under the federal constitution was not presented or in any way suggested by either his oral or written presentation to the trial court. Because that argument was not properly preserved for appellate review and does not present manifest error, we decline to address it. ORAP 5.45(2); see also State v. Rodriguez, 317 Or. 27, 38 n. 11, 854 P.2d 399 (1993); State ex rel Schrunk v. Metz, 125 Or.App. 405, P.2d (1993); State v. Darlin, 122 Or.App. 172, 179 n. 8, 857 P.2d 859 (1993).
[3] The phrase "unlawful police conduct" refers to "an act by a government entity or its agent that violates a defendant's rights under Article I, section 9, of the Oregon Constitution." State v. Rodriguez, supra, 317 Or. at 38 n. 12, 854 P.2d 399.
[4] The court assumed, without deciding, that the arrest violated Article I, section 9. 317 Or. at 37, 854 P.2d 399.
[5] In State v. Weaver, 121 Or.App. 362, 366, 854 P.2d 962, on recon. 124 Or.App. 615, 863 P.2d 1273 (1993), one of our most recent cases on the validity of consent searches, we held that consent obtained after police have searched for and seized crime evidence does not ratify "a search and seizure that violated the state and federal constitutions at its inception." Here, however, Kelley did not seize any evidence during the initial illegal search of the car and there is no dispute that defendant's consent was obtained before the officers conducted the consent search. The only issue in this case is whether the officers exploited their prior unlawful conduct in securing defendant's consent. Weaver, therefore, is inapposite. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2898512/ | NO. 07-08-0082-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
NOVEMBER 10, 2009
______________________________
JUAN J. ZUNIGA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2007-417,075; HON. BRAD UNDERWOOD, PRESIDING
_______________________________
Memorandum Opinion
________________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Appellant was convicted of aggravated assault of a public servant. He seeks to
reverse the conviction by contending that 1) the trial court erred in ordering the jury to
continue to deliberate when it returned with a conflicting verdict, and 2) the evidence was
legally and factually insufficient to sustain the conviction. We affirm the judgment.
Background
On September 15, 2006, Officer Mark Wall was on patrol in Lubbock around 2:00
a.m. when he observed two individuals wearing dark clothing walking down the street and
shielding their faces every time a car passed. He parked his vehicle to observe their
activities and turned on one of his spotlights to do so. At that time, he saw one of the
individuals, who was later identified as appellant, turn to the other person and appear to
mouth the word “police.” The men then turned to enter the alley after which they spoke to
each other again and returned to the sidewalk. As Wall exited his vehicle, the individual
with appellant reached into his waistband, withdrew an object, and began firing at the
squad car. Nine shell casings were found in the area, some from a .40 caliber weapon and
others from a .45 caliber. Appellant later told his girlfriend that he too fired at the officer.
Issue 1 - Conflicting Verdict
One commits aggravated assault by engaging in an assault that causes serious
bodily injury or by using or exhibiting a deadly weapon during an assault. TEX . PENAL CODE
ANN . §22.02(a)(1) & (2) (Vernon Supp. 2009). The State selected the second mode in
accusing appellant at bar of the crime. That is, it charged him with intentionally and
knowingly threatening the officer “with imminent bodily injury and did then and there use
a deadly weapon . . . .” Moreover, in charging the jury at the end of the guilt/innocence
phase of the trial, the trial court told the jury that “[a]n assault is aggravated assault when
it is committed with a deadly weapon.” (Emphasis added). Thereafter, the jury returned
a verdict holding appellant “guilty of the offense of aggravated assault of a public servant
with a deadly weapon, as charged in the indictment.” (Emphasis added). Yet, viz a
“special issue,” it again was asked to answer whether appellant used a deadly weapon in
the assault. This question was initially answered, “[w]e do not.” The trial court viewed the
answers to the guilt question and special issue as conflicting, informed the jury of that, and
directed it to continue deliberating. Eventually, the jury changed its answer to the special
2
issue to “[w]e do.” According to appellant, the trial court erred in directing the jury to further
deliberate. We overrule the issue.
It is clear that a verdict must be certain, consistent and definite; it cannot be
conditional, qualified or ambiguous. Reese v. State, 773 S.W.2d 314, 317 (Tex. Crim.
App. 1989). Moreover, a trial court has the duty to reject an informal or insufficient verdict,
call it to the attention of the jury, have the matter corrected with its consent, or send the jury
out again to consider its verdict. Id. at 317. Since a prerequisite to finding appellant guilty
of aggravated assault required it to find he used a deadly weapon, the jury’s answering the
special issue as it did conflicted with its answer to the general question on guilt. Thus, the
trial court acted within its lawful discretion in doing as it did.
Issues 2 and 3 - Sufficiency of the Evidence
Next, appellant claims that the verdict was both legally and factually insufficient to
support the verdict. This is allegedly so because Wall did not see appellant (but only his
acquaintance) draw a weapon, and the trial court did not submit a parties charge. We
overrule the issues.
The record contains evidence that 1) two different caliber of shell casings (.40 and
.45) were found at the crime scene, 2) the casings were fired from two different guns, 3)
appellant’s girlfriend disclosed to the police a conversation she had with appellant wherein
he said he too began firing a weapon, and 4) appellant initially gave a voluntary statement
to police wherein he mentioned information unknown to the public. This evidence, when
viewed in the light most favorable to the verdict, was and is sufficient to allow the jury to
rationally conclude, beyond reasonable doubt, that appellant committed aggravated assault
as charged in the indictment.
3
In questioning the factual sufficiency of the evidence, appellant suggests his
colleague could have wielded both guns given the grouping of the shell casings. While it
might be possible for one person to have fired both firearms, the jury also could have
inferred lawfully from the evidence that each man carried and fired one. Furthermore,
appellant admitted that to his girlfriend. And, though his girlfriend not only gave conflicting
statements to police but also tried to blame the shooting on others, her credibility was for
the jury to resolve. In sum, we cannot say that the manner in which it resolved the
credibility issues and ultimately ruled is clearly against the weight of the evidence or
undermines our confidence in the verdict. The evidence is both legally and factually
sufficient.
The judgment of the trial court is affirmed.
Brian Quinn
Chief Justice
Do not publish.
4 | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2359447/ | 442 F. Supp. 2d 88 (2006)
UNITED STATES OF AMERICA
v.
Emmanuel ABIODUN, Atairu Akuetiemehe, and OJO Akinseye Akinyemi, Defendants.
No. S7 04 CR. 1316(DC).
United States District Court, S.D. New York.
July 20, 2006.
*89 Michael J. Garcia, U.S. Attorney for the Southern District of New York, by Marcus A. Asner, Jessica A. Mordas, Assistant U.S. Attorneys, New York City, for U.S.
Andrew H. Freifeld, New York, New York, for Defendant Abiodun.
Goldberg & Kaplan, LLP, By Brian I. Kaplan, New York, New York, for Defendant Akuetiemehe.
*90 Michael S. Pollok, New York, New York, for Defendant Akinyemi.
OPINION
CHIN, District Judge.
In this case, defendants are charged with participating in a massive identity theft ring that was responsible for the theft of credit information for tens of thousands of individuals and the loss of tens of millions of dollars. Defendants have pled guilty to conspiracy to commit credit card and access device fraud, but the parties disagree as to the amount of loss to be attributed to each defendant for purposes of sentencing. Defendant Emanuel Abiodun also challenges the Government's contention that he was an organizer or leader in the conspiracy.
To resolve the factual disputes, I conducted an evidentiary hearing, pursuant to United States v. Fatico, 579 F.2d 707 (2d Cir.1978). Three cooperating witnesses, who pled guilty to being a part of the conspiracy, testified, as did two law enforcement witnesses. Together, their testimony provides a vivid picture of the inner workings of a substantial identity theft ring and demonstrates how easily credit information can be stolen and put to ill use.
My findings of fact and conclusions of law follow.
STATEMENT OF THE CASE
A. The Facts
Defendants were part of a loosely connected group of some thirty individuals who, over the course of five or six years, engaged in a scheme to commit credit card and access device fraud through the use of stolen credit information. They obtained credit reports for randomly selected individualsthe names were usually taken from publicly available telephone directoriesand used the information to obtain credit cards and other access to lines of credit. They then used the credit cards to purchase merchandise, often for re-sale to a fence, and they drew down on the lines of credit to steal the available funds. The Government contends that the group accounted for $50 to $100 million or more in losses.
1. Background
Linus Baptiste, a British citizen trained as a plumber, came to the United States in 1987. (Tr. 12-13).[1] In 1991 Baptiste met Yvonne Cummings ("Yvonne") and eventually they were married. (Tr. 15, 34). She introduced him to her brother, Philip Cummings ("Cummings") and Baptiste and Cummings became friends. (Tr. 15, 35-37). They kept in touch even after Baptiste and Yvonne were divorced in 1996. (Tr. 36-37).
Baptiste eventually became friends with an individual named Benny. Baptiste and Benny would "hang out" at Frank Obi's African Market ("Obi's") in the Bronx. (Tr. 25-27). Obi's was a store that sold African groceries and the basement contained a "social area" where people could eat, drink, and listen to music. (Tr. 27-28, 217). Baptiste became a regular at Obi's, going three or four times a week. He became friendly with other regularsmost of whom were from Nigeria originally. (Tr. 28-29, 109, 216-17). He was often referred to by his nickname, "English." (Tr. 13, 205, 212, 345).
*91 In 1997 or 1998, Benny approached Baptiste about participating in a credit card scheme. Benny had a source for fraudulent credit cards and asked Baptiste to sell them for him. (Tr. 29-30). The credit cards had varying credit limits, and Baptiste agreed to and did sell them, for $300 each, to others, including some of the regulars at Obi's. Baptiste received $100 for each card he sold. (Tr. 30-32).
2. The Scheme Is Hatched
In early 2000, Baptiste learned that Cummings had obtained a job working for Teledata. Communications, Inc. ("TCI"), a software company. Financial institutions and retail companies used TCI software to access consumer credit information from consumer credit reporting agencies such as Equifax, Experian Information Solutions ("Experian"), and TransUnion. (Tr. 39-41, 267, 311-12; GX 3502-1 ¶(2(a)).[2]
Baptiste informed Benny that he knew someone who could get credit reports, and Benny asked him to get one. (Tr. 40). Baptiste approached Cummings and asked him to get a credit report. Cummings did so, and provided a single credit report to Baptiste, who in turn gave it to Benny. (Tr. 40-41). Benny was not satisfied with the credit report, a TransUnion report, because it did not provide full credit card and social security numbers. Benny asked Baptiste to ask Cummings to get an Experian credit report because Experian reports provided more detail. Cummings did so, and Benny was pleased with the Experian report. (Tr. 41). A deal was struck, as Benny agreed to buy additional credit reports from Baptiste at $60 per credit report. Baptiste agreed to split the proceeds with Cummings, with each to receive $30 per report. (Tr. 42).
A couple of days later, Benny "placed an order" for credit reports by providing Baptiste with a list of names and addresses for more than 20 individuals for whom he wanted credit reports. (Tr. 42-43). Baptiste arranged to meet Cummings, who brought a laptop and small printer to the meeting. (Tr. 43). Cummings connected the computer to a telephone line and used the TCI software and a subscriber code and password to access credit information at one of the credit reporting agencies. Cummings typed in the names from Benny's list and began printing out credit reports. (Tr. 43-44; GX 3502-1 ¶2(a)). Baptiste then returned the original list with the credit reports to Benny. (Tr. 44).
3. The Scheme Expands
Thereafter, Benny started requesting more and more credit reports by providing lists of names, sometimes two or three times a week, with as many as 50 names on a list. Some of the lists appeared in different handwriting and apparently were supplied by other individuals. (Tr. 44-45). For each credit report, Benny paid $60, which Baptiste and Cummings split. (Tr. 45-46).
Eventually, Baptiste started selling credit reports to others. Benny told people at Obi's and elsewhere that Baptiste was selling reports. When others approached *92 Baptiste and asked if they could also buy reports, he agreed to sell to them as well. (Tr. 46, 112-13, 213, 233-34, 251-52; see, e.g., GX LB1, LB2 (hand-written lists of names and addresses)). In late 2000, Baptiste began selling reports to Abiodun. (Tr. 46-47; see Tr. 16-17, 60). He also sold reports to Akuetiemehe (Tr. 17-18, 59, 60) and Akinyemi (Tr. 18, 60).[3]
Cummings continued to go to Baptiste's office, where the two would download and print-out credit reports. (Tr. 47). Initially Cummings obtained many of the reports by using the subscriber information for the Grand Rapids, Michigan, branch of the Ford Motor Credit Company ("Ford") to access the database at Experian. In other words, Baptiste and Cummings used the TCI software to log on to Experian, using the access information for (and thus pretending to be) the Grand Rapids branch of Ford. Credit reports for some 15,000 individuals were downloaded in this manner, all without authorization from the Grand Rapids branch of Ford. (GX 3502-1 ¶ 3; Tr. 56, 263-66, 311).[4]
In 2001, Cummings moved to Atlanta, Georgia. He and Baptiste continued to sell credit reports, processing the requestslists of names and addressesby telephone, fax machine, and express mail. (Tr. 47-48, 50-51). Cummings would return frequently to New York and he and Baptiste would process requests for credit reports on those occasions as well. (Tr. 48). Because of the volume of "work," however, the long-distance processing of the requests became onerous, and Cummings and Baptiste agreed that Baptiste would process the requests, with someone else's help, in New York. (Tr. 49).
Baptiste recruited Terry Smith to help him in New York, and Cummings gave them a computer and printer. The computer had the TCI software and the customer codes installed on it. Baptiste and Smith began processing the requests, sometimes meeting four or five times a week to download and print out credit reports. Eventually, because of the volume of usage, Baptiste went through four different printers. (Tr. 49-50, 53). Smith typed in the names and addresses from the lists, and he received $15 per credit report, which came out of Cummings's "cut." (Tr. 53-54, 57). Baptiste would return the lists and printed credit reports to the individuals who had requested and paid for them. (Tr. 57-60, 214-15). In 2002, Baptiste began downloading credit reports at his home in New Rochelle. (Tr. 99).
4. The Use of the Credit Reports
The individuals who submitted lists of names got the names from different sources, but primarily from telephone directories. They targeted wealthier neighborhoods, often from out-of-state. (Tr. 54-55, 75-76, 214, 243-44). In other words, the individuals would find names and addresses of people who lived in wealthier neighborhoods who presumably had larger *93 amounts of credit. The credit reports for these individuals would contain account numbers for credit cards and lines of credit as well as other identifying information, such as social security numbers and dates of birth. (Tr. 41; see, e.g., GX AA1).
The members of the group would then review the credit reports to look for credit cards or lines of credit where there was a substantial amount of credit available. (Tr. 221-23). A "good credit card to attack" was one with a low balance and high available credit. (Tr. 223-24). Typically, four out of ten credit reports would be "useful," and a "useful" credit report would yield approximately two usable credit cards or credit lines. (Tr. 231, 238, 247). A typical usable credit card would have an average of $5,000 in available credit. (Tr. 232). Credit reports that were not "useful" would be "tuck[ed] . away," with the hope that they would become useful in the future if, for example, a line of credit was increased or a credit card balance was paid down. (Tr. 239; see Tr. 272).[5]
The purchasers of the credit reports would then use the information to obtain credit cards and checks for the lines of credit. Armed with account numbers and identifying information, they would call the banks and credit card companies to "report" a change of address. After waiting a few days, they would report a lost or damaged credit card and request replacement cards or new checks, asking that they be mailed to a false address (i.e., a friend's address or even a vacant home). Sometimes they would obtain false documents, such as drivers licenses, in the names of the individuals for whom they had credit reports, listing the false addresses. They would then use these false identification documents to obtain credit cards or cash checks or draw down on lines of credit, including home equity lines. Sometimes members of the group would actually go to a bank to transact business or to open up accounts, using the false identification documents. Fraudulently obtained checks would be cleared through these bank accounts. Other members of the group would use the credit cards to purchase merchandise for personal use or re-sale to a fence or to send to Nigeria or for entertainment and socializing. (Tr. 62-77, 218, 226-30, 236, 240).
The members of the ring considered some banks to be "not good" for these purposesthese banks had implemented better security measures and included Citibank, Chase, and Bank of New York. (Tr. 66-67, 225-26). Some banks, including small banks and out-of-state banks, were considered "good"they were more easily taken advantage of. (Tr. 66). Providian and Capital One were considered "easy to hit." (Tr. 226). Once a member of the group obtained a replacement card, he would "test" it by trying to buy gas at a gasoline station. If the card worked, the person would then attempt to "bust [it] out" by going to a store to buy merchandise. The members of the group believed that some stores, such as Home Depot and Best Buy, were easy targets because they had less stringent security measures, e.g., they did not ask for identification for large purchases. (Tr. 229-30).
5. Defendants
a) Abiodun
Baptiste met Abiodun at Obi's. (Tr. 81). Abiodun started buying credit reports *94 from Baptiste in late 2000 and continued until 2002. He started "small," but in time increased his purchases to as many as 60 or 70 or, on one occasion, 90 names at a time. He purchased approximately 400 to 500 credit reports total. (Tr. 86-87). Abiodun thus became one of Baptiste's biggest customers for credit reports. (Tr. 84). Abiodun was successful at committing this fraud; he wore Armani and Versace suits, Movado watches, and Cartier glasses, and drove a Lexus. (Tr. 85).
On May 5, 2004, another member of the group, Adekunle Olusola, was arrested in a bank in Lancaster, Pennsylvania, trying to get a cash advance on a credit card in the name of one of the victims of the fraud in this case, using a false driver's license. (Tr. 360-61, 421-22). Abiodun provided Olusola with the credit card and drove him to Lancaster from New York. (Tr. 361-62). Olusola went into the bank while Abiodun waited in the parking lot. (Tr. 363). Abiodun also gave Olusola approximately ten credit reports, but Olusola never used them because Abiodun did not follow-up on his promise to help Olusola call the banks. (Tr. 364, 386-87, 391-92). Olusola received the reports from Abiodun at the latter's storage facility, where Abiodun had stored, among other things, a large screen plasma television, a Bang & Olufsen speaker, two boxes containing approximately a thousand sheets of blank check stock, handwritten lists of names and addresses, and documents for companies and individuals with no legitimate connection to him. (Tr. 365-66, 407-15; see GX EA9-EA18).
In March 2003, another member of the group, Julius Owolabi, was arrested in Massachusetts. He had obtained $3,800 in cash as an advance on a credit card in another person's name (someone from the TCI database), and was arrested when he was trying to get another cash advance at a second bank. (Tr. 371-72, 423-25). At his guilty plea, Owolabi acknowledged that he worked with his friend Abiodun, in trying to get these cash advances. (Tr. 433-34; GX 101 at 16-20). Owolabi stated that he knew Abiodun was obtaining credit reports. Although he denied that he worked with Abiodun with the reports, he admitted working with Abiodun to get 15 or more fraudulent credit cards, which were then used to get cash advances, which in turn were used to buy merchandise. (GX 101 at 18-20). In fact, as Baptiste testified, Owolabi and Abiodun were "close" and worked together within the identity theft ring. (Tr. 77).
The names of the victim in the Pennsylvania incident involving Olusola and the victim in the Massachusetts incident involving Owolabi appear in the TCI database, and clearly it was Abiodun who obtained the credit reports for these individuals from Baptiste. (Tr. 360-62, 370-72, 407, 421-26, 433; GX Experian-FMC no. 91220).
b) Akuetiemehe
Baptiste also met Akuetiemehe at Obi's. They became friends and socialized together. Akuetiemehe began buying credit reports from Baptiste in 2002. He bought as few as 20 reports and as many as 100 reports at a time from Baptiste, for a total of some 300 to 400 reports. At some point Akuetiemehe was selling credit reports himself; in other words, he was obtaining credit reports from a source other than Baptiste and selling them to others. (Tr. 88-92; GX AA1).
Akuetiemehe was arrested on December 22, 2004, in the Bronx, after he had fled from his apartment as agents were attempting to execute an arrest warrant. Akuetiemehe was found in a laundromat around the corner wearing nothing but a blue suit jacket and boxer shorts. He had asked the manager of the laundromat to *95 hide a bag that he was carrying. The bag contained more than 200 credit reports as well as other financial and bank documents, including documents bearing the name and photograph of a fraud victim who had never lived in the Bronx; the documents listed as an address the building in which Akuetiemehe lived at the time. (Tr. 395-401; see GX AA1-AA3, AA5).
c) Akinyemi
Baptiste also knew Akinyemi through Obi's. He was one of Baptiste's smaller customers, purchasing only approximately 50 credit reports. (Tr. 92-95).
6. The Extent of the Loss
The record contains a number of factors that bear on the issue of the amount of the loss caused by the conduct of defendants and their co-conspirators. I set them out now and I discuss my final conclusions as to the amounts of loss below.
a) Baptiste's Testimony
Baptiste estimated that he and his colleagues illegally downloaded more than 20,000 credit reports. (Tr. 20, 101).
b) The Database
The Government is in possession of a database, compiled by law enforcement authorities from information received from TCI customers (including Ford) as well as the three credit agencies. (Tr. 263-64, 266). The database contains information for many of the victims whose credit reports were stolen in this case. (Tr. 263, 266). The database contains entries for some 29,000 credit reports, but some of these are duplicative as some credit reports were requested twice. (Tr. 267). The authorities were able to determine that these credit reports were requested by Baptiste and Cummings principally because the same telephone numbersnumbers associated with themwere used to request the reports. (Tr. 265-66; GX 3502-1 ¶¶ 8-10).
c) The Government's Letters to Victims
In late 2002 and early 2003, the U.S. Attorney's Office for the Southern District of New York sent out some 26,000 letters to victims in the database requesting information to help calculate the extent of the losses from the credit card fraud and identity theft. Some 9,000 letters were returned as undeliverable, in part because some people had moved with the passage of time and some of the addresses were fraudulent addresses employed by members of the group. The Government received 1,209 responses. (Tr. 268-69).
The Government compiled the information into a spreadsheet, which was received into evidence at the hearing as GX JA1. (Tr. 270). Following the hearing, at the Court's request, the Government rechecked the information and submitted a slightly revised spreadsheet, GX JA1-REV. The revised spreadsheet shows a total loss for the 1,209 responses of $13,328,471.47, or an average loss per victim for the 1,209 victims of $11,024.38. (GX JA1-REV; Gov't 5/4/06 Letter at 1). Some of the losses are substantial, including, for example, a loss of $290,000 (no. 1170) on a secured credit line and a loss of $146,255.00 (no. 1187) on a home equity line. (GX JA1-REV).[6]
d) The Government's Subpoenas
The Government also subpoenaed a number of banks and credit card companies, *96 providing a copy of the victims database and requesting information relating to these victims. (Tr. 273). Of course, the Government could only subpoena selected banks and credit card companies, and there were some difficulties in getting proper responses from some of the subpoenaed banks and companies. (Tr. 273-74). Some information was received, however, and the Government prepared another spreadsheet, GX JA2, which also was revised after the hearing and resubmitted as GX JA2-REV.
With the information attributable to the 1,209 victims who responded to the letter eliminated to avoid double-counting, the spreadsheet shows an additional $15,299,673.74 in losses for the subpoenaed companies that provided usable information. (GX JA2-REV; Tr. 275-77). This number does not include losses sustained by banks that were not subpoenaed or losses sustained by Best Buy and Home Depot, even though these companies were targets, because of difficulties in securing compliance with the subpoenas. Some companies, such as Dell and Gateway, simply were not contacted. (Tr. 278; see Tr. 273-74). Adding this amount to the total of $13,328,471.47 for the 1,209 responding victims results in a total of $25,313,654.21 in losses, based on the information received. (GX JA2-REV; see Tr. 276).
e) Antonino's Analyses
Inspector James Antonino of the United States Postal Service took ten credit reports each for co-defendant Eniete Ukpong and defendant Akuetiemehe, randomly selected from reports seized from them, and analyzed them, putting the information into spreadsheets. (GX JA4, JA5; Tr. 280-83). Antonino reviewed each credit report and listed the credit cards and credit limit for each. (Tr. 280-81). The ten reports for Akuetiemehe showed an average credit limit per report of $40,016 and the ten reports for Ukpong showed an average credit limit per report of $64,744. (GX JA4, JA5). Taking both sets together, the average credit report had a credit limit of $52,380. (Tr. 283). This amount is the credit limit, not the amount of available credit. (Tr. 281).
f) Ezediaro's Testimony
Emanuel Ezediaro, a cooperating witness, estimated that four out of ten credit reports were "useful" and that each "useful" credit report would produce approximately two credit cards that could be used to obtain merchandise. On average, each usable credit card had approximately $5,000 of credit available. (Tr. 231-32, 238).[7] Accordingly, based on this rough estimate, every ten credit reports would yield approximately eight credit cards that would provide a total of some $40,000 in credit. (Tr. 284-85). Put another way, the credit reports yielded an average of approximately $4,000 per credit report, taking into account all credit reports. (Tr. 285).
g) Co-Conspirators' Stipulations
The various co-conspirators stipulated to the loss amount for sentencing purposes. These stipulations, of course, are not binding on the three defendants before the Court, but they are worth considering. *97
Philip Cummings $50 million-$100 million
Eniete Ukpong $200,000-$400,000
Julius Owolabi $200,000-$400,000
Atanda Ogunniyi $120,000-$200,000
Robinson Ejike $120,000-$200,000
Alexander Alli $70,000-120,000
Lukman Lawal $30,000-$70,000
Ojo Akinseye Akinyemi $5,000-$70,000
(Gov't 5/3/06 Letter at 1).
7. The Non-Financial Losses
Of course, the losses caused by identity theft are not purely financial. Many of the victims suffered no financial loss, as their banks and financials institutions absorbed the fraudulent charges and withdrawals. But victims from all over the country suffered in other respects, as their responses to the Government's mailing show. I quote from some of them now:
From a resident of Staten Island, New York: "I personally did not suffer a personal [financial] loss with this fraud[.] The only thing my family and I suffered was stress in not knowing if I would."
From an Ohio resident: "Key Bank absorbed the entire financial loss of $47,400 that was taken from my line of credit. Our only loss was time, worry, and sleep. We terminated our line of credit."
From a resident of Taos, New Mexico: "I have had no unauthorized debits from my bank account [for over a year]. I did for five years have both from the bank account and credit cards. I was a nervous wreck when my statements came about opening them. . . . The whole thing was a nightmare for me as a recent widow on a limited income."
From a resident of Scottsdale, Arizona: "This case of stolen ID . . . has changed my life and I missed out on a better life for me & my two sons."
From a resident of Whitesboro, New York: "I am a victim of [Cummings's] theft [of consumer information]. It has cost me countless hours of my time trying to rectify his theft of my identification. As recently as October of 2004, I was still trying to clear my credit standing with Fleet Bank. I have received threatening phone calls and letters from three different collection agencies trying to collect a debt I did not incur."
From an Illinois resident writing in December 2004: "I noted an unexpected $100 charge to Bank One Internet on my Elan MasterCard bill in February 2002, and called to report this error . . In mid-March Elan MasterCard sent me a copy of Bank One's explanation of the charge that revealed a new bank account had been set up with them using my name, SSN and DOB, and with [a false] address [in the] Bronx . . . and a [false] N.Y. driver's license in my name. What a shock! Someone knew all my vital information and might be taking steps to steal from my accounts. Then began countless hours of telephoning, wondering where this person was going to strike and checking every source of information I could imagine. This caused much worry both for myself and for my wife. We had recently retired and she had been diagnosed with terminal cancer so I spent most of my time caring for her. (My wife died on June 28, 2002.) We had always tried to meet all our financial obligations on time. . . . "
(Gov't Victim Impact Statements 2, 3, 6, 8, 9, 10 (numbered by the Court)).
B. Prior Proceedings
Cummings and others were indicted in 2003, in case no. 03 Cr. 109(GBD). Cummings pled guilty in September 2004 and was sentenced by Judge Daniels in January 2005 to 14 years imprisonment. Baptiste *98 was charged in a complaint filed on October 29, 2002, in case no. 03 Cr. 111(KMW). He pled guilty in January 2003 and is awaiting sentence.
The instant case was commenced by an indictment filed on December 13, 2004, against Abiodun, as a single defendant, under the name Eleduma Sunday Awolabi. Eventually, superseding indictments were filed against Abiodun under his true name, and Akuetiemehe and Akinyemi as well as others were added as defendants.
Abiodun pled guilty before Magistrate Judge Maas on January 13, 2006, to conspiracy, identity fraud, and possession of illegal access devices. He pled without a plea agreement. The Government's Pimentel letter contended that the amount of loss was greater than $50 million and less than $100 million. (Gov't 1/11/06 Letter at 2).
Akuetiemehe pled guilty before Magistrate Judge Gorenstein on January 4, 2006, to conspiracy, identity fraud, and possession of illegal access devices. Akuetiemehe pled without a plea agreement. Likewise, the Government's Pimentel letter contended that the amount of loss was greater than $50 million and less than $100 million. (Gov't 1/3/06 Letter at 2).
Akinyemi pled guilty before Magistrate Judge Maas on January 12, 2006, to conspiracy, identity fraud, and possession of illegal access devices. He pled pursuant to a plea agreement that left open the amount of loss: the Government took the position that the loss attributable to him was greater than $30,000 but less than $70,000 and Akinyemi contended that the amount was greater than $5,000 but less than $10,000. (Gov't 1/11/06 Letter at 2, 4).
To resolve the factual differences, the Court conducted a Fatico hearing on April 18 and 19, 2006. The parties thereafter submitted additional papers and exhibits.
DISCUSSION
I discuss first the issue of the amount of loss and second the issue of Abiodun's role in the conspiracy.
A. The Amount of Loss
1. Applicable Law
The Guideline applicable to the conduct in question is U.S. Sentencing Guidelines § 2B1.1, which covers offenses involving fraud and deceit.[8] Pursuant to § 2B1.1(a)(2), the base offense level is 6. The area of disagreement lies in the adjustment, if any, for the amount of loss, as set forth in § 2B1.1(b)(1), which provides in part:
If the loss exceeded $5,000, increase the offense level as follows:
Loss (Apply the Greatest) Increase in Level
(A) $5,000 or less no increase
(B) More than $5,000 add 2
(C) More than $10,000 add 4
(D) More than $30,000 add 6
(E) More than $70,000 add 8
(F) More than $120,000 add 10
(G) More than $200,000 add 12
(H) More than $400,000 add 14
(I) More than $1,000,000 add 16
(J) More than $2,500,000 add 18
(K) More than $7,000,000 add 20
(L) More than $20,000,000 add 22
(M) More than $50,000,000 add 24
(N) More than $100,000,000 add 26
U.S. Sentencing Guidelines Manual § 2B1.1(b)(1) (2005). Hence, there is a sliding scale with offense levels added according to the amount of the loss.
*99 The Commentary to subsection (b)(1) explains that "loss is the greater of actual loss or intended loss." Id. § 2B1.1 appl. n. 3(A). "Actual loss" means "the reasonably foreseeable pecuniary harm that resulted from the offense." Id. § 2B1.1 appl. n. 3(A)(i). "Intended loss" means "the pecuniary harm that was intended to result from the offense" and "includes intended pecuniary harm that would have been impossible or unlikely to occur." Id. § 2B1.1 appl. n. 3(A)(ii).
In determining the amount of loss, the Court is to consider all "relevant conduct." Id. § 1B1.3(a). Relevant conduct includes "all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or wilfully caused by the defendant," or, in the case of "jointly undertaken criminal activity," i.e., a plan or scheme or endeavor undertaken by the defendant "in concert with others," "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity." Id. § 1B1.3(a)(1). In other words, where a defendant undertakes a criminal plan or enterprise "in concert with others," he is accountable for the conduct of others that was (i) "in furtherance of the jointly undertaken criminal activity" and (ii) "reasonably foreseeable." Id. § 1B1.3 appl. n. 2. See generally United States v. Chalarca, 95 F.3d 239, 243 (2d Cir.1996).
In determining the amount of the loss, "[t]he court need only make a reasonable estimate of the loss." U.S. Sentencing Guidelines Manual § 2B1.1 appl. n. 3(C) (2005). Indeed, the Second Circuit has recognized that where a defendant's offense level is tied to the amount of loss caused by his offense, "the Guidelines do not require that the sentencing court calculate the amount of loss with certainty or precision." United States v. Bryant, 128 F.3d 74, 75 (2d Cir.1997); accord United States v. Singh, 390 F.3d 168, 192 (2d Cir.2004) ("A reasonable estimate of the loss is all that is necessary."). Application note 3(C) specifically states:
The estimate of the loss shall be based on available information, taking into account, as appropriate and practicable under the circumstances, factors such as the following:
. . . .
(iii) The approximate number of victims multiplied by the average loss to each victim.
(iv) The reduction that resulted from the offense in the value of equity securities or other corporate assets.
(v) More general factors, such as the scope and duration of the offense and revenues generated by similar operations.
U.S. Sentencing Guidelines Manual § 2B1.1 appl. n. 3(C) (2005). Accordingly, the Court may estimate the amount of loss "by extrapolating the average amount of loss [for each victim] from known data and applying that average to transactions where the exact amount of loss is unknown." Bryant, 128 F.3d at 76 (specifically referencing § 2B1.1 and commentary thereto).
Finally, the Guidelines contain a special rule directed toward stolen credit card and access device fraud, which provides that "[i]n a case involving any counterfeit access device or unauthorized access device, loss includes any unauthorized charges made with the counterfeit access device . . . and shall be not less than $500 per access device." U.S. Sentencing Guidelines Manual § 2B1.1 appl. n. 3(F)(i) (2005).
The burden is on the Government to prove the loss amount by a preponderance of the evidence. See United States v. *100 Ruggiero, 100 F.3d 284, 290 (2d Cir.1996) (addressing generally the need to establish relevant facts at sentencing).
2. Application
[5] The Government's contention that this identity theft ring was responsible for $50 million to $100 million in losses is reasonable. The 1,209 responses to the Government's mailing showed total losses of $13,328,471.47. This number, of course, is understated, as the vast majority of victims did not respond, presumably because the banks or financial institutions absorbed the losses and many of these individuals did not want to become entangled in the criminal justice system. The banks and other financial institutions that provided meaningful responses to the Government's subpoenas reported another $15,299,673.74 in losses, after eliminating any duplication with the 1,209 respondents. This number likewise is grossly understated, as it includes information from only seven financial institutions or merchants. Many more were victimized. Hence, the total of $25,313,654.21, based on the limited information received, significantly under-represents the total loss caused by this group. In view of the number of credit reports illegally downloaded by Cummings and Baptistesubstantially in excess of 20,000 and probably closer to 30,000 more likely than not the total loss exceeds $50 million.
The Government does not argue that Abiodun, Akuetiemehe, and Akinyemi are responsible for the entire loss amount. Rather, the Government argues that each defendant should be sentenced based on the losses attributable to the credit reports each one illegally purchased from Baptiste. Surely each defendant should be responsible, at a minimum, for the harm caused by the illegal use of the credit reports that they personally purchased.
The Government, however, is not able to prove that specific credit reports resulted in specific fraudulent purchases that can be tied to a particular defendant. With a few exceptions, we do not know which credit reports were specifically purchased by Abiodun or Akuetiemehe or Akinyemi and we do not know the precise losses attributable to the credit reports purchased by each. Rather, the Government proposes calculating the average loss sustained per credit report and then multiplying the average times the number of reports purchased by each defendant.
The approach is reasonable and is precisely the kind of approach contemplated for a situation such as this where there are manyindeed, tens of thousandsvictims and the precise amounts are difficult to ascertain. See U.S. Sentencing Guidelines Manual § 2B1.1 appl. n. 3(C)(iii) (2005) ("The estimate of the loss shall be based on available information, taking into account, as appropriate and practicable under the circumstances, factors such as . . . [t]he approximate number of victims multiplied by the average loss to each victim."). The Guidelines do not require "certainty or precision." Bryant, 128 F.3d at 75.
Defendants argue that the Government's approach relies on speculation. This objection is overruled. The Government's approach is based not on speculation, but on reasonable extrapolation based on reliable information. See id. at 76. The database compiled by law enforcement authorities from data provided by the credit agencies and TCI customers corroborates Baptiste's testimony that he and his colleagues illegally downloaded more than 20,000 credit reports. Indeed, the number is closer to 30,000. Inspector Antonino's analysis of twenty randomly selected credit reports shows an average credit limit of some $52,380 per report, and the 1,209 responses to the Government's *101 showed an average loss per victim of $11,024.38. These numbers corroborate Ezediaro's testimony that every ten credit reports (assuming only four were "useful") yielded roughly $40,000 in credit that the ring members could tap.
Defendants also argue that the Government's approach relies on hearsay and other inadmissible evidence. But the Federal Rules of Evidence do not strictly apply at Fatico hearings, see Fed.R.Evid. 1101(d)(3); United States v. Fell 360 F.3d 135, 144 (2d Cir.2004), and the Guidelines expressly provide that "[i]n resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that [it] has sufficient indicia of reliability. . . ." U.S. Sentencing Guidelines Manual § 6A1.3(a) (2005) (emphasis added). The Second Circuit has also recognized that "[t]he procedures used at sentencing are within the discretion of the district court so long as the defendant is given an adequate opportunity to present his position as to matters in dispute." United States v. Maurer, 226 F.3d 150, 151 (2d Cir.2000). Here, the evidence relied on by the Government is reliable, and defendants had a fair opportunity to be heard.
Accordingly, I find as follows:
The loss attributable to. Abiodun is between $1.6 million and $2.0 million, based on his purchase of 400 to 500 reports, multiplied by the average loss per report of $4,000. His offense level will be increased 16 levels in accordance with Guidelines § 2B1.1(b)(1)(I).
The loss attributable to Akuetiemehe is between $1.2 million and $1.6 million, based on his purchase of 300 to 400 reports. His offense level will also be increased 16 levels in accordance with Guidelines § 2B1.1(b)(1)(I).
The loss attributable to Akinyemi is $200,000, based on his purchase of 50 reports. As he and the Government entered into a plea agreement in which the Government contended that the loss attributable to Akinyemi was greater than $30,000 but less than $70,000, I will assume a loss amount of more than $30,000 and less than $70,000. Akinyemi's offense level will be increased 6 levels in accordance with Guidelines § 2B1.1(b)(1)(D).
B. Role
The Guidelines provide for an upward adjustment in the offense level for an "aggravating role"a leadership or supervisory role. U.S. Sentencing Guidelines Manual § 3B1.1 (2005). If a defendant was "an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive," his offense level is increased by 4 levels. Id. § 3B1.1(a). If he was "a manager or supervisor (but not an organizer or leader)" of such criminal activity, his offense level is increased by 3 levels. Id. § 3B1.1(b). If he was "an organizer, leader, manager, or supervisor" in criminal activity involving fewer than five individuals that was not "otherwise extensive," his offense level is increased by 2 levels. Id. § 3B1.1(c).
The Government argues that Abiodun should receive a 2-level increase pursuant to Guidelines § 3B1.1(c) because he was "an organizer, leader, manager, or supervisor" in criminal activity involving at least two other participantsJulius Owolabi and Adekunle Olusola. I will apply the 2-level enhancement. Although the record does not demonstrate that Abiodun had a leadership role with respect to five or more individuals such as to warrant an increase of 3 or 4 levels pursuant to § 3B1.1(a) or (b), I am persuaded that he was an organizer, leader, manager, or supervisor *102 of criminal activity involving himself, Owolabi, and Olusola. He was one of Baptiste's biggest customers and engaged in substantial fraudulent activity. Clearly, he was assisted by both Owolabi and Olusola. Owolabi helped him try to obtain cash advances in Massachusetts, and Olusola helped him try to get a cash advance in Pennsylvania. The credit information for the two victims in question came through the TCI software, and Abiodun was the common link. Moreover, Abiodun gave Olusola ten credit reports, and promised to help Olusola call the banks. In other words, he had agreed to teach Olusola how to commit the fraud and, accordingly, was a supervisor or manager and should be sentenced accordingly.
CONCLUSION
As set forth above, in calculating defendants' Guideline sentences, I will increase Abiodun's offense level 16 levels based on the loss amount and 2 levels based on his aggravating role; I will increase Akuetiemehe's offense level 16 levels based on the loss amount; and I will increase Akinyemi's offense level 6 levels based on the loss amount.
SO ORDERED.
NOTES
[1] References to "Tr." are to the transcript of the Fatico hearing conducted on April 18 and 19, 2006.
[2] Consumer credit reporting agencies furnish credit reports to subscribing lenders and merchants who receive applications from consumers for credit. The agencies obtain account information from reporting creditors, who provide regular reports as to the status of their customers' accounts. The reports include information such as the amount of credit available on a particular account, the amount owed as of a particular date, and whether the account is current. See, e.g., Barbara C. Sherland, The Functions of Consumer Reporting Agencies Under the Fair Credit Reporting Act, 59 Wash. L.Rev. 401, 402-03 (1984). The credit agencies maintain the databases of consumer credit information. (Tr. 312).
[3] Baptiste knew Abiodun as "Tony," Akuetiemehe as "AT," and Akinyemi as "Yemi" or "Dealer." (Tr. 16-18).
[4] In fact, Ford uncovered the unauthorized downloading when it started receiving bills for credit reports it had not ordered and after consumers began complaining about the issuance of credit reports purportedly for transactions with the Grand Rapids branch of Ford when they had made no applications to the branch for credit. (GX 3502-1 ¶ 3(c); Tr. 264-65). When the access information for a particular customer stopped working, Cummings would provide a new code. This happened approximately five times. (Tr. 55-57; see also Tr. 100-01). Other customers whose codes were used included Washington Mutual Bank in Florida, Washington Mutual Finance Company in Tennessee, Dollar Bank in Ohio, and other companies in Illinois, Indiana, Texas, and Minnesota. (GX 3502-1 ¶¶ 4(b), 5(d); Tr. 265-66).
[5] A couple in Columbus, Ohio, wrote a letter to the Government dated April 10, 2006, complaining that someone had recently tried to write a check on one of their accounts that had been closed for some time because of fraud. (Tr. 271-72; GX JA6). They were following up on letters they had been sent by the U.S. Attorney's Office beginning in early 2003. (Tr. 318).
[6] The Government confirmed that one couple in California had a home credit line of $300,000, which was fraudulently drawn down on to the extent of $297,000. (Tr. 433).
[7] In fact, Ezediaro testified that "two or three" of the reports that were not immediately useful could later turn out to be useful, increasing the number of "useful" reports to six or seven out of every ten. (Tr. 249). Erring on the side of caution in favor of defendants, I do not include these additional "two or three" reports in my loss calculations.
[8] In his plea agreement, Akinyemi agreed with the Government that the November 1, 2001, edition governed. In the Pimental letters issued to both Abiodun and Akuetiemehe, the Government asserted that the November 1, 2004, edition applied. As I do not believe there are any material differences between the two editions and the current edition in these respects, I apply the current one, effective November 1, 2005. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609914/ | 467 P.2d 633 (1970)
Norman W. ROSE and Katheryn Rose, Respondents,
v.
Carl D. ETLING, Judge of the District Court for the State of Oregon for Multnomah County, Appellant.
Supreme Court of Oregon, In Banc.
Argued and Submitted March 5, 1970.
Decided April 8, 1970.
Brian W. O'Brien, Portland, argued the cause and filed a brief for appellant.
Henry G. Campbell, Jr., Eugene, argued the cause for respondents. With him on the brief was Victor C. Pagel, Eugene.
TONGUE, Justice.
This is a mandamus proceeding to require a change of venue from the District Court of Multnomah County to the District Court of Lane County in an action on a retail installment sales contract. In that action, brought by the Bonded Credit Corporation, the defendants, who were the purchasers under that contract, resided and were served in Lane County.
The contract provided that:
"Purchaser hereby consents * * * to the laying of venue in Multnomah County * * * at the option of secured Party. * * * Purchaser * * * waives the right to move for change of venue."
A motion for change of venue in that action was denied by Judge Etling, after which this proceeding was filed in the Circuit Court of Multnomah County. By answer to the alternative writ of mandamus the foregoing contract provisions were alleged as a defense. The court, however, sustained a demurrer to that answer, holding *634 that such a contract provision was invalid by reason of ORS 83.160.
ORS 83.160 is part of a statute adopted in 1963 relating to retail installment sales of goods and services and provides that:
"No act or agreement of the retail buyer before or at the time of making of a retail instalment contract, retail charge agreement or purchases thereunder shall constitute a valid waiver of * * * any remedies granted to the buyer by law."
Even in the absence of such a statute, it would appear that most courts have held that contract provisions under which one party agrees to waive the benefits of venue statutes relating to the place of trial of a cause of action which has not yet arisen are invalid as against public policy, although some courts have held to the contrary, depending upon the particular contract and statutory provisions involved.[1] It is held, however, that even though venue may be a privilege which can be waived, it may not be contracted away in the face of a statute prohibiting such a contract.[2]
Appellant contends that "the right to change venue is only a personal privilege and may be waived"; that "remedies are either the means to enforce a right or to defend a claim in place of an original right which has been broken or an original duty unperformed"; that "a person may lawfully waive by agreement the benefit of a statutory provision"; that "venue is a proper subject of contract and contractual provisions laying venue are enforceable"; and that "public policy requires that contracts to do a particular thing which may be lawfully done or omitted shall be enforced by the court unless some other overpowering rule of public policy intervenes which renders such agreement illegal or unenforceable."[3]
Thus, appellant very properly concedes that a defendant may have a "right" to a change of venue; that "remedies" may be the "means to enforce a right"; and that there may be some "overpowering rule of public policy" which "renders illegal" an agreement to waive such "rights" and "remedies."[4]
By ORS 83.160 the Oregon Legislature has made clear the public policy of this state on the subject of retail installment contracts by expressly providing that "no * * * agreement of the retail buyer * * at the time of the making of a retail instalment contract * * * shall constitute a *635 valid waiver of * * * any remedies granted to the buyer by law."[5]
In addition, it is the law of Oregon, by reason of ORS 14.110(a), that a defendant in an action to enforce a contract who resides and is served in one county with a copy of a complaint filed against him in another county has a right to have that action tried in the county where he resides and was served. This is of particular importance to an installment contract purchaser, who may live over 200 or 300 miles from Portland and yet be required to defend himself in Multnomah County in an action for any alleged breach of the contract, if a provision such as the one involved in this case is valid and enforceable.
Even though the right of a defendant to a change of venue has been described as a "personal privilege," it is nevertheless a "right". Mutzig v. Hope, 176 Or. 368, 397, 158 P.2d 110 (1945). Furthermore, this court has expressly recognized that a motion by defendant for a change of venue is the defendant's only "remedy" to enforce such a "right". Mack Trucks, Inc. v. Taylor, 227 Or. 376, 382, 362 P.2d 364 (1961).
It follows, by application of the provisions of ORS 83.160, that an agreement by a "retail buyer * * * at the time of the making of a retail instalment contract" which purports to consent to the laying of venue in any particular county and to waive the purchaser's right to move for change of venue is invalid as an attempted agreement to waive a "remed[y] granted to the buyer by law." This result is also consistent with the general rule that statutes relating to the right to change the venue of actions filed in the wrong place are to be liberally construed so as to attain the objectives of such statutes.[6]
Affirmed.
NOTES
[1] See cases collected in 56 A.L.R. 2d 300 at 306. See also 56 Am.Jur. 45, Venue, § 41. For contra cases, see: Electrical Products Consolidated v. Bodell, 132 Mont. 243, 316 P.2d 788 (1957); State ex rel. Schwabacher Bros. & Co. v. Superior Court, 61 Wash. 681, 112 P. 927 (1911); Mangham v. Gold Seal Chinchillas, Inc., 69 Wash.2d 37, 416 P.2d 680 (1966); State ex rel. Kuhn v. Luchsinger, 231 Wis. 533, 286 N.W. 72 (1939); and Texas Moline Plow Co. v. Biggerstaff, (Tex.Civ.App.) 185 S.W. 341 (1916), among other cases. See also 69 A.L.R. 2d 1324; Restatement of the Law of Contracts, § 558 (but see Restatement of the Law of Conflict of Laws, § 317, comment (a) and 6 Utah L.R. 128 (Note).
[2] Sherman v. Pere Marquette Ry. Co., 62 F. Supp. 590, at 593 (N.D.Ill. 1945), discussing similar problem under Federal Employers' Liability Act. See also Duncan v. Thompson, 315 U.S. 1, 62 S. Ct. 422, 86 L. Ed. 575 (1941) and 47 Col. L.R. 498 (Note).
[3] Appellant also contends that although Washington has a statute identical to ORS 83.160, that state "follows the rule that venue is a proper subject of contract and is an enforceable provision of the contract", citing State ex rel. Schwabacher Bros. & Co. v. Superior Court, supra, and Mangham v. Gold Seal Chinchillas, Inc., supra. Neither of those cases discussed or undertook to interpret or apply provisions of the similar Washington statute, but stand only for the minority view on the general subject of contract provisions which undertake to waive venue.
[4] It is thus significant that under the Commercial Code, as adopted in 1961, it had been previously provided in ORS 71.2010 (36) that "`rights' includes remedies" and by 71.2010(34) that "`Remedy' means any remedial right to which an aggrieved party is entitled with or without resort to a tribunal."
[5] Among the probable reasons of public policy underlying such statutes are the need to protect an installment contract purchaser from possible "economic coercion" by a "litigation-wise large company", and the probable "inequity of knowledge" between such contracting parties. Cf. 19 Mont.L.R. 165, at 166-67.
[6] See cases cited in 56 Am.Jur. 30 and 47, Venue §§ 28 and 42. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1875966/ | 260 S.W.3d 432 (2008)
STATE of Missouri, Plaintiff/Respondent,
v.
Jerry RACKLEY, Defendant/Appellant.
No. ED 90113.
Missouri Court of Appeals, Eastern District, Division Three.
August 19, 2008.
Jeremiah W. (Jay) Nixon, Atty. Gen., Mary H. Moore, Jefferson City, MO, for Plaintiff/Respondent.
Irene Karns, Columbia, MO, for Defendant/Appellant.
Before ROBERT G. DOWD, JR., P.J., CLIFFORD H. AHRENS, J., and SHERRI B. SULLIVAN, J.
ORDER
PER CURIAM.
Jerry Rackley appeals his Judgment of conviction and sentence arguing the trial court erred in denying his Motion to Suppress Evidence. We have reviewed the briefs of the parties and the record on appeal and conclude that no error resulting in a manifest injustice or a miscarriage of justice occurred. Rule 30.20[1]; State v. *433 Johnson, 220 S.W.3d 377, 385 (Mo.App. E.D.2007). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Rule 30.25(b).
NOTES
[1] All rule references are to Mo. R.Crim. P. 2007, unless otherwise indicated. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2983996/ | Dismissed and Memorandum Opinion filed May 20, 2014.
In The
Fourteenth Court of Appeals
NO. 14-14-00373-CR
JAMES WOLF, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause No. 1356156
MEMORANDUM OPINION
Appellant entered a plea of guilty to aggravated assault of a family member
and a plea of true to the first enhancement paragraph in the indictment. In
accordance with the terms of a plea bargain agreement with the State, the second
enhancement paragraph was abandoned and the trial court sentenced appellant on
August 3, 2012, to confinement for twelve years in the Institutional Division of the
Texas Department of Criminal Justice. No motion for new trial was filed.
Appellant filed a pro se notice of appeal on May 5, 2014.
A defendant’s notice of appeal must be filed within thirty days after sentence
is imposed when the defendant has not filed a motion for new trial. See Tex. R.
App. P. 26.2(a)(1). A notice of appeal which complies with the requirements of
Rule 26 is essential to vest the court of appeals with jurisdiction. Slaton v. State,
981 S.W.2d 208, 210 (Tex. Crim. App. 1998). If an appeal is not timely perfected,
a court of appeals does not obtain jurisdiction to address the merits of the appeal.
Under those circumstances it can take no action other than to dismiss the appeal.
Id.
In addition, the trial court entered a certification of the defendant’s right to
appeal in which the court certified that this is a plea bargain case, and the
defendant has no right of appeal. See Tex. R. App. P. 25.2(a)(2). The trial court’s
certification is included in the record on appeal. See Tex. R. App. P. 25.2(d). The
record supports the trial court’s certification. See Dears v. State, 154 S.W.3d 610,
615 (Tex. Crim. App. 2005).
Accordingly, the appeal is ordered dismissed.
PER CURIAM
Panel consists of Justices Boyce, Busby, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).
2 | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2984000/ | May 20, 2013
JUDGMENT
The Fourteenth Court of Appeals
CHRISTOPHER ARTHUR TATUM, Appellant
NO. 14-13-00221-CR V.
THE STATE OF TEXAS, Appellee
________________________________
This cause was heard on the transcript of the record of the court below.
Having considered the record, this Court holds that there was no error in the
judgment. The Court orders the judgment AFFIRMED.
We further order appellant pay all costs expended in the appeal.
We further order this decision certified below for observance. | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/14978/ | UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-31016
ANDERSON 2000 INCORPORATED,
Plaintiff-Appellant
VERSUS
NATIONAL DYNAMICS CORPORATION,
doing business as Nebraska Boiler Company,
Defendant-Appellee.
Appeal from the United States District Court
For the Middle District of Louisiana
(96-CV-146-A)
June 5, 1998
Before DUHÉ, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:1
AFFIRMED. See Local Rule 47.6.
1
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4. | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/4561311/ | Case: 20-10682 Date Filed: 08/28/2020 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-10682
Non-Argument Calendar
________________________
Agency No. A208-919-216
RODENEY FAUSTIN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(August 28, 2020)
Before NEWSOM, BRANCH, and LUCK, Circuit Judges.
PER CURIAM:
Rodeney Faustin petitions for review of the Board of Immigration Appeals’s
denial of his motion to reconsider its decision to dismiss his appeal as untimely. We
deny his petition.
Case: 20-10682 Date Filed: 08/28/2020 Page: 2 of 4
Faustin, a native and citizen of Haiti, was paroled into the United States in
February 2016. In June 2016, the government served him with a notice to appear,
alleging that he was removable because he did not possess valid entry or travel
documents. A few months later, Faustin applied for asylum, withholding of removal,
and relief under the Convention Against Torture, claiming that he was persecuted in
Haiti for his political affiliation. An immigration judge held a hearing on
October 16, 2018, denied Faustin’s applications, and ordered that he be removed to
Haiti. The written order told Faustin that he had the right to appeal and that his
appeal was due by November 15, 2018. The order was mailed to Faustin’s attorney
on October 17, 2018.
The board received Faustin’s notice of appeal on May 2, 2019. Faustin asked
the board to accept his late appeal, explaining in an affidavit that he tried in good
faith to file his appeal before the deadline but failed to do so because he was
unemployed, had “extreme financial hardship,” and could not find an attorney for a
reasonable fee. The board dismissed Faustin’s appeal as untimely, finding that the
statements in his affidavit were insufficient for the board to consider his appeal.
On September 12, 2019, Faustin moved the board to reconsider its dismissal.
He argued that his former counsel was ineffective and attached an affidavit that said
he paid an attorney to file his appeal but that the attorney had failed to do so.
Attached to the affidavit was a copy of a receipt for a $400 money order for
2
Case: 20-10682 Date Filed: 08/28/2020 Page: 3 of 4
“Immigration Svs. (Appeal)” from Faustin. The receipt was dated October 29, 2018.
The board denied Faustin’s motion because he had not: (1) complied with the
requirements for alleging an ineffective-assistance-of-counsel claim under Matter of
Lozada, 19 I. & N. Dec. 637 (BIA 1988); and (2) explained the inconsistencies
between the affidavit in his original appeal (where Faustin said he couldn’t afford
an attorney to timely appeal) and his motion for reconsideration (where he said that
he paid counsel but counsel ineffectively blew the deadline). Faustin, proceeding
pro se, now seeks review of the board’s denial of his reconsideration motion.
We review the board’s denial of a motion for reconsideration for an abuse of
discretion. Ferreira v. U.S. Att’y Gen., 714 F.3d 1240, 1243 (11th Cir. 2013). “The
[board] abuses its discretion when it misapplies the law in reaching its decision” or
when it fails to follow its own precedents “without providing a reasoned explanation
for doing so.” Id.
Faustin contends that the board abused its discretion in denying his motion
because he presented evidence of an “exceptional circumstance”—ineffective
assistance of counsel—warranting the board’s consideration of his untimely appeal.
But the board may require aliens to allege the necessary facts under Matter of Lozada
before it considers a claim of ineffective assistance of counsel. See Gbaya v. U.S.
Att’y Gen., 342 F.3d 1219, 1222–23 (11th Cir. 2003) (affirming the board’s rejection
of the petitioner’s ineffective-assistance-of-counsel claim where the petitioner failed
3
Case: 20-10682 Date Filed: 08/28/2020 Page: 4 of 4
to comply with Matter of Lozada). In Matter of Lozada, the board held that a motion
for reconsideration must allege three elements to raise a viable ineffective-
assistance-of-counsel claim. 19 I. & N. Dec. at 639. First, the motion must be
supported by an affidavit detailing the agreement with counsel and describing the
ways in which counsel’s performance was defective. Id. Second, counsel must be
informed of the claim and given an opportunity to respond. Id. Third, the motion
must allege that a complaint has been filed against counsel with the appropriate
disciplinary body or it must explain why such a complaint was not filed. Id.
Here, Faustin failed to satisfy Matter of Lozada’s three requirements. Though
he claimed to have paid for an appeal, Faustin did not allege that he had an agreement
with an attorney and what that agreement was. Faustin also failed to show that he
provided the purportedly ineffective attorney with notice of his claim. And his
motion did not allege that he submitted a complaint with the appropriate disciplinary
body or provide an explanation for not doing so. Finally, Faustin did not explain the
inconsistency between the first affidavit—where he said his appeal was filed late
because he could not afford to have an attorney—and his second affidavit—where
he said his appeal was late because his attorney had been ineffective. Thus, the board
did not abuse its discretion when it denied Faustin’s motion for failing to comply
with Matter of Lozada. See Gbaya, 342 F.3d at 1222–23.
PETITION DENIED.
4 | 01-03-2023 | 08-28-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/77689/ | 485 F.3d 1291
UNITED STATES of America, Plaintiff-Appellee,v.Pura MEDINA, Isabel Canepa, Isabel Guerra, Defendants-Appellants.
No. 05-14864.
United States Court of Appeals, Eleventh Circuit.
May 11, 2007.
Gail M. Stage (Fed. Pub. Def.), Fed. Pub. Defender's Office, Ft. Lauderdale, FL, Joaquin Mendez, Jr. (Court-Appointed), Joaquin Mendez, P.A., Julio C. Codias, Kathleen M. Williams, Fed. Pub. Def., Miami, FL, for Defendants-Appellants.
Evelio J. Yera, Anne R. Schultz, Asst. U.S. Atty., Jonathan M.F. Loo, Miami, FL, for U.S.
Appeals from the United States District Court for the Southern District of Florida.
Before TJOFLAT, FAY and SILER,* Circuit Judges.
FAY, Circuit Judge:
1
Defendants Pura Medina, Isabel Canepa, and Isabel Guerra (collectively "defendants") appeal their convictions for Conspiracy to Defraud the United States, Commit Health Care Fraud, and to Pay Kickbacks under 18 U.S.C. § 371, Health Care Fraud under 18 U.S.C. § 1347, Conspiracy to Commit Money Laundering under 18 U.S.C. § 1956(h), and Money Laundering under 18 U.S.C. § 1956(a)(1)(B). Defendants argue that the government did not produce sufficient evidence to warrant their convictions, and that the district court erred at sentencing when calculating the amount of loss. For the reasons set out below, we vacate the convictions of Canepa on all counts except the conspiracy to pay kickbacks count, and we find that her loss amount was erroneously calculated at sentencing. As to Medina, we vacate her conviction on all counts of the indictment. As to Guerra, we vacate her convictions on the six substantive health care fraud counts involving Ocean Medical Supply that occurred before May 4, 2001, but affirm all the remaining convictions. We also find that her loss amount was erroneously calculated at sentencing. Accordingly, we remand for resentencing as to Guerra and Canepa, and remand with instructions to dismiss all counts as to Medina.
BACKGROUND
2
This case arises from transactions involving Ocean Medical Supply ("Ocean") and United Pharmacy ("United"). Guerra owned 50% stakes in both companies.1 Ocean dealt in Durable Medical Equipment ("DME") such as braces and oxygen tanks while United was a typical pharmacy that dealt in prescription drugs. Canepa was the secretary at Ocean and Medina was the secretary/technician at United.
3
At trial, Rubin Martinez, another pharmacy owner, testified that before Guerra and Gonzalez became Medicare providers through Ocean and United, they worked as patient recruiters, bringing patients to Martinez's pharmacy in exchange for illegal kickbacks. However, after receiving their own provider numbers through Medicare, Guerra and Gonzalez began taking the patients to their own businesses— Ocean and United.
4
There is testimony from Wendy Evans, a Special Agent with the FBI, that Guerra, in her capacity as part owner of both Ocean and United, signed documents to become a Medicare provider. Among other things, these documents certified that the Medicare provider would abide by the relevant Medicare regulations, specifically 42 CFR § 424.57. Subsection (c)(1) of this regulation provides that the supplier must "[o]perate[] its business and furnish[] Medicare-covered items in compliance with all applicable Federal and State licensure and regulatory requirements." According to Special Agent Evans's testimony, Guerra signed these documents for Ocean on May 4, 2001, and for United on May 18, 2000.
5
Several witnesses testified about the schemes Ocean and United were conducting. Nearly all the evidence presented at trial concerned kickbacks for patients, doctors, an orthotic fitter, and patient recruiters. Kickbacks were paid to entice patients to submit their medicare claims through Ocean and/or United. A number of patient recruiters testified that they would bring patients who needed to fill prescriptions to Ocean or United in exchange for 50% of the profits made after submitting the claim to Medicare. The recruiter would then share their 50% with the patient. Recruiters also testified that doctors were paid to send patients to United and Ocean, including a Dr. Brito who worked across the hall from Ocean.
6
Miguel Ugarte, an orthotic fitter who measured and constructed braces for Ocean's customers, testified that he was paid $25 to measure each patient Ocean sent him. He also testified that he did not actually measure many of the patients himself, despite signing forms to that effect.
7
Mauricio Abanto, a government informant, testified about his interactions with the defendants. Abanto testified that he was in the business of money laundering and dealt with several Medicare providers, including Ocean and United. Abanto used his advertising businesses as a cover to give the impression that any money Medicare providers paid him was for advertising. When federal authorities confronted him, he agreed to cooperate and videotape his money laundering transactions. Several videos were admitted at trial that showed all three defendants meeting separately with Abanto. During the taped encounters they would generally give him a check for $10,800, and they would get back $10,000 in cash. Abanto would keep the remaining $800 as a fee for cashing the checks.
8
The defendants would count the money and sometimes would discuss their scheme. While Guerra usually dealt with Abanto on behalf of Ocean, Canepa, Guerra's secretary, dealt with Abanto when Guerra was unavailable. Canepa was recorded as saying that Ocean needed the cash to pay doctors and patients with whom they did business. Canepa also stated that patients were being paid $250 per knee brace.
9
Usually Carlos Gonzalez dealt with Abanto on behalf of United. However, there were some instances when Medina received and counted the cash delivered, and where she wrote out checks for Abanto. However, she did not sign any of the checks herself. In one instance, Medina was quoted as saying they "needed the money by Tuesday." However, on cross examination, Abanto testified that whenever Gonzalez and he would talk about the kickback scheme, Gonzalez would send Medina out of the room because she was just a secretary and Gonzalez didn't want her knowing that the cash was for paying kickbacks. The defendants were convicted on all the counts put before the jury.2
10
At sentencing, after the defendants were convicted, the district court determined that every claim United and Ocean submitted to Medicare was fraudulent, and thus, every one of those claims that medicare paid was part of the total loss calculated under U.S.S.G. § 2B1.1(b)(1). The district court calculated Ocean's loss amount to be $1,863,962.84. This loss amount was attributed to Canepa, raising her base offense level by 16. The district court calculated United's loss amount while Medina was employed3 at $6,173,828, which raised her base offense level by 18. Finally, since Guerra was involved with both Ocean and United through the entire time period of the indictment, her loss amount was the total Medicare paid to both businesses, $9,405,114.90. This loss amount raised Guerra's base offense level by 20 under the sentencing guidelines.
11
With these loss amounts taken into account, the district court sentenced Guerra to 99 months in prison, and Canepa and Medina to 48 months in prison.
STANDARD OF REVIEW
There are two issues before this Court:
12
I. Whether there was sufficient evidence of the charged offenses to sustain the defendants' convictions.
13
II. Whether the district court erred in calculating the amount of loss at sentencing.
14
When analyzing sufficiency of the evidence, our review is de novo, but we must "resolve all reasonable inferences and credibility evaluations in favor of the jury's verdict." United States v. Rudisill, 187 F.3d 1260, 1267 (11th Cir.1999) (quoting United States v. Suba, 132 F.3d 662, 671 (11th Cir.1998) (internal quotes omitted)). However, the evidence must be sufficient that a reasonable jury could find that the government has proven guilt beyond a reasonable doubt. United States v. Lopez-Ramirez, 68 F.3d 438, 440 (11th Cir.1995) (citing United States v. Thomas, 8 F.3d 1552, 1555 (11th Cir.1993)) see also Jackson v. Virginia, 443 U.S. 307, 317-18, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979).
15
The interpretation of the sentencing guidelines is a question of law that is reviewed de novo. United States v. Malol, 476 F.3d 1283, 1291 (11th Cir.2007). However, the amount of loss determination at sentencing is reviewed for clear error. United States v. Nostari-Shamloo, 255 F.3d 1290, 1291 (11th Cir.2001); United States v. Cabrera, 172 F.3d 1287, 1292 (11th Cir.1999).
ANALYSIS
I. Sufficiency of the Evidence
A. Health Care Fraud
16
The government indicted the four defendants on a total of 19 counts of substantive health care fraud under 18 U.S.C. § 1347.4 The statute provides in pertinent part that:
17
Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice — (1) to defraud any health care benefit program; or (2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program,
18
in connection with the delivery of or payment for health care benefits, items, or services shall be fined under this title or imprisoned not more than 10 years, or both . . .
19
The district court dismissed four of the counts before the remaining 15 went to the jury.5
20
When discussing what constitutes "defrauding" the United States, the Supreme Court has stated:
21
To conspire to defraud the United States means primarily to cheat the government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane, or the overreaching of those charged with carrying out the governmental intention.
22
Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 512, 68 L.Ed. 968 (1924). The Tenth Circuit has held, and we adopt their holding, that in a health care fraud case, the defendant must be shown to have known that the claims submitted were, in fact, false. United States v. Laughlin, 26 F.3d 1523, 1526 (10th Cir.1994).
23
The government argues the fact that patients received kickbacks for patronizing Ocean and United "taints" any claims the defendants made to Medicare on those patients' behalf. The government also argues that even if the prescriptions involved were medically necessary, and the patient received what was prescribed, the payment of a kickback is sufficient to establish the falsity required to defraud Medicare. In furtherance of this argument, the government offered the testimony of Tanya Moore, a Center for Medicare and Medicaid Services employee. Moore testified that if Medicare had the knowledge that a kickback had been paid to a patient or doctor, they would not pay the claim.
24
We hold that based on the facts of this case, representatives of Ocean and United paying kickbacks alone is not sufficient to establish health care fraud. While we acknowledge that paying kickbacks like those at issue in this case is a violation of 42 U.S.C. § 1320a-7b(b)(2)(A), we cannot hold that this conduct alone is sufficient to establish health care fraud without someone making a knowing false or fraudulent representation to Medicare. See United States v. Porter, 591 F.2d 1048, 1055-56 (5th Cir.1979) (conspiracy to commit health care fraud was weakened where alleged kickbacks did not involve materially false statements or any money/property loss to Medicare.)
25
The government argues that representatives of both Ocean and United signed documents promising to abide by all of Medicare's rules and regulations when they registered to become Medicare Providers. Therefore, the government asserts that whenever anyone on behalf of Ocean and United filed claims where patients or doctors had received kickbacks in violation of the pertinent rules of Medicare, the defendants committed health care fraud.
26
This argument is only convincing as to Guerra. Given Rubin Martinez's testimony, a jury could reasonably conclude that Guerra was involved in paying kickbacks before becoming a Medicare Provider at Ocean and United. There is also the testimony from Special Agent Evans that Guerra signed documents to become a Medicare Provider stating that she would follow all applicable Medicare rules and regulations. Indisputably, one of those rules would be to refrain from paying doctors and patients kickbacks in violation of 42 U.S.C. § 1320a-7b(b)(2)(A). Based on testimony that Guerra was a patient recruiter who paid patients to go to Rubin Martinez's pharmacy before she became a Medicare Provider, a jury could have reasonably concluded that Guerra knew full well she would continue to pay kickbacks when she signed the forms promising that she would not. Therefore, signing the Medicare Provider applications would qualify as a knowing misrepresentation under 18 U.S.C. § 1347. The government presented ample evidence to show that the kickback pattern continued after Guerra signed the forms. The record contains testimony from several patient recruiters who were paid to bring patients to Ocean or United through 2003. Also, the testimony of Abanto, the government informant, could lead a reasonable jury to conclude kickbacks were still being paid. Therefore, a reasonable jury could conclude that Guerra committed health care fraud after she signed the applications stating that she would follow Medicare's rules and regulations.
27
Special Agent Evans testified that Guerra signed the Medicare Provider applications for United and Ocean on May 18, 2000 and May 4, 2001, respectively. Since these are the only knowing misrepresentations we have found upon a thorough review of the record, it follows that any count of substantive health care fraud that occurred before Guerra signed the company's documents must fail. The first six health care fraud counts against Ocean in the indictment occurred before May 4, 2001 — when Guerra signed Ocean's Medicare Provider application.6 Therefore, there is simply no evidence to support the guilty verdicts as to counts 2, 4, and 7. No false representation had been made to Medicare when the claims in those counts were submitted. Furthermore, since no evidence was presented that either Canepa or Medina was aware that Guerra had made these false representations to Medicare, this evidence is not sufficient to establish fraud as to those two defendants. Laughlin, 26 F.3d at 1526.
28
The government attempted to prove health care fraud as to Canepa and Medina by offering several other pieces of evidence. First, the government offered the testimony of Dr. Hugo Goldstraj. He testified that several prescriptions made in his name contained a forged signature and an unusually large number of refills. However, the government did not offer any evidence that any of the defendants were responsible for falsifying these or any other prescriptions. Nor is there any evidence in the record that the prescriptions at issue prescribed medications or DME that the patients did not need or did not receive. The mere fact that United or Ocean submitted prescriptions with forged signatures to Medicare is insufficient to establish fraud without some evidence that individuals at United or Ocean knew of the forgeries or forged the prescriptions themselves. Therefore, Dr. Goldstraj's testimony is insufficient, standing alone, to establish health care fraud as to any of the defendants.
29
The government also offered testimony from former patient recruiters for Ocean and United, who stated that they were paid to bring in patients in violation of the kickback statute. However, none of these recruiters presented any evidence that a patient did not receive what they were prescribed, or that a patient did not need what was delivered. Special Agent Evans testified that a few of the oxygen concentrators that Ocean delivered were not being used. She reached this conclusion by examining patient files that recorded the total number of hours an oxygen concentrator was used. According to the files, one such device had only been logged as being used for one hour over the course of a year. In another instance, the number of total hours went down over the course of a year. To be interpreted as health care fraud, however, there must be some evidence present in the record that shows the patients were not legitimately prescribed the oxygen concentrators, or that Ocean and/or United made false or fraudulent representations to Medicare on the patients' behalf. There is no such evidence here. Taken in the light most favorable to the government, this evidence merely establishes that Ocean's files contained misstatements about how much Ocean's patients used the oxygen concentrators. There is no evidence that this information was submitted to Medicare in any capacity.
30
Finally, Special Agent Evans testified that United would bill Medicare for an aerosol medication that was manufactured out of the pharmacy, but would then give the patient what is called a "compounded" medication that was mixed in the pharmacy. According to Special Agent Evans, Medicare did not cover compounded medication. It was also cheaper to make compounded medication than to purchase manufactured medication. On cross examination, however, Special Agent Evans was asked whether any specific patients were billed as receiving manufactured medication but actually received compounded medication. She could not name a specific patient, but rather could only state that this was a general practice at United.
31
Surely, the government must present some evidence that at least one specific patient received compounded medication when United billed Medicare for manufactured medication to prove health care fraud. A general allegation is not sufficient. The government argues that they could not call as witnesses patients or doctors who were paid kickbacks in violation of 42 U.S.C § 1320a-7b(b)(2)(A) because, due to their questionable credibility, they would not make "ideal witnesses." This argument is unconvincing. Many of the witnesses the government presented at trial were under indictment or had already pled guilty to similar kickback and fraud violations, and were testifying in cooperation with the government. The fact that the government can present these witnesses to establish kickbacks, but cannot present paid patients or doctors to show that United and/or Ocean made false claims to Medicare is quite contradictory and disingenuous. More importantly, it is the government's burden to prove every element of the charged offense beyond a reasonable doubt. Christoffel v. United States, 338 U.S. 84, 89, 69 S.Ct. 1447, 1450, 93 L.Ed. 1826 (1949); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). The government cannot ignore this burden simply because the witnesses who can establish the required elements are less than ideal. Thus, the government has not shown that either Medina or Canepa made any false or fraudulent representations to Medicare, nor did they present evidence that Canepa or Medina defrauded or attempted to defraud any health care program.
32
Therefore, we hold that Guerra's convictions on counts 2, 4, and 7 are not supported by sufficient evidence, but affirm her other twelve substantive health care fraud convictions. Furthermore, we hold that there is not sufficient evidence in the record to support the guilty verdicts as to Medina or Canepa on the charged substantive health care fraud counts under 18 U.S.C. § 1347. (Counts 2, 4, 6, 7, 9-13, 15-20)
33
B. Conspiracy to Commit Money Laundering/Money Laundering
34
The government charged these defendants (and Carlos Gonzalez) with Conspiracy to Commit Money Laundering under 18 U.S.C. § 1956(h), as well as eleven counts of substantive Money Laundering under 18 U.S.C. § 1956(a)(1)(B)(i).7 For these counts to succeed, the government must prove that the proceeds were derived from a specified unlawful activity, and that the defendant had knowledge that the proceeds resulted from said unlawful activity. United States v. Awan, 966 F.2d 1415, 1434 (11th Cir.1992); United States v. Nattier, 127 F.3d 655, 658 (8th Cir.1997); United States v. Henry, 325 F.3d 93, 103 (2d Cir.2003). The government argues that the health care fraud counts charged in the indictment satisfy the money laundering statute's specified unlawful act requirement.
35
As discussed previously, there is not sufficient evidence in the record to show that Canepa or Medina participated in or were aware of the charged health care fraud. The government conceded that cashing the checks through their informant, Abanto, and using the cash to pay patients illegal kickbacks was not money laundering in and of itself, since the illegal acts occurred subsequent to the monetary exchange. As such, health care fraud is the only specified unlawful act that could satisfy 18 U.S.C. § 1956. Therefore, since no evidence exists in the record to establish that Canepa or Medina were aware of the health care fraud, we must vacate their convictions for conspiracy to commit money laundering, as well as all the substantive money laundering counts.
36
As to Guerra, since there is evidence in the record to sustain some of her convictions for Health Care Fraud, the specified unlawful act requirement is satisfied. Specifically, there is evidence in the record that Guerra and Carlos Gonzalez conspired to launder money by (1) committing health care fraud, (2) cashing checks obtained via the health care fraud through Abanto, the government informant, so that it would appear the funds were legitimately spent on advertising, and (3) using that cash to illegally pay kickbacks to patients and doctors.
37
Guerra was also charged in three substantive money laundering counts. These counts occurred in October, November, and December of 2001. Since this was after she signed the documents certifying that she would follow Medicare rules and regulations, a reasonable jury could have concluded that Guerra was committing health care fraud, and as such, the requisite specified unlawful activity was present. Therefore, we hold that Guerra's convictions for conspiracy to commit money laundering and substantive money laundering are supported by sufficient evidence.
38
C. Conspiracy to (a) Defraud the United States, (b) Commit Health Care Fraud, and (c) Pay Kickbacks
39
The jury convicted the defendants of violating 18 U.S.C. § 371, the multi-objective conspiracy count.8 This Court has long held that where there is a conviction for a multi-object conspiracy, the evidence must only be sufficient to sustain a conviction for any one of the charged objectives. United States v. McKinley, 995 F.2d 1020, 1025 (11th Cir.1993) (citing United States v. Johnson, 713 F.2d 633, 646 (11th Cir.1983)).
40
With regard to Guerra, there is ample evidence in the record that she conspired with Carlos Gonzalez and with Canepa, her secretary at Ocean Medical, to pay kickbacks. There is testimony from Rubin Martinez that Guerra and Gonzalez acted as patient recruiters before they opened United together, and before Guerra opened Ocean. Abanto, the government informant, testified that Guerra brought him checks signed in her name in exchange for cash. He also testified that when Guerra was unavailable, Canepa would bring him the checks bearing Guerra's signature. There is testimony from other patient recruiters that Guerra paid them to bring her patients at Ocean, and that Gonzalez paid recruiters to bring patients to United. All of this evidence could lead a reasonable jury to conclude that Guerra conspired with Gonzalez and/or Canepa to pay illegal kickbacks to patients in violation of 18 U.S.C. § 371.
41
All that is required to sustain a conviction for a multi-objective conspiracy is sufficient evidence of one of the objects of the conspiracy. McKinley, 995 F.2d at 1025. Therefore, because there is sufficient evidence in the record to support a conviction as to the third objective of the conspiracy, to pay illegal kickbacks, we need not decide whether there is sufficient evidence in the record to support the other two objectives. As such, we affirm the conspiracy conviction as to Guerra.
42
There is also sufficient evidence in the record to support Canepa's conviction for conspiracy to pay kickbacks. Abanto testified that Canepa would sometimes bring him checks and collect cash on behalf of Guerra. Guerra's signature was on the checks Canepa brought to Abanto. Furthermore, in Abanto's video recordings, Canepa is seen collecting cash and informing Abanto that they need the money to pay patients. Also in the recordings Canepa is heard saying that patients are paid $250 per knee brace. With all credibility inferences made in favor of the jury's verdict, a reasonable jury could have concluded that Canepa conspired with Guerra to pay kickbacks. Because there exists sufficient evidence to convict Canepa on one objective of the conspiracy, we need not reach the question of whether there was sufficient evidence to convict Canepa of the other conspiracy objectives.9 McKinley, 995 F.2d at 1025. Thus, we affirm Canepa's conviction under the multi-objective conspiracy count.
43
On the other hand, there is not sufficient evidence in the record to convince a reasonable jury that Medina is guilty of any offense in the multi-objective conspiracy count. The only relevant evidence the government presented against Medina at trial was Abanto's testimony and videos. He testified that she would exchange checks for cash when Carlos Gonzalez, her boss, was unavailable. The checks all bore Gonzalez's signature. The government argues that Medina made statements on the recordings that incriminate her.
44
The only questionable statement Medina made that the government presented was when she told Abanto, "We need the money by Tuesday because people are coming." However, when asked on cross to whom Medina was referring, Abanto testified that she only meant her boss, Carlos Gonzalez. If we take Medina's statement in the light most favorable to the jury's verdict, as our review requires, we can infer that she also referred to patient recruiters when she said "people are coming." However, this evidence is still not sufficient for conviction. This statement in no way acknowledges that she is aware that the cash is needed to pay illegal kickbacks rather than for paying lawful United associates. Also worthy of note, Abanto testified that Medina was not aware of the kickback conspiracy, and that Gonzalez told her to leave the room whenever they discussed the details of the scheme. When asked, Abanto said that Medina was "just a secretary."
45
Since there is not sufficient evidence to support the guilty verdict as to Medina of conspiracy to pay kickbacks, we must look to the other two objectives of the conspiracy. The other two objectives of the charged conspiracy are (1) to defraud the United States, and (2) to commit health care fraud. As discussed previously, upon a thorough review of the record, there is no evidence that Medina had any knowledge of any health care fraud, or participated in any scheme to defraud the U.S. government.
46
The government argues that Medina was the technician at United who prepared the compounded medications discussed previously. The argument is that since there was evidence that compounded medication was given to patients when Medicare was billed for manufactured medication, she is guilty of conspiracy to commit health care fraud. Even if we put aside the fact that the evidence in the record is not sufficient to sustain a conviction as to anyone for health care fraud on this ground, Medina's actions in preparing the compounded medication would still not be sufficient to establish her part in a conspiracy. There is no evidence in the record that shows Medina was preparing the compounded medication with knowledge that manufactured medication was actually being prescribed. Thus, there is insufficient evidence to show Medina's knowing participation in a conspiracy to defraud the United States or commit health care fraud. Based on this record, the government offers no other relevant evidence as to any of Medina's actions that would show her participation in a conspiracy for any of the three objectives charged. Therefore, we vacate Medina's conviction as to the multi-objective conspiracy count.
II. Calculating the Loss
47
Because we vacate Medina's conviction on all counts, we need not address the sentencing issues on her appeal. However, since we affirm some of the convictions as to Guerra and Canepa, we address one sentencing issue.
48
Canepa argues, and Guerra adopts her argument, that the district court erred when it held that the entire amount Medicare paid out to United and Ocean from the time period in the indictment, January 2000 through April 2003, was fraudulent and thus, could be included in the loss amount at sentencing.10 The government counters that the district court did not err, arguing that there was evidence that the vast majority of patients were paid illegal kickbacks, and therefore, any claim submitted on their behalf was fraudulent. Thus, any money Medicare paid out on those claims is attributable to the loss amount.
49
Although the Sentencing Guidelines are now used in an advisory manner, as per United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court must still correctly calculate the sentencing range prescribed by the guidelines. United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir.2005). "A district court's determination regarding the amount of loss for sentencing purposes is reviewed for clear error." United States v. Nostari-Shamloo, 255 F.3d 1290, 1291 (11th Cir.2001); United States v. Cabrera, 172 F.3d 1287, 1292 (11th Cir.1999). See also U.S.S.G. § 2B1.1, comment (n.3(C)) (stating that because "[t]he sentencing judge is in a unique position to assess the evidence and estimate the loss based upon that evidence . . . the court's loss determination is entitled to appropriate deference") (citing 18 U.S.C. § 3742(e) and (f)).11 In calculating the loss amount, "loss is the greater of actual loss or intended loss."12 U.S.S.G. § 2B1.1, comment (n.3(A)).
50
The district court needs only to make a reasonable estimate of the loss amount. U.S.S.G. § 2B1.1(b)(1)(D), comment (n.3(C)). A reasonable estimate of the loss amount is appropriate because "often the amount of loss caused by fraud is difficult to determine accurately." United States v. Miller, 188 F.3d 1312, 1317 (11th Cir.1999). But "[w]hile estimates are permissible, courts must not speculate concerning the existence of a fact which would permit a more severe sentence under the guidelines." United States v. Sepulveda, 115 F.3d 882, 890 (11th Cir.1997) (citing United States v. Wilson, 993 F.2d 214, 218 (11th Cir.1993)). The amount of loss must be proven by a preponderance of the evidence, and the burden must be satisfied with "reliable and specific evidence." Id. (internal quotes omitted).
51
The government cites United States v. Cruz-Natal, 150 Fed.Appx. 961 (11th Cir. Oct.11, 2005), to argue that the district court did not err in its loss calculation. Cruz-Natal, an unpublished opinion, is distinct from the instant case in that there was no argument that the total amount the defendant attempted to recover from Medicare was fraudulent. That case held simply that the district court did not clearly err in finding that the intended loss was the appropriate means by which to calculate loss, because it was greater than the actual loss. Id. at 964. It did not hold that, as a general matter, the total amount of all claims submitted to Medicare is an appropriate loss calculation in Medicare fraud cases.
52
In the instant case, the district court made no factual findings as to the amount of loss. When Canepa objected to the loss amount, rather than enumerating what "reliable and specific evidence" it used to calculate the loss amount, the district court stated "With regard to the loss amounts for which each of the defendants is to be held accountable those are my findings. I am overruling the objections as to the amount each defendant is to be held responsible for." Without further information from the district court, we cannot determine what factual basis was used to reach the conclusion that every claim submitted to Medicare constituted loss. Indeed, upon our review of the record, there is not sufficient evidence that any of the prescriptions were not medically necessary, or were not delivered to the patients.
53
As to Guerra, the total amount billed to Medicare on the health care fraud claims that we affirm is only $11,820. We find these claims fraudulent not because they were based on illegitimate prescriptions, but because the patients or doctors received kickbacks after Guerra certified to Medicare that she would not pay such remunerations. There was no evidence presented that these claims were not medically necessary. Even though Tanya Moore testified that Medicare would not pay a claim if they knew parties were receiving kickbacks, this is not sufficient to establish a loss to Medicare. Moore testified that Medicare pays out a fixed amount for every type of claim. Therefore, evidence that shows that United and Ocean paid kickbacks from a fixed level of profits is not sufficient to show actual or intended loss to Medicare. As to Canepa, since we vacate her convictions on all counts of health care fraud, she cannot be held responsible for any loss resulting from Guerra's fraud.
54
Therefore, we hold that the district court clearly erred when it did not make specific factual findings upon which to base the loss amounts attributable to each individual defendant.
CONCLUSION
55
As to Guerra, we vacate her convictions on the first three counts of health care fraud that occurred before she signed the relevant documents which certified that she would follow Medicare rules and regulations. We affirm her convictions on the multi-objective conspiracy count, the 12 remaining counts of health care fraud, the conspiracy to commit money laundering, and the substantive money laundering counts.
56
As to Canepa, we vacate her convictions on all health care fraud counts, the conspiracy to commit money laundering count, and all substantive money laundering counts. We affirm, however, her conviction on the multi-objective conspiracy count. The sentences imposed upon Guerra and Canepa are vacated and their cases are remanded to the district court for resentencing.
57
As to Medina, we vacate her convictions and sentences on all counts in the indictment, and remand to the district court with instructions to dismiss the charges.
58
CONVICTIONS AFFIRMED IN PART AND REVERSED IN PART AS TO GUERRA AND CANEPA; SENTENCES VACATED AND THE CASE REMANDED FOR RESENTENCING AS TO GUERRA AND CANEPA; CONVICTIONS REVERSED AND SENTENCES VACATED AS TO MEDINA.
Notes:
*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by designation
1
Isabel Santos, Guerra's mother, was the other 50% owner of Ocean. Santos was a co-defendant at trial, but was acquitted pursuant to a motion under Rule 29 of the Federal Rules of Criminal Procedure. Carlos Gonzalez was the other 50% owner at United and was convicted at trial along with Guerra, Canepa, and Medina. However, he is not a party to this appeal
2
Pursuant to Rule 29 Motions for Judgment of Acquittal, the district court dismissed four of the substantive health care fraud counts as well as the "conspiracy to structure transactions" count, brought under 18 U.S.C. § 371, before the case was sent to the jury
3
Medina stopped working at United in December of 2002, when Carlos Gonzalez sold his interest in United to Guerra. Any United losses calculated from December 2002 through April 2003 were attributed solely to Guerra
4
None of the 19 counts charged all of the defendants together. Guerra was charged in all 19 counts. Canepa was charged in 10 counts. Medina was charged in 9 counts. Isabel Santos, the fifth defendant, was not charged in any of the health care fraud counts
5
See note 2infra.
6
The district court dismissed three of those counts before they were submitted to the jury
7
Carlos Gonzalez was the only defendant charged in six of the 11 substantive money laundering counts. Guerra was charged in three of the counts, one of which charged Canepa as well. Medina was charged with Carlos Gonzalez in two counts
8
The Indictment charged a three-objective conspiracy as per 18 U.S.C. § 371:
(a) to defraud the United States by impairing, impeding, obstructing, and defeating, through deceitful and dishonest means, the lawful government functions of the United States Department of Health and Human Services in its administration and oversight of Medicare;
(b) to commit an offense against the United States, that is, to violate Title 18, United States Code, Section 1347, by knowingly and willfully executing, and attempting to execute, a scheme and artifice to defraud and to obtain, by means of materially false and fraudulent pretenses, representations, and promises, money and property owned by, and under the custody and control of, a health care benefit program, as defined in Title 18, United States Code, Section 24(b), that is, Medicare, in connection with the delivery of and payment for health care benefits, items, and services; and
(c) to commit an offense against the United States, that is, to violate Title 42, United States Code, Section 1320a-7b(b)(2)(A) by knowingly and willfully offering and paying remuneration (including any kickback and bribe) directly and indirectly, overtly and covertly, in cash and in kind, to induce the referral of Medicare beneficiaries to a person for the furnishing and arranging for the furnishing of any item and service for which payment may be made in whole and in part by Medicare.
9
Also worthy of note, Canepa's counsel at oral argument conceded that there is sufficient evidence in the record to show Canepa was involved in paying kickbacks to patients. We appreciate Counsel's candor
10
This amounted to a $1,863,962.84 loss amount for Canepa and a $9,405,114.90 loss amount for Guerra
11
All citations are to the 2004 version of the Sentencing Guidelines
12
"Actual loss" is defined as the reasonably foreseeable pecuniary harm resulting from the offense, and "intended loss" is defined as the pecuniary harm that was intended to result from the offense. U.S.S.G. § 2B1.1, comment (n.3(A)(i) and (ii)) | 01-03-2023 | 04-27-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/4561312/ | *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
28-AUG-2020
08:02 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
TROY HOSAKA,
Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 16-1-0057)
AUGUST 28, 2020
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ. 1
1 Associate Justice Richard Pollack, who was a member of the court
when the oral argument was held, retired from the bench on June 30, 2020.
1
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
OPINION OF THE COURT BY RECKTENWALD, C.J.
I. INTRODUCTION
In 2016, police arrested Troy Hosaka for Habitually
Operating a Vehicle Under the Influence of Intoxicants (Habitual
OVUII). After his arrest, a Honolulu Police Department (HPD)
officer read Hosaka the Department’s implied consent form (HPD-
396K) advising him of his right to refuse testing and explaining
that Hosaka “may [] be subject to the procedures and sanctions
under [Hawaiʻi Revised Statutes (HRS)] chapter 291E,” if he
refused. Hosaka signed and initialed the form, electing to take
a breath test. Now, Hosaka seeks to suppress the breath test
results, arguing that his consent was not knowing, intelligent
and voluntary because the form did not comply with the implied
consent statutory scheme governed by HRS Chapter 291E and is
inaccurate as a result. We disagree.
We conclude that HPD’s implied consent form complied
with HRS Chapter 291E and was accurate. Moreover, even if the
form had been inaccurate, non-compliance with the implied
consent statutory scheme does not automatically mandate
suppression — suppression is only warranted where an arrestee
did not validly consent to chemical testing. While an
inaccuracy in an implied consent form is a relevant factor to
consider, whether consent is knowing, intelligent and voluntary
must be determined by looking to the totality of the
2
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
circumstances. Consent can be invalid if the inaccurate
information conveyed is reasonably likely to influence an
arrestee’s consent, in which case the consent is not knowing or
intelligent; or it can be invalid because it was coerced, in
which case the consent is not voluntary. In both situations,
the question is whether the consent was valid, not whether the
form complied with every technical requirement in the implied
consent statutory scheme. Here, because the totality of the
circumstances show that Hosaka validly consented to a breath
test, the breath test results are admissible.
II. BACKGROUND
By driving on a public road in the State of Hawaiʻi,
drivers are deemed to have consented to a blood, breath, or
urine test (“chemical test”) to determine the level of
intoxicants in their system if they are suspected of driving
under the influence. HRS § 291E-11(a) (2007). When requesting
a driver take a chemical test, a law enforcement officer must
inform the driver that they have the right to refuse testing.
HRS § 291E-11(b)(2). If the driver chooses to refuse, they must
be informed of the administrative sanctions that could be
imposed as a result — namely, suspension of their license and
privilege to drive — and given an opportunity to reconsider
their decision. HRS § 291E-15 (Supp. 2016). If, after that
second advisement, the driver persists in refusing, their
3
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
driver’s license may be suspended after a hearing. HRS § 291E-
41 (Supp. 2012).
A. Factual Background
In January 2016, police pulled over and arrested
Hosaka for Habitual OVUII. Hosaka has not contested that police
had probable cause to arrest him on suspicion of driving under
the influence of intoxicants.
While Hosaka was in custody, HPD Officer Jared Spiker
read Hosaka, verbatim, HPD’s implied consent form (HPD-396K)
entitled “USE OF INTOXICANTS WHILE OPERATING A VEHICLE — IMPLIED
CONSENT FOR TESTING” (“implied consent form” or “form”). The
form stated in relevant part:
USE OF INTOXICANTS WHILE OPERATING A VEHICLE
IMPLIED CONSENT FOR TESTING[ 2]
DATE OF ARREST: 1-11-16 REPORT NO.: 16-015999
ARRESTEE’S[] NAME: Troy Hosaka
I, Jared Spiker , a police officer, swear that the
following statements were read to the arrestee[].
Pursuant to chapter 291E, Hawaiʻi Revised Statutes
(HRS), Use of Intoxicants While Operating a Vehicle,
you are being informed of the following:
1. TH Any person who operates a vehicle upon a
public way, street, road, or highway or on or in the
waters of the State shall be deemed to have given
consent to a test or tests for the purpose of
determining alcohol concentration or drug content of
the person[’]s breath, blood, or urine as applicable.
2. TH You are not entitled to an attorney before you
submit to any test[] or tests to determine your
alcohol and/or drug content.
3. TH You may refuse to submit to a breath or blood
2 Italicized text indicates where the form was filled out by hand.
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test, or both for the purpose of determining alcohol
concentration and/or blood or urine test, or both for
the purpose of determining drug content. If you do
refuse, then none shall be given, except as provided
in section 291E-21.[ 3] However, if you refuse to
submit to a breath, blood, or urine test, you may be
subject to up to the sanctions of 291E-65[ 4] if you
are under 21 years of age at the time of the offense.
In addition, you may also be subject to the
procedures and sanctions under chapter 291E, part
III.
ALCOHOL CONCENTRATION
TH AGREED TO TAKE A BREATH TEST AND REFUSED THE
BLOOD TEST
. . . .
I, THE ARRESTEE/RESPONDENT, ACKNOWLEDGE THAT I MADE
THE CHOICE(S) INDICATED ABOVE AND WAS INFORMED OF THE
INFORMATION IN THIS REPORT.
ARRESTEE’S[] SIGNATURE: Troy Hosaka [Date]: 1-12-16
SIGNED: Jared Spiker [ID]: 103267 [Date]: 1-12-16
(Emphasis added.)
Hosaka initialed each of the form’s three advisement
paragraphs, initialed that he “agreed to take a breath test and
refused the blood test,” and signed the form at the bottom to
“acknowledge that [he] made the choice[] indicated above and was
informed of the information in [the form].” After completing
the form, Hosaka took the breath test, which showed that his
blood alcohol content was .134 percent — well over the legal
3 HRS § 291E-21(a) (2007) permits a law enforcement officer to
obtain a breath, blood, or urine sample from any driver involved in a
collision causing injury or death to any person.
4 HRS § 291E-65 (Supp. 2016) governs administrative sanctions for a
refusal by a person under twenty-one arrested under HRS § 291E-64 (2007)
(operating a vehicle after consuming a measurable amount of alcohol).
Sanctioning under this section would not apply to Hosaka, since Hosaka was
forty-two at the time of his arrest.
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limit. The State of Hawaiʻi charged Hosaka with Habitual OVUII,
in violation of HRS § 291E-61.5 (2007 & Supp. 2015), 5 in the
Circuit Court of the First Circuit (circuit court). 6
B. Circuit Court’s Suppression of Hosaka’s Breath Test Results
Before trial, Hosaka filed a motion to suppress his
breath test results, arguing that the test constituted an
unreasonable search in violation of the United States and Hawaiʻi
Constitutions. He argued that his purported consent was
coerced, and thus invalid, because the implied consent form
advised him, “if you refuse to submit to a breath, blood, or
urine test . . . you may [] be subject to the procedures and
sanctions under chapter 291E, part III.” According to Hosaka,
by informing him that he may be subject to sanctions if he were
to refuse testing, the form failed to adequately inform him of
his right to withdraw his consent and did not follow statutorily
required procedures. Thus, the breath test violated his fourth
5 HRS § 291E-61.5 provides in relevant part:
(a) A person commits the offense of habitually
operating a vehicle under the influence of an
intoxicant if:
(1) The person is a habitual operator of a
vehicle while under the influence of an
intoxicant; and
(2) The person operates or assumes actual
physical control of a vehicle:
. . . .
(C) With .08 or more grams of alcohol
per two hundred ten liters of
breath[.]
6 The Honorable Glenn J. Kim presided.
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amendment right to be free from unreasonable searches and
seizures, and the results of the test needed to be suppressed.
The circuit court agreed with Hosaka, concluding that
HRS §§ 291E-11 and 291E-15, when read in pari materia, required
“an arrested person [] first [be] given a completely
unencumbered choice to refuse to submit” to testing.
Accordingly, police could not inform Hosaka that any sanctions
could result from a refusal until after he made the initial
choice to refuse. Because the implied consent form advised
Hosaka that sanctions “may” result, the circuit court found that
his consent was coerced and suppressed the breath test results.
C. ICA Proceedings
The State appealed the suppression of Hosaka’s breath
test results to the Intermediate Court of Appeals (ICA), arguing
that the form complied with HRS Chapter 291E and that the
chapter did not require an OVUII arrestee to have an
“unencumbered choice” to refuse a chemical test.
The ICA agreed with the State that suppression was not
warranted, vacating the circuit court’s order and remanding the
case for further proceedings. However, the ICA agreed with the
circuit court that HPD’s implied consent form did not comply
with HRS Chapter 291E’s mandated procedures because the chapter
required that an OVUII arrestee have an initial opportunity to
refuse to submit to testing prior to being informed of possible
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sanctions.
Nevertheless, the ICA concluded that suppression of
Hosaka’s breath test was not the proper remedy for non-
compliance with HRS Chapter 291E procedures because HRS § 291E-
15 barred the imposition of sanctions only where the arrestee
was never informed of potential sanctions at any point during
the advisal. Here, because the form informed Hosaka of the
possible sanctions for refusing and Hosaka was given the
opportunity to refuse testing with those sanctions in mind, the
ICA concluded that the form’s statement that Hosaka “may” have
been subject to sanctions was accurate and therefore that the
results need not be suppressed. Further, the ICA held that that
the circuit court “erred in concluding that burdening an
arrestee’s election to refuse to submit to testing with any
significant sanctions renders the arrestee’s consent invalid.”
Hosaka timely filed an application for writ of
certiorari.
III. STANDARDS OF REVIEW
A. Statutory Interpretation
The interpretation of a statute is a question of law
that this court reviews de novo. State v. Arceo, 84 Hawaiʻi 1,
10, 928 P.2d 843, 852 (1996).
When construing a statute, our foremost obligation is
to ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from
the language contained in the statute itself. And we
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must read statutory language in the context of the
entire statute and construe it in a manner consistent
with its purpose.
State v. Ruggiero, 114 Hawaiʻi 227, 231, 160 P.3d 703, 707 (2007)
(quoting Gray v. Admin. Dir. of the Court, 84 Hawaiʻi 138, 144,
931 P.2d 580, 586 (1997)).
B. Motion to Suppress
We review a circuit court’s findings of fact on a
motion to suppress under the clearly erroneous standard. State
v. Alvarez, 138 Hawaiʻi 173, 181, 378 P.3d 889, 897 (2016).
However, we review the court’s conclusions of law de novo: “The
question of whether the facts as found amount to legally
adequate ‘consent’ is a question of constitutional law that a
court answers by exercising its ‘own independent constitutional
judgment based on the facts of the case.’” State v. Won, 137
Hawaiʻi 330, 341, 372 P.3d 1065, 1076 (2015) (quoting State v.
Trainor, 83 Hawaiʻi 250, 255, 925 P.2d 818, 823 (1996)).
IV. DISCUSSION
The fourth amendment to the United States Constitution
and its counterpart, article I, section 7 of the Hawaiʻi
Constitution, guarantee the right of persons to be free from
unreasonable searches. An intoxilyzer test is a search under
these provisions; however, consent is a well-established
exception to the requirement that a warrant be obtained before a
search takes place. Won, 137 Hawaiʻi at 340, 372 P.3d at 1075.
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As discussed above, the State contends that Hosaka consented to
a breath test when advised of his rights under the implied
consent statute.
“This court has stated unambiguously that for consent
to be ‘in fact, freely and voluntarily given,’ the consent ‘must
be uncoerced,’” a determination that requires looking to the
totality of the circumstances. Id. at 341, 372 P.3d at 1076
(quoting Nakamoto v. Fasi, 64 Haw. 17, 21, 635 P.2d 946, 951
(1981)).
Thus, to decide whether to suppress the results of a
chemical test administered on the basis of an arrestee’s
consent, the court must evaluate the circumstances under which
consent was given. While the accuracy of the implied consent
form and its compliance with HRS Chapter 291E are relevant
considerations, the central inquiry is not simply whether the
form complies with the relevant statutes, but whether the
circumstances indicate the arrestee’s consent was knowing,
intelligent, and voluntary. See Won, 137 Hawaiʻi at 345, 372
P.3d at 1080 (“[I]n order to legitimize submission to a
warrantless BAC test under the consent exception, . . . it must
be concluded that, under the totality of the circumstances,
consent was in fact freely and voluntarily given.”).
A. The Implied Consent Form Complied with HRS Chapter 291E
Hosaka argues that his consent was coerced because of
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defects in HPD’s implied consent form. Accordingly, we first
consider whether the form was accurate and in compliance with
the implied consent statutory scheme (HRS Chapter 291E). We
conclude that it was.
1. HRS Chapter 291E establishes a two-step procedure for
advising OVUII arrestees of their right to refuse
chemical testing
First, we agree with the circuit court and the ICA
that HRS Chapter 291E’s provisions, when read in pari materia,
establish a two-step procedure for advising arrestees of their
right to refuse chemical testing. See State v. Kamana‘o, 118
Hawaiʻi 210, 218, 188 P.3d 724, 732 (2008) (“[L]aws in pari
materia, or upon the same subject matter, shall be construed
with reference to each other. What is clear in one statute may
be called upon in aid to explain what is doubtful in another.”
(quoting Barnett v. State, 91 Hawaiʻi 20, 31, 979 P.2d 1046, 1057
(1999))).
HRS § 291E-11 provides in relevant part:
(a) Any person who operates a vehicle upon a public
way, street, road, or highway . . . of the State
shall be deemed to have given consent, subject to
this part, to a test or tests approved by the
director of health of the person’s breath, blood, or
urine for the purpose of determining alcohol
concentration . . . of the person’s breath, blood, or
urine, as applicable.
(b) The test or tests shall be administered at the
request of a law enforcement officer having probable
cause to believe the person operating a vehicle upon
a public way, street, road, or highway . . . of the
State is under the influence of an intoxicant or is
under the age of twenty-one and has consumed a
measurable amount of alcohol, only after:
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(1) A lawful arrest; and
(2) The person has been informed by a law
enforcement officer that the person may refuse
to submit to testing under this chapter.
(Emphases added.)
While HRS § 291E-11, on its own, suggests that OVUII
arrestees need only be provided with one opportunity to refuse,
it is clear from other statutes within HRS Chapter 291E that an
additional advisement must be afforded to OVUII arrestees who
refuse to submit to testing.
At the time of Hosaka’s offense, for instance, HRS
§ 291E-15 (Supp. 2011), 7 which governs the imposition of
sanctions, required law enforcement officers to give arrestees a
second opportunity to refuse after advising them of possible
sanctions:
If a person under arrest refuses to submit to a
breath, blood, or urine test, none shall be given,
except as provided in section 291E-21. Upon the law
enforcement officer’s determination that the person
under arrest has refused to submit to a breath,
blood, or urine test, if applicable, then a law
enforcement officer shall:
7 At the time Hosaka was arrested, HRS § 291E-15 also required law
enforcement to advise an arrestee of the possible criminal sanctions under
HRS § 291E-68. However, in 2016, HRS § 291E-68 was repealed by the
legislature in response to this court’s decision in Won, 137 Hawaiʻi 330, 372
P.3d 1065 (holding that burdening a defendant’s right to refuse to submit to
BAC testing under the threat of criminal sanctions was inherently coercive).
See 2016 Haw. Sess. Laws Act 17, § 2 at 21. At that time, the legislature
also amended HRS § 291E-15 to remove its reference to HRS § 291E-68. See id.
§ 1 at 21. Because of these legislative amendments and because Hosaka was
never advised of any possible criminal sanctions, it is not necessary to
address HRS § 291E-68 as a requirement in the instant case. Therefore, our
analysis applies to the current version of HRS § 291E-15 as well as the
version in place at the time of Hosaka’s arrest.
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(1) Inform the person under arrest of the
sanctions under section 291E-41 [or] 291E-65 . . .
and
(2) Ask the person if the person still
refuses to submit to a breath, blood, or urine test,
thereby subjecting the person to the procedures and
sanctions under part III or section 291E-65, as
applicable[.]
(Emphasis added.)
HRS § 291E-65, which governs sanctions for persons
under 21 arrested for operating a vehicle after consuming a
measurable amount of alcohol, likewise requires an officer to
ask if an arrestee “still” refuses after informing them of
sanctions. 8 Similarly, HRS § 291E-41, which establishes the
8 HRS § 291E-65 provides in relevant part:
(a) If a person under arrest for operating a
vehicle after consuming a measurable amount of
alcohol, pursuant to section 291E-64, refuses to
submit to a breath or blood test, none shall be
given, except as provided in section 291E-21, but the
arresting law enforcement officer, as soon as
practicable, shall submit an affidavit to a district
judge of the circuit in which the arrest was made,
stating:
(1) That at the time of the arrest, the
arresting officer had probable cause to believe the
arrested person was under the age of twenty-one and
had been operating a vehicle upon a public way,
street, road, or highway or on or in the waters of
the State with a measurable amount of alcohol;
(2) That the arrested person was informed
that the person may refuse to submit to a breath or
blood test, in compliance with section 291E-11;
(3) That the person had refused to submit to
a breath or blood test;
(4) That the arrested person was:
(A) Informed of the sanctions of this
(continued . . .)
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duration of an administrative revocation of a driver’s license
for a refusal, requires that the arrestee refused, was advised
of sanctions, and then asked if they “still refuse[d]”:
(c) If a respondent has refused to be tested after
being informed:
(1) That the person may refuse to submit to
testing in compliance with section 291E-11; and
(2) Of the sanctions of this part and then
asked if the person still refuses to submit to a
breath, blood, or urine test, in compliance with the
requirements of section 291E-15,
the revocation imposed . . . shall be for a period of
two years, three years, four years, or ten years,
respectively [depending on the number of prior
alcohol-related law enforcement contacts].
(Emphasis added.)
These statutes, when read together, demonstrate that
before sanctions for refusal can be imposed, law enforcement
must follow a two-step procedure: first, an OVUII arrestee must
be given an opportunity to refuse to submit to testing; second,
if the arrestee refuses, the arrestee must then be informed of
the specific sanctions that could result and asked whether they
still refuse testing.
The legislative history of HRS § 291E-15 also supports
section; and then
(B) Asked if the person still refuses
to submit to a breath or blood test, in compliance
with the requirements of section 291E-15; and
(5) That the arrested person continued to
refuse to submit to a breath or blood test.
(Emphasis added.)
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this interpretation of the implied consent statutory scheme.
See H.B. 3257, H.D. 1, S.D. 2, 23rd Leg., Reg. Sess. (2006). 9
For example, the House Committee on Transportation explained
that the purpose of amending the implied consent statutory
scheme was to streamline the implied consent process by only
requiring officers to advise arrestees of the sanctions that
could be imposed if the arrestee had already refused testing:
[P]olice officers are [] required to read an
inordinate amount of information to a suspect of
DUII. This measure is an attempt to simplify [the
implied consent] process while protecting the rights
of the accused by clarifying that information on the
consequences of refusing to submit to a blood,
breath, or urine test only need to be read to an
individual if the individual refuses to submit to
such a test. Your Committee believes that this bill
will support law enforcement and increase traffic
safety.
H. Stand. Comm. Rep. No. 310-06, in 2006 House Journal, at 1218.
The Senate Committee on Judiciary and Hawaiian Affairs
similarly explained that the purpose of the bill was to
“considerably reduce the amount of time spent by the police in
processing persons arrested for [OVUII]” by requiring that
police “inform a person arrested . . . of the sanctions for
refusal to submit to [a] breath, blood, or urine test only if
[a] person withdraws [their implied] consent to testing[.]” S.
Stand. Comm. Rep. No. 3303, in 2006 Senate Journal, at 1587
(emphasis added).
9 H.B. 3257 was introduced by the legislature in 2006 and
eventually was enacted into law as Act 64. See 2006 Haw. Sess. Laws Act 64,
at 96-101.
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Accordingly, we hold that under HRS Chapter 291E, an
OVUII arrestee who initially refuses to submit to chemical
testing must be given a second opportunity to refuse after being
advised of the possible sanctions.
2. The HPD’s implied consent form complied with HRS
Chapter 291E
However, the fact that officers must follow a two-step
procedure before sanctions can be imposed does not mean that the
form in this case violated HRS Chapter 291E: Hosaka did not
initially refuse chemical testing, and so HRS § 291E-15, which
establishes the two-step procedure discussed above, does not
apply to Hosaka’s case. See HRS § 291E-15 (“Upon the law
enforcement officer’s determination that the person under arrest
has refused to submit to a breath, blood, or urine
test . . . .”). The requirements of HRS § 291E-15 are only
triggered if the arrestee initially refuses; they do not apply
to arrestees who, like Hosaka, choose not to withdraw their
consent to chemical testing when first asked.
Most importantly, however, the two-step procedure does
not require that an arrestee’s initial refusal be “completely
unencumbered,” as the circuit court believed. HRS Chapter 291E
permits law enforcement to tell arrestees that they “may” be
subject to sanctions when giving the first implied consent
advisal. The plain language of HRS § 291E-11 provides that a
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test can be administered only after (1) a lawful arrest, and (2)
an advisement that the arrestee has the right to refuse. HRS
§ 291E-11(b). It does not prohibit a law enforcement officer
from telling an arrestee, as part of that first advisement, that
sanctions “may” be imposed for a refusal. Similarly, even if
HRS § 291E-15 applied to Hosaka, the statute does not prohibit
officers from advising arrestees of possible sanctions when they
first ask an arrestee to submit to a chemical test and then
later providing a more specific explanation of the potential
sanctions if an arrestee refuses. 10 Accordingly, we conclude
that the implied consent form complied with HRS Chapter 291E.
B. Hosaka Voluntarily Consented to a Breath Test Under the
Totality of the Circumstances
Having determined that the implied consent form did
not violate statutory mandates, we turn to Hosaka’s remaining
arguments that his consent was not knowing, intelligent, and
voluntary because the form contained inaccurate and misleading
information under Wilson and was inherently coercive under Won.
10 We disagree with the ICA that sanctions could have been imposed
under HRS § 291E-15 based solely on the implied consent form used to advise
Hosaka initially. As discussed above, HRS Chapter 291E requires that an
arrestee be given two opportunities to consent to chemical testing, and HRS
§ 291E-15 only applies if an arrestee initially refuses testing. After that
first refusal, HRS § 291E-15(1) requires that a law enforcement officer
“[i]nform the person under arrest of the sanctions under section 291E-41 [or]
291E-65[.]” Thus, HRS § 291E-15 requires an arrestee be informed of the
sanctions which could apply — not simply that unspecified sanctions may
exist. As Form HPD-396K informed an arrestee only that sanctions “may”
result and did not explain what the potential sanctions were, law enforcement
would have to conduct a more detailed advisement in compliance with HRS
§ 291E-15(2) before sanctions could be imposed.
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1. Wilson does not support suppression of chemical test
results solely due to an inaccurate or incomplete
implied consent form
The circuit court concluded that the implied consent
form was inaccurate and therefore that this court’s decision in
Wilson, 92 Hawaiʻi 45, 987 P.2d 268, required the suppression of
Hosaka’s breath test results. According to the circuit court,
because the form in this case did not follow the required two-
step procedure set forth in HRS § 291E-15, sanctions could never
have been imposed, so it was inaccurate for the form to advise
Hosaka that they “may” have been. We disagree.
First, we conclude that the implied consent form was
accurate. It advised Hosaka that if he refused chemical
testing, he “may [] be subject to the procedures and sanctions
under chapter 291E, part III.” That was a true statement: At
the time Hosaka was advised, sanctions could have been imposed
if he refused and continued to refuse after being advised of the
possible sanctions, as required by HRS § 291E-15. Although the
imposition of sanctions required additional steps, the
possibility of sanctions for a refusal existed even at the
beginning of Hosaka’s implied consent advisal. HPD’s form
accurately explains this possibility by telling arrestees that
if they refused, they “may” be subject to the procedures and
sanctions in the implied consent statute.
However, even if we determined that HPD’s implied
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consent form was potentially misleading, that fact alone does
not warrant suppression. We take this opportunity to reiterate
that the constitution requires knowing, intelligent, and
voluntary consent — not compliance with every technical
requirement in the implied consent statutory scheme. See Won,
137 Hawaiʻi at 354, 372 P.3d at 1089 (“[T]he question of whether
the implied consent statute is adhered to is separate and
distinct from the constitutional inquiry into whether there is
actual consent to BAC testing under HRS § 291E-11(b).”). Thus,
the operative question is whether any defects in the form were
likely to influence an arrestee’s decision whether to consent.
In Wilson, the implied consent advisement informed
arrestees, “[I]f you refuse to take any tests . . . your driving
privileges will be revoked for one year instead of the three
month revocation that would apply if you chose to take the test
and failed it[.]” 92 Hawaiʻi at 47, 987 P.2d at 270. That
advisement was wholly incorrect — if a driver failed to take a
test, their driving privileges could be revoked for “anywhere
from three months to one year.” Id. We found that the nature
of the misrepresentation — that Wilson’s driver’s license would
be suspended for less time if he took a test and failed, than if
he refused a test — “was relevant to [the defendant’s] decision
whether to agree to or refuse the blood alcohol test.” Id. at
51, 987 P.2d at 274. As a result of the form’s
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misrepresentation, we held that suppression was necessary.
Wilson stands for the fundamental principle that
police officers may not induce an arrestee into not withdrawing
their implied consent by giving an inaccurate or misleading
implied consent advisement. Thus, we held that “where a change
in wording of the implied consent warnings operates to convey a
different meaning than that specified in the statute, the driver
cannot be held to have made a knowing and intelligent decision
whether to submit to an evidentiary alcohol test.” Wilson, 92
Hawaiʻi at 50, 987 P.2d at 273.
We recognize that in Wilson we stated, “the arresting
officer’s violation of [the implied consent statute’s] consent
requirement precludes admissibility of Wilson’s blood test
results in his related criminal DUI proceeding.” Id. at 53–54,
987 P.2d at 276–77. However, this does not mean that any
imperfection in the implied consent form mandates suppression of
the chemical test results. The implied consent form in Wilson
omitted the maximum possible administrative sanction to create
the misleading and inaccurate impression that the penalty for
refusing of a chemical test would be worse than submitting to a
test and failing. This misrepresentation was of the type
reasonably likely to influence an arrestee into consenting to a
chemical test; therefore, the arrestee’s consent was not
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knowing, intelligent, and voluntary. 11 Id. at 47, 987 P.2d at
270; cf. State v. Matsumoto, 145 Hawaiʻi 313, 324, 452 P.3d 310,
321 (2019) (“[D]eliberate falsehoods extrinsic to the facts of
the alleged offense, which are of a type reasonably likely
to . . . influence an accused to make a confession regardless of
guilt, [] will be regarded as coercive per se.” (quoting State
v. Kelekolio, 74 Haw. 479, 512–13, 849 P.2d 58, 73–74 (1993))
(emphases added)). Wilson involved an inaccurate advisement
informing an arrestee that the length of a driver’s license
suspension would be three months instead of one year, an
inaccuracy we characterized as “substantive” and “substantial,”
and which was reasonably likely to influence an arrestee’s
decision. 92 Hawai‘i at 53 n.11, 987 P.2d at 276 n.11.
Accordingly, Wilson should not be read to invalidate consent due
solely to minor defects in the implied consent advisory that are
unlikely to do so.
In this case, the implied consent form accurately
informed Hosaka of the possible sanctions and did not omit any
important information that could have influenced his decision
whether to withdraw his implied consent. Even if the statement
that sanctions “may” be imposed is considered misleading because
intervening steps would have to take place before that could
11 We emphasize that the constitutional infirmity in Wilson was not
the incomplete advisement per se, but the nature of the incompleteness — the
implied consent form omitted a substantive fact that rendered it misleading.
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happen, any inaccuracy was slight and unlikely to affect an
arrestee’s decision whether to consent to a chemical test.
Accordingly, suppression is not warranted under Wilson.
2. HPD’s implied consent form was not coercive under Won
Hosaka further argues that under this court’s decision
in Won, 137 Hawaiʻi 330, 372 P.3d 1065, the mere mention of
sanctions in the implied consent form was coercive and therefore
mandates suppression of the breath test results. The circuit
court agreed, concluding that even though Won involved criminal
sanctions for a refusal, “under the reasoning of Won, burdening
an arrestee’s election to refuse with any significant sanctions
cannot help but render any subsequent purported consent legally
insufficient and therefore null and void.” We disagree with the
circuit court’s interpretation of Won.
In Won, the defendant consented to a chemical test
after being advised that if he refused chemical testing he would
“be subject to up to thirty days imprisonment and/or fine up to
$1,000 or the sanctions of 291E-65, if applicable.” Id. at 335,
372 P.3d at 1070 (emphasis omitted). We held that “[w]here
arrest, conviction, and imprisonment are threatened if consent
to search is not given, the threat infringes upon and oppresses
the unfettered will and free choice of the person to whom it is
made, whether by calculation or effect.” Id. at 346, 372 P.3d
at 1081. Notably, we concluded that in addition to the sheer
22
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threat of criminal punishment, the advisement was especially
coercive because “the choice presented by the Implied Consent
Form forces a defendant to elect between fundamental rights
guaranteed by the Hawaiʻi Constitution,” and the duration of
possible imprisonment for a refusal was significantly higher
than the possible imprisonment for a first OVUII offense. Id.
at 347-48, 372 P.3d at 1082-83 (emphasis omitted).
However, we also explicitly distinguished
administrative sanctions from the threat of criminal prosecution
and imprisonment: “It bears repeating here that this opinion
does not concern the civil administrative penalties attendant to
a driver’s refusal of BAC testing. See HRS § 291E–41(d) (Supp.
[2012]); see generally HRS Chapter 291E, Part III. Those types
of sanctions are not affected in any way by our decision.” Id.
at 349 n.34, 372 P.3d at 1084 n.34. Given Won’s repeated
references to the coercive nature of the criminal sanctions at
issue, the circuit court erred in concluding that Won prohibited
“any significant sanction burdening a defendant’s choice to
refuse.”
Here, the implied consent form that Hosaka signed can
be distinguished from the form in Won: it did not threaten
Hosaka with arrest or imprisonment for refusing a chemical test;
it did not require him to choose between constitutional rights;
and it did not advise him, as the forms in both Won and Wilson
23
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
did, that the punishment for refusal would be worse than the
punishment for failing a chemical test. Even if a threat of
administrative sanctions could be coercive under some
circumstances, the circumstances here do not rise to that level.
Moreover, there are no other factors (and certainly no other
factual findings regarding such factors) that could have been
coercive or that suggest Hosaka was, in fact, coerced. Thus, as
the totality of the circumstances demonstrates that Hosaka
voluntarily consented to the breath test, the results of that
test are admissible.
V. CONCLUSION
We hold that the implied consent form in this case
complied with HRS Chapter 291E and was not inaccurate or
misleading. Further, we clarify that not all inaccuracies in
implied consent forms require suppression of chemical testing
results: only inaccuracies that are reasonably likely to
influence an arrestee to consent will require suppression.
Similarly, informing an arrestee of possible civil sanctions
does not make an advisement automatically coercive. As the
implied consent form here was not inaccurate or coercive, and
the circuit court did not find that any of the other
circumstances of Hosaka’s advisal were coercive, Hosaka
knowingly, intelligently, and voluntarily consented to the
breath test, and the results of the breath test are admissible.
24
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Accordingly, the ICA’s judgment on appeal filed June 18, 2019,
is affirmed, and this case is remanded to the circuit court for
further proceedings consistent with this opinion.
Howard K. K. Luke /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Brian R. Vincent
for respondent /s/ Sabrina S. McKenna
/s/ Michael D. Wilson
25 | 01-03-2023 | 08-28-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4561313/ | NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-AUG-2020
07:50 AM
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
RL, Plaintiff-Appellee, v.
DL, Defendant-Appellant
APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT
(CASE NO. FC-D 11-1-0477)
ORDER
DISMISSING APPEAL FOR LACK OF APPELLATE JURISDICTION
AND
DISMISSING AS MOOT ALL PENDING MOTIONS IN CAAP-XX-XXXXXXX
(By: Leonard, Presiding Judge, Chan and Hiraoka, JJ.)
Upon review of the record of this appeal arising out of
a post-judgment proceeding in a divorce case, it appears that we
lack appellate jurisdiction over this appeal by Defendant-
Appellant D.L. (D.L.) in appellate court case number CAAP-20-
0000491 from the July 17, 2020 amended findings of fact,
conclusions of law and order (July 17, 2020 amended
FOF/COL/Order) and July 24, 2020 order awarding attorneys' fees
and costs to Plaintiff-Appellee R.L., now known as R.V. (R.V.) in
Family Court case number FC-D No. 11-1-0477. These two post-
judgment orders have not finally determined and ended the last
remaining issue in the post-judgment remand proceedings for the
re-adjudication of some (but not all) issues in D.L.'s February
9, 2018 post-judgment motion for post-decree relief and
Plaintiff-Appellee R.V.'s July 6, 2018 post-judgment motion to
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
enforce the July 27, 2012 divorce decree, as Hawaii Revised
Statutes (HRS) § 571-54 (2018) requires for an appealable final
post-judgment order.
In Family Court cases "[a]n interested party, aggrieved
by any order or decree of the court, may appeal to the
intermediate appellate court for review of questions of law and
fact upon the same terms and conditions as in other cases in the
circuit court[.]" HRS § 571-54. On July 27, 2012, the Family
Court entered a divorce decree that satisfied the requirements
for appealability under HRS § 571-54 and the holding in Eaton v.
Eaton, 7 Haw. App. 111, 118-19, 748 P.2d 801, 805 (1987).
Once the Family Court entered the July 27, 2012 divorce
decree, all subsequent orders were post-judgment orders, and a
Family Court "post-judgment order is an appealable final
order . . . if the order finally determines the post-judgment
proceeding." Hall v. Hall, 96 Hawai#i 105, 111 n.4, 26 P.3d 594,
600 n.4 (App. 2001) (citation omitted), affirmed in part, and
vacated in part on other grounds, Hall v. Hall, 95 Hawai#i 318,
22 P.3d 965 (2001), overruled in part on other grounds, Eckard
Brandes, Inc., v. Dept. of Labor and Industrial Relations,
146 Hawai#i 354, 463 P.3d 1011 (2020). Under analogous
circumstances in civil Circuit Court cases, a "post-judgment
order is an appealable final order under HRS § 641-1(a) if the
order ends the proceedings, leaving nothing further to be
accomplished." Ditto v. McCurdy, 103 Hawai#i 153, 157, 80 P.3d
974, 978 (2003) (citation omitted). "[T]he separate judgment
requirement articulated in Jenkins [v. Cades Schutte Fleming &
Wright, 76 Hawai#i 115, 119, 869 P.2d 1334, 1338 (1994)] is
inapposite in the post-judgment context." Ditto, 103 Hawai#i at
158, 80 P.3d at 979. "Accordingly, the time for appealing the
matters conclusively decided by the . . . [post-judgment] order
commenced upon entry thereof, not upon entry of the superfluous .
. . judgment on the [post-judgment] order." Id. at 159-60, 80
P.3d at 980-81. However, the Family Court's post-judgment order
must resolve all of the issues in the post-judgment remand
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
proceeding in order to qualify as an appealable final post-
judgment order under HRS § 571-54.
In a prior appeal in CAAP-18-000727 from the same
underlying case in FC-D No. 11-1-0477, this court entered a
January 21, 2020 memorandum opinion affirming in part and
vacating in part the Family Court's prior adjudication of the
D.L.'s February 9, 2018 post-judgment motion for post-decree
relief and R.V.'s July 6, 2018 post-judgment motion to enforce
the July 27, 2012 divorce decree. We remanded this case to the
Family Court with instructions on how to re-adjudicate a subset
of the issues. On remand, the Family Court is apparently
utilizing a series of multiple post-judgment orders to adjudicate
that subset of the issues. Under analogous circumstances in an
appeal from a Circuit Court case in which the separate judgment
document rule under HRCP Rule 58 did not apply, the Supreme Court
of Hawai#i explained that,
where the disposition of the case is embodied in several
orders, no one of which embraces the entire controversy but
collectively does so, it is a necessary inference from 54(b)
that the orders collectively constitute a final judgment and
entry of the last of the series of orders gives finality and
appealability to all.
S. Utsunomiya Enterprises, Inc. v. Moomuku Country Club, 75 Haw.
480, 494-95, 866 P.2d 951, 960 (1994) (citations, internal
quotation marks, and ellipsis points omitted). In the present
case, the Family Court has adjudicated most of the issues by way
of the June 17, 2020 amended FOF/COL/Order and the July 24, 2020
order awarding attorneys' fees and costs. However, the Family
Court expressly reserved its adjudication of the last remaining
issue in this post-judgment proceeding, namely statutory
interest, and, instead, the Family Court expressly scheduled a
future December 17, 2020 hearing for its final adjudication of
statutory interest. Consequently, this post-judgment proceeding
has not yet concluded.
After the entry of a post-judgment order that finally
determines this last remaining issue, any aggrieved party will
have an opportunity to timely appeal. Because the Family Court
3
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has not yet concluded this post-judgment proceeding, D.L.'s
appeal is premature, and we lack appellate jurisdiction under HRS
§ 571-54.
Therefore, IT IS HEREBY ORDERED, that this case is
dismissed for lack of appellate jurisdiction.
IT IS FURTHER HEREBY ORDERED that all pending motions
in CAAP-XX-XXXXXXX are dismissed as moot.
DATED: Honolulu, Hawai#i, August 28, 2020.
/s/ Katherine G. Leonard
Presiding Judge
/s/ Derrick H.M. Chan
Associate Judge
/s/ Keith K. Hiraoka
Associate Judge
4 | 01-03-2023 | 08-28-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1876045/ | 458 F.Supp. 157 (1978)
Frank HOWE, Petitioner,
v.
Dan P. CRONIN, Ex-officio Sheriff of the City and County of Denver, Respondent.
Civ. A. No. 78-C-648.
United States District Court, D. Colorado.
October 11, 1978.
Robert C. Floyd, of Gerash & Springer, P.C., Denver, Colo., for petitioner.
Brooke Wunnicke, Chief App. Deputy, Dale Tooley, Dist. Atty., Denver, Colo., for respondent.
OPINION AND ORDER
CHILSON, Senior District Judge.
This is a habeas corpus action filed by a person in state custody pursuant to 28 U.S.C. § 2254. He attacks the validity of his arrest, detainment, and extradition by the State of Colorado.
The pertinent facts of this matter are not in dispute. Mr. Howe, the petitioner, was the object of two criminal complaints in the state of North Dakota: the first for a burglary allegedly committed on July 12, 1975, and the second for the possession of a controlled substance with intent to deliver alleged to have occurred on July 21, 1975. At a preliminary hearing, the state court found that probable cause existed for the complaints. Trial was set for December 8, 1975, and Howe was released on bail. Howe failed to appear in court on December 8, and his bail was forfeited.
Mr. Howe was neither seen nor heard from until early March 1978, when he was *158 arrested in Denver, Colorado. On March 3, 1978, a third criminal complaint was filed against Howe in the state of North Dakota charging him with the crime of failure to appear after release. An application for requisition was made upon the governor of North Dakota and the governor's formal requisition was issued on April 18, 1978. The governor of Colorado responded with an arrest warrant and Howe, who had been out on bond, surrendered to Colorado authorities on May 23, 1978.
Howe filed a petition for a writ of habeas corpus with the Colorado district court immediately upon his surrender to state authorities. On June 2, 1978, the petition was denied by the state district judge. Howe thereupon filed a notice of appeal and a motion for appeal bond. The district court denied the motion for bond on June 9, apparently on the theory that it was without jurisdiction to grant bail after the service of the governor's extradition warrant. Application for release on bail was twice made to the Colorado Supreme Court by the petitioner, once by appeal and once in an original proceeding, and was twice denied. No reasons were stated for the denial, but for the sake of this opinion it is assumed that the supreme court concurred in the views of the district judge. There has apparently been no disposition of Howe's appeal of the adverse district court ruling on his habeas petition.
DISCUSSION
Since the merits of Howe's habeas petition are still at issue before the Colorado Supreme Court, they may not be raised as grounds for relief in a § 2254 proceeding. 28 U.S.C. § 2254(b). The status of the petitioner as a fugitive and his liability to detention and extradition by Colorado authorities are therefore not in dispute in this federal proceeding: the sole question before this court is the propriety of the state courts' refusal to release Howe on bail during the pendency of his state habeas appeal.
The provisions of the state constitution, statutes, and case law pertaining to the petitioner's right to bail (discussed at considerable length by the litigants) are not germane to the narrow issue which can be considered by this court. Relief under 28 U.S.C. § 2254 is available to state prisoners only on denial by the state of federal statutory or constitutional rights.
"[A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). See Hopkins v. Anderson, 507 F.2d 530 (10th Cir. 1974), cert. denied, 421 U.S. 920, 95 S.Ct. 1586, 43 L.Ed.2d 788 (1975).
The petitioner may not, in short, reargue the question of his right to bail under state law a question which has already been considered and decided adversely to him by Colorado's highest court. Conceivably, the state supreme court established in the petitioner's case an absolute rule that a prisoner being extradited from the State of Colorado has no right to be released on bail pending disposition of his appeal of the denial of a habeas petition. This court may only weigh whether that state determination can be upheld under the Constitution and laws of the United States.
The only federal rationale for striking down the state determination suggested by the petitioner lies in the application of the Eighth Amendment's proscription of excessive bail to the states by way of the Fourteenth Amendment. As a detainee in an extradition proceeding, not yet convicted of any crime and not charged with a capital offense, the petitioner theorizes that he has a constitutional right to bail pending disposition of his habeas appeal.
The petitioner is mistaken in his belief. While the Eighth Amendment establishes a right to bail and proscribes excessive bail in all bailable offenses, it has never been held to apply to all types of proceedings. Carlson v. Landon, 342 U.S. 524, 545, 72 S.Ct. 525, 96 L.Ed. 547 (1952). Appeals from the denial of a habeas corpus petition are simply not proceedings to which the Eighth Amendment applies. For example, rule *159 49(2) of the rules of the United States Supreme Court envisions only a discretionary, not an absolute, right to bail pending review of the denial of a habeas petition.
Neither the Bail Reform Act nor the Federal Rules of Criminal Procedure reflect any federal statutory right to bail in civil proceedings such as habeas actions nor would a state prisoner benefit from the provision if there were one. The right claimed by the petitioner cannot be found in the federal Constitution or in any federal statute or treaty. Consequently, under the terms of 28 U.S.C. § 2254(a) this Court may not grant habeas corpus relief.
CONCLUSIONS
The petition should be denied.
ORDER
IT IS THEREFORE ORDERED that the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is hereby denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/250075/ | 274 F.2d 794
ATLANTIC & GULF STEVEDORES, INC., Appellant,v.P. J. DONOVAN, Deputy Commissioner for the 7th CompensationDist. of the Bureau of Employee's Compensation,U.S. Dept. of Labor; and Charles Cook, Appellee.
No. 18039.
United States Court of Appeals Fifth Circuit.
Jan. 18, 1960.
Marion Mayer, Guy W. Smith, Deutsch, Kerrigan & Stiles, New Orleans, La., for appellant.
Lloyd Cyril Melancon, Asst. U.S. Atty., New Orleans, La., for appellees.
M. Hepburn Many, U.S. Atty., New Orleans, La., Harold C. Nystrom, Acting Sol. of Labor, Herbert P. Miller, Asst. Sol. of Labor, Alfred H. Myers, Atty., U.S. Dept. of Labor, Washington, D.C., of counsel, for appellee Donovan.
Before JONES, BROWN and WISDOM, Circuit Judges.
JOHN R. BROWN, Circuit Judge.
1
The question here is whether there is a legal means of requiring the Deputy Commissioner to proceed to decision in a matter property before him under the Longshoremen's and Harbor Workers' Compensation Act. 33 U.S.C.A. 901 et seq.
2
It is of vast importance as parties related amphibious worker attempt maphilbious worker attempt to answer the riddle while Jensen1 conjured up.
3
Self-help is unavailing for with the traditional prohibition in Workmen's Compensation Acts, both state and this federal one, against contractual waivers or releases there is no end to a potential claim until the last going has rung in the last and highest tribunal which will listen. Guidence by experienced maritime counsel is uncertain. For his tools must be the jurisprudence which, to say the least, is more, not less, complex than it was in the pre-Davis2 day, and all the more so since Hahn3 as the changes of this Court in Noah4 shortly on the heels of Flowers,5 revealed. And while this Court has now firmly ruled that maritime injuries to one engaged in the classic occupation of a longshoreman loading or unloading a vessel,6 and one engaged in repair of an existing vessel7 are within the exclusive jurisdiction of the federal Act, not that of a state, the access of litigants to state tribunals makes ours an academic deliverance8 until either the state courts concerned accept it as authoritative or their contrary decisions are upset by the possibility9 of certiorari from the United States Supreme Court.
4
So it is here. After voluntary payment of substantial compensation under the Longshoremen's Act, the Employer now finds himself faced with a claim under the Louisiana Workmen's Compensation Act, LSA-R.S. 23:1021 et seq., in the state court while the case file yet remains open-- at least not closed-- before the Deputy Commissioner. The Employer did not seek coercive injunctive relief against either the Claimant or the state court. Rather it sought (a) a declaration under 28 2201, 2202, that the Longshoremen's Act was the Claimant's exclusive remedy and, alternatively, (b) a mandatory order directing the Deputy Commissioner to 'proceed with a hearing to determine * * * the * * * issues raised' by the Employer's application before the Deputy Commissioner.
5
The District Court sustained the Deputy Commissioner's motion to dismiss for 'failure to state a claim on which relief can be granted and the lack of jurisdiction for this court to hear and determine the issues presented prior to administrative action taken by the Deputy Commissioner upon a claim first filed for that purpose.' Consequently, we accept as true the facts set forth in the complaint.10 Their summary we take, with but slight change of paraphrase, from the Employer's brief.
6
Charles Cook, the Claimant, injured his right leg on February 18, 1957 while employed by Employer as a longshoreman. He was landing a pallet board on No. 3 deck aboard the S/S Haria Rosa docked in the Mississippi River at the Congress Street Wharf, New Orleans.
7
The accident was reported to the Deputy Commissioner's office on February 22, 1957 and Employer continued to make reports to that office. Compensation payments of $18 a week were started immediately, but on May 16, 1957 Cook's attorney notified the Deputy Commissioner that Cook's claim was for $26.61 a week under the Longshoremen's Act and he submitted statements to support the claim. Acting on this information, the Deputy Commissioner found that the weekly compensation payments should be $26.60 and so informed Employer. Employer complied with the ruling and adjusted payments so that Cook received eleven weeks' compensation from May 8, 1957 through July 27, 1957, or $292.71. Payments terminated July 27, 1957 when Cook was given medical clearance and returned to work.
8
Almost a year later Cook, through his attorney, wrote the Deputy Commissioner to make claim for further compensation for his February 18, 1957 injury. But before any action was taken on this request, he filed a suit for Louisiana Workmen's Compensation benefits, plus 12% Penalties and attorneys' fees, in the Civil District Court for the Parish of Orleans.
9
The Employer thereafter formally requested the Deputy Commissioner to fix a hearing to determine: (i) if the Deputy Commissioner had jurisdiction of the claim; (ii) if Cook's claim under the Longshoremen's Act had prescribed; and (iii) if the Deputy Commissioner had jurisdiction, and the claim had not prescribed, whether Cook was entitled to further compensation benefits under the Longshoremen's Act, and the amount, if any, due under that Act. The Employer's request for a hearing was refused.
10
In seeking to justify this dismissal, the Deputy Commissioner devotes nearly all of his energy to combating that part of the relief requested in the complaint summarized above as (a) a declaration by the Court under 28 U.S.C.A. 2201, 2202, that the Longshoremen's Act was claimant's exclusive remedy. But this is no longer in the case. The Employer does not undertake now to have us review either the power of the District Court to grant declaratory relief or the propriety of its exercise.11
11
All that is now involved is the power of the District Court to issue a mandatory decree compelling the Deputy Commissioner to proceed with the hearing-- a hearing in which the Deputy Commissioner would arrive at his own decision, and which, under the Longshoremen's Act, 33 U.S.C.A. 921, would then, and only then, be subject to judicial review. This is a command to hear and adjudicate. Not a command to tell him how it is to be decided.
12
The Deputy Commissioner's position is difficult to understand. By statute, see note 22, infra, he is charged with the responsibility of deciding all matters relating to compensation payable to persons sustaining specified maritime injuries. The Act by its terms prescribes that it shall be the exclusive remedy, 33 U.S.C.A. 905, with respect to 'an injury occurring upon the navigable waters of the United States * * * if recovery for the disability * * * through workmen's compensation proceedings may not validly be provided by State law.' 33 U.S.C.A. 903(a).
13
Whatever may be the position of claimants who are so far free to try to get a state court to allow recovery under state compensation acts, the Deputy Commissioner is patently subject to the authoritative declarations of the Federal Courts, and certainly this one, as to a Deputy Commissioner who functions within the geographical confines of this Circuit. So bound, it must have been clear that on the facts asserted, this was an alleged injury sustained by a person while engaged in performance of his duties as a longshoreman in the handling of cargo on a vessel in the Mississippi River. As such, it was, if the evidence bore out the allegations, one exclusively under the Longshoremen's Act, as we had by that time so plainly held in Noah.12
14
The Deputy Commissioner does not really challenge this. Nor does he contend that the claim was not under the Longshoremen's Act. Rather, his position is that he is required, i.e., compelled, by the statute to hold a hearing only when a claim, as such, has been filed. Since compensation was here paid without the filing of a formal claim and none has ever yet been filed, he is not required to hold a hearing. As the Act does not require a hearing under this situation, the Court cannot compel him to do so. At most, the argument goes, a Court may compel only that which the statute orders. And that is lacking here.
15
It is at this point that the dispute narrows. For the Employer finds explicit direction to the Deputy Commissioner to hold hearings when requested by an interested party on all material questions arising in connection with liability for compensation payments or other benefits under the Act. This it finds in 914(h)13 and 919(c).14 But to them, the Deputy Commissioner insists that by their use of the word 'claim' each section has in mind the written, signed formal claim on the usual prescribed official form which was not filed in this case.
16
A consideration of the whole Act and the automatic 'almost self-executing'15 nature of it is convincing that this is to read the Act and the Deputy Commissioner's responsibilities in much too technical a way. In contrast to many compensation acts which require a formal claim at the outset, what sets the whole thing in motion under the Longshoremen's Act is the accidental maritime injury. The employer must keep a record and make a report within ten days after it has knowledge of a maritime injury. Failure to do so subjects it to liability for $500 civil penalty and tolls the administrative one-year limitation period under 913(a) until the notice is filed.16
17
The momentum, though, is more than mere paper reports. Knowledge of the maritime injury by the employer and the coincidence of resulting disability to the employee sets in train important substantive obligations unless the employer takes affirmative action to controvert liability. Thus, he must, without a preliminary coercive order, 'furnish such medical, surgical, and other attendance or treatment, nurse and hospital service, medicine * * * for such period as the nature of the injury or the process of recovery may require.'17 Perhaps even more important the Act provides that 'except where liability to pay compensation is controverted by the employer,' this knowledge of the maritime injury and the coincidence of resulting disability for the requisite time18 automatically requires that 'compensation * * * shall be paid periodically, promptly, and directly to the person entitled thereto, without an award.'19 Payment must be made within 14 days 'after the employer has knowledge of the injury * * *,'20 and a failure to begin payment or make subsequent installment payments within a like period of 14 days subjects the employer to a penalty of 10%.21
18
While the payment of compensation and furnishing medical benefits may be, and generally is, on such a self-executing automatic basis without preliminary coercive legal orders, it does not mean that such actions are over and beyond the Act or that the Deputy Commissioner has no responsibilities during that period. Quite to the contrary, it works that way because the Act prescribes that way. And the Deputy Commissioner, charged generally with administration of such cases,22 has many continuing responsibilities and duties in which he functions as the impartial administrator.23
19
That is of extreme importance for if the Deputy Commissioner has continuing responsibilities during the period a case is being processed on this self-executing basis, it must be recognized that he functions as an impartial administrator bound to accord to the employer no less than to the employee all the rights and protection that the Act prescribes. In other words, his duty to determine relevant matter extends to both parties, not just one. During all of this time the employer is no less an interested party than he is when a formal claim has been filed. Just as the Deputy Commissioner has during this interim the obligation to ascertain relevant fact-legal questions having importance to the employee, so must he determine the merits of those significant to the employer.
20
This analysis demonstrates that neither the responsibilities of the Deputy Commissioner nor the right of either one or both of the parties to call on him to determine relevant matters committed to him by the Act, can depend on a formal claim having been filed. If that were so, the Act would be one-sided, the employer would have no means of exerting his statutory right to have the Deputy Commissioner pass on his contentions, and would be left to the uncontrollable contingency of the claimant filing or not filing a claim. The only alternative would be for the employer to file, within the 14 days after notice of the injury, a formal controversion24 in every case. Any such practice would effectually destroy the statutory goal that 'compensation * * * shall be paid periodically, promptly, and directly * * *, without an award.'25
21
Consequently, the word 'claim' as found in 919(c), note 14, supra, or 914(h), note 13, supra, is not to be read in the technical sense of a formal claim signed by the claimant. It refers generally to the case involving that particular injured employee against that employer for the specified accidental injury. Construed in this fashion to achieve a balanced judicial adjudication of adversary rights, both sections affirm that the Deputy Commissioner has the duty 'upon application of any interested party' to 'order a hearing thereon.'26 Of course, the Act does not undertake to prescribe the form or content of the hearing. A reasoned flexibility and an adaptation to the requirements of a particular situation is recognized by the language of 914(h), note 13, supra, that the Deputy Commissioner shall '* * * hold such hearings, and take such further action as he consider will properly protect the rights of all parties.'
22
Again, without anticipating the kind of hearing which must be held, or the decision to be made from it, it is clear that the facts alleged in the complaint showed that the Employer was asserting a valuable right which 914(h) says the Deputy Commissioner must 'properly protect.' That 'right' is the Employer's right to have his liability determined under the Longshoremen's Act if it in law is the applicable one. For the Longshoremen's Act is not a one-way street. It imposes severe liabilities on an employer At the same time, it accords to him substantial protection. For a case within the Act, the employer is assured that under no other law, in no other forum, will he finally be compelled to pay money to the employee. The liability of the employer for compensation under the Longshoremen's Act '* * * shall be exclusive * * * of all other liabilities of such employer to the employee * * * and anyone otherwise entitled to recover damages from such employer * * * on account of such injury * * *.'27
23
That right is as valuable at the end of the case as it is either in the beginning or some place down the line. Indeed, where the employer contends that his obligations under the Longshoremen's Act have been fulfilled, he is, if that contention is borne out by the facts, entitled to an adjudication by the Deputy Commissioner in order to make effective the bar which the exclusive liability of 905 raises. There is, then, nothing inconsistent with the employer demanding a hearing whose object is to establish judicially that the Longshoremen's Act applies, but that on the merits28 no further compensation is due. Quite to the contrary, after payment of substantial compensation and the furnishing of medical benefits unlimited in duration and cost, the most valuable right would be a determination that all obligations to the employee have been fulfilled.
24
Since, as we have held, the Longshoremen's Act imposes the duty on the Deputy Commissioner to hold a suitable hearing to pass upon and adjudicate the contentions now made by the Employer and properly before him for decision, little need be said of the District Court's power to compel him to proceed.
25
If it is not inherent in the Longshoremen's Act itself, it certainly is in the Administrative Procedure Act which, as we and others have held, controls proceedings under the Longshoremen's Act.29 The APA provides categorically that 'every agency shall proceed with reasonable dispatch to conclude any matter presented to it * * *.'30 Apparently in recognition that a failure or refusal to hear and decide could be as destructive as bad deciding,31 Congress provided iq 10(e) that Courts may review the inaction of an agency and specifically 'compel agency action unlawfully withheld or unreasonably delayed.'32 And enforcement may be by a mandatory injunction.33
26
The Deputy Commissioner, on the facts set forth in the complaint, has failed and refused to hold any hearing or determine the contentions made by the Employer. This is in derogation of his statutory duty, and if the facts are established the District Court was empowered to issue suitable orders to 'compel agency action unlawfully withheld,' 5 U.S.C.A. 1009(e)(A), note 32, supra. It was error to dismiss the complaint and the matter must be reversed and remanded for further consistent action.
27
Reversed and remanded.
1
Southern Pacific Co. v. Jensen, 1917, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086
2
Davis v. Dept. of Labor and Industries of State of Washington, 1942, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246, 1942 A.M.C. 1653
3
Hahn v. Ross Island Sand & Gravel Co., 1959, 358 U.S. 272, 79 S.Ct. 266, 3 L.Ed.2d 292, 1959 A.M.C. 570, rehearing denied 359 U.S. 921, 79 S.Ct. 577, 3 L.Ed.2d 583, 1959 A.M.C. 812
4
Noah v. Liberty Mutual Ins. Co., 5 Cir., 1959, 265 F.2d 547, 1959 A.M.C. 573, overruled on rehearing en banc 5 Cir., 267 F.2d 218, 1959 A.M.C. 2047
5
Flowers v. Travelers Ins. Co., 5 Cir., 1958, 258 F.2d 220, 1958 A.M.C. 2420
6
Noah v. Liberty Mutual Ins. Co., note 4, supra
7
Flowers v. Travelers Ins. Co., note 5, supra
8
Pending before another panel of this Court is another case, No. 17959, T. Smith & Son, Inc. v. Williams, which presents the question whether, in view of the anti-state court injunction prohibition of 28 U.S.C.A. 2283, a United States District Court may enjoin prosecution of a claim under the Louisiana Workmen's Compensation Act in a Louisiana Court of the very kind of claim which we held in Noah, note 4, supra, was exclusively under the Longshoremen's Act. Obviously this opinion does not undertake to decide that question or influence it in any way
9
See, for example, the state cases which have arrived at conclusions contrary to Flowers and Noah, but on which certiorari has been denied. See, e.g., Richard v. Lake Charles Stevedores, Inc., La.App. 1957, 95 So.2d 830, certiorari denied 355 U.S. 952, 78 S.Ct. 535, 2 L.Ed.2d 529; Sullivan v. Travelers Ins. Co., La.App. 1957, 95 So.2d 834, certiorari denied 355 U.S. 952, 78 S.Ct. 535, 2 L.Ed.2d 529; see also Indemnity Ins. Co. of North America v. Marshall, Tex.Civ.App., 1957, 308 S.W.2d 174, writ ref. n.r.e. in which certiorari was not sought. Of course, the explanation, conceptually unsatisfactory as it is, is that denial of certiorari is of no significance. Brown v. Allen, 1953, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; Atlantic Coast Line R. Co. v. Powe, 1931, 283 U.S. 401, 51 S.Ct. 498, 75 L.Ed. 1142. But this does not eliminate the possibility that certiorari may be denied leaving amphibious workers in the same state under one act rather than the other depending on many uncontrollable contingencies
10
The Court subsequently called for production of the Deputy Commissioner's file. Just what treatment was accorded this is not revealed. That record has been lodged here as an original exhibit. Neither party urges that this record in any respect detracts from the factual statements alleged in the complaint, or that, if treated as a motion for summary judgment under F.R.Civ.P. 12(c), 28 U.S.C.A., it presents matters on which there is no genuine dispute as to a material fact compelling a judgment of dismissal for other reasons
11
Little if anything was given up by this concession. Declaratory relief cannot be used to review or anticipate action of an administrative agency as to which a review procedure, as is the case under 33 U.S.C.A. 921, is established. Leonard v. Liberty Mutual Ins. Co., 3 Cir., 1959, 267 F.2d 421; London Guarantee & Accident Co., Ltd. v. Rhoades, D.C.W.D.La.1941, 39 F.Supp. 589; Paramino Lumber Co. v. Marshall, 9 Cir., 1938, 95 F.2d 203; A. L. Burbank Co. v. Willard, D.C.1950, 93 F.Supp. 891; see Public Service Comm. of Utah v. Wycoff Co., 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291; Myers v. Bethlehem Shipbuilding Corp., 1938, 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638; Fouts v. United States, 5 Cir., 1933, 67 F.2d 249
12
This is not a left-handed direction on how the case is to be decided by the Deputy Commissioner, see note 11, supra, and related text. We expressly refrain from any intimation. The situation is comparable to an ordinary complaint apparently within a court's jurisdiction which the court must hear to determine whether on the facts and law it really is within its jurisdiction
13
33 U.S.C.A. 914(h)
'The deputy commissioner (1) may upon his own initiative at any time in a case in which payments are being made without an award, and (2) shall in any case where right to compensation is controverted, or where payments of compensation have been stopped or suspended, upon receipt of notice from any person entitled to compensation, or from the employer, that the right to compensation is controverted, or that payments of compensation have been stopped or suspended, make such investigations * * * or hold such hearings, and take such further action as he considers will properly protect the rights of all the parties.'
14
33 U.S.C.A. 919(c)
'The deputy commissioner shall make or cause to be made such investigations as he considers necessary in respect of the claim, and upon application of any interested party shall order a hearing thereon.'
15
This is spelled out in Flowers, note 5, supra, especially at notes 14 and 16 and related text
16
33 U.S.C.A. 930(a), (e) & (f)
17
33 U.S.C.A. 907(a). See Eikel v. Voris, D.C.Tex.1951, 101 F.Supp. 963, affirmed 5 Cir., 1952, 200 F.2d 724, reversed on other grounds 1953, 346 U.S. 328, 74 S.Ct. 88, 98 L.Ed. 5
18
Compensation is not allowed for the first three days' disability unless disability persists more than 28 days in which case compensation is payable from the date of disability. 33 U.S.C.A. 906(a). Compensation benefits are payable during the continuance of disability, permanent, temporary, total or partial as prescribed in 33 U.S.C.A. 908(a)-(c)
19
33 U.S.C.A. 914(a)
20
33 U.S.C.A. 914(b)
21
33 U.S.C.A. 914(e). The 10% Penalty is to be 'paid at the same time as, but in addition to, such installment.' It is payable unless excused by the Deputy Commissioner after a showing that failure to pay timely was 'owing to conditions over which (the employer) had no control.'
22
See 33 U.S.C.A. 939(b), 940(d), 927
23
In contrast to a traditional court, the Deputy Commissioner does not sit like a judge waiting for the parties to make a move. The Act imposes upon him the duty of making such investigations as he considers necessary, 33 U.S.C.A. 919(c), 923(a). In the routine handling of cases, he was many decisions to make. e.g., the need for and appointment of an umpire physician to determine disability, 33 U.S.C.A. 907(b), the time at which temporary total disability ceases, 33 U.S.C.A. 908(b), the extent, nature or percentage of permanent, partial disability, 33 U.S.C.A. 908(c), ascertainment of difference in wage-earning capacity, 33 U.S.C.A. 908(h), determination of applicable average weekly wage for purpose of computing compensation benefits, 33 U.S.C.A. 910, and the like
That the successful operation of the Act rests principally upon this continuous informal administration of cases by the Deputy Commissioners rather than the few isolated formal hearings after claim and controversion is reflected by the Annual Reports of the Department of Labor which the Act, 33 U.S.C.A. 943, requires the Secretary to make to Congress.
The Annual Report, Department of Labor 1957, p. 70, describes the operation under the Longshoremen's Act: 'Under the law, the first payment of compensation must be made within 14 days after the employer has knowledge of the injury or death. Known as the direct payment method, the record of timeliness of payment has been similarly good on the part of the majority of private insurance companies and self-insurers. Formal hearings and court proceedings are the exception. Because of the large number of injury cases involved, however, the amount of administrative work necessarily involved in the district offices is impressive. During 1957, there were 33,981 personal interviews with claimants and employers or their representatives, 11,848 informal conferences relating to claims, 8,027 independent medical examinations ordered, and 342 formal hearings completed.' The 1958 Report indicates that 'although such administrative activity in 1958 remained relatively the same as in the previous year, the number of informal conferences on claims increased * * *.' Annual Report, Department of Labor 1958, p. 74.
The 1958 Annual Report at pages 74-75 demonstrates that large numbers of employees are involved and that fulfillment of its purpose demands routine, regular, certain, informal administration:
'It is believed that close to 350,000 longshoremen, ship repairmen, and other maritime workers are affected. * * *.'
For 1958 there were 71,076 injury/death cases reported. During the same period 74,954 cases were closed with compensation benefits (excluding medical) totaling $8,903,192, at the year end 13,968 cases were still active. The annual average for 1947-1949 is even more imposing: 114,296 reported injuries, 116,857 cases disposed of, 11.293 remaining active.
This is in contrast to the few cases disposed of by formal hearings: 342 in 1957 and for 1958 only 371 under Longshoremen's as well as District of Columbia, Defense Bases and Outer Continental Shelf Lands Act coverages. This is achieved by informal continuosu administration as the 1958 Report emphasizes. 'During 1958, there were 34,061 personal interviews with claimants and employers or their representatives, 13,764 informal conferences relating to claims, 6,938 independent medical examinations ordered, and 371 formal hearings completed. Although such administrative activity in 1958 remained relatively the same as in the previous year, the number of informal conferences on claims increased 16 percent.' 1958 Report at p. 74.
24
33 U.S.C.A. 914(d) provides: 'If the employer controverts the right to compensation he shall file with the deputy commissioner on or before the fourteenth day after he has knowledge of the alleged injury * * * a notice * * * stating that the right to compensation is controverted * * * and the grounds upon which the right to compensation is controverted.'
25
33 U.S.C.A. 914(a). See also note 23, supra
26
33 U.S.C.A. 919(c)
27
33 U.S.C.A. 905
28
This might, as here, include the question of the timeliness of the claim. A formal claim, as we have explained, is not essential to impose liability for compensation where no controversion is filed by the employer. 913(a) does provide, however, that 'if payment of compensation has been made without and award * * * a claim may be filed within one year after the date of the last payment.' The limitation may also be waived, 913(b), or tolled, 930(f). We may assume, without deciding, that upon the hearing the employer can present what is effectually a controversion even though filed long after the 14 days subsequent to the injury as prescribed in 914(d), note 24, supra. See Leonard v. Liberty, Mutual Ins. Co., 3 Cir., 1959, 267 F.2d 421, 425; simmons v. Marshall, 9 Cir., 1938, 94 F.2d 850. And we would point out, again without deciding, that the provision for suspending further voluntary payments made without a formal award, 914(c), making the time for filing claim for further compensation date from the time of the last of such payments, 913(a), and the requirement of 914(h), note 13, supra, that where payments have been stopped the Deputy Commissioner shall take steps to investigate and hold hearings, seem to reflect that prior automatic voluntary payments do not preclude the employer from thereafter denying liability for further benefits
29
Southern Stevedoring Co. v. Voris, 1951, 5 Cir., 190 F.2d 275; O'Leary v. Brown-Pacific-Maxon, 1951, 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483; United States Fidelity & Guaranty Co. v. Donovan, 1954, 94 U.S.App.D.C. 377, 221 F.2d 515; Colonna's Shipyard, Inc. v. O'Hearne, 4 Cir., 1952, 200 F.2d 220; Richardson v. Britton, 1951, 89 U.S.App.D.C. 391, 192 F.2d 423; Dunn v. Belair, D.C.R.I.1955, 134 F.Supp. 802; Plassil v. O'Hearne, D.C.Md.1954, 124 F.Supp. 215
30
5 U.S.C.A. 1005(a)
31
The valuable volume, Senate Document No. 248, 79 Cong., 2d Sess., 1946. 'Legislative History of the Administrative Procedure Act' at page 264 points out that 6(a) of the APA, 5 U.S.C.A. 1005(a), note 30, supra, was enacted to make certain that 'no agency shall, in effect, deny relief or fail to conclude a a case by mere inaction, or proceed in dilatory fashion to the injury of the persons concerned.'
32
5 U.S.C.A. 1009(e)(A)
To meet the criticism that 10(e) of the APA, 5 U.S.C.A. 1009(e), would unduly extend the scope of review by authorizing courts to specify administrative action to be taken, Congress used language to make clear that 'the provision means that the court may compel the agency to act where it has 'unlawfully withheld' action, rather than to direct action and state what it will be in detail. The court may require agencies to act, but may not under this provision tell them how to act in matters of administrative discretion.' Sen.Doc. No. 248, note 31 supra, at 40.
33
'The form of proceeding for judicial review shall be any special statutory review proceeding relevant to the subject matter in any court specified by statute or, in the absence of inadequacy thereof, any applicable form of legal action (including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus) in any court of competent jurisdiction.' 5 U.S.C.A. 1009(b) | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2609901/ | 866 P.2d 1297 (1994)
James PEARSON, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).
No. 93-6.
Supreme Court of Wyoming.
January 11, 1994.
Leonard D. Munker, State Public Defender, Gerald M. Gallivan, Defender Aid Program, and Laura E. David, Student Intern, for Defender Aid Program.
Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., Barbara L. Boyer, *1298 Sr. Asst. Atty. Gen., and Mark T. Moran, Asst. Atty. Gen.
Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.
MACY, Chief Justice.
Appellant James Pearson appeals from the district court orders denying his motion to correct an illegal sentence and his motion for disqualification of the trial judge.
We affirm.
Appellant poses the following questions for our review:
I. Whether the trial court's decision to deny Appellant's motion to correct an illegal sentence was proper?
II. Whether the trial court properly denied Appellant's motion to disqualify the trial court judge?
On March 7, 1990, Appellant was sentenced to serve a term of not less than three years nor more than five years in the Wyoming State Penitentiary after his conviction for forgery as defined by Wyo.Stat. § 6-3-602(a) and (b) (1988). At the time he committed the forgery, he was on parole for a federal offense. After Appellant was sentenced in state court, he was released on bond pending his appeal to the Wyoming Supreme Court from his state court conviction.
The trial judge knew during the sentencing hearing that Appellant was on federal parole. The presentence investigation report revealed that the federal probation officer believed that Appellant's federal parole would probably be revoked as a result of his conviction in state court. The agent who prepared the presentence investigation report recommended that the state sentence be made to run concurrent with any resulting federal sentence of incarceration. In the judgment and sentence, the trial judge did not specify whether the state sentence would run concurrent with or consecutive to the potential federal sentence.
On April 17, 1990, Appellant's federal parole was revoked. He was incarcerated in a federal facility until November 15, 1990, when he was again paroled. On May 15, 1991, the Wyoming Supreme Court affirmed Appellant's state court conviction.[1] Soon thereafter, Appellant began serving his state sentence.
On August 4, 1992, Appellant filed a motion to correct an illegal sentence. He contended that the judgment and sentence "clearly reflect[ed] that [Appellant's] sentence [was] deemed to be concurrent with his Federal Parole Violation Sentence." Appellant also filed a motion to disqualify the trial judge from ruling on the motion to correct an illegal sentence. The trial judge denied both motions, and Appellant appeals from the trial court's decisions.
In his first issue, Appellant argues that, since the state sentence was silent as to whether it would run concurrent with or consecutive to the potential federal sentence, the sentences should be construed as running concurrently. We disagree.
Under the common law, sentences which are silent as to whether they are to be served concurrently or consecutively are presumed to be concurrent. See, e.g., State v. Petersen, 305 Minn. 478, 235 N.W.2d 801, 803 (1975); and State v. Mayberry, 97 N.M. 760, 643 P.2d 629, 632 (App.1982). See also 24 C.J.S. Criminal Law § 1583 (1989). The rule in many jurisdictions is that, when two or more sentences are pronounced by the same court at the same time without a specification as to whether the sentences are to run concurrently or consecutively, the sentences are presumed to be concurrent. See, e.g., Stewart v. Delgado, 231 Neb. 401, 436 N.W.2d 512, 514 (1989); and Wheeler v. Jernigan, 248 Ga. 302, 282 S.E.2d 891, 891-92 (1981).
Many exceptions exist to the common-law presumption. Courts have held that, when sentences are pronounced by courts of different sovereigns, i.e., courts of two different states or a state court and a federal court, the presumption of concurrence does not apply. Commonwealth v. Lundberg, 422 Pa.Super. 495, 619 A.2d 1066, 1068-69 (1993); Cottingham v. State, 206 Ga.App. 197, 424 *1299 S.E.2d 794, 797 (1992); Larios v. Madigan, 299 F.2d 98, 100 (9th Cir.1962).
Many states have enacted statutes which specify when sentences are presumed to be concurrent and when they are presumed to be consecutive. See, e.g., Beck v. Fetters, 137 Kan. 750, 22 P.2d 479, 480 (1933); and Ball v. State, 437 So.2d 423, 425-26 (Miss.1983). See also 24 C.J.S. Criminal Law § 1584 (1989).
This Court has been reluctant to apply a presumption of concurrence. In Kennedy v. State, 595 P.2d 577, 577 (Wyo.1979), habeas corpus denied, 759 F.Supp. 1554 (D.Wyo. 1991), judgment aff'd, 971 F.2d 558 (10th Cir.), and cert. denied, ___ U.S. ___, 113 S.Ct. 623, 121 L.Ed.2d 556 (1992), we stated: "Separate penalties will ordinarily be exacted upon convictions for distinct offenses." Similarly, in Loper v. Shillinger, 772 P.2d 552, 553 (Wyo.1989), we refused to apply a presumption of concurrent sentences where the defendant was charged with an offense which resulted in revocation of his parole for an earlier offense and the trial court failed to specify whether the four concurrent sentences on the most recent convictions would run concurrent with the remainder of his original sentence in the event that parole was revoked.
In light of the many exceptions to the common-law presumption of concurrence and of the traditional reluctance of this Court to presume that sentences are concurrent, we prefer not to follow the common-law rule of concurrence. "Common law created by the judiciary can be abrogated by the judiciary." McClellan v. Tottenhoff, 666 P.2d 408, 411 (Wyo.1983).
We hold that, if no specification is made as to whether multiple sentences are concurrent or whether they are consecutive, the sentences will be deemed to be consecutive whether they are imposed in the same case, in different cases, or by different courts. The Legislature may, of course, change this rule by enacting legislation specifying when sentences are presumed to be concurrent and when they are presumed to be consecutive.
In this case, the sentencing courts did not specify whether Appellant's sentences were to run concurrently or consecutively.[2] Appellant's state sentence was, therefore, consecutive to his federal sentence. Appellant's state sentence was not illegal.
In his second issue, Appellant argues that the trial judge should have been disqualified from hearing the motion to correct an illegal sentence because the judge was biased against him.
The revised Wyoming Rules of Criminal Procedure became effective on March 24, 1992. W.R.Cr.P. 21.1(b) sets forth the requirements for disqualification of a judge on the basis of bias:
(b) Disqualification for cause. Promptly after the grounds for such motion become known, the state or the defendant may move for a change of judge on the ground that the presiding judge is biased or prejudiced against the state, the attorney for the state, the defendant or the defendant's attorney. The motion shall be supported by affidavits stating sufficient facts to demonstrate such bias or prejudice. Prior to a hearing on the motion other affidavits may be filed. The motion shall be referred to another judge, or a court commissioner, who shall rule on the motion, and if granted shall immediately assign the case to a judge other than the disqualified judge. A ruling on a motion for a change of judge is not an appealable order, but the ruling shall be made a part of the record, and may be assigned as error in an appeal of the case or on a bill of exceptions.
Under this rule, the presiding judge is required to refer the motion for disqualification to another judge for a decision. Before the Wyoming Rules of Criminal Procedure were revised, W.R.Cr.P. 23(e)[3] allowed the presiding *1300 judge to determine whether or not he should be disqualified because of bias.
In this case, the presiding judge ruled on the motion. Since Appellant's motion for disqualification was filed after the revised rules went into effect, the trial judge violated W.R.Cr.P. 21.1(b) by ruling on the motion. However, we conclude that the error was invited and harmless. Engle v. State, 821 P.2d 1285, 1287 (Wyo.1991). The parties did not argue that the trial judge incorrectly ruled on the motion, and neither the motion nor the affidavit evinced sufficient grounds for disqualification.
Appellant contends that the trial judge should have been disqualified because he was biased against Appellant.
"Bias is a leaning of the mind or an inclination toward one person over another. The `bias' which is a ground for disqualification of a judge must be personal, and it must be such a condition of the mind which sways judgment and renders the judge unable to exercise his functions impartially in a given case or which is inconsistent with a state of mind fully open to the conviction which evidence might produce."
Hopkinson v. State, 679 P.2d 1008, 1031 (Wyo.), cert. denied, 469 U.S. 873, 105 S.Ct. 228, 83 L.Ed.2d 157 (1984) (quoting Cline v. Sawyer, 600 P.2d 725, 729 (Wyo.1979)). See also Brown v. Avery, 850 P.2d 612 (Wyo. 1993), and TZ Land & Cattle Co. v. Condict, 795 P.2d 1204 (Wyo.1990).
A mere allegation of judicial bias is insufficient to form a basis for disqualification. Story v. State, 788 P.2d 617, 621 (Wyo.), cert. denied, 498 U.S. 836, 111 S.Ct. 106, 112 L.Ed.2d 76 (1990); Pote v. State, 733 P.2d 1018, 1020-21 (Wyo.1987). Sufficient facts showing bias must be presented in the affidavit supporting the motion. Hopkinson, 679 P.2d at 1031.
In this case, Appellant's affidavit was wholly insufficient to support his allegation that the trial judge was biased against him. Appellant failed to present any specific facts which supported his contention. Disqualification of the trial judge was not warranted.
Affirmed.
NOTES
[1] Pearson v. State, 811 P.2d 704 (Wyo.1991).
[2] Appellant argues that the federal court did not have the authority to order that the state sentence would begin to run while he was incarcerated for the federal parole violation. This argument is irrelevant to our inquiry.
[3] W.R.Cr.P. 23(e) provided:
(e) Disqualification for cause.Whenever the grounds for such motion become known, the state or the defendant may move for a change of district judge on the ground that the presiding judge is biased or prejudiced against the state, the prosecuting attorney, the defendant or his attorney. The motion shall be supported by an affidavit or affidavits of any person or persons stating sufficient facts to show the existence of such ground. Prior to a hearing on the motion any party may file counter-affidavits. The presiding judge shall rule on the motion, and if he grants the same shall immediately call in another district judge to try the action. A ruling on a motion for a change of district judge shall not be an appealable order, but the ruling shall be entered on the docket and made a part of the record, and may be assigned as error in an appeal of the case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3106234/ | NUMBER 13-10-00411-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
KEN FLEMING AND PAUL BARRETT,
DIRECTORS OF FAMILY LIFE REVIVAL
CENTER, INC., APPELLANTS,
v.
CHARLES EDWARD BARBER,
DIRECTOR OF FAMILY LIFE REVIVAL
CENTER, INC., APPELLEE.
____________________________________________________________
On appeal from the 13th District Court
of Navarro County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Justices Vela, Perkes, and Hill1
Memorandum Opinion Per Curiam
1
Retired Second Court of Appeals Justice John G. Hill assigned to this Court by the Chief Justice
of the Supreme Court of Texas pursuant to the government code. See TEX. GOV’T CODE ANN. § 74.003
(Vernon 2005).
Appellants, Ken Fleming and Paul Barrett, perfected an appeal from a judgment
entered by the 13th District Court of Navarro County, Texas, in cause number
07-16291-CV. The parties have filed a joint motion to dismiss on grounds that all matters
in controversy between them in this cause have been fully compromised and settled.
The parties request that this Court dismiss the appeal.
The Court, having considered the documents on file and the joint motion to
dismiss, is of the opinion that the motion should be granted. See TEX. R. APP. P. 42.1(a).
The joint motion to dismiss is granted, and the appeal is hereby DISMISSED. In
accordance with the agreement of the parties, costs are taxed against the party incurring
same. See TEX. R. APP. P. 42.1(d) ("Absent agreement of the parties, the court will tax
costs against the appellant."). Having dismissed the appeal at appellants’ request, no
motion for rehearing will be entertained, and our mandate will issue forthwith.
PER CURIAM
Delivered and filed the
14th day of April, 2011.
2 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2614696/ | 25 Wash. App. 46 (1979)
604 P.2d 1330
THE STATE OF WASHINGTON, Respondent,
v.
KENNETH EUGENE REED, Appellant.
No. 2670-1-III.
The Court of Appeals of Washington, Division Three.
December 27, 1979.
*47 David E. Ebenger, for appellant.
Douglas S. Boole, Prosecuting Attorney, and Thomas Benner, Deputy, for respondent.
McINTURFF, J.
The appellant, Kenneth Eugene Reed, stands convicted of first-degree murder and first-degree robbery.
The facts leading up to these convictions are as follows: In April 1977, the victim, Tim Joy, was in need of a laborer on his farm located near the Colville Indian Reservation. Mr. Joy visited a local employment agency and was introduced to the defendant, Mr. Reed, who agreed to accept the offer of employment. He transferred his personal effects to Mr. Joy's car and the two men returned to the Joy farm where Mr. Reed took up residence.
On April 20, 1977, Mr. Joy was found dead on the kitchen floor of his home. His body exhibited numerous stab wounds, two of which were fatal. There was also evidence Mr. Joy had been assaulted with a blunt instrument.
Although several persons had previously noted Mr. Reed's presence at the Joy farm, he could not be located upon discovery of Mr. Joy's body. The police also noted Mr. Joy's car was missing, and that Mr. Reed had apparently departed without pay. Mr. Joy's car was subsequently found abandoned in the Seattle area.
Mr. Reed was later arrested in Oregon and returned to the Okanogan County jail. One evening Mr. Reed and another cellmate, Johnny Mendoza, apparently discussed the possibility of escape through an opening made possible by removal of a portion of the jail cell bar. Later that same evening, he allegedly assaulted Mr. Mendoza with the cell bar. During the course of the assault, other cellmates overheard Mr. Reed state that he had killed an old man and taken his money and car and words to the effect, "I'm going to do away with you just like I've done Tim Joy."
*48 Following a trial, the jury returned verdicts of guilty on the charges of first-degree murder and first-degree robbery. Mr. Reed was sentenced to life imprisonment on both counts and this appeal followed.
Mr. Reed contends he was denied a fair trial as a result of comments by the prosecutor during closing argument relative to his exercise of the constitutional right to remain silent.[1] We agree, and reverse.
[1] Prosecutorial comment on the accused's exercise of his constitutional right to remain silent is forbidden.[2] The State cannot be permitted to put forward an inference of guilt, which necessarily flows from an imputation that the accused has suppressed or is withholding evidence, when as a matter of constitutional law, he is not required to testify. See State v. Charlton, 90 Wash. 2d 657, 662, 585 P.2d 142 (1978); State v. Tanner, 54 Wash. 2d 535, 538, 341 P.2d 869 (1959). To hold otherwise would render this constitutional privilege meaningless, for its exercise would result in a costly penalty to the accused. Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229 (1965).
Judicial intolerance for prejudicial prosecutorial tactics is another important consideration underscoring the scrupulous regard which the law holds for this constitutional right. The public prosecutor, as a quasi-judicial officer, has a duty to act impartially and solely in the interests of justice to the end that each defendant receives a fair trial.[3]
In closing argument, the prosecutor called the jury's attention to the circumstances surrounding Mr. Reed's departure from the Joy farm stating:
*49 And there is no contention that he was paid. Nobody has said, "Yes, I was paid." No one has said that. But the evidence in this case has to be that he was not paid, because there is nothing to rebut that.
This comment, and, in particular the statement, "Nobody has said, `Yes, I was paid.'" was a direct reference to the accused's failure to testify. Mr. Reed was the only person who could have said, "Yes, I was paid." State v. Messinger, 8 Wash. App. 829, 840, 509 P.2d 382 (1973).
Although defense counsel failed to make an immediate objection to this statement, we find no escape from this flagrant error. Silence is not evidence, and neither it nor an inference therefrom can be used to supply evidence of guilt.[4] We cannot say that the statement was "harmless beyond a reasonable doubt", when (1) the trial was based almost entirely on circumstantial evidence; (2) the prosecutor made other comments during closing argument closely approaching impermissible comment[5] and (3) other error, as we will demonstrate below, was committed during the course of the trial. Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 711, 87 S. Ct. 824, 24 A.L.R. 3d 1065 (1967).
We will address the defendant's remaining assignments of error as they may be instructive on retrial.
[2] Mr. Reed contends it was error for the court to give a "flight" instruction. We agree.
Evidence is admissible that, after the commission of crime, the accused fled and concealed himself as if to elude justice or endeavor to avoid arrest; or, after arrest, attempted to effect his escape.
*50 State v. Lew, 26 Wash. 2d 394, 401, 174 P.2d 291 (1946); State v. Bruton, 66 Wash. 2d 111, 112, 401 P.2d 340 (1965). While there is evidence to support an inference of flight arising from the defendant's unexplained departure from the Joy farm, and his alleged participation in an attempt to escape from jail, we are persuaded by the court in State v. Jefferson, 11 Wash. App. 566, 571, 524 P.2d 248 (1974), that evidence of "flight" should not be the subject of an instruction. As the court observed at page 571:
Instructions of this ilk, though time-honored, should be discarded. At best, they merely sanction the use of circumstantial evidence. At worst, they place undue emphasis upon that evidence. Instructions on circumstantial evidence should be expressed in the abstract. We also agree with the District of Columbia Circuit Court of Appeals that
evidence of flight tends to be only marginally probative as to the ultimate issue of guilt or innocence. The interest of justice is perhaps best served if this matter is reserved for counsel's argument, with little if any comment by the bench.
United States v. Robinson, 475 F.2d 376, 384 (D.C. Cir.1973).
Next, Mr. Reed complains it was error for the court to admit evidence relating to his assault on fellow cellmate, Johnny Mendoza, and his alleged participation in an escape attempt. The court found the evidence admissible because (1) the assault was an integral part of the defendant's alleged attempt to escape; (2) the assault was relevant to the question of identity, common scheme or plan, and intent; and (3) the assault was similar in nature, except for the weapon employed, to the attack on Mr. Joy. We find no error.
[3] It is a well established rule that a defendant must be tried solely on the basis of the charges contained in the information. Evidence of unrelated crimes is inadmissible because its only effect is to prejudice the jury against the *51 accused.[6] Equally well established, however, are the exceptions to this rule of exclusion. Evidence of prior or subsequent criminal conduct is admissible to prove (1) motive, (2) intent, (3) absence of accident or mistake; (4) common scheme or plan; and (5) identity. State v. Goebel, 36 Wash. 2d 367, 368-69, 218 P.2d 300 (1950); State v. Messinger, 8 Wash. App. 829, 832, 509 P.2d 382 (1973). See ER 404(b). In the final analysis, the question of admissibility turns on whether the evidence is relevant and necessary to prove an essential element of the crime charged.[7]
Here, the identity of the person who committed the murder was, for all practical purposes, the principal issue at trial. The statement by Mr. Reed during the course of his assault upon Mr. Mendoza "I'm going to do away with you just like I've done Tim Joy" was relevant to the issue of identity. State v. Boggs, 80 Wash. 2d 427, 433, 495 P.2d 321 (1972); State v. Messinger, supra at 836-37. In addition, the statement constituted an admission against interest. State v. Bray, 23 Wash. App. 117, 124, 594 P.2d 1363 (1979); State v. Peterson, 2 Wash. App. 464, 466-68, 469 P.2d 980 (1979).
As for the court's failure to give a limiting instruction as required by State v. Goebel, 36 Wash. 2d 367, 368-69, 218 P.2d 300 (1950), we note the court was prepared to explain to the jury the limited purpose for which the evidence was received; however, defense counsel withdrew a proposed instruction to that effect.
Mr. Reed next complains the court erred in limiting defense counsel's cross-examination of police officer Weed. *52 At trial, Officer Weed testified regarding the police investigation of the Joy homicide. He opined the initial attack on Mr. Joy occurred in his bedroom. On cross-examination, defense counsel asked if it was possible the attack had originated elsewhere in the house. The prosecutor objected to the question as argumentative, but the court permitted the witness to answer. Mr. Reed now contends he was denied the opportunity to expose inaccuracies in the homicide investigation. We disagree.
[4] The scope of cross-examination is within the province of the trial court and this judgment will not be disturbed on appeal in the absence of a manifest abuse of discretion.[8] We find no abuse of discretion.
In response to defense counsel's question, Officer Weed conceded the possibility that the attack on Mr. Joy may have originated in another part of the house. However, Officer Weed had previously given his best opinion regarding the scene of the initial attack, and the only effect of the court's ruling was to restrict unnecessary speculation on that subject. The court's ruling did not preclude further inquiry into the accuracy of the homicide investigation.
Finally, Mr. Reed next contends the court erred in preventing the impeachment of witness John Hunt.
[5] John Hunt, a former employee of Mr. Joy, was called as a witness at trial. On cross-examination by defense counsel, Mr. Hunt stated he voluntarily left Mr. Joy's employ and denied any disagreement between them. Thereafter, defense counsel attempted to call another witness who would testify Mr. Hunt was, in fact, fired by Mr. Joy following a disagreement. This evidence, defense counsel argued, would establish Mr. Hunt's motive to kill Mr. Joy. The court granted the prosecution motion to exclude this testimony on the ground that a witness' testimony on cross-examination regarding a collateral matter may not be *53 impeached by extrinsic evidence. The court's ruling was correct.[9]
Judgment of the Superior Court is reversed and the case is remanded for retrial.
MUNSON and ROE, JJ., concur.
NOTES
[1] U.S. Const. amend. 5; Const. art. 1, § 9.
[2] Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229 (1965); State v. Bennett, 20 Wash. App. 783, 786, 582 P.2d 569 (1978); State v. Messinger, 8 Wash. App. 829, 840, 509 P.2d 382 (1973); State v. Wilson, 3 Wash. App. 745, 746-47, 477 P.2d 656 (1970).
[3] State v. Case, 49 Wash. 2d 66, 70, 298 P.2d 500 (1956); State v. Reeder, 46 Wash. 2d 888, 892, 285 P.2d 884 (1955); State v. Torres, 16 Wash. App. 254, 263, 554 P.2d 1069 (1976).
[4] State v. Goebel, 36 Wash. 2d 367, 368-69, 218 P.2d 300 (1950); State v. Kritzer, 21 Wash. 2d 710, 712, 152 P.2d 967 (1944); State v. Gottfreedson, 24 Wash. 398, 403, 64 P. 523 (1901).
[5] The prosecutor stated:
"When you couple that sort of thing, when you tell me that a man assaults another person while he is lying defenseless in his bunk with something like this and then you tell me the jail inmates have said this and that and the other thing about what that man said and the other man offers no rebuttal, who do I have to believe; especially when there are four of them." (Italics ours.)
[6] State v. Goebel, 36 Wash. 2d 367, 368-69, 218 P.2d 300 (1950); State v. Kritzer, 21 Wash. 2d 710, 712, 152 P.2d 967 (1944); State v. Gottfreedson, 24 Wash. 398, 403, 64 P. 523 (1901).
[7] State v. Dinges, 48 Wash. 2d 152, 154, 292 P.2d 361 (1956); State v. Lew, 26 Wash. 2d 394, 399, 174 P.2d 291 (1946); State v. Hobbs, 13 Wash. App. 866, 867, 538 P.2d 838 (1975); State v. Bloomstrom, 12 Wash. App. 416, 420-21, 529 P.2d 1124 (1974); State v. Messinger, 8 Wash. App. 829, 832, 509 P.2d 382 (1973); State v. Whalon, 1 Wash. App. 785, 791, 464 P.2d 730 (1970).
[8] State v. Bradley, 17 Wash. App. 916, 920, 567 P.2d 650 (1977); State v. Moore, 17 Wash. App. 5, 12, 560 P.2d 712 (1977); State v. Carr, 13 Wash. App. 704, 705, 537 P.2d 844 (1975).
[9] State v. Oswalt, 62 Wash. 2d 118, 120, 381 P.2d 617 (1963); State v. Harp, 13 Wash. App. 273, 276, 534 P.2d 846 (1975); 5 R. Meisenholder, Wash. Prac. Evidence § 304, at 281 (1965). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2001314/ | 131 B.R. 190 (1989)
In re MARINER ENTERPRISES OF PANAMA CITY, INC., Debtor.
Bankruptcy No. 89-04751.
United States Bankruptcy Court, N.D. Florida, Pensacola Division.
November 20, 1989.
John Daniel, Pensacola, Fla., for AmSouth Bank.
David Fleming, Gulf Breeze, Fla., for debtor.
*191 ORDER LIMITING USE OF CASH COLLATERAL
LEWIS M. KILLIGAN, Jr., Bankruptcy Judge.
This case is before the Court upon creditor AmSouth Bank of Florida's (AmSouth) emergency motion seeking to prohibit the Debtor from disposing of certain rents, in which AmSouth claims a security interest. The Court heard argument of counsel on October 3, 1989.
The facts are largely undisputed. The Debtor owns real property known as Mariner Plaza Shopping Center,[1] which is subject to a note and mortgage held by AmSouth. As additional security for the loan, the rents from the mortgaged property were also pledged to AmSouth by its then-owner, 231 Associates, a general partnership composed of Wallace C. Yost, Daniel A. Vertrees and Allen J. Miller. In 1988, the loan was in default. AmSouth filed a foreclosure action in state court against 231 Associates, Wallace C. Yost, Daniel A. Vertrees and Allen J. Miller, and demanded payment of the rent accruing from the shopping center. The parties stipulated to entry of an order by the state court requiring the rents accruing from the shopping center to be paid into the registry of the court. Rents accumulated from February 1, 1989, for the shopping center were deposited into the registry of the court.[2] In a coordinated move, the real property was conveyed by Mr. Yost, individually and as trustee, d/b/a 231 Associates, to his wholly-owned corporation, the Debtor, and the Debtor then filed its bankruptcy petition.
Two distinct classes of rental income are at issuerents generated prior to Yost's transfer of the property to the Debtor and rents generated subsequent to Yost's transfer of the property. The rents generated prior to the transfer and sequestered in the registry of the state court could not be transferred by Mr. Yost. Once property is placed under the control of the court, by sequestration or by the appointment of a receiver, the court controls transfer of the property subject to the sequestration or receivership.[3]See generally, Sunland Mortgage Corp. v. Louis, 515 So.2d 1337, 1339 (5th DCA 1987). The Debtor asserts that those funds which were paid prior to the Debtor's acquiring any interest in the property now constitute property of this estate which should be dealt with by this Court. This contention, we find, is wholly without any merit. Any rents and profits generated by the property prior to its transfer were paid into the registry in accordance with Florida Statutes for the purpose of protecting the interest of AmSouth in those rents and profits and to keep 231 Associates or Mr. Yost from utilizing them or otherwise disposing of them. Mr. Yost could not transfer the rents subject to sequestration to the Debtor. Accordingly, the Debtor has no interest in rents generated prior to Yost's transfer of the real property, which are deposited in the state court registry or held by the receiver.
The Debtor argues that an assignment of rents creates only a lien against the rent proceeds, and that the right to use the rental income to maintain the rental property remains with the Debtor until confirmation of the foreclosure sale. The Debtor reasons that AmSouth's demand for payment of rents, therefore, entitles it only to sequestration of the rental income remaining after the reasonable and necessary operating expenses are paid, until a final order as to the rental income is entered. AmSouth argues its assignment, coupled with its demand for payment, caused the assignment to become absolute, such that *192 the Debtor no longer has any interest in the rental income.
Section 363(a) of the Bankruptcy Code defines cash collateral as cash, negotiable instruments, documents of title, securities, deposit accounts, or other cash equivalents in which the estate and an entity other than the estate have an interest. Rents, to the extent they are subject to a lien, are cash collateral defined by the Code. 2 Collier on Bankruptcy, Para. 363.02 at p. 363-12 (15th Ed.1988). Under Section 363(c)(2), an asset determined to be cash collateral may not be used, sold, or leased without either the consent of the creditor or an order of the Court.
The rights of a secured creditor are determined according to the applicable nonbankruptcy law of the state from which the debt arises. Butner v. United States, 440 U.S. 48, 55-57, 99 S.Ct. 914, 918-919, 59 L.Ed.2d 136 (1979). In Florida, a mortgage creates a lien against real property, but the right of possession and title remain with the owner. A mortgagee can acquire possession upon default only after a judicial foreclosure and sale. See, Four Star Aviation, Inc. v. United States, 409 F.2d 292 (5th Cir.1969); Snow v. Nowlin, 125 Fla. 166, 169 So. 598 (1936). An assignment of rents is additional security for the lender, and creates a lien against the rental income. The right to collect the rents remains with the debtor until judicial foreclosure and sale. In re Aloma Square, Inc., 85 B.R. 623 (Bkrtcy.M.D.Fla.1988). Prior to the enactment of Section 697.07, Fla.Stats., under Florida common law, a lender was not entitled to the rents until it obtained an order of sequestration through the appointment of a receiver in a foreclosure proceeding or by taking possession of the property. In re Johnny Parham, 72 B.R. 604 (Bkrtcy.M.D.Fla.1987).
Florida's new statutory provision governing assignment of rents, Section 697.07, (Fla.Stat.1987), provides:
Assignment of rents.A mortgage may provide for an assignment of rents. If such assignment is made, such assignment shall be absolute upon the mortgagor's default, becoming operative upon written demand made by the mortgagee. Upon application by the mortgagee, a court of competent jurisdiction may require the mortgagor to deposit such rents in the registry of the court pending adjudication of the mortgagee's right to the rents, any payments therefrom to be made solely to protect the mortgaged property and meet the mortgagor's lawful obligations in connection with the property. Any undisbursed portion of said rents shall be disbursed in accordance with the court's final judgment or decree.
This statute became effective October 1, 1987.
AmSouth's position is arguably supported by the decision in In re Camelot Associates Ltd. Partnership, 102 B.R. 161 (Bkrtcy.D.Minn.1989). Although AmSouth did not cite this case, the Minnesota bankruptcy court literally interpreted Florida Statute 697.07 in finding a mortgagee's right to receive rents "absolute and unconditional" once default occurs and demand is made.
This Court is uncomfortable with the failure of the Minnesota court to come to terms with the statute's literal requirement for a "final judgment or decree" to determine the allocation of rent. Better reasoned is the decision by the Bankruptcy Court for the Middle District of Florida, in In re One Fourth Street North, Ltd., 103 B.R. 320 (Bkrtcy.M.D.Fla.1989), recognizing Section 697.07, Fla.Stats., "was not meant to create an outright or absolute transfer of ownership interest in rents where none existed before," it merely "change[s] the procedural manner in which an assignment of rents becomes effective." In re One Fourth Street North, Ltd., supra, 103 B.R. at 321, citing to In re Aloma Square, Inc., 85 B.R. 623 (Bkrtcy.M.D.Fla. 1988). With this construction, the statute provides an easier procedure to perfect a lender's right to the rents, but does not transfer title.
AmSouth's argument that an assignment of rents clause creates a self-perfecting lien which becomes "absolute upon default," Section 697.97, Fla.Stats., automatically *193 transferring title is without merit. Under AmSouth's interpretation, even if the mortgage was paid in full, the lender would still be entitled to receive the rental income. This strained construction contradicts the plain language of the statute, which defers a determination of "the mortgagee's right to the rents" until "the court's final judgment or decree." Section 697.07, Fla.Stats.
Prior to the petition in this case, AmSouth demanded payment of the rents in accordance with Section 697.07, Florida Statutes, and thereby perfected a security interest in rents obtained from the mortgaged property. By the plain language of the statute, AmSouth is entitled to sequestration of the rental income until a final judgment is entered. The right to use the rental income to maintain the rental property remains with the Debtor. In re One Fourth Street North, Ltd., supra. Accordingly, it is
ORDERED:
AmSouth's motion to prohibit use of cash collateral is granted in part. The Debtor is directed to collect post-petition rents, to pay only the necessary operating costs of the business, and to sequester the balance in a separate bank account. The funds sequestered shall not be utilized for any purpose without further order of this Court.
DONE AND ORDERED.
NOTES
[1] The Debtor owns and operates, in addition to the shopping center, a restaurant and liquor store known as Chan's/Mariner Liquors, which are located on the shopping center property. On or about September 18, 1989, shortly prior to the filing of the Debtor's bankruptcy petition, Wallace Yost, individually and as trustee, d/b/a 231 Associates, purported to convey title to the real property to the Debtor by quit claim deed.
[2] Prior to the transfer of the property to the Debtor, it is believed the Debtor was a tenant of the shopping center.
[3] Because the leasehold interest was transferred to the Debtor on the same day as bankruptcy petition was filed, there are no pre-bankruptcy rents belonging to this Debtor. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/841528/ | Order Michigan Supreme Court
Lansing, Michigan
October 17, 2007 Clifford W. Taylor,
Chief Justice
Michael F. Cavanagh
Elizabeth A. Weaver
135070 (3) Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman,
SCOTT WITZKE, #164756, Justices
Petitioner-Appellant,
v SC: 135070
AGC: 2205/07
ATTORNEY GRIEVANCE COMMISSION,
Respondent-Appellee.
___________________________________
On order of the Chief Justice, the motion to waive fees is considered and it
is DENIED because MCL 600.2963 requires that a prisoner pursuing a civil action be
liable for filing fees.
Within 21 days of the certification of this order, plaintiff shall pay to the
Clerk of the Court the initial partial filing fee of $74.00, shall submit a copy of this order
with the payment, and shall refile the copy of the pleadings which is being returned
with this order. Failure to comply with this order shall result in the appeal not being
filed in this Court.
If plaintiff timely files the partial fee and refiles the pleadings, monthly
payments shall be made to the Department of Corrections in an amount of 50 percent of
the deposits made to plaintiff’s account until the payments equal the balance due of
$301.00. This amount shall then be remitted to this Court.
Pursuant to MCL 600.2963(8) plaintiff shall not file further appeals in this
Court until the entry fee in this case is paid in full.
The Clerk of the Court shall furnish two copies of this order to plaintiff and
return plaintiff’s pleadings with this order.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
October 17, 2007 _________________________________________
jm Clerk | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2898960/ | NO. 07-08-0517-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JULY 30, 2009
______________________________
TYRONE COLEMAN, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE COUNTY COURT OF HALE COUNTY;
NO. 2008C-743; HONORABLE DWAIN DODSON, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Following a plea of not guilty, Appellant, Tyrone Coleman, was convicted by a jury of assault, a Class A misdemeanor. Punishment was assessed by the trial court at one year confinement in the county jail and a $4000 fine.
In presenting this appeal, counsel has filed an
Anders
(footnote: 1) brief in support of a motion to withdraw. We grant counsel’s motion and affirm.
In support of his motion to withdraw, counsel certifies he has conducted a conscientious examination of the record and, in his opinion, the record reflects no potentially plausible basis to support an appeal.
Anders v. California
, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967);
In re Schulman
, 252 S.W.3d 403, 406 (Tex.Crim.App. 2008)
.
Counsel candidly discusses why, under the controlling authorities, the appeal is frivolous.
See
High v. State
, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978). Counsel has demonstrated that he has complied with the requirements of
Anders
and
In re Schulman
by (1) providing a copy of the brief to Appellant, (2) notifying him of his right to file a pro se response if he desired to do so, and (3) informing him of his right to file a pro se petition for discretionary review
.
In re Schulman
,
252 S.W.3d at
408.
(footnote: 2) By letter, this Court granted Appellant thirty days in which to exercise his right to file a response to counsel’s
brief, should he be so inclined.
Id.
at 409 n.23. Appellant
did not file a
response. Neither did the State favor us with a brief.
Counsel does, however, present five arguable issues, to-wit: (1) the trial court erred in overruling Appellant’s motion for instructed verdict, (2) and (3) whether the evidence is legally and factually sufficient to support Appellant’s conviction, (4) the trial court erred in failing to conduct a punishment hearing prior to announcing its decision, and (5) Appellant was denied his right to effective assistance of trial counsel. However, counsel concludes that under the controlling authorities, the arguments are without merit and the trial court’s judgment should be affirmed.
Arguable Issues 1, 2, and 3
Appellant was charged by information of misdemeanor assault. Tex. Penal Code Ann. § 22.01(a)(1) (Vernon Supp. 2008). The State was required to prove that Appellant intentionally, knowingly, or recklessly caused bodily injury to the victim, Tony Waters. A person acts recklessly when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. Tex. Penal Code Ann. § 6.03(c).
Appellant and the victim gave conflicting versions of the events leading to the victim’s injury. However,
reconciliation of conflicts in the evidence is within the exclusive province of the jury.
Margraves v. State
, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). The jury chose to believe the victim’s version and disbelieve that Appellant was defending himself.
We agree with counsel that the evidence is sufficient to support Appellant’s conviction.
Arguable Issue 4
Article 37.07, section 3 of the Texas Code of Criminal Procedure requires a separate hearing on punishment in which the State or the defendant may offer evidence. Tex. Code Crim. Proc. Ann. art. 37.07, § 3 (Vernon Supp. 2008). After the verdict was returned, the trial court announced that the punishment phase would begin the following morning at 9:00 a.m. Defense counsel asked to approach the bench and a brief discussion was had off the record. The court then announced:
[w]e had a little discussion, and the defendant has changed his mind and is allowing me to do the punishment phase, so you won’t have to come back in the morning.
Thereafter, sentence was pronounced in open court. No objections were made. Although the trial court afforded Appellant the opportunity to have a separate punishment hearing, after the bench discussion, no evidence was presented before the trial court pronounced sentence. Error, if any, in the trial court’s failure to conduct a punishment hearing and hear evidence is waived without an objection.
See Hardeman v. State
, 1 S.W.3d 689, 690 (Tex.Crim.App. 1999). We agree with counsel’s analysis of this issue.
Arguable Issue 5
Appellant filed a
pro se
Motion for New Trial raising, among other claims, numerous allegations of ineffective assistance of counsel. A hearing was held on Appellant’s motion. Appellant was the only witness in support of his claims of ineffective assistance of counsel. His complaints require us to speculate on defense counsel’s trial strategy, which we may not do.
Rios v. State
, 990 S.W.2d 382, 386 (Tex.App.–Amarillo 1999, no pet.). Reviewing trial counsel’s performance under both prongs of
Strickland v. Washington
, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
(footnote: 3) we conclude that neither the trial on the merits nor the hearing on Appellant’s motion for new trial demonstrate that counsel was ineffective.
We too have independently examined the entire record to determine whether there are any non-frivolous issues which might support the appeal.
See
Penson v. Ohio
, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988);
In re Schulman
, 252 S.W.3d at 409;
Stafford
v. State
, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such issues.
See Gainous v. State
, 436 S.W.2d 137 (Tex.Crim.App. 1969). After reviewing the record and counsel’s brief, we agree with counsel that there are no plausible grounds for appeal.
See
Bledsoe v. State
, 178 S.W.3d 824 (Tex.Crim.App. 2005).
Conclusion
Counsel’s motion to withdraw is granted. Additionally, we note the judgment incorrectly reflects that section 12.44(b) of the Texas Penal Code was applied, which authorizes the State to prosecute a state jail felony as a Class A misdemeanor. Because the information reflects that Appellant was charged with, and tried for, a Class A misdemeanor, we delete that portion of the judgment reflecting “sec 12.44(b) PC” and as reformed, the trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
FOOTNOTES
1:Anders v. California
, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
2:Notwithstanding that Appellant was informed of his right to file a pro se petition for discretionary review upon execution of the
Trial Court’s Certification of Defendant’s Right of Appeal
, counsel must comply with Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within five days after this opinion is handed down, send Appellant a copy of the opinion and judgment together with notification of his right to file a pro se petition for discretionary review.
In re Schulman
, at 408 n.22 & at 411 n.35.
3:First, counsel’s performance was deficient (i.e
.
, fell below an objective standard of reasonableness), and second, there is a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different. | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4561314/ | NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-AUG-2020
07:55 AM
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
RL, Plaintiff-Appellee, v.
DL, Defendant-Appellant
APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT
(CASE NO. FC-D 11-1-0477)
ORDER
DISMISSING APPEAL FOR LACK OF APPELLATE JURISDICTION
AND
DISMISSING AS MOOT ALL PENDING MOTIONS IN CAAP-XX-XXXXXXX
(By: Leonard, Presiding Judge, Chan and Hiraoka, JJ.)
Upon review of the record of this appeal arising out of
a post-judgment proceeding in a divorce case, it appears that we
lack appellate jurisdiction over this appeal by Defendant-
Appellant D.L. (D.L.) in appellate court case number CAAP-20-
0000462 from the July 17, 2020 amended findings of fact,
conclusions of law and order (July 17, 2020 amended
FOF/COL/Order) and July 24, 2020 order awarding attorneys' fees
and costs to Plaintiff-Appellee R.L., now known as R.V. (R.V.) in
Family Court case number FC-D No. 11-1-0477. These two post-
judgment orders have not finally determined and ended the last
remaining issue in the post-judgment remand proceedings for the
re-adjudication of some (but not all) issues in D.L.'s February
9, 2018 post-judgment motion for post-decree relief and
Plaintiff-Appellee R.V.'s July 6, 2018 post-judgment motion to
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
enforce the July 27, 2012 divorce decree, as Hawaii Revised
Statutes (HRS) § 571-54 (2018) requires for an appealable final
post-judgment order.
In Family Court cases "[a]n interested party, aggrieved
by any order or decree of the court, may appeal to the
intermediate appellate court for review of questions of law and
fact upon the same terms and conditions as in other cases in the
circuit court[.]" HRS § 571-54. On July 27, 2012, the Family
Court entered a divorce decree that satisfied the requirements
for appealability under HRS § 571-54 and the holding in Eaton v.
Eaton, 7 Haw. App. 111, 118-19, 748 P.2d 801, 805 (1987).
Once the Family Court entered the July 27, 2012 divorce
decree, all subsequent orders were post-judgment orders, and a
Family Court "post-judgment order is an appealable final
order . . . if the order finally determines the post-judgment
proceeding." Hall v. Hall, 96 Hawai#i 105, 111 n.4, 26 P.3d 594,
600 n.4 (App. 2001) (citation omitted), affirmed in part, and
vacated in part on other grounds, Hall v. Hall, 95 Hawai#i 318,
22 P.3d 965 (2001), overruled in part on other grounds, Eckard
Brandes, Inc., v. Dept. of Labor and Industrial Relations, 146
Hawai#i 354, 463 P.3d 1011 (2020). Under analogous circumstances
in civil Circuit Court cases, a "post-judgment order is an
appealable final order under HRS § 641-1(a) if the order ends the
proceedings, leaving nothing further to be accomplished." Ditto
v. McCurdy, 103 Hawai#i 153, 157, 80 P.3d 974, 978 (2003)
(citation omitted). "[T]he separate judgment requirement
articulated in Jenkins [v. Cades Schutte Fleming & Wright,
76 Hawai#i 115, 119, 869 P.2d 1334, 1338 (1994)] is inapposite in
the post-judgment context." Ditto, 103 Hawai#i at 158, 80 P.3d
at 979. "Accordingly, the time for appealing the matters
conclusively decided by the . . . [post-judgment] order commenced
upon entry thereof, not upon entry of the superfluous . . .
judgment on the [post-judgment] order." Id. at 159-60, 80 P.3d
at 980-81. However, the Family Court's post-judgment order must
resolve all of the issues in the post-judgment remand proceeding
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
in order to qualify as an appealable final post-judgment order
under HRS § 571-54.
In a prior appeal in CAAP-18-000727 from the same
underlying case in FC-D No. 11-1-0477, this court entered a
January 21, 2020 memorandum opinion affirming in part and
vacating in part the Family Court's prior adjudication of the
D.L.'s February 9, 2018 post-judgment motion for post-decree
relief and R.V.'s July 6, 2018 post-judgment motion to enforce
the July 27, 2012 divorce decree. We remanded this case to the
Family Court with instructions on how to re-adjudicate a subset
of the issues. On remand, the Family Court is apparently
utilizing a series of multiple post-judgment orders to adjudicate
that subset of the issues. Under analogous circumstances in an
appeal from a Circuit Court case in which the separate judgment
document rule under HRCP Rule 58 did not apply, the Supreme Court
of Hawai#i explained that,
where the disposition of the case is embodied in several
orders, no one of which embraces the entire controversy but
collectively does so, it is a necessary inference from 54(b)
that the orders collectively constitute a final judgment and
entry of the last of the series of orders gives finality and
appealability to all.
S. Utsunomiya Enterprises, Inc. v. Moomuku Country Club, 75 Haw.
480, 494-95, 866 P.2d 951, 960 (1994) (citations, internal
quotation marks, and ellipsis points omitted). In the present
case, the Family Court has adjudicated most of the issues by way
of the June 17, 2020 amended FOF/COL/Order and the July 24, 2020
order awarding attorneys' fees and costs. However, the Family
Court expressly reserved its adjudication of the last remaining
issue in this post-judgment proceeding, namely statutory
interest, and, instead, the Family Court expressly scheduled a
future December 17, 2020 hearing for its final adjudication of
statutory interest. Consequently, this post-judgment proceeding
has not yet concluded.
After entry of a post-judgment order that finally
determines this last remaining issue, any aggrieved party will
have an opportunity to timely appeal. Because the Family Court
3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
has not yet concluded this post-judgment proceeding, D.L.'s
appeal is premature, and we lack appellate jurisdiction under HRS
§ 571-54.
Therefore, IT IS HEREBY ORDERED, that this case is
dismissed for lack of appellate jurisdiction.
IT IS FURTHER HEREBY ORDERED that all pending motions
in CAAP-XX-XXXXXXX are dismissed as moot.
DATED: Honolulu, Hawai#i, August 28, 2020.
/s/ Katherine G. Leonard
Presiding Judge
/s/ Derrick H.M. Chan
Associate Judge
/s/ Keith K. Hiraoka
Associate Judge
4 | 01-03-2023 | 08-28-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/808854/ | 11-2453-cv
Antunes v. Putnam N. Westchester Bd. of Coop. Educ. Servs.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 20th day of September, two thousand twelve,
Present: ROSEMARY S. POOLER,
BARRINGTON D. PARKER,
RICHARD C. WESLEY,
Circuit Judges.
_____________________________________________________
ANTHONY ANTUNES,
Plaintiff-Appellant,
-v- 11-2453-cv
PUTNAM NORTHERN WESTCHESTER BOARD OF
COOPERATIVE EDUCATIONAL SERVICES, VINCENT
GARNOT, INDIVIDUALLY,
Defendants-Appellees.
_____________________________________________________
Appearing for Appellant: Annette G. Hasapidis, Law Offices of Annette G. Hasapidis, South
Salem, N.Y.
Appearing for Appellees: Mark C. Rushfield, Shaw, Perelson, May & Lambert, LLP,
Poughkeepsie, N.Y.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Seibel, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
Anthony Antunes appeals from the grant of summary judgment in favor of defendants.
We assume the parties’ familiarity with the underlying facts and specification of issues for
review.
“We review a district court’s grant of summary judgment de novo, construing the
evidence in the light most favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor.” Kuebel v. Black & Decker Inc., 643 F.3d 352, 358 (2d Cir.
2011).
We are unable to conclude that there was sufficient evidence to permit a reasonable jury
to conclude that defendants declined to hire Antunes because of his age. See Gorzynski v.
JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010). Accordingly, the district court did not
err in granting summary judgment in favor of defendants.
We note only that the mere fact that Antunes was not aware of the school district’s hiring
policy at issue in this case—and even that defendants may have intentionally avoided making the
policy public—is not sufficient, even when viewed against other evidence in the case, to permit a
reasonable jury to conclude that such a policy was merely a pretext for unlawful age
discrimination. School district administrators may have simply preferred not to make the policy
public in order to avoid any appearance that the school district favored certain employees over
others in the hiring process.
We find Antunes’s remaining arguments to be without merit. Accordingly, the judgment
of the district court hereby is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
2 | 01-03-2023 | 09-20-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/3106236/ | NO. 07-11-0300-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
AUGUST 5, 2011
______________________________
IN RE: HARVEY BRAMLETT, JR. AND JASON BLAKENEY,
RELATORS
______________________________
ORIGINAL PROCEEDING
ARISING FROM PROCEEDING BEFORE THE 108TH DISTRICT
COURT
OF POTTER COUNTY; NO. 99,017-00-E;
HONORABLE DOUGLAS WOODBURN, JUDGE PRESIDING
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Relators, Harvey Bramlett, Jr. and
Jason Blakeney, proceeding pro se and in forma pauperis,
seek a writ of mandamus to compel the Honorable Douglas Woodburn to make and
file findings of fact and conclusions of law in their case against the Texas
Department of Criminal Justice Institutional Division, et al. Final judgment was entered in the case on
March 14, 2011, and Relators complied with Rules 296 and 297 of the Texas Rules
of Civil Procedure in requesting findings and conclusions. By order issued this same date, Relators'
direct appeal in cause number 07-11-0139-CV was abated
and the cause was remanded to the trial court with instructions to enter
findings of fact and conclusions of law.
Consequently,
Relators' request for mandamus relief is rendered moot.
Per
Curiam | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2466549/ | 973 S.W.2d 950 (1998)
Ex parte Karla Faye TUCKER.
Writ No. 21159-03.
Court of Criminal Appeals of Texas, En Banc.
January 28, 1998.
George McCall Secrest, Jr., Houston, David L. Botsford, Walter C. Long, Austin, for appellant.
Shirley Cornelius, Asst. Dist. Atty., Houston, Matthew Paul, State's Atty., Austin, for State.
Before the court en banc.
ORDER
PER CURIAM.
This is a subsequent application for writ of habeas corpus filed pursuant to the provisions of Art. 11.071, Sec. 5, V.A.C.C.P.
On April 19, 1984, applicant was convicted of the offense of capital murder. After the jury returned affirmative answers to the special issues, punishment was assessed at death. This Court affirmed applicant's conviction on direct appeal. Tucker v. State, 771 S.W.2d 523 (Tex.Cr.App.1988). The trial court has scheduled applicant's execution to take place on February 3, 1998.
In the instant cause, applicant presents nine allegations. We have reviewed the application and find it fails to satisfy the requirements of Art. 11.071, Sec. 5, V.A.C.C.P., and accordingly dismiss the application as an abuse of the writ. We also deny applicant's request for a stay of execution.
MEYERS, J., joins with note. I write to point out that even if applicant met one of the exceptions provided for in Sec. 5 of Article 11.071, her claims are not cognizable. Applicant claims the clemency/commutation procedures provided for in this state are so inadequate as to violate her due process rights. But there are no constitutional rights pertaining to clemency. Clemency proceedings do not create a liberty interest and thus federal due process rights are not implicated. Connecticut Bd. of Pardons and Paroles v. Dumschat, 452 U.S. 458, 101 S. Ct. 2460, 69 L. Ed. 2d 158 (1981).
With these observations, I join the court's dismissal of applicant's petition.
McCORMICK, Presiding Judge, concurring.
I agree that our duty is to dismiss applicant's successive habeas corpus application as mandated by our Legislature in Article 11.071, Section 5, V.A.C.C.P.[1] Assuming Article 11.071 would authorize this Court to address the merits of applicant's successive habeas corpus application, our state law as well as federal constitutional precedents would answer the dissenting opinion's contention that a "death row inmate has a due process right to meaningful consideration of a commutation request in the clemency process."
Our state law is clear and well-settled. "Clemency powers embodied in the parole system are beyond the reach of interference by the judicial branch," and any judicial action that interferes with the exercise of that power by the executive branch "is as much of an unconstitutional interference as is an attempted usurpation of that power." Sanders v. State, 580 S.W.2d 349, 352 (Tex.Cr.App. 1979). Clemency decisions are not the business of the courts; they belong solely to the executive branch.
The dissenting opinion's reliance on Ex parte Patterson about some "entitlement *951 doctrine of an inmate's liberty interest" under Texas' due course of law constitutional provision is misplaced and does not apply to this case. See Ex parte Patterson, 740 S.W.2d 766, 767-75 (Tex.Cr.App.1987) (holding that State's failure to notify defendant of intent to seek deadly weapon finding precluded trial court from authorizing jury to answer special issue regarding defendant's use of deadly weapon). Patterson deals with an inmate's "liberty interest" in such things as good time credits that affect his eligibility for parole. See Patterson, 740 S.W.2d at 769.
This case deals with whether a lawfully convicted and sentenced death row inmate has any kind of a "liberty interest" in executive clemency. Under our state law, this inmate has no such "liberty interest" as the decision whether to grant clemency is and has been solely within the unfettered discretion of the executive branch. There is no tradition or practice in this state's history that recognizes any kind of fundamental right to executive clemency. Cf. Washington v. Glucksberg, 521 U.S. ___, ___-___, 117 S. Ct. 2258, 2267-68, 138 L. Ed. 2d 772, 787-88 (1997) (setting guideposts for "responsible decision-making" in "substantive due process cases"). Since there is no underlying "liberty interest" or fundamental right to executive clemency, there are no minimum due course of law procedures due relating to the executive branch's decision to grant clemency. Cf. Meachum v. Fano, 427 U.S. 215, 225-26, 96 S. Ct. 2532, 2539, 49 L. Ed. 2d 451 (1976); Wolff v. McDonnell, 418 U.S. 539, 556-58, 94 S. Ct. 2963, 2975, 41 L. Ed. 2d 935 (1974).[2] Therefore, applicant and the dissenting opinion must demonstrate that our state law and the manner in which executive clemency decisions are made in Texas violate federal due process principles.
The foregoing discussion as well as the United States Supreme Court's decision in Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 101 S. Ct. 2460, 69 L. Ed. 2d 158 (1981), answer the federal due process arguments adversely to the positions taken by applicant and the dissenting opinion. An inmate has "`no constitutional or inherent'" right to commutation of her sentence. Dumschat, 452 U.S. at 464, 101 S. Ct. at 2464. And, a state law which, like Texas', confers "unfettered discretion" in granting executive clemency does not create such a right. See Dumschat, 452 U.S. at 465-67, 101 S. Ct. at 2465 (the intermediate appellate court correctly recognized that Connecticut has conferred "`unfettered discretion'" on its Board, but paradoxically then proceeded to fetter the Board with a halter of constitutional "entitlement"). Therefore, no minimum federal due process procedures apply to the manner in which executive clemency decisions are made in Texas. See Dumschat, 452 U.S. at 463-65, 101 S. Ct. at 2464.
With these comments, I concur in dismissing this habeas corpus application.
MANSFIELD, KELLER, PRICE and HOLLAND, JJ., join this concurrence.
OVERSTREET, Judge, concurring.
I concur with the Court's order dismissing applicant's application for habeas corpus relief. I write separately to comment further.
Applicant's complaints about the inadequacies of our Texas executive clemency procedures are not unheard of. Not only are they not unheard of, but her complaints are pretty much accurate. I would say that clemency law in Texas is a legal fiction at best. In recent years, we have likewise heard similar complaints, with much clamor, in cases involving Gary Graham and Leonel Torres Herrera. See State ex rel. Holmes v. Third Court of Appeals, 885 S.W.2d 389 (Tex.Cr. App.1994) and Ex parte Herrera, 860 S.W.2d 106 (Tex.Cr.App.1993). However, those clemency procedures remain the same.
It is, and has been, apparent to all that the clemency process has some real problems *952 no standards or definitive factors or criteria to consider, and nothing to ensure uniformity and consistency in consideration. Yet these procedures remain the same.
It is within the Legislature's prerogative to enact laws to correct some of these problems. Yet it has chosen not to do so. Thus the people of Texas, acting through the elected Legislature, must be satisfied with the current clemency process, or lack thereof. It is not the prerogative of this Court to by judicial fiat alter what in Texas is called the clemency process.
The executive clemency process is a vehicle for mercy. Applicant's application presents a great deal of information suggesting and arguing that she is entitled to such mercy. However, applicant does not have a constitutional right to mercy. "[A]n inmate has `no constitutional or inherent right' to commutation of his [or her] sentence." Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 464, 101 S. Ct. 2460, 2464, 69 L. Ed. 2d 158, 166 (1981).
Accordingly, I concur with the Court's order dismissing applicant's current application. If the people of Texas want the clemency process changed, they must let the Legislature know that they demand such change.
BAIRD, Judge, dissenting.
This habeas application presents a question of first impression, namely: whether a death row inmate has a due process right to meaningful consideration of a commutation request in the clemency process. For the following reasons, I believe the question should be answered in the affirmative.
I.
In its finality, death is different from any other punishment.[1] Because of the gravity of capital punishment, Texas has both constitutional and statutory provisions for clemency.[2] Tex. Const., art. IV, § 11; Tex.Code Crim. Proc. Ann. art. 48.01; Tex. Admin. Code, Title 37, Chapter 143 et. seq. (Executive Clemency; Reprieve of Execution). Under the present clemency scheme, the Board of Pardons and Paroles (hereafter, the Board) has the authority to either conduct a hearing or summarily recommend or deny commutation. 37 TAC § 143.43. Upon the Board's recommendation, the Governor may commute a death sentence to life imprisonment. Tex. Const. art. IV, § 11; 37 TAC § 143.41(b).
Even though procedures are in place to request commutation, applicant asserts the clemency process, as applied, does not provide meaningful consideration of such a request. In support of her argument, applicant has supplemented her application with the 1997 records of the Board. Of the 37 inmates executed in 1997, 16 sought commutation and requested a clemency hearing. Yet no hearings were held and no board member voted for commutation in any case.[3] And despite the Constitutional mandate that *953 the Board "keep records of its actions and the reason for its actions," Tex. Const. art. IV, § 11(a), applicant contends the Board keeps no such records.[4] Consequently, applicant fears there will be no meaningful consideration of her commutation request because the "board has no guidelines stipulating the factors that must be used in reviewing clemency requests" and "each member decides individually on what basis to recommend or deny action." (Stephanie Asin and Kathy Walt, Execution of Tucker Scheduled for Feb. 3, Houston Chronicle, December 19, 1997, at A1).
II.
Since our Constitution and statutes provide for clemency, there must be, at the very least, a modicum of due process. The United States Constitution guarantees that no State shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend XIV. This constitutional guarantee applies to the inmate population. Therefore, inmates "may not be deprived of life, liberty, or property without due process of law" subject though they may be "to restrictions imposed by the nature of the regime to which they have been lawfully committed." Wolff v. McDonnell, 418 U.S. 539, 557, 94 S. Ct. 2963, 2974-75, 41 L. Ed. 2d 935 (1974). In Ex parte Patterson, 740 S.W.2d 766 (Tex.Cr.App.1987),[5] this Court adopted the entitlement doctrine of an inmate's liberty interest which Justice Stevens expressed in his dissent in Meachum v. Fano, 427 U.S. 215, 230, 96 S. Ct. 2532, 2541, 49 L. Ed. 2d 451 (1976):
... neither the Bill of Rights nor the laws of sovereign States create the liberty which the Due Process Clause protects. The relevant constitutional provisions are limitations on the power of the sovereign to infringe on the liberty of the citizen. The relevant state laws either create property rights, or they curtail the freedom of the citizen who must live in an ordered society. Of course, law is essential to the exercise and enjoyment of individual liberty in a complex society. But it is not the source of liberty, and surely not the exclusive source.
I had thought it self-evident that all men were endowed by their Creator with liberty as one of the cardinal unalienable rights. It is that basic freedom which the Due Process Clause protects, rather than the particular rights or privileges conferred by specific laws or regulations.
Patterson, 740 S.W.2d at 771. In light of that liberty interest, the role of the State to extend and enforce the guarantees of due process is inherent and "[o]nce the State established the baseline of how it customarily treats the prison population, whether by statute, administrative rule, or simply unwritten policy or practice, any substantial deviation from that line in a particular case will impact a liberty interest." Patterson, 740 S.W.2d at 772 (internal quotations and citations omitted).
*954 In Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 465, 101 S. Ct. 2460, 2465, 69 L. Ed. 2d 158 (1981), the Supreme Court held that the liberty interest in clemency review as a ground for a constitutional claim "must be found in statutes or other rules defining the obligations of the authority charged with exercising clemency." In our clemency scheme:
The Executive Department is constitutionally required to adopt and follow rules that comport with due process and due course of law. Now that the Supreme Court of the United States has spoken in Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993), concerning the role of the executive clemency in providing a forum for testing claims of "actual innocence," this Court has the power, duty and responsibility to assure that due process and due course requirements are met. (Emphasis added.)
Ex parte Graham, 853 S.W.2d 565, 570 (Tex. Cr.App.1993) (Clinton, J. concurring).[6]
Because clemency provides the "fail safe" in our criminal justice system, Herrera v. Collins, 506 U.S. at 414-15, 113 S. Ct. at 867-68, our clemency process must provide meaningful consideration of a commutation request. Therefore, even though the power of commutation is vested in the Executive Branch, this Court has an appropriate and important role to ensure the clemency process comports with due process and due course of law. U.S. Const. amend. XIV; and, Tex. Const. art I, § 19.
III.
Since the reinstatement of capital punishment in 1972, Texas has executed 144 inmates but not a single death sentence has been commuted solely by request of the condemned. Presently 444 inmates await their execution. If those inmates are constitutionally guaranteed the right to seek commutation, due process commands they know what criteria is examined in the clemency process, otherwise there can be no meaningful consideration of their commutation requests.[7]
The instant application raises questions sufficient to warrant further review. Therefore, I would stay applicant's imminent execution and remand this matter to the habeas court to conduct a hearing to determine whether the procedures and policies in the clemency process, if any, comport with the requirements of due process and due course of law. Because the majority does not, I dissent.
NOTES
[1] Assuming applicant's successive habeas corpus application meets one of the exceptions contained in Article 11.071, Section 5, her application nevertheless presents no legal basis upon which to grant habeas corpus relief. Therefore, it would not, as the dissenting opinion claims, be necessary to "remand this matter to the habeas court to conduct a hearing to determine whether the procedures and policies in the clemency process, if any, comport with the requirements of due process and due course of law."
[2] The dissenting opinion suggests that our state law providing for executive clemency somehow creates a protected "liberty interest" or "fundamental right" to executive clemency sufficient to trigger procedures essential to the realization of that right. However, this argument fails to appreciate that our state law provides unfettered discretion in the exercise of executive clemency.
[1] As the Supreme Court held in Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 2991, 49 L. Ed. 2d 944 (1976): "... the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two."
[2] Clemency is the act of considering mercy or leniency; commutation is the reduction of sentence, for example, reducing a death sentence to a life sentence.
[3] According to applicant, since Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), the Board has held only one live clemency hearing. Application/petition for post conviction writ of habeas corpus, pg. 57.
Additionally, applicant has provided an affidavit from Debbie Crosby, sister of David Stoker, who was executed in June 1997 after his commutation request was denied. Crosby called members of the Board and states the following:
... After I learned of the denial of my brother's commutation request, I attempted to call the board members to learn of their reasons for denying commutation. I was only able to reach two of the eighteen board members: Charles Shipman of Abilene and Thomas Moss of Amarillo. As I recall, I had a lengthy conversation with Shipman (about eight minutes), who told me that he did not read my brother's commutation request, and gave me the sense that he generally did not read the commutation requests. He said he did not put a lot of stock into reading about the capital cases. He said he did not see any reason to give these cases further review, because they had gone through the court appellate process.
[4] The Texas Constitution mandates the Board of Pardons and Paroles "keep records of its actions and the reason for its actions." Tex. Const. art. IV, § 11(a).
Regarding the workload of the Board, applicant submits the following:
According to statistics published by the Texas Sunset Commission in its 1996 report, each of the eighteen board members votes in an average of 14,900 non-death penalty cases, as follows: Consideration of parole (8,400), Revocation of parole (4,300), Conditions of mandatory supervision (2,200). Averaging 40 hours a week for 50 weeks, this meant that each board member voted on 7.45 cases per hour, or one every eight minutes. Bill Habern, in his article in the 1997 Advanced Criminal Law Course, estimated an average of one vote every 5.13 minutes. Id. at Chapter Z-5. Of course, the board members have far more duties than just voting.
[5] Overruled on other grounds by Ex parte Beck, 769 S.W.2d 525 (Tex.Cr.App.1989), where the Court held the indictment provided sufficient notice that the use of a deadly weapon would be a fact issue.
[6] The Texas Constitution does not limit the clemency process to claims of actual innocence. Tex. Const. art. IV, § 11.
[7] This does not seem too much to ask for in a process that is constitutionally guaranteed and statutorily mandated. Indeed, it is this guarantee and this mandate that impose upon us the duty to ensure that commutation requests are meaningfully considered. Is it wrong for the judiciary to insist that such a process be more than a pretext or sham?
The concurring judges seem to either readily embrace or bemoan the proposition that the clemency process, as inadequate as it may be, is beyond the reach of the judiciary. Would the concurring judges be so sanguine if the Board implemented policies that denied commutation to all African-Americans, or to all women, or to all Catholics? Would the judges of this Court be willing to turn a blind eye to such invidious discrimination? The people of Texas would expect this Court to do more than sit on its hands. Similarly, the people of Texas deserve a Court willing to ensure that a condemned inmate's Constitutional right to seek commutation is meaningful. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609819/ | 72 Wash. App. 852 (1994)
866 P.2d 667
THE STATE OF WASHINGTON, Respondent,
v.
PASCUAL TZINTZUN-JIMENEZ, Appellant.
No. 15106-5-II.
The Court of Appeals of Washington, Division Two.
February 4, 1994.
John A. Hayes, for appellant (appointed counsel for appeal).
C.C. Bridgewater, Prosecuting Attorney, for respondent.
*853 GREEN, J.[*]
Pascual Tzintzun-Jimenez appeals his conviction for possession of cocaine, contending the evidence was unlawfully seized and should have been suppressed. We agree and reverse.
On March 23, 1991, a caller notified the Kelso Police Department that three men were drinking beer on Pacific Avenue in Kelso, Washington, and that one of the men had thrown a beer at her car. Kelso Police Officer Art Demarest was dispatched to the scene.
When he arrived, Demarest spotted three men, one of whom was carrying the remains of a half case of beer. The man carrying the beer ran when he saw the officer. Demarest caught him, determined he was underage, arrested him and placed him in the back of the patrol car.
Demarest then proceeded to question the defendant and his companion. During questioning, the men kept maneuvering so that the defendant stayed near Demarest's firearm and his companion stayed at Demarest's back.
After several minutes of maneuvering, Demarest became concerned for his safety and attempted to frisk the defendant for weapons. When the defendant pulled away, Demarest tried to gain control by hooking his fingers into the defendant's coin-fob pocket, where he felt a "slippery material". As Demarest pulled the defendant toward him, he removed his fingers from the defendant's coin-fob pocket along with a plastic baggie containing white powder. The powder was later found to be cocaine.
Based on this evidence, the State charged the defendant with possession of a controlled substance. The defendant moved to suppress, arguing that the investigatory stop and patdown were unlawful. The trial court denied his motion, based in part on its conclusion that "Officer Demarest was *854 not required to ignore his experience when he felt the slippery material in the [defendant's] pocket" and that "Demarest's retrieval of the plastic baggie was reasonable, based on the officer's experience." The court convicted the defendant as charged. Tzintzun-Jimenez appeals.
On appeal the defendant contends the seizure violated the fourth amendment to the United States Constitution. We agree.[1]
The Fourth Amendment protects against unreasonable searches and seizures. Warrantless searches or seizures are per se unreasonable unless supported by a recognized exception to the warrant requirement. Thompson v. Louisiana, 469 U.S. 17, 19-20, 83 L. Ed. 2d 246, 105 S. Ct. 409 (1984) (per curiam) (quoting Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967)); Mincey v. Arizona, 437 U.S. 385, 390, 57 L. Ed. 2d 290, 98 S. Ct. 2408 (1978). See also United States v. Place, 462 U.S. 696, 701, 77 L. Ed. 2d 110, 103 S. Ct. 2637 (1983). One recognized exception is the "plain view" doctrine, which allows officers to seize evidence without a warrant when it comes into plain view during the course of a lawful search. Coolidge v. New Hampshire, 403 U.S. 443, 464-73, 29 L. Ed. 2d 564, 91 S. Ct. 2022, 2037-41 (1971). Courts have applied the "plain view" doctrine to admit evidence discovered by sight during the course of a lawful Terry stop and frisk for weapons. Michigan v. Long, 463 U.S. 1032, 1049-50, 77 L. Ed. 2d 1201, 103 S. Ct. 3469, 3481 (1983); see also United States v. Hensley, 469 U.S. 221, 235-36, 83 L. Ed. 2d 604, 105 S. Ct. 675, 683-84 (1985). Recently, the United States Supreme Court extended the "plain view" doctrine to include the admission of evidence discovered by touch during the course of a lawful Terry frisk. See Minnesota v. Dickerson, ___ U.S. ___, 124 L. Ed. 2d 334, 113 S. Ct. 2130 (1993).
In Dickerson, the arresting officer was conducting a weapons frisk during the course of a valid Terry stop when he *855 felt a lump in Dickerson's jacket pocket, which he suspected to be cocaine. The officer examined the lump "with [his] fingers and it slid and it felt to be a lump of crack cocaine in cellophane." Dickerson, 113 S.Ct. at 2133. After removing it from Dickerson's pocket, the officer verified it to be cocaine. Dickerson, 113 S.Ct. at 2133-34. The trial court denied Dickerson's motion to suppress, based in part on its conclusion that the seizure was justified under the "plain feel" exception to the warrant requirement. Dickerson, 113 S.Ct. at 2134. Dickerson was later convicted and appealed. On appeal, the Minnesota Court of Appeals declined to adopt the "plain feel" exception and reversed. After the Minnesota Supreme Court affirmed, the State sought review by the United States Supreme Court. Dickerson, 113 S.Ct. at 2134.
The United States Supreme Court accepted review "to resolve a conflict among the state and federal courts over whether contraband detected through the sense of touch during a patdown search may be admitted into evidence." (Footnote omitted.) Dickerson, 113 S.Ct. at 2134. Most courts admit such evidence so long as the seizure meets the requirement of the 3-prong test for admissibility under the "plain view" doctrine. See Dickerson, 113 S.Ct. at 2134 n. 1.
Some states, such as Minnesota, refuse to recognize a "plain feel" corollary to the "plain view" doctrine. These states appear to bar the seizure of any article other than a weapon found by touch during the course of a weapons frisk. Dickerson, 113 S.Ct. at 2134 n. 1. These courts share two concerns: (1) the sense of touch is more intrusive of a suspect's privacy rights than is the sense of sight; and (2) the sense of touch is too rudimentary, within the confines of a weapons frisk, to allow an officer to discern the nature of any item other than a weapon. The Supreme Court addressed these two concerns when it adopted the majority view and reversed the Minnesota courts.
[1, 2] In addressing the intrusiveness concern, the Court opined that a "plain feel" exception would not erode privacy rights because it required the prosecution to meet the 3-prong test for admissibility under the "plain view" doctrine. *856 For evidence to be admissible under the "plain view" doctrine, the prosecution must prove that (1) the officer lawfully occupied the vantage point from which the evidence was discovered, (2) the officer immediately recognized the incriminating character of the object seized, and (3) the officer had a lawful right of access to the object itself. Dickerson, 113 S.Ct. at 2137 (citing Horton v. California, 496 U.S. 128, 136-37, 110 L. Ed. 2d 112, 110 S. Ct. 2301, 2307-08 (1990); Texas v. Brown, 460 U.S. 730, 739, 75 L. Ed. 2d 502, 103 S. Ct. 1535, 1541-42 (1983)). Because the first prong of the test requires the prosecution to prove that the officer viewed the evidence from a lawful vantage point, the prosecution would not be able to introduce evidence found by touch without a preliminary showing that the Terry frisk was justified and the officer's touching was limited to a patdown of the suspect's outer clothing which ceased upon determining that the article was not a weapon. See Dickerson, 113 S.Ct. at 2139; Terry v. Ohio, 392 U.S. 1, 29, 20 L. Ed. 2d 889, 88 S. Ct. 1868, 1884 (1968). A "plain feel" exception would authorize no touching other than that already authorized under Terry. Dickerson, 113 S.Ct. at 2138; see also Horton, at 141.
The Court also dispensed with the minority's concern that the sense of touch is too rudimentary to enable an officer to satisfy the immediate recognition prong of the "plain view" test, noting that Terry recognized that the sense of touch could reveal "the nature of an object with sufficient reliability to support a seizure". Dickerson, 113 S.Ct. at 2137. According to the Court, "The very premise of Terry, after all, is that officers will be able to detect the presence of weapons through the sense of touch...." Dickerson, 113 S.Ct. at 2137.
[3] The Court did not explain how, or under what circumstances, an officer would be able to recognize an item as contraband by a patdown of the outer clothing. Rather, based on Terry, it declined to foreclose the possibility. It noted, however, the requirement that prosecutors satisfy the immediate recognition prong of the test which suggests they will *857 infrequently "be able to justify seizures of unseen contraband." Dickerson, 113 S.Ct. at 2137.
To satisfy the immediate recognition prong of the "plain view" test, prosecutors must prove the officer had probable cause to believe the item was contraband. Arizona v. Hicks, 480 U.S. 321, 326, 94 L. Ed. 2d 347, 107 S. Ct. 1149, 1153 (1987). Moreover, probable cause must have been developed within the scope of the search authorized by the underlying exception to the warrant requirement. When Terry is the underlying exception, the officer must have developed probable cause to believe the item was contraband while simultaneously determining that the item was not a weapon. See Dickerson, 113 S.Ct. at 2138-39.
The practical difficulty of recognizing the nature of an item by a patdown of a suspect's outer clothing became apparent when the Court applied the test to the facts of the case. The Dickerson Court affirmed the suppression based on the trial court's finding that the officer developed probable cause to believe the item was contraband only after "squeezing, sliding and otherwise manipulating the contents of the defendant's pocket". Dickerson, 113 S.Ct. at 2138.
Turning to the record before us, we are convinced the trial court erred in failing to suppress the evidence. Assuming a valid frisk, and even assuming Demarest lawfully placed his fingers inside the defendant's pocket to facilitate the frisk, the baggie of cocaine must be suppressed because the facts are insufficient to satisfy the immediate recognition prong of the test.
To satisfy the immediate recognition prong, the State must show that, when Demarest felt the slippery substance inside the defendant's pocket, Demarest had probable cause to believe he was touching a baggie of cocaine. Probable cause requires that the facts available to the officer "`warrant a man of reasonable caution in the belief,' ... that certain items may be contraband...." Brown, at 742 (quoting Carroll v. United States, 267 U.S. 132, 162, 69 L. Ed. 543, 45 S. Ct. 280, 288, 39 A.L.R. 790 (1925)). Here, the only finding on this *858 issue is the finding that "Demarest could feel a slippery material in the pocket." There is no finding that Demarest knew by training or experience that a slippery material was likely to be cocaine. The absence of such a finding is fatal.
During oral argument, the State contended Demarest inadvertently pulled the baggie out of the defendant's pocket. The findings do not support this contention nor does the written conclusion that "Officer Demarest was not required to ignore his experience when he felt the slippery material in the pocket."
We reverse.
ALEXANDER and MORGAN, JJ., concur.
NOTES
[*] Judge Dale M. Green is serving as a judge pro tempore of the Court of Appeals pursuant to CAR 21(c).
[1] In light of our conclusion, we need not discuss the defendant's contention that the seizure also violated article 1, section 7 of our state constitution. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3100729/ | In
The
Court
of Appeals
Sixth
Appellate District of Texas at Texarkana
______________________________
No. 06-09-00009-CR
______________________________
DARNELL HARTSFIELD,
Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Fourth
Judicial District Court
Rusk County, Texas
Trial Court
No. CR05-336
Before Morriss, C.J.,
Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
A jury convicted Darnell Hartsfield of five counts of capital
murder; he was sentenced to punishment at life imprisonment. Hartsfield appeals from his conviction and
has filed a single brief, in which he raises issues common to all of his
appeals.[1] He argues that the trial court committed
reversible error in that 1) the evidence supporting his conviction was legally
and factually insufficient and 2) admitting evidence of an extraneous offense.
We addressed these issues in detail in
our opinion of this date in Hartsfield’s appeal in cause number
06-09-00006-CR. For the reasons stated
therein, we likewise conclude that error has not been shown in this case.
We affirm the trial court’s judgment.
Jack
Carter
Justice
Date Submitted: October
21, 2009
Date Decided: February
4, 2010
Do Not Publish
[1]Defendant
appeals from five convictions, for capital murder, cause numbers 06-09-00006-CR
through 06-09-00010-CR. | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2984031/ | May 15, 2014
JUDGMENT
The Fourteenth Court of Appeals
MICHAEL JOSEPH SNOWDEN, Appellant
NO. 14-12-00586-CR V.
THE STATE OF TEXAS, Appellee
________________________________
This cause was heard ON REMAND from the Court of Criminal Appeals
on the transcript of the record of the court below. The record reveals no error in the
judgment. The Court orders the judgment be AFFIRMED.
We further order appellant pay all costs expended in the appeal.
We further order this decision certified below for observance. | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1875973/ | 260 S.W.3d 431 (2008)
Mark JACKSON, Movant/Appellant,
v.
STATE of Missouri, Respondent.
No. ED 90000.
Missouri Court of Appeals, Eastern District, Division One.
August 19, 2008.
Gwenda R. Robinson, St. Louis, MO, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Roger W. Johnson, Assistant Attorney General, Jefferson City, MO, for Respondent.
Before Judge KURT S. ODENWALD, P.J., GLENN A. NORTON, J., and PATRICIA L. COHEN, J.
ORDER
PER CURIAM.
Movant, Mark Jackson, appeals from the judgment denying his Rule 29.15 motion after an evidentiary hearing. On appeal, movant argues that his trial counsel rendered ineffective assistance by failing to inform him of the state's plea offer.
The motion court's findings and conclusions are not clearly erroneous. Rule 29.15(k). An opinion would have no precedential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for *432 this decision. The judgment is affirmed. Rule 84.16(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4471731/ | DISMISS and Opinion Filed January 10, 2020
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01047-CV
KEITH HERVEY, Appellant
V.
RENT-A-CENTER AND RAC CORPORATION, Appellees
On Appeal from the 296th Judicial District Court
Collin County, Texas
Trial Court Cause No. 296-00467-2019
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Whitehill, and Justice Molberg
Opinion by Chief Justice Burns
By order dated October 24, 2019, we extended the deadline for filing the appellant’s brief
to December 12, 2019. Although we cautioned appellant that failure to comply could result in
dismissal of the appeal without further notice, the brief has not been filed and appellant has not
otherwise communicated with the Court. See TEX. R. APP. P. 38.8(a)(1). Accordingly, we dismiss
the appeal. See id. 38.8(a)(1), 42.3(b),(c).
/Robert D. Burns, III/
ROBERT D. BURNS, III
191047F.P05 CHIEF JUSTICE
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
KEITH HERVEY, Appellant On Appeal from the 296th Judicial District
Court, Collin County, Texas
No. 05-19-01047-CV V. Trial Court Cause No. 296-00467-2019.
Opinion delivered by Chief Justice Burns,
RENT-A-CENTER AND RAC Justices Whitehill and Molberg
CORPORATION, Appellees participating.
In accordance with this Court’s opinion of this date, the appeal is DISMISSED.
Judgment entered January 10, 2020.
–2– | 01-03-2023 | 01-13-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2609835/ | 19 Kan. App. 2d 229 (1994)
866 P.2d 1093
UTILITY MAINTENANCE CONTRACTORS, INC., Appellee/Cross-appellant,
v.
WEST AMERICAN INSURANCE COMPANY, Appellant, and THE OHIO CASUALTY INSURANCE COMPANY, Defendant, and INSURANCE PROFESSIONALS OF KANSAS, INC., and DON LUALLEN INSURANCE, INC., Cross-appellees.
No. 68,844
Court of Appeals of Kansas.
Opinion filed January 14, 1994.
Hal Pierce and Katherine C. Opie, of Couch, Strausbaugh, Pierce & King, Chartered, of Overland Park, for appellant.
Gerald D. Lasswell, of Stinson, Lasswell & Wilson, of Wichita, for appellee/cross-appellant.
William A. Larson, of Gehrt & Roberts, Chartered, of Topeka, for cross-appellees.
Before BRISCOE, C.J., LARSON and GERNON, JJ.
GERNON, J.:
West American Insurance Company (West American) appeals a ruling that two exclusionary clauses in a general liability insurance policy it issued did not apply to the facts the parties stipulated to for the purpose of motions before the trial court. The prevailing party in the ruling appealed from, Utility Maintenance Contractors, Inc., (Utility) cross-appeals from summary judgment rulings in favor of Insurance Professionals of Kansas, *230 Inc., (Professionals) and Don Luallen Insurance, Inc. (Luallen).
FACTS
All parties have agreed to the relevant facts:
"1. On or about August 21, 1991, an official from the City of Offerle contacted Don Coleman of Utility Maintenance about locating and removing a possible sewage clog in the city sewer line.
"2. On or about August 22, 1991, a foreman for Utility Maintenance went to Offerle and checked the sewer line between manhole 17 and manhole 18.
"3. The distance between manhole 17 and manhole 18 is approximately three hundred (300) feet. The sewer line between manhole 17 and manhole 18 is an eight inch clay tile line that is buried from depths of eight to eleven feet.
"4. The Utility Maintenance foreman placed a video camera in the sewer line at manhole 17. The video camera went approximately 115 feet through the sewer line when it located a blockage through the sewer line by tree roots at a `Y' or `tap' in the sewer line. This blockage was the only blockage the video camera found in the sewer line in question. The video camera showed that the 115 feet of sewer pipe between manhole 17 and the `Y' or `tap' was in good condition and without any blockages.
"5. The foreman for Utility Maintenance then placed a high pressure water jet cleaner in the pipe to blast out the debris and stoppage located approximately 115 feet down the sewer line from manhole 17. The use of the high pressure water jet cleaner removed enough debris to allow water to flow through the sewer pipe.
"6. The high pressure water jet cleaner was then removed from the sewer line and the camera was once again inserted into the sewer line. At the `Y' or `tap' located approximately 115 feet from manhole 17, the camera showed that approximately three to four inches of the eight inch diameter sewer pipe was still clogged with roots. The camera showed again that the `Y' or `tap' was the only location of a blockage in the sewer line and that the 115 feet of sewer line between the manhole and the `Y' or `tap' was in good condition.
"7. The Utility Maintenance foreman reported this root blockage to Mr. Kenny Regnier who was in charge of the sewer system for the City of Offerle. Mr. Regnier then authorized Utility Maintenance to use the water jet root cutter to clear out the roots that were located approximately 115 feet from manhole 17.
"8. Utility Maintenance used an O'Brien water jet root cutter to cut out the roots located approximately 115 feet from manhole 17.
"9. After it was believed that the roots were cleared, the O'Brien water jet root cutter was removed and the camera was placed in the pipe once again to see if the roots had in fact been cleared.
*231 "10. The camera showed that the clay tile line of the pipe had been damaged for approximately 160 feet. A bolt had fallen out of or broken off of the root cutter, while the root cutter was in the sewer line, causing damage to the sewer line.
"11. Demand was made upon Utility Maintenance by the City of Offerle, Kansas, to immediately repair and replace the damaged sewer line.
"12. Utility Maintenance was insured by a West American Insurance Company Commercial General Liability policy, Policy No. 50465600 from March 20, 1991 through March 20, 1992.
"13. The West American Insurance Company policy provides the following exclusions:
`2. Exclusions.
This insurance does not apply to:
...
J. "Property damage" to:
...
(5) That particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the "property damage" arises out of those operations; or
(6) That particular part of any property that must be restored, repaired or replaced because "your work" was incorrectly performed on it.'
"14. Utility Maintenance made a demand for coverage under the West American Insurance Company policy. West American Insurance Company denied coverage on the basis of the aforementioned policy exclusions at J.(5) and (6)"
Utility sued West American, as well as Professionals and Luallen, the agents through whom Utility acquired the West American policy. Utility alleged that there was coverage under the policy or, if there was no coverage, that Professionals and Luallen were liable for failure to provide the proper requested coverage.
West American, Professionals, and Luallen filed motions for summary judgment. The issue before the trial court, and now this court, is whether the policy exclusions denied coverage for Utility under the facts here.
The trial court held the exclusions did not apply and, therefore, the policy provided coverage. This ruling made Utility's claims against Professionals and Luallen moot.
West American moved to dismiss Utility's suit as premature after the trial court denied its motion for summary judgment, contending that the City of Offerle had not filed suit against *232 Utility. Utility was allowed to amend its petition to one for declaratory judgment rather than for damages. What is being appealed is the grant of declaratory relief to Utility, not a ruling on any summary judgment motion.
SCOPE OF POLICY EXCLUSIONS 2.J.(5) and (6)
Kansas appellate courts have not considered the specific language at issue here.
Our task here is to interpret a written instrument. Therefore, this court's standard of review is de novo. See Penalosa Co-op Exchange v. Farmland Mut. Ins. Co., 14 Kan. App. 2d 321, 323, 789 P.2d 1196, rev. denied 246 Kan. 768 (1990).
In Owings v. Gifford, 237 Kan. 89, 697 P.2d 865 (1985), the Kansas Supreme Court considered a work product exclusion similar to one of the clauses here. The Owings court distinguished two types of risk involved when a contractor builds a home. The first risk is in the warranties that arise under the contract, and the second risk is tort liability for "injury to people and damage to property other than the work performed." 237 Kan. at 93. The court further stated that exclusions should be read in conjunction with other exclusions and that
"[w]here a general liability insurance policy contains a clause excluding property damage `to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith,' the insurance policy is not a performance bond or a guarantee of contract performance." 237 Kan. at 94.
Utility, Professionals, and Luallen argue that the facts in this case involve damage to property other than upon which the work was to be performed. They contend that Utility was hired to remove a clog in the sewer line and that the damage did not arise out of its work at the clog site, but was on real property other than "[t]hat particular part of real property on which [Utility]... [was] performing operations." They ask us to consider only where Utility was to perform its hired job, not how it got there or whether it was possible to get to the clog any way other than going through the entire length of sewer.
Although Utility, Professionals, and Luallen cite several work product cases to support their argument that 2.J.(5) ought to be strictly construed against West American, our reading of their *233 cited cases leads us to conclude that the facts involved in those cases are easily distinguishable and the clauses very different from those involved here.
Goldsberry Operating Co., Inc. v. Cassity, 367 So. 2d 133 (La. App. 1979), is a case with many similarities to the present case.
Cassity was hired by Goldsberry to perforate 10 feet of a well with an explosive gun. The explosion was planned for 8,000 feet but occurred at 6,900 feet, thus doing damage.
The policy exclusion in Goldsberry was very similar to the exclusion here. The policy excluded coverage for property damage done to "`that particular part of any property ... upon which operations are being performed by ... the insured at the time of the property damage.'" 367 So. 2d at 134.
The insurer refused coverage, relying on the exclusion clause. The insured argued that the particular part of the well on which it was performing operations included only the 10-foot section it was hired to perforate, not the entire well. The insured argued that all of the well above 8,000 feet served only as a "vertical highway" used to gain access to the 10-foot section. 367 So. 2d at 134.
The court held that "the particular part of the property upon which [the insured] was performing its operations was the entire part of the well where the gun and line traversed and through which the electricity would have passed to detonate the gun." 367 So. 2d at 135. The court held the exclusion applied.
Other cases with different facts which are in accord with the Goldsberry rationale include Continental Graphic Serv. v. Continental Cas. Co., 681 F.2d 743 (11th Cir.1982); Jet Line Services, Inc. v. American Employers Insurance Co., 404 Mass. 706, 537 N.E.2d 107 (1989); and Vinsant Elec. Contr. v. Aetna Cas. & Sur., 530 S.W.2d 76 (Tenn. 1975).
Here, the trial court found that the policy exclusions "do not apply to exclude coverage." There was no finding of ambiguity. We disagree with the trial judge's conclusion and agree with the statement in Goldsberry that "[t]he facts of each case will determine upon what particular part of someone's property the insured is performing its operations." 367 So. 2d at 134.
*234 Here, the water jet root cutter had to be maneuvered from a manhole to and through the sewer line to reach the clog site. There is simply no other way to find and clear a clog. We are persuaded that the sewer pipe and the clog point should be viewed as a whole.
The general rule that exclusionary provisions should be strictly construed in favor of the insured is not applicable in this case. "When an insurance contract is not ambiguous, the court may not make another contract for the parties. Its function is to enforce the contract as made." Catholic Diocese of Dodge City v. Raymer, 251 Kan. 689, 693, 840 P.2d 456 (1992). Ambiguous contracts contain language or provisions of doubtful or conflicting meaning "as gleaned from a natural and reasonable interpretation of its language." 251 Kan. at 693. A natural and reasonable interpretation of section 2.J.(5) reveals no ambiguity.
We are aware of a recent case, also from Louisiana, in which a policy with identical exclusion clauses, and other clauses, was held to be ambiguous and, therefore, coverage was extended. Serigne v. Wildey, 612 So. 2d 155 (La. App. 1992). We distinguish Serigne from the case here on the basis that in Serigne other clauses in the insurance contract were at issue which the court found to be in conflict. The question of whether clauses within the policy conflict with each other is not presented here.
We conclude that section 2.J.(5) excludes coverage for the 115 feet of sewer between manhole 17 and the clog site. Any damage that occurred beyond the clog site, approximately 45 feet by our calculations, may be excluded by section 2.J.(5), depending upon a factual showing on remand that it was the usual and necessary practice under similar circumstances to use the cutter beyond the initial point in the line where the clog is first noted.
The language of section 2.J.(6) applies only to that particular part of property upon which Utility performed work. There has been no stipulation or determination, however, that Utility performed its work incorrectly. That is a factual determination this court cannot make.
The cases cited by West American to support its contention that section 2.J.(6) applies to exclude coverage in this case are factually distinguishable from this case. In Lusalon, Inc. v. Hartford Accident & Indemnity Co., 400 Mass. 767, 511 N.E.2d 595 *235 (1987), there was no dispute between the parties that the insured's unworkmanlike actions caused the damage complained of. In Bond Bros., Inc. v. Robinson; American Ins. Co., 393 Mass 546, 471 N.E.2d 1332 (1984), a trier of fact determined that the insured performed its work negligently. Finally, in Harrison Plumbing v. New Hampshire Ins., 37 Wash. App. 621, 681 P.2d 875 (1984), the insured never completed the work which it was hired to perform, thus resulting in repair and replacement costs.
In these three cases, the insured clearly performed their work incorrectly, and we conclude these cases have no application given the facts before us.
The declaratory judgment in favor of Utility is reversed. This ruling requires us to reverse the summary judgment ruling in favor of Professionals and Luallen because if the exclusion clauses limit coverage, material issues of fact exist as to whether Professionals and Luallen provided the proper and requested insurance.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609837/ | 866 P.2d 247 (1993)
Ramon FRANCO, and Valentino Rodriguez Franco, Appellants,
v.
The STATE of Nevada, Respondent.
No. 22932.
Supreme Court of Nevada.
December 30, 1993.
*250 Morgan D. Harris, Public Defender, Robert L. Miller, and Darren Richards, Deputy Public Defenders, Clark County, for appellant Valentino Franco.
David M. Schieck, Las Vegas, for appellant Ramon Franco.
Frankie Sue Del Papa, Atty. Gen., Carson City, Rex Bell, Dist. Atty., James Tufteland, and Robert Langford, Deputy Dist. Attys., Clark County, for respondent.
OPINION
PER CURIAM:
Ramon Franco ("Ramon") and Valentino Rodriguez Franco ("Valentino") (collectively "appellants") were convicted after a jury found them each guilty of the first degree murder of Gilberto Echazabal ("Echazabal"). We conclude that the district court erred in admitting several hearsay statements made by Ramon's wife, Kim. In addition, the prosecutor engaged in misconduct when it used a statement ostensibly admitted only against Valentino against Ramon, and in commenting upon the failure of Ramon's wife to testify. We cannot say that these errors were harmless beyond a reasonable doubt, and we therefore reverse.
At 1:34 p.m. on October 8, 1990 Echazabal was killed when he was shot in the upper right chest and lower left abdomen. Echazabal had been arguing with two Hispanic males in front of the 7-11 store at Fairfield and Boston streets in Las Vegas when one of the two males fired two shots into him. One of the men jumped into a red Ford pickup truck with a rear tailgate missing and backed it up, while the other ran to the passenger side. The two then fled in the truck. Police recovered two shell casings stamped ".32 *251 Auto," indicating that the gun used to kill Echazabal was an automatic.
Between 1:30 and 1:40 that same afternoon Oscar Tovar ("Tovar") heard a car pull up in front of his house at 4018 Edgewood Street, located within a mile of the 7-11. Through his open bathroom window, Tovar heard two doors slam and heard two excited male voices talking in Spanish. The men left the area and Tovar went outside, where he noticed a red pickup truck parked in front of his house. Investigators located the truck at Tovar's house, sealed it and towed it to the crime lab. Testimony showed that it had broken down after the battery had shifted and cut a hose, damage that was consistent with taking a turn onto the street at a high speed. The truck belonged to Valentino.
At 1:55 p.m. Valentino reported the theft of his red Ford pickup. Officer Jeff Warner drove to Valentino's apartment, where he saw Valentino, in a bathrobe, frantically waving him down. Valentino told Warner he had arrived home the previous evening after midnight, had stayed up with his wife until three in the morning, and had awakened the afternoon of the shooting at 1:00 p.m. Valentino said that he woke up and took a shower, and then noticed his car was missing, whereupon he reported the theft.
Warner began a routine check of the car's registration, at which time Valentino became nervous, started pacing back and forth and asked what was taking so long. Warner learned through the police computer that the vehicle might have been used in the shooting at the 7-11. Warner did not relay this to Valentino, but informed Valentino instead that a motor vehicle theft investigator was on the way. To this Valentino responded, "What did you say? Did you say my vehicle was involved in a murder or stuff?" When informed that Warner did not say that, Valentino responded, "Oh, I thought you said it was involved in some kind of stuff or something."
When homicide officers arrived, Valentino gave them permission to search the house. The officers noticed that the shower was "bone dry" and that there were no wet towels in the bathrooms. Lance Tharp, Ramon's employer at Charlie's Saloon, testified that he had seen Valentino with Ramon at 1:00 p.m. that day, and a neighbor of Ramon and Kim Franco's testified that Kim told her that Valentino had been at Ramon's house that morning.
In addition to the above circumstantial evidence, the state produced five eyewitnesses who recounted substantially the same sequence of events as one another, but whose identifications of the two men they saw at the 7-11 were inconsistent and even contradictory. On appeal the state conceded that the eyewitness testimony at trial was "a wash." Therefore, we do not review in detail the variations and contradictions of the several witnesses.
The state also called Charles Helsel ("Helsel"), Ramon's father-in-law, and Pauline Pitts ("Pitts"), Ramon's sister-in-law. Helsel was allowed to testify that Kim Franco, Ramon's wife and Helsel's daughter, told her father that she believed Ramon had killed someone and that Valentino had done it with him. Helsel also testified that Ramon answered "si" when Helsel asked him if he wanted a lawyer, and after he asked Ramon, "How guilty are you?" Kim was translating from English to Spanish during this conversation and it is unclear if the "si" was in response to "How guilty are you?" or "Do you want a lawyer?" Pitts was allowed to testify that Kim told her that Kim believed Ramon and Valentino had killed someone.
The state also called Kim's neighbor, Debra Broetz, who testified that Kim told her on the day of the shooting that she was afraid there was going to be trouble because Valentino had been at the house, was pacing back and forth, and Ramon was looking for the "clip" to his gun, and that the two brothers then left together.
As motive the state relied upon the testimony of the victim's wife, Nancy Echazabal, who testified that some ten months earlier, in December of 1989, Gilberto Echazabal had shot the appellants' brother, Daniel Franco, in a dispute at Echazabal's house. Although Daniel never told police who shot him, and neither did Ms. Echazabal, Valentino had allegedly told Ms. Echazabal that her husband, Echazabal, should not come around the *252 hospital where Daniel was recuperating because "... Ramon, he was real mad, he was real upset, he want to kill him."
Finally, the state also relied on a videotaped interview between Kim Franco and a police detective. In that interview Kim speculated that Ramon and Valentino had committed the murder and told the officer that Ramon had said "I was there, I was there." Kim also repeated a statement allegedly made by Valentino, in which he said, "I don't care. He tried to hurt somebody in my family," in response to Kim's question, "How could you?" In addition, Kim confirmed in the video that Ramon and Valentino were together on the morning of the murder and again immediately after the shooting, and that Charlotte Franco, Valentino's wife, called to ask how one reports a car stolen. After deliberating for two days the jury returned verdicts finding each appellant guilty of first degree murder and not guilty of conspiracy to commit murder.
The admission of the videotaped interview and other statements by Kim Franco are the most serious errors that occurred during appellants' trial. We hold that the admission of these statements violated the hearsay rule and deprived appellants of their constitutional right to confront the witnesses against them.
An out-of-court statement offered at trial to prove the truth of the matter asserted in the statement is hearsay, and is inadmissible unless it falls within one of the recognized exceptions to the hearsay exclusionary rule. NRS 51.035, 51.065. In addition, in a criminal trial, the statement of a non-testifying hearsay declarant is only admissible under the Confrontation Clause[1] if it bears adequate "indicia of reliability." Ohio v. Roberts, 448 U.S. 56, 66-67, 100 S. Ct. 2531, 2539-40, 65 L. Ed. 2d 597 (1980). Both hearsay and Confrontation Clause errors are subject to harmless error analysis. See Power v. State, 102 Nev. 381, 382, 724 P.2d 211, 213 (1986) (citing Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)) (Confrontation Clause); Deutscher v. State, 95 Nev. 669, 683, 601 P.2d 407, 418 (1979) (hearsay).
Kim's hearsay statements, revealed through the videotape and through the testimony of Kim's relatives, were not admissible under any traditional exception to the hearsay rule, and the record is devoid of facts that would warrant the admission of the statements under the general hearsay exception. The state argued that Kim's statements were statements-against-interest.[2] This exception allows a hearsay statement to be admitted to prove the truth of the statement when the statement is so contrary to the speaker's own interests that it can be assumed to be true. See 2 McCormick on Evidence § 318 (John W. Strong ed. 1992). In addition, the declarant must have had the opportunity to observe the facts so that she had personal knowledge of the matter. Id.; see also United States v. Lanci, 669 F.2d 391, 394-95 (6th Cir.1982); United States v. Lang, 589 F.2d 92, 97-98 (2d Cir.1978).
The state argued that Kim's admission that her husband was a murderer so tended to make her an object of hatred, ridicule or social disapproval that the statements, although they are only indirectly against her own interest, nevertheless fall within the social interest prong of the against-interest exception. The state is correct that Kim's statements were admissible under this exception, *253 if at all, only if the statements she made were in fact against her "social interest."[3] This is so because Kim did not expose herself to criminal or civil liability or say anything tending to harm her financial interests. We must therefore address the scope of the social interest exception.
Nevada is among the few states that include social interests as a basis for admitting hearsay testimony in their against-interest exceptions. The drafters of the Federal Rules of Evidence removed this basis for admission because of the "possibly unmanageable nature of a `social interest' exception." See United States v. Dovico, 380 F.2d 325, 327 n. 4 (2d Cir.1967) (expressing concerns about identifying the "relevant community" and the motives of the declarant); Heddings v. Steele, 514 Pa. 569, 526 A.2d 349, 353 (1987) (citing House Comm. on Judiciary, Fed.Rules of Evidence, H.R.Rep. No. 650, 93d Cong., 1st Sess. 16 (1973), reprinted in 1974 U.S.C.C.A.N. 7075, 7089, for the proposition that the drafters relied on Dovico in rejecting the rule). We also note that very few states that have enacted the Uniform Rules of Evidence, submitted to the states by the National Conference of Commissioners on Uniform State laws, have adopted the social interest basis proposed by the drafters of that Uniform Code. See Uniform Rules of Evidence, 13A U.L.A. 804(b)(3) (West 1986 & Supp.1993) (only eight out of thirty-seven states adopting the proposed Uniform Rules retained the basis, while twenty-nine omitted it).
The against-social-interest basis for admitting hearsay statements is, however, part of Nevada law. In light of the above authority questioning the workability of applying the basis, we elect to construe the basis narrowly. We hold that when the asserted justification for admission is that the statement is against one's social interest the interest must not be too indirect or remote. The circumstances that would tend to subject one to hatred, ridicule or social disapproval must be such as to directly impugn the character of the declarant, not that of her husband. In the case at bar, it does not appear that Kim's admitting that her husband may have killed someone was so much against her own social interest that we can assume that the statement is accurate. The statement does not appear to be the type of statement that would inspire hatred or ridicule in others. It is arguable that being married to a murderer tends to subject one to social disapproval, but this is not so clear. It may rather inspire pity or sympathy in the community. The statement holds Kim up to social disapproval only through association with her husband; this is too remote of a connection for the admission of this type of statement. We therefore hold that the statements were not admissible under the statement-against-interest exception.
Even if Kim's statements were admissible as against her social interest, their admission in this case violated the rights of appellants to confront the witnesses against them. The Confrontation Clause limits the state's ability to use hearsay as evidence in criminal trials when the hearsay declarant does not testify. The Clause requires that hearsay offered against an accused be sufficiently reliable to substitute for in-court scrutiny through cross-examination.[4] Hearsay statements are sufficiently reliable when they fall within a "firmly rooted" hearsay exception. See Idaho v. Wright, 497 U.S. 805, 815, 110 S. Ct. 3139, 3146, 111 L. Ed. 2d 638 (1989); *254 Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2539, 65 L. Ed. 2d 597 (1980). If they do not fall within such an exception, they must be supported by a showing of "particularized guarantees of trustworthiness." Id.
The social interest basis of the statement-against-interest exception is not firmly rooted. The "firmly rooted" inquiry looks to how long the exception has been followed, and is informed by the number of federal and state courts that have adopted the exception in their rules of evidence. See White v. Illinois, ___ U.S. ___, ___ n. 8, 112 S. Ct. 736, 742 n. 8, 116 L. Ed. 2d 848 (1992). As shown above, not only is the social interest basis for admitting against-interest statements not widely adopted, it has been affirmatively rejected by most of the states that have considered it. In addition, Congress excluded it from the Federal Rules of Evidence. This part of the exception cannot be said to be firmly rooted. Thus, absent particularized guarantees of trustworthiness, admission of the statements was constitutional error. The record before us is devoid of any discussion or context that shows that the statements made by Kim to her family members and the detective bore the required guarantees of trustworthiness. As a result, admission of the statements violated the appellants' rights to confront the witnesses against them.
Neither are Kim's statements admissible under Nevada's general exception.[5] There is nothing in the record to show that the state ever informed the judge of the circumstances surrounding the making of the various statements. The purpose of the general exception is to allow statements that do not fall within any traditional hearsay exception nevertheless to go before the jury when the circumstances are such that there are strong assurances of the accuracy of the statements. In the case at bar, there was absolutely no discussion of the surrounding circumstances, and it was not evident from the context of any testimony already in evidence that there were any special circumstances showing strong assurances of accuracy. We cannot uphold the admission of the testimony without evidence of record supporting a finding of trustworthiness. It was therefore error to admit Kim's statements.
In addition, general hearsay exceptions are not "firmly rooted" for the purposes of Confrontation Clause analysis. Wright, 497 U.S. at 817, 110 S. Ct. at 3147. Therefore, hearsay statements of a non-testifying declarant, even when properly admitted under the general exception, will violate the Confrontation Clause unless they also possess particularized guarantees of trustworthiness such that "adversarial testing would add little to their reliability." Id. at 821, 110 S. Ct. at 3149.
Again, there is no evidence in the record, and it is impossible to discern from the context of the other witnesses' testimony, that guarantees of trustworthiness existed to render Kim's hearsay statements particularly worthy of belief. The state's failure to show affirmative reasons why Kim's statements were particularly trustworthy therefore resulted in a violation of appellants' rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution.
We cannot say that this hearsay and Confrontation Clause error was harmless beyond a reasonable doubt. There was very little physical evidence or eyewitness testimony placing Ramon at the scene, and the eyewitness testimony placing him there was not altogether satisfactory. Kim's repeated speculation to the detective and her family members was clearly damaging to the defense of appellants and we cannot say that the verdict would have been the same in the absence of the repeated references to Kim's statements.[6] Likewise, the fact that Kim's *255 videotaped statement contained a statement directly attributed to Valentino renders his conviction suspect as well.
Valentino also attacks the admission of Kim's statement to her neighbor, Debra Broetz. Broetz testified that on the day of the murder, Kim called Broetz and told her that
Valentino was over at the house and had been outside and was pacing back and forth. He came in, told [Kim] that something was wrong, or said something to Ramon, and then Ramon jumped up and then left. [Kim] said that she went to look for the clip of the gun and it was gone and she was scared there was going to be trouble.
This statement could have been properly admitted under the "excited utterance" exception to the hearsay rule. That exception provides that, "A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition is not inadmissible under the hearsay rule." NRS 51.095. Here, Kim appeared excited by the events and immediately called her neighbor. Kim told her she was scared, and related distressing events she had witnessed just moments before. Although this basis for admitting the statements was not argued to the judge, the statement could have been properly admitted under that exception. We therefore find that it was not error for the judge to have allowed Ms. Broetz to testify as she did. See Rosenstein v. Steele, 103 Nev. 571, 575, 747 P.2d 230, 233 (1987) (Supreme Court will affirm correct result of trial court's ruling even on different grounds).
In addition, the excited utterance exception is firmly rooted. See United States v. Nick, 604 F.2d 1199 (9th Cir.1979). Thus, the introduction did not violate the confrontation rights of appellants. Therefore, we find no constitutional error in the judge's admission of this statement.
Ramon also attacks the admission of a hearsay statement made by Valentino. Valentino allegedly told Echazabal's wife, Nancy, that Echazabal should not go around the hospital where Daniel Franco was recuperating after being shot by Echazabal. Valentino allegedly told her that Ramon Franco "... was real mad, he was real upset, he want to kill him." Statements of a party offered against that party at trial are not hearsay. NRS 51.015. Therefore, this statement made by Valentino to Ms. Echazabal was admissible against him. The state recognized this and argued that it was seeking to admit the statement against Valentino only. Although it was not particularly relevant against Valentino, no objection was interposed and the statement was ostensibly admitted against Valentino only.
In closing, however, the state expressly used the statement against Ramon to show that Ramon had a motive. The state argued that "... Valentino Franco told [Nancy] it's okay with me, but don't have Gilberto `Shorty' come around because it's not okay with Ramon. The words were `Ramon will kill him.' ... There is motive in this case. These two people, as they sit here, had motive to do this murder."
Ramon asserts that the admission of this statement by Valentino violated his constitutional confrontation rights. His claim is based upon Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1967). Under Bruton, a defendant's confrontation rights are violated when the state introduces a nontestifying co-defendant's confession or statement incriminating the defendant. Id. at 137, 88 S. Ct. at 1628. The Bruton rule has not been extended, however, to apply to statements such as the one in this case, where the statement was made months before the crime and there is no danger that one of the defendants is attempting to shift blame to the other through his confession. See Bruton, 391 U.S. at 135-36, 88 S. Ct. at 1627-28 (significant concern was motive to shift blame). Thus, the misuse of the statement by the prosecutor did not violate Ramon's constitutional confrontation rights.
*256 Although we do not find the admission of the statement against Valentino to be prejudicial Bruton error, we do recognize that it was misconduct for the state to affirmatively misuse limited-admissibility testimony. Testimony inadmissible against one party or for one purpose may nonetheless be admissible against another party or for another purpose. See NRS 47.110; 1 McCormick on Evidence § 59 (John W. Strong ed. 1992). The burden of seeking an admonishment or limiting instruction is normally on the party who fears that testimony admitted against another party may be used against him. See NRS 47.110 ("... the judge, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly."); see also McCormick at § 59 ("... the practice is to admit the evidence with an instruction, if requested, that the jury [shall] consider it only as to the party against whom it is admissible."). In this case, Ramon failed to object at closing, and failed to seek an admonishment either when the evidence was offered or when the prosecutor misused it. In the absence of an objection at trial, Ramon is precluded from assigning error on appeal. See, e.g., Riddle v. State, 96 Nev. 589, 591, 613 P.2d 1031, 1033 (1980). In addition, Ramon did not raise prosecutorial misconduct on appeal; we discuss the issue only as it relates to Ramon's asserted assignment of error under Bruton.
We also note, however, another instance of prosecutorial misconduct. The state, when Kim asserted her privilege not to testify against Ramon, marked and introduced a photograph of Kim, who had been present in the courtroom in full view of the jury for several days. The photograph of Kim cannot be said to be relevant to any issue in the case, and appears to have been an indirect comment on the failure of the defendant's wife to take the stand. We have reversed criminal convictions where the prosecutor commented on the defendant's failure to call certain witnesses, and where the state commented upon a wife's failure to take the stand either for or against her husband. See Hylton v. State, 100 Nev. 539, 541, 688 P.2d 304, 305 (1984); George v. State, 98 Nev. 196, 197-98, 644 P.2d 510, 511 (1982) (comment upon a claim of marital privilege is prohibited, and no inference may be drawn from the claim of a privilege); see also State v. Holsinger, 124 Ariz. 18, 24, 601 P.2d 1054, 1060 (1979). Although it was misconduct for the prosecutor to have engaged in this behavior, we need not reverse on this ground, as we have already found reversible error in admitting the hearsay statements made by Kim.
Finally, we discuss the effect of the spousal privilege statutes upon this case, as there was considerable confusion in the record on this point. A spouse has a statutory privilege to refuse to take the stand when called to testify against his or her spouse. NRS 49.295(1)(a).[7] This privilege belongs to the testifying spouse and in this case could only be waived by Kim if and when she took the stand. The district court held that Kim waived her testifying spouse privilege by engaging in the interview with the detective and by making the previously-discussed statements to her father and sister. This was incorrect, as the testifying spouse privilege is only waived by taking the stand at trial and testifying, which Kim refused to do.
Ramon also enjoyed the privilege to prevent Kim from testifying regarding any statements made in reliance on marital confidence. See NRS 49.295(1)(b).[8] The statements in this case do not generally fall within that statutory privilege, however. Kim's statements to her father and sister, and most of the statements Kim made in the interview, regarded her own beliefs. The only statement that Ramon could have prevented Kim from testifying to, if she had actually taken the stand, was Ramon's own statement that "I was there. I was there." Even then, Ramon would have to show that it was a statement made in reliance on marital confidence, and to Kim alone. Except for this one *257 statement Ramon would not have had the privilege of preventing Kim's testimony.
Neither of these privileges, however, works to keep out a spouse's hearsay statements offered at trial, including in this case Kim's statement repeating Ramon's inculpatory admission. The privileges discussed above enable a spouse to refuse to be examined against his or her spouse, and enable one spouse to prevent the other from being examined regarding statements made in reliance on marital confidence. The introduction of a spouse's hearsay statements is not "testimony" or "examination," however, and is not reached by the spousal privilege statutes. See Shults v. State, 96 Nev. 742, 746-47 & n. 2, 616 P.2d 388, 391-92 & n. 2 (1980) (when a spouse has not taken the stand at trial, she has not been "examined" within the meaning of the privilege statutes); United States v. Archer, 733 F.2d 354, 358-59 (1984) (privilege extends only to in court testimony of testifying spouse, not to her out-of-court statements). Thus, the spousal privileges statutes were of no avail to Ramon in preventing the introduction of Kim's hearsay statements.
We have held, however, that Kim's statements were not properly admitted hearsay, and that their introduction violated the appellants' right to confront the witnesses against them. In addition, the admission of these statements cannot be considered harmless error in light of the prejudicial nature of the statements and the conflicting nature of the other evidence.
Given our disposition of the appeal on the above grounds, we do not reach appellants' various other arguments.
The judgments of conviction entered against appellants are reversed and these matters are remanded to the trial court for a new trial unless the State elects not to re-prosecute the charges against appellants.
NOTES
[1] The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." The requirements of the federal clause are made applicable to the states through the Fourteenth Amendment to the United States Constitution. Pointer v. State, 380 U.S. 400, 403-05, 85 S. Ct. 1065, 1067-68, 13 L. Ed. 2d 923 (1965).
[2] The statement against interest exception, NRS 51.345, provides for the admissibility of
[a] statement which at the time of its making: (a) Was so far contrary to the declarant's pecuniary or proprietary interest; (b) So far tended to subject him to civil or criminal liability; (c) So far tended to render invalid a claim by him against another; or (d) So far tended to make him an object of hatred, ridicule or social disapproval, that a reasonable man in his position would not have made the statement unless he believed it to be true....
[3] We use the term "social interest" to refer to the interest one has in avoiding being made "an object of ridicule, hatred or social disapproval," as provided in NRS 51.345.
[4] When the proffered hearsay statement is the declarant's former sworn testimony the Confrontation Clause generally requires unavailability. See United States v. Inadi, 475 U.S. 387, 392-94, 106 S. Ct. 1121, 1124-25, 89 L. Ed. 2d 390 (1986); White v. Illinois, ___ U.S. ___, ___, 112 S. Ct. 736, 741, 116 L. Ed. 2d 848 (1992). Assuming, arguendo, that the statement against interest and general exceptions might require unavailability, the state satisfied any such requirement, as it made "good faith efforts ... prior to trial to locate and present [the] witness." Roberts, 448 U.S. at 74, 100 S. Ct. at 2543. Kim asserted her statutory privilege not to testify against Ramon, and the state could not compel her testimony. Although unavailability within the meaning of the hearsay exception is not necessarily identical to unavailability for purposes of the Confrontation Clause, we hold here that the state made the "good faith" efforts required by the state in seeking to produce the declarant.
[5] The general exception, NRS 51.315, provides that "[a] statement is not excluded by the hearsay rule if ... [i]ts nature and the special circumstances under which it was made offer strong assurances of accuracy ...." (Emphasis added).
[6] The state repeatedly introduced the suspect statements. First, the prosecutor played the videotape and introduced the transcript into evidence. Then, when Kim refused to take the stand, the prosecutor showed a picture to the jury of Kim, who had been present at the trial in full view of the jury for several days. Then the prosecutor elicited statements from Kim's father and sister that Kim had told them that she thought Ramon had killed somebody and that Valentino had done it with him. All of this was incorrect and all these items of evidence were inadmissible.
[7] NRS 49.295(1)(a) provides, "A husband cannot be examined as a witness for or against his wife without his consent, nor a wife for or against her husband without her consent."
[8] NRS 49.295(1)(b) provides that, "Neither a husband nor a wife can be examined, during the marriage or afterwards, without the consent of the other, as to any communication made by one to the other during marriage." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609841/ | 866 P.2d 177 (1993)
124 Idaho 920
Lawrence RINCOVER, Plaintiff-Appellant,
v.
STATE of Idaho, DEPARTMENT OF FINANCE, SECURITIES BUREAU, Defendant-Respondent.
No. 20156.
Supreme Court of Idaho, Boise, September 1993 Term.
November 29, 1993.
Rehearing Denied February 3, 1994.
Bauer and French, Boise, for plaintiff-appellant. Randal J. French, argued.
Larry EchoHawk, Atty. Gen., Marilyn T. Scanlan, Deputy Atty. Gen., Boise, for defendant-respondent. Marilyn T. Scanlan, argued.
JOHNSON, Justice.
This case concerns the denial of an application for registration of a securities salesperson. We conclude that the denial of the application violated the applicant's right to due process of law, because: (1) the notice to the applicant of the reasons for the denial prior to a hearing did not adequately notify the applicant of the reasons upon which the denial was based after a hearing, and (2) the provisions of I.C. § 30-1413(7) referring to *178 "dishonest and unethical practices" are unconstitutionally vague as applied to the applicant's conduct.
I.
THE BACKGROUND AND PRIOR PROCEEDINGS.
Lawrence Rincover was a registered securities salesperson for several years before 1990. In early 1990, the Idaho department of finance (the department) conducted an investigation of various matters concerning Rincover's conduct as a securities salesperson, including loans he obtained from clients named Vincent (the Vincent matter) and investment advice he gave to a client named Totorica (the Totorica matter). In July 1990, Rincover discontinued his employment as a securities salesperson in Idaho. In 1991, Rincover applied to become a registered securities salesperson in Idaho again.
The director of the department (the director) issued an order and notice (the initial order) denying Rincover registration as a securities salesperson. Rincover requested a hearing. Following a hearing before a hearing officer appointed by the director, the hearing officer submitted findings of fact, conclusions of law, a memorandum decision, and a proposed order denying Rincover's application. The director accepted the findings of fact, conclusions of law, and memorandum decision, and entered a final order (the final order) denying Rincover's application.
Rincover filed a petition for judicial review of the final order. The district judge affirmed the final order denying Rincover's application. Rincover appealed to this Court.
On appeal, Rincover raises several issues. We conclude that the resolution of two of these issues is dispositive.
II.
THE INITIAL ORDER DID NOT PROVIDE RINCOVER THE NOTICE REQUIRED BY THE SAFEGUARDS OF DUE PROCESS OF LAW.
Rincover asserts that the denial of his application violated his right to due process of law, because the initial order did not notify him that the director would deny the application in the final order based on a violation of I.C. § 30-1403(2) or § 30-1403(3) in the Totorica matter. We agree.
Rincover was entitled to the safeguards of due process of law before he was deprived of the opportunity to practice his profession. H & V Engineering, Inc. v. Idaho State Bd. of Professional Eng'rs and Land Surveyors, 113 Idaho 646, 649, 747 P.2d 55, 58 (1987). Notice, including the right to be fairly notified of the issues to be considered, is a critical aspect of due process in any administrative process. Grindstone Butte Mut. Canal Co. v. Idaho Power Co., 98 Idaho 860, 865, 574 P.2d 902, 907 (1978). In contested administrative cases, the Idaho Administrative Procedure Act requires that the pre-hearing notice include reference to the particular sections of the statutes and issues involved. I.C. §§ 67-5209(b)(3)-(4).
In this case, the initial order made only one reference to I.C. § 30-1403. This reference did not relate to the Totorica matter. The only reference to the Totorica matter was a conclusion of law that Rincover lacked the necessary fitness to engage in the securities business because of his recommendation to Totorica of a high commission investment which, based on Totorica's stated objectives, age, income, and net worth, was unsuitable. The hearing officer rejected this as a basis for denying Rincover's application.
The hearing officer did conclude, however, that Rincover wilfully violated I.C. §§ 30-1403(2)-(3) by representing to Totorica that an investment was guaranteed and by failing to advise Totorica of the risks associated with the investment. In the final order, the director accepted the hearing officer's conclusions.
The initial order failed to provide Rincover with the notice required by the safeguards of due process of law.
III.
THE STATUTORY REFERENCE TO "DISHONEST OR UNETHICAL PRACTICES" IS UNCONSTITUTIONALLY VAGUE AS APPLIED TO THE VINCENT MATTER.
Rincover asserts that the provisions of I.C. § 30-1413(7) are unconstitutionally *179 vague as applied to his conduct in the Vincent matter. We agree.
We first note that as we construe Rincover's contentions, he does not assert that this statute is facially vague. Therefore, we address only the question whether it is vague as applied to his conduct in the Vincent matter.
I.C. § 30-1413(7) provides that the director may deny registration of a securities salesperson if the director finds that the denial is in the public interest and that the applicant "has engaged in dishonest or unethical practices in the securities business." In the initial order, the director said that Rincover's dishonest and unethical practices in connection with the Vincent matter included:
a) borrowing in excess of $30,000 in the form of two loans from a securities client.
b) failing to repay moneys borrowed from a securities client.
c) violating an agreement with the Department of Finance to repay the money borrowed from the securities client.
d) failing to comply with the Prohibited Practices section of his broker-dealer compliance manual which explicitly states: "Registered representatives are specifically prohibited from ... borrowing money or securities from a customer or loan same to customer."
e) violating Article III, Section 1 of the NASD Rules of Fair Practice by borrowing money from a securities client.
Article III, § 1 of the NASD [National Association of Securities Dealers] Rules of Fair Practice (the NASD rules) states: "A member, in the conduct of [the member's] business, shall observe high standards of commercial honor and just and equitable principles of trade."
The hearing officer rejected all of the director's grounds for denying Rincover's application based on the Vincent matter, except the one concerning unethical practices. As to this ground, the hearing officer concluded:
Rincover engaged in unethical practices in the securities business by obtaining loans from the Vincents during a period of time in which a client-representative relationship existed between the Vincents and Rincover.
The hearing officer also concluded that Rincover's obtaining loans from the Vincents violated the broker-dealer compliance manual and the NASD rules, but stated that these violations did not constitute a basis for the denial of Rincover's application. In his memorandum decision, the hearing officer explained his reasoning concerning the Vincent matter:
As for Rincover's dealings with the Vincents, it appears that Rincover manipulated a friendship to obtain a substantial sum in loans. In borrowing money from securities clients, he created a situation involving very clear conflicts of interest. Moreover, he ignored provisions in [the broker-dealer compliance manual] prohibiting such loans. The hearing officer finds this fact to be of significance inasmuch as the record reflects that with respect to employees supervised by Rincover, ... Rincover preached strict adherence to [the broker-dealer compliance manual]. However, Rincover obviously felt that his actions were governed by different standards.
In the final order, the director denied Rincover's application "based upon [Rincover's] dishonest and unethical conduct which constituted wilful violations of the Idaho Securities Act."
Rincover cites H & V Engineering and Tuma v. Board of Nursing, 100 Idaho 74, 593 P.2d 711 (1979) in support of his vagueness assertion. In each of these cases, the Court ruled that the statutory provisions as applied by the agency involved were unconstitutionally vague. Recently, the Court revisited H & V and Tuma in Krueger v. Board of Professional Discipline of Idaho State Board of Medicine, 122 Idaho 577, 836 P.2d 523 (1992):
In Tuma and H & V, we held that the administrative boards could not rely merely on their own expertise, experience and collective knowledge, but must articulate clear standards which will warn the professional as to which acts are unlawful. We find the facts of this case distinguishable *180 from those in Tuma and H & V. In both of those cases the respective boards did not rely on the testimony of expert witnesses with regard to the professional standards in question, and instead relied solely on the expertise of the members of the board. In this case extensive expert testimony by local physicians was presented from which the Board made its determination that Dr. Krueger's conduct did not meet the local standard of care. It should also be noted that in Tuma we recognized that there had been no allegation that Tuma was unfit to practice nursing.... In the instant case the Board did call into question Dr. Krueger's fitness to practice medicine.
Tuma may be further distinguished in that it was not the Board of Nursing which found Tuma guilty of unprofessional conduct, but a hearing officer who "was not possessed of that expertise born of `personal knowledge and experience' which would have enabled him, albeit after the fact, to determine whether Tuma had indeed acted unprofessionally." .... The Board of Nursing's only function was to approve or disapprove the decision of the hearing officer who had only a legal background. In this case the finding that Dr. Krueger had violated the community standard of care came directly from the Board of Professional Discipline of the Idaho State Board of Medicine, which was comprised of members of the medical community who did possess expertise born of personal knowledge and experience.
Id. at 580-81, 836 P.2d at 526-27.
This case is more like Tuma than Krueger. In issuing the final order the director relied on the findings, conclusions, and decision of a hearing officer. The record does not indicate that the hearing officer possessed expertise born of personal knowledge and experience which would enable the hearing officer to determine whether Rincover acted unethically.
Another way in which this case is more like Tuma than Krueger is that here there was no expert testimony that Rincover's actions in the Vincent matter were unethical. The bureau chief for the securities division of the department testified that he was concerned about the potential abuses that could arise from a broker borrowing from a client. The bureau chief did not state that the practice was unethical, but only that it created concerns.
In both Tuma and H & V the Court acknowledged that the supervising agency could have provided the necessary warning to the professional through exercising its authority to adopt rules and regulations that would have described conduct proscribed by the statute. Tuma, 100 Idaho at 79-80, 593 P.2d at 716-17; H & V, 113 Idaho at 650, 747 P.2d at 59. The bureau chief also testified that there was no rule or regulation of the department stating that securities professionals could not have loans from clients. In effect, the director asks us to allow the broker-dealer compliance manual and the NASD rules to stand in the place of the rules and regulations of the department. We reject this suggestion. Neither the broker-dealer compliance manual nor the NASD rules have the standing of rules and regulations of the department. To allow the department to apply the standards contained in the compliance manual and the NASD rules to Rincover's actions without having previously adopted the standards in its rules and regulations would allow the department, in effect, to delegate its rule-making authority after the fact. This would be contrary to the framework contained in Tuma and H & V for applying statutory standards constitutionally. It would open the door to the application by agencies of standards not contained in the statutes or the rules and regulations of the agency. This would undermine the requirement of definite warnings that is the fundamental premise of the concept of unconstitutional vagueness.
Although in Krueger the Court upheld the application of a statutory standard based on expert testimony of other physicians, this is not the same as the director's attempt to apply the broker-dealer compliance manual and the NASD rules here. In Krueger, the Court said:
We are convinced that Dr. Krueger did have adequate notice of the conduct which could subject him to discipline. The statute *181 in question here is distinguishable from the "unprofessional conduct" statute in Tuma and the "misconduct" statute in H & V, in that it merely codified well-established concepts of medical malpractice. In view of the similarity between the disciplinary statute and the accepted definition of medical malpractice, we believe the language of I.C. § 54-1814(7) was sufficient to notify medical practitioners that they could be disciplined for failure to conform to the community standards.
122 Idaho at 582, 836 P.2d at 528.
The "well-established concepts of medical malpractice" mentioned in Krueger, referred to the local community standard of health care practice contained in I.C. § 6-1012, which the Court said was similar to the standard contained in the disciplinary statute, and which the Court said "is merely a codification of already existing case law." Id. at 580, 836 P.2d at 526. In this case, there is no other Idaho statute concerning securities salespersons with language similar to the provisions of I.C. § 30-1413(7). Also, I.C. § 30-1413(7) is not merely a codification of already existing case law.
Another way in which this case is more like Tuma than Krueger is that although the initial order stated Rincover's activities demonstrated "a general lack of fitness for the securities business," after the hearing neither the hearing officer nor the director relied on this basis for denying Rincover's application.
For all of these reasons, we conclude that Tuma, not Krueger, governs this case.
IV.
CONCLUSION.
We reverse the district judge's order affirming the director's final order denying Rincover's application. We remand the case to the district judge with directions to enter judgment reversing the director's denial of Rincover's application.
We award costs, but not attorney fees, on appeal to Rincover.
McDEVITT, C.J., BISTLINE and TROUT, JJ., and HART, J. Pro Tem., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609842/ | 177 Ariz. 272 (1993)
866 P.2d 1358
STATE of Arizona, Respondent,
v.
Carl WHIPPLE, Petitioner.
No. 1 CA-CR 92-1238-PR.
Court of Appeals of Arizona, Division 1, Department D.
December 23, 1993.
Richard M. Romley, Maricopa County Atty. by Gerald R. Grant, Deputy County Atty., Phoenix, for respondent.
Carl Whipple, in pro. per.
OPINION
FOREMAN, Judge[*].
Carl Whipple has asked this court to review the order of the superior court denying his petition for post-conviction relief. Ariz.R.Crim.P. 32.9. We deny review by summary order. This opinion explains our action in this case.
Publishing an opinion to explain an order is not without precedent. E.g., State v. Wilson, 174 Ariz. 564, 851 P.2d 863 (App. 1993). It is consistent with the policies that govern publishing opinions found in Rule 111(b), Rules of the Arizona Supreme Court.
Denying a petition for review of a petition for post-conviction relief by summary order is consistent with our statutory mandate to write our "opinions" stating the grounds for our decision.[1] "Orders" are not "opinions" but are an authorized method of denying petitions for review. See Ariz.Sup.Ct.R. 111(c); cf. Ariz.R.Civ.App.P. 23(h).
Over the past ten years the caseload of this court has dramatically increased.[2] One *273 of the major contributors to this burgeoning case load has been an increase in criminal appeals and petitions for post-conviction relief. Since 1982 this court has resolved 1076 petitions for review in post-conviction relief cases. Only 21 have been significant enough to merit publication. See Ariz.Sup.Ct.R. 111(c). Four hundred thirty-seven have been resolved by order. However, 618 a 247 percent increase since 1982 have been resolved by written, memorandum decision. The majority of those decisions deny relief for the reasons already articulated by the trial court.
Memorandum decisions have no precedential value. Ariz.Sup.Ct.R. 111(c). When the trial court order properly identifies and rules on each issue, memorandum decisions needlessly duplicate what is already in the record. However, memorandum decisions do require the time and resources of this court. Each decision involves research, writing, and editing. The time and energy spent upon these decisions should be spent dealing with the mass of other appellate cases that crowd this court's docket.
Not all decisions denying relief to petitioners seeking review in post-conviction proceedings should be summary orders.[3] Memorandum decisions denying relief serve a purpose when the trial court's order is modified or a different legal basis for denying relief is used. Sometimes the record from the trial court is unclear and a written decision is necessary to identify and specifically rule upon the issues.
Summary orders denying relief where the trial court clearly and correctly articulates its ruling will not complicate further review in state or federal court. The United States Supreme Court has adopted a "look through" rule that looks to the last explained decision to determine whether a habeas corpus petitioner *274 has litigated his claim on the merits in state court. Ylst v. Nunnemaker, 501 U.S. 797, ___-___, 111 S. Ct. 2590, 2594-95, 115 L. Ed. 2d 706 (1991); Coleman v. Thompson, 501 U.S. 722, ___, 111 S. Ct. 2546, 2559, 115 L. Ed. 2d 640 (1991).
Some concern has been raised over the years that denying relief by summary order might create confusion about whether a procedural default has occurred in the post-conviction relief proceeding, which would preclude federal habeas corpus review, Wainwright v. Sykes, 433 U.S. 72, 80-88, 97 S. Ct. 2497, 2503-07, 53 L. Ed. 2d 594 (1977). Whatever validity there once may have been to this argument is now gone. Under Ylst and Coleman the federal courts will "presume that no procedural default has been invoked" when an unexplained order leaves in place an earlier decision on the merits. Ylst, 501 U.S. at ___, 111 S.Ct. at 2594. We presume that the federal courts will do as the United States Supreme Court directs and "look through" to the superior court ruling to determine whether the issues raised in the federal habeas corpus proceeding were resolved in Arizona courts on the merits or are precluded by procedural default.
Since Rule 32 became effective in 1973, the Arizona Court of Appeals has had the protection of discretionary review against the flood of routine cases which can be effectively resolved without the commitment of resources needed for a written decision.[4] Historically, this court has been reluctant to use its powers of discretionary review the way the United States Supreme Court and Arizona Supreme Court have used their much broader powers of discretionary review.[5] We should take advantage of our discretionary powers and use them as those courts have used theirs.
This case provides an excellent example of a routine case where denying review by order is appropriate. Whipple's convictions and sentences were affirmed in a memorandum decision. State v. Whipple, 1 CA-CR 90-408 (filed April 2, 1992). The trial court's orders denying the petition for post-conviction relief clearly identify the issues raised. Each issue raised is correctly ruled upon in a fashion that will allow any court in the future to understand the resolution. No useful purpose would be served by this court rehashing the trial court's correct ruling in a written decision.
GERBER, P.J., and GRANT, J., concur.
NOTES
[*] The Honorable John Foreman, Maricopa County Superior Court Judge, was authorized to participate in the disposition of this matter by the Chief Justice of the Arizona Supreme Court pursuant to article 6, section 3 of the Arizona Constitution.
[1] Ariz. Rev. Stat. Ann. § 12-120.07. Published opinions and memorandum decisions both satisfy the statute.
[2] Arizona Court of Appeals, Division One, selected cases 1983-92 (on file with the Office of the Clerk of the Arizona Court of Appeals, Division One).
---------------------------------------
1983 1992 Percentage TOTAL
Change 1983 to
1992
-------------------------------------------------------------------------
Criminal Appeals
-------------------------------------------------------------------------
Filed 805 1673 108% 13,123
-------------------------------------------------------------------------
Terminated 793 1803 127% 12,030
-------------------------------------------------------------------------
Written Opinion 56 63 13% 423
-------------------------------------------------------------------------
Memo. Decision 538 1129 110% 7,257
-------------------------------------------------------------------------
Other 199 611 207% 4,390
-------------------------------------------------------------------------
Petitions for Post-conviction Relief
-------------------------------------------------------------------------
Filed 82 203 148% 1,273
--------------------------------------------------------------------------
Terminated 65 192 195% 1,076
--------------------------------------------------------------------------
Written Opinion 1 2 100% 21
--------------------------------------------------------------------------
Memo. Decision 32 111 247% 618
--------------------------------------------------------------------------
Other 32 79 147% 437
---------------------------------------------------------------------------
Total Cases
--------------------------------------------------------------------------
Filed 1784 3276 84% 25,780
--------------------------------------------------------------------------
Terminated 1824 3255 78% 23,207
-------------------------------------------------------------------------
[3] We do not reach the issue of whether a summary order denying review would be appropriate in a case where the court must conduct fundamental error review. The question of whether fundamental error review must be conducted by the court of appeals in those cases where the only appellate review is by petition for post-conviction relief is unresolved. See A.R.S. § 13-4033(B); Rules 17.1, 17.2 and 27.8, Ariz.R.Crim. P.; Wilson v. Ellis, 176 Ariz. 121, 122, 859 P.2d 744, 745 (1993). However, no apparent problem would be caused by a summary order denying a petition for review that includes a statement that a search for fundamental error was made and none was found.
[4] Rule 32.9(f) of the Rules of Criminal Procedural provides that "the [Court of Appeals] may, in its discretion, grant review...." See also State v. Stice, 23 Ariz. App. 97, 98, 530 P.2d 1130, 1131 (1975) ("The granting of a petition for review by this Court [in a rule 32 case] is discretionary.").
[5] For a thorough discussion of the evolution of the discretionary jurisdiction of the United States Supreme Court as a response to its crushing caseload, see Robert L. Stern, et al., Supreme Court Practice, §§ 4.1 and 1.16 (6th ed. 1986). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4516829/ | NUMBER 13-19-00527-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MARIO SIFUENTEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 428th District Court
of Hays County, Texas.
ORDER
Before Chief Justice Contreras and Justices Longoria and Hinojosa
Order Per Curiam
Currently pending before the Court is appellant's pro se motion for access to the
appellate record. Appellant's counsel filed an Anders brief herein and appellant has been
unable to examine the record so that he can file a pro se brief. See Anders v. California,
386 U.S. 738, 744 (1967). Accordingly, we GRANT appellant’s motion and it is hereby
ORDERED that the trial court ensure appellant has the opportunity to fully examine the
appellate record on or before the expiration of thirty days from the date of this order, and
it is FURTHER ORDERED the trial court shall notify this Court as to the date upon which
the appellate record was made available to appellant. See Kelly v. State, 436 S.W.3d 313
(Tex. Crim. App. 2014). Appellant shall have thirty (30) days from the day the appellate
record was first made available to him to file his pro se brief with this Court. The State
shall have twenty days thereafter to file its response, if any.
IT IS SO ORDERED.
PER CURIAM
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
13th day of March, 2020.
2 | 01-03-2023 | 03-17-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1000551/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-2150
ALFRED M. DAVIS,
Plaintiff - Appellant,
versus
ALLIEDSIGNAL, INC., Aerospace Equipment Systems,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern Dis-
trict of North Carolina, at Raleigh. James C. Fox, District Judge.
(CA-98-816-5-F)
Submitted: December 16, 1999 Decided: December 27, 1999
Before MURNAGHAN and MOTZ, Circuit Judges, and BUTZNER, Senior Cir-
cuit Judge.
Affirmed by unpublished per curiam opinion.
Alfred M. Davis, Appellant Pro Se. Charles Matthew Keen, OGLETREE,
DEAKINS, NASH, SMOAK & STEWART, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Alfred Davis appeals from the district court’s order granting
summary judgment to AlliedSignal, Inc. on Davis’ claims alleging
employment discrimination. We have reviewed the record and the dis-
trict court’s opinion and find no reversible error. Accordingly,
we affirm on the reasoning of the district court. See Davis v.
AlliedSignal, Inc., No. CA-98-816-5-F (E.D.N.C. July 27, 1999)).
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609955/ | 467 P.2d 121 (1970)
STATE of Oregon, Respondent,
v.
Kenneth B. MARCUS, Appellant.
Court of Appeals of Oregon, Department 2.
Argued and Submitted January 21, 1970.
Decided March 26, 1970.
Rehearing Denied April 22, 1970.
Review Denied June 23, 1970.
Oscar D. Howlett, Portland, argued the cause for appellant. On the brief were Howard R. Lonergan and James C. Niedermeyer, Portland.
Jacob B. Tanzer, Solicitor Gen., Salem, argued the cause for respondent. With him on the brief was George Van Hoomissen, Dist. Atty., Portland.
Before SCHWAB, C.J., and LANGTRY and FOLEY, JJ.
FOLEY, Judge.
Defendant was convicted by jury of possession of marihuana and sentenced to 18 months' imprisonment. He appeals alleging error in the admission of evidence.
Pursuant to a Portland Municipal Court search warrant directing search of the person of defendant, Kenneth B. Marcus, and the premises described in the warrant for "narcotics and narcotics paraphernalia," the police, on June 20, 1967, proceeded to the described premises, a two-story house with basement and attic. The defendant was not present, but three girls, including Nina Gough, were there and one of them admitted the police. Besides finding substantial quantities of marihuana in the attic and basement, they found marihuana in a bedroom in a box beside the bed. Near the box containing marihuana they found a leather wallet containing cards and identification of defendant. Across the room they found a handwritten note reading "Nina: Don't let anyone upstairs till I return Ken." All of the items mentioned were seized by the police and return made on June 20, 1967, to the court issuing the search warrant. The return contained a long list of narcotics and narcotics paraphernalia including 46 baggies of marihuana. It also included the leather wallet but not the note.
Defendant does not claim he was unaware of the search of June 20, 1967, but instead claims that due to the fact that the search warrant proceedings were not filed *122 in the trial court prior to the trial, he was unaware of what property was seized and thus prevented from making a pretrial motion to suppress. He argues that he should have been allowed to test the seizure of the wallet and the note signed "Ken" for the first time at trial.
The search warrant proceedings were public records from June 20, 1967, on. Defendant could have discovered from which court the warrant originated and learned the contents of the affidavit, warrant and return. In fact, a procedure is provided by statute for contesting the validity of the search and seizure before the magistrate who issued the warrant. ORS 141.150 and ORS 141.160. Any failure of the magistrate to file the proceedings in the trial court would not impair the ability of defendant to prepare for and bring a pretrial motion to suppress the evidence. The wallet was listed in the return, and the return was the same public record which defendant made a part of the record in this appeal. If he had had grounds to do so, he had adequate time and opportunity to attack the search and seizure. For this reason, the fact that the note was not included in the return should not permit defendant to now attack the validity of the search and seizure. That could have been tested in connection with the wallet and other items listed.
No motion to suppress evidence having been made in the trial court prior to trial, the court properly overruled the defendant's objection to the admission of the evidence obtained in the search when it was offered by the state in its case-in-chief. A motion to suppress evidence must be made prior to trial unless defendant was unaware of the seizure or had no opportunity to present his motion before trial. State v. Ramon, 248 Or. 96, 99, 432 P.2d 507 (1967); State v. Sanford, 245 Or. 397, 421 P.2d 988 (1966); State v. Haynes, 233 Or. 292, 294, 377 P.2d 166 (1962); State v. Skrelunas, Or. App., 89 Adv.Sh. 595, 600, 460 P.2d 869 (1969).
The wallet and note signed "Ken" were relevant to the issue of possession and control of the narcotic as alleged in the indictment. Their weight was for the jury.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2124448/ | 52 Ill.2d 239 (1972)
287 N.E.2d 657
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,
v.
EDWARD HINTON, Appellant.
No. 44302.
Supreme Court of Illinois.
Opinion filed September 20, 1972.
GERALD W. GETTY, Public Defender, of Chicago (SUZANNE M. KOHUT and JAMES J. DOHERTY, Assistant Public Defenders, of counsel), for appellant.
WILLIAM J. SCOTT, Attorney General, of Springfield, and EDWARD V. HANRAHAN, State's Attorney, of Chicago (JAMES B. ZAGEL, Assistant Attorney General, and ELMER C. KISSANE and MARK T. ZOBOR, Assistant State's Attorneys, of counsel), for the People.
Judgment affirmed.
*240 MR. CHIEF JUSTICE UNDERWOOD delivered the opinion of the court:
The defendant, Edward Hinton, filed a petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 72) in the circuit court of Cook County to vacate his prior conviction in that court for attempted murder and armed robbery. After a hearing his petition was denied, and on appeal the Appellate Court, First District, affirmed. People v. Hinton (1971), 132 Ill. App. 409, 270 N.E.2d 93. We granted leave to appeal.
The defendant and three others were charged in five separate indictments with the commission of a series of criminal acts at different locations in Chicago between the hours of 1 A.M. and 3 A.M. on May 21, 1967. In point of time the various acts apparently occurred in the same order as the numerical sequence of the indictment numbers. No. 67-1961 charged the murder of Dwight Wynne; No. 67-1967 charged aggravated battery on the person of Cleveland Wells; No. 67-1968 charged attempted murder and robbery of John Hall and Lily Starkey; No. 67-1969 charged attempted murder and armed robbery of Mr. and Mrs. J.C. Your, Lorenzo Loving and Jerome Sauls; and No. 67-1970 charged robbery of Mr. and Mrs. Delton Bailey. For purposes of this opinion these indictments will be referred to as indictments 1 through 5 respectively.
The State chose to proceed first on indictment 4 which charged attempted murder and armed robbery of Mr. and Mrs. Your, Lorenzo Loving and Jerome Sauls. Counsel was appointed to represent the defendant, and he entered a plea of not guilty. On June 15, 1967, the court ordered a Behavior Clinic examination of the defendant for the purpose of ascertaining his competency to stand trial. On June 29, 1967, William H. Haines, M.D. filed his report of psychiatric examination which concluded with the diagnosis: "Sociopathic Personality Disturbance. He knows the nature of the charge and is able to cooperate with his counsel."
*241 During a pretrial appearance in court to seek a continuance, defendant was found guilty of direct contempt of court for what the court found to be unprovoked assault on a deputy sheriff in the courtroom. Thereafter, additional motions for psychiatric examination were made and allowed, and on January 10, 1968, another order was entered by the court directing a further Behavior Clinic examination to determine competency and sanity. Defendant was again examined by Dr. Haines who filed another report of psychiatric examination on January 31, 1968. The report made reference to information obtained from another agency which knew him from 1961 until 1966 to the effect that defendant was "an emotionally immature, inadequate, hostile, narcissistic youth who had a medical background of asthma and headaches." Although he lacked training, supervision and guidance, "his formal mental status disclosed no defects in the sensorium, orientation or memory" and "he was not mentally ill and not in need of mental treatment in a psychiatric facility." As in the case of the previous report, the diagnosis was: "Sociopathic Personality Disturbance. He knows the nature of the charge and is able to cooperate with his counsel."
Prior to commencement of the trial on April 23, 1968, the Behavior Clinic reports were made a part of the record and the following colloquy took place between the trial judge and defense counsel:
"The Court: It is your opinion, based upon your conversations with him, that he knows the nature of the charge pending against him and is able to cooperate with you?
Defense Counsel: Yes, sir, he can cooperate, yes, sir. I have been satisfied right along on that."
The trial then commenced. There was testimony that at about 2:30 A.M. on May 21, 1967, Mr. and Mrs. Your were returning home from a party when they were stopped on the street by the defendant and three other persons with guns drawn. Defendant held his gun to Mr. Your's back and said "hold it, this is a holdup." Mr. Your told his *242 wife to be quiet. At this point two young men, Lorenzo Loving and Jerome Sauls, happened by on the street and were also stopped by defendant and his companions. Mr. and Mrs. Your, Loving and Sauls were searched by the four men. Eighty-five dollars in cash was taken from Mr. Your. Defendant took Mrs. Your's purse and removed a bottle of whiskey from it. He then searched her person, and upon finding no money, he said, "We might as well shoot that bitch because she ain't got no money."
Defendant then shot Mrs. Your first in the face and then in the back. Mr. Your pleaded, "don't hurt my wife, shoot me if you want to hurt anybody," whereupon defendant shot Mr. Your in the back. All four of the assailants then started shooting which resulted in Mr. Your being shot three more times in the neck, head and arm. Loving and Sauls were also shot. Defendant and his compansions the fled with the money and other items they had taken from the victims.
Defendant presented an alibi defense. He testified that on Friday and Saturday, May 19 and 20, he helped some friends named Robinson move furniture to a new house and that he was at their house early the following morning when the incidents in question took place. The three co-defendants, who were friends of his, came to the house in the early morning hours of May 21, 1967, but they left at about 2 A.M. Defendant remained at the Robinson house until about 2:45 A.M. when he left and took the bus to his home to wash up and change clothes. He then returned to the Robinson house at about 5:30 A.M. He denied any involvement in the crimes he was charged with committing.
On April 25, 1968, the jury returned a verdict of guilty as to four counts of attempted murder and four counts of armed robbery, and defendant was sentenced to the penitentiary for concurrent terms of 15 to 20 years and 40 to 60 years respectively. About one year later, in May of 1969, the defendant was tried on indictments 2, 3 *243 and 5. In that trial he interposed an insanity defense, and he was found not guilty as to indictment number 2 and not guilty by reason of insanity as to indictments number 3 and 5. The jury also found that the defendant was still insane at that time, and he was committed to the Department of Mental Health in May, 1969. Defendant's section 72 motion alleges that he was released from the Department of Mental Health on the same date and transferred to the Cook County jail to await transfer to the penitentiary to begin serving the sentence imposed on his prior conviction on indictment number 4.
The purpose of a section 72 petition is to permit the vacation of judgments where facts existed which, had they been known at the time judgment was entered, would have prevented its rendition. The various types of error of fact which the petition may be employed to correct include such matters as death of a party pending suit and before judgment, infancy where the party is not properly represented, incompetency at the time of trial, and a valid defense which was not made due to duress, fraud or excusable mistake. (Glenn v. People (1956), 9 Ill.2d 335; People v. Quidd (1951), 409 Ill. 137; Schroers v. People (1948), 399 Ill. 428.) The gist of defendant's section 72 petition and his argument in support thereof is that he was insane at the time of commission of the crimes charged in indictment 4; that he was also insane at the time of his trial on that indictment; and that the second jury's finding that he was not guilty by reason of insanity as to indictments 3 and 5 and the various factors on which these findings were based were "facts" which, if known, would have precluded the court's entering judgment on the jury's verdict of guilty at the first trial.
The principal issues raised by the record and pleadings before us are twofold: (1) Did the defendant's section 72 petition and supporting evidence establish facts which create a bona fide doubt that defendant was competent to stand trial at the first trial; and (2) do the constitutional *244 mandates of due process of law and the provisions of section 72 require that the defendant's conviction in the first trial on indictment 4 where he did not raise the defense of insanity be vacated for the reason that in the subsequent trial on indictments 3 and 5 he was found not guilty by reason of insanity.
With respect to the first issue concerning defendant's competency to stand trial, it is significant to point out that at no time in the trial below was there any claim that the defendant was not able to understand the nature of the charges against him and to cooperate with his counsel. Prior to trial there were two Behavior Clinic reports which indicated that he was competent, and his attorney indicated to the court that based on his conversations with the defendant he was of the same opinion. Defendant testified in his own behalf during the trial, and there was nothing in his testimony nor any other factors arising during the trial which are alleged to have created a bona fide doubt as to his competency to stand trial. Parenthetically, we note that apparently there was also no doubt as to his competency at the second trial at which he was found not guilty by reason of insanity.
In the section 72 proceeding, defendant introduced excerpts from the testimony of a psychiatrist and a psychologist who had testified in the second trial. Each of them testified in response to a hypothetical question based on defendant's background and the details of the various crimes he was charged with committing that it was their opinion that defendant exhibited an epileptoid personality and that he was suffering from psychomotor seizures in the early morning hours of May 21, 1967. It is apparent that this evidence was limited to the question of defendant's sanity at the time the criminal acts were committed and did not have any direct bearing on the separate and distinct question of whether he was competent to stand trial on April 23, 1968. We also note that there is no contention that any of the facts concerning defendant's *245 past history on which this opinion was based were unknown to counsel or the court prior to trial. To the contrary, it appears that many of these matters appeared in the two Behavior Clinic reports submitted to the court prior to trial.
The other "fact" which defendant relies on as raising a bona fide doubt as to his competency is the finding of the jury at the subsequent trial that he was not guilty by reason of insanity on indictments 3 and 5. This finding obviously could not have been known at the first trial for the equally obvious reason that it did not exist at that time. In this respect this case differs from Schroers v. People (1948), 399 Ill. 428, People v. McLain (1967), 37 Ill.2d 173, and People v. Samman (1951), 408 Ill. 549, relied on by defendant. In Schroers the court vacated the defendant's plea of guilty when it was discovered that due to a prior gunshot wound to the head the defendant could not understand the consequences of his plea. In McLain the judgment of conviction was vacated, since various factors including judicially ordered commitments to mental institutions and attempted suicides occurring prior to trial were unknown to the court. And in Samman the court held that the lower court should have upheld defendant's section 72 petition which alleged that at the time of trial and conviction for armed robbery the court was unaware of the fact that less than a year earlier he had been adjudicated insane by a court in California and committed to a mental institution from which he escaped shortly before the trial. While we do not intend to suggest that subsequent occurrences can never be considered in determining the merits of a section 72 petition, we are of the opinion that on the facts before us the subsequent finding of not guilty by reason of insanity as to indictments 3 and 5 does not create a bona fide doubt as to the defendant's competency to stand trial on indictment 4 in the context of this section 72 proceeding.
This brings us to the second principal issue of whether *246 the constitutional mandates of due process of law and the provisions of section 72 require the vacation of the judgment of conviction by reason of the fact that in the subsequent trial on different charges the jury found him not guilty by reason of insanity. In our opinion they do not. One basic premise of defendant's argument is that the findings of the second jury constitute an adjudication that defendant was insane as a matter of law at the time of the commission of the crimes charged in indictment 4 and that such adjudication, by an inverse application of the doctrine of res judicata, relates back to the time of the first trial and necessitates vacation of the judgment. In our opinion this argument is based on a misconception of the legal effect of the second jury's findings. At the second trial defendant interposed the defense of insanity, and on the particular evidence presented to it the jury found him not guilty by reason of insanity as to the crimes charged in indictments 3 and 5. These findings, however, did not constitute an adjudication that as a matter of law he was insane at the time of commission of the separate crimes charged in indictment 4 which would operate to vitiate the earlier judgment of conviction on that indictment.
As we have previously indicated, there has been no showing of any facts which raise a bona fide doubt of the defendant's ability to understand the nature of the charges against him and to cooperate with his counsel in conducting his defense. No contention is made that defendant was in any manner prevented from raising the defense of insanity through fraud, duress, excusable mistake, or any lack of understanding of his rights. (Glenn v. People (1956), 9 Ill.2d 335.) To the contrary, it is quite possible, as the trial court concluded, that since the trial on indictment 4 was the first of possibly five trials on separate charges which allegedly occurred within a two-hour period, the decision to start with an alibi defense at the first trial was a well reasoned strategic decision on the part of the defendant and his counsel. In our opinion neither the *247 requirements of due process of law nor the purpose and scope of section 72 call for vacation of the judgment of conviction in the first trial, where the alibi defense failed him, simply because he succeeded in asserting an insanity defense at a subsequent trial on other charges.
For the reasons above stated the judgment of the Appellate Court, First District, is affirmed.
Judgment affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8326476/ | Cratsley, John C., J.
Following a jury trial which returned a verdict and damage award in favor of the plaintiff, Rodrigo Cintra (“Plaintiff’), the plaintiff has brought a Motion for Entry of Judgment. The plaintiffs motion requests that a final judgment be entered in the full amount as calculated by the jury1 with no reduction based on the contingent fee agreement that existed between the parties, plus $14,381.25 in litigation costs. The defendant, Law Office of Dane M. Shulman (“Defendant”), opposes the plaintiffs motion claiming that the plaintiffs award should be reduced by the amount represented by the contingent fee agreement, and that the costs sought by the plaintiff are excessive. For the following reasons, the plaintiffs Motion for Entry of Judgment is ALLOWED AS MODIFIED.
BACKGROUND
The plaintiff successfully sued the defendant in this legal malpractice case. The jury found the defendant negligent in handling the legal claims of the plaintiff in the lawsuit underlying this lawsuit which concerned injuries suffered by the plaintiff as a result of the negligence of a third party. The defendant’s negligence, as heard and determined by the jury, included failure to properly serve the plaintiffs complaint resulting in the dismissal of the plaintiffs case against the third party as well as failure to take corrective actions to remedy this error. In addition, the defendant’s filing delays exhausted the statute of limitations for the claims. The parties had a contingent fee agreement which would have entitled the defendant to one-third of any award in favor of the plaintiff.
The question of whether a defendant in a legal malpractice action is entitled to an offset of any damages awarded to the plaintiff based on the contingent fee agreement between the parties is a novel one for this Court. The majority of other jurisdictions which have ruled on this question have rejected the offset of damages based on contingent fee agreements. However, the First Circuit allowed such an offset in Moores v. Greenberg, 834 F.2d 1105 (1st Cir. 1987). In the Moores decision, the federal appellate court stated that Massachusetts would likely reach the same conclusion and, indeed, a rule inferred from Moores has been adopted in the MCLE jury instructions.2
DISCUSSION
1. Use of Contingent Fee Agreement to Offset Damage Award Is Not Supported in Case Law for this Situation
The majority of jurisdictions that have considered the issue of allowing an offset to an adverse judgment to a defendant in a legal malpractice action have rejected the reduction.3 Three major arguments against an offset emerge from these cases. First, that the full measure of the plaintiffs damages in the malpractice action is determined by the size of the judgment lost in the underlying action. See Carbone v. Tierney, 151 N.H. 521, 534 (2004). Second, that the lawyer found liable for malpractice should be prohibited from benefiting from the contract he violated. See Andrews v. Cain, 406 N.Y.S.2d 168, 169 (1978). Third, that the fee which the plaintiff would have paid to the negligent lawyer is “cancelled out” by attorneys fees he pays upon winning his malpractice action. See id. In addition to these three arguments, there are also policy considerations against applying an offset, such as providing lawyers with additional deterrence to breaching ethical duties to clients and holding the unique attorney-client relationship to a different standard than traditional contract principles.4 See Shoemake v. Ferrer, 168 Wn.2d 193, 203 (2010), and Campagnola v. Mulholland, 76 N.Y.2d 38, 38-39 (1990). Taken as a whole, I find these arguments against application of an offset based on the underlying contingency fee agreement persuasive.
Notwithstanding the analysis adopted by the majority of jurisdictions, the First Circuit allowed an offset for the attorney’s contingency fee in Moores v. Greenberg, 834 F.2d 1105 (1st Cir. 1987).5 In Moores, the lawyer Greenberg did not disclose a settlement offer to the injured worker Moores. While defendant Shulman cites the holding of Moores as an unequivocal statement that an offset should be applied (particularly in Massachusetts), the rule inferred from Moores is not so absolute. Judge Selya’s decision in Moores turned on the certainty of the settlement offer, the certainty that the client would have accepted the offer, and the involvement of the lawyer in procuring the offer.6 Judge Selya carefully distinguishes the cases in which no offset is allowed and posits exceptions to the holding, saying, “Where a lawyer accepts an engagement and thereafter fails to show up at the starting gate, e.g., . . . failure to file suit within statute of limitations . . . failure to serve mandatory notice of claim within prescribed period ... it is arguably equi*272table to fix damages without regard to a fee entitlement which would only have come into existence had the lawyer performed the contract.” Moores at 1112. This hypothetical imagined by Judge Selya is exactly the situation here. The defendant was found negligent by the juiy for failure to properly serve the plaintiffs complaint, and for allowing the statute of limitations to expire without simple corrective action. Following this language in Moores, an offset for the unearned contingency fee would be inequitable. Further, there was no evidence at trial from the defendant that any substantial amount of work was performed on the plaintiffs behalf for which the defendant should be compensated nor has the defendant argued for fees in quantum meruit. Thus, the deduction of one-third of the juiy award to account for the contingency fee is inappropriate here and I decline to subtract it from the final judgment.
II. Judicial Estoppel
The equitable doctrine of judicial estoppel can apply when a litigant asserts inconsistent positions on the same legal issue. See Fay v. Federal National Mortgage Assoc., 419 Mass 782, 788 (1995). While the requirements for judicial estoppel are not rigidly defined, two key principles are at the core of this equitable doctrine. First, that the position now taken by the plaintiff be “directly inconsistent” with or “mutually exclusive” of the plaintiffs prior position on the same issue. Second, that the plaintiff had successfully persuaded the court to accept the previous position. See Otis v. Arbella, 443 Mass. 634, 640. The application of judicial estoppel is discretionaiy. See New Hampshire v. Maine, 532 U.S. 742, 750 (2001).
The defendant claims that the plaintiff did not object to a proposal made in open court for a deduction of the contingency fee to be made once the juiy reached its verdict and, thus, he is estopped from now arguing that there should be no offset. In support of this theoiy, the defendant references the conference during trial where counsel for both parties and I discussed the instructions to the juiy with regards to damages. The specific discussion is found in the following exchange from the transcript.7
THE COURT: . . . Now, the one-third set off to Shulman again if they answer Question 6 yes and give a damage award, do you want me to tell them that the Court reserves the right to determine, do you want me to say anything?
MR. RISEBERG [for the defendant): Well, I submitted that instruction—•
THE COURT: Right.
MR. RISEBERG:—because I wasn’t sure the Court was inclined to just resolve that issue, but I actually think that it’s more appropriate to handle it the way the Court suggested, and that the instruction would needlessly confuse them.
THE COURT: All I’m concerned about is that if they [the jurors] read the contract that’s in there, the contract with Shulman’s office for the one-third is in evidence. So, some bright juror may send me a note saying, all right, what do we do about Shulman’s one-third?
MR. RISEBERG: I suggest we wait for that question.
THE COURT: All right.
MR. RISEBERG: If that was to happen we could address it.
MR. BURKE [for the plaintiff): I agree, and I think that we can address it by saying as you previously suggested that’s the Court role to deal with that.
THE COURT: But not say it in the instructions?
MR. BURKE: Right.
In this exchange, counsel for the plaintiff agreed that the issue of the offset would be resolved by the Court; he did not, however, concede that an offset would be applied. The fact that plaintiffs counsel did not object to the decision that the offset would be handled by the Court after the trial does not preclude the plaintiff from arguing against the offset. The two core principles of judicial estoppel are not met by these statements of the parties as represented in the official record.
The first principle of judicial estoppel, that the plaintiffs previous and current positions are “mutually exclusive,” is not supported by the record. A review of the transcript from the discussion of the offset shows two key points with respect to the plaintiffs position during the trial. First, that the proposal at the center of the discussion was that the Court “reserves the right to determine” how to handle any offset in the event that the juiy returned with a damage award for the plaintiff. See line 4 of the transcript, above. Second, that the plaintiffs position on the offset during the trial was that the issue should be dealt with after the trial, at the discretion of the Court See lines 32-34 of the transcript, above. Contrary to the defendant’s assertion, the plaintiff did not concede that a deduction would automatically apply. In my opinion, the plaintiffs current position against the offset is not inconsistent with his position taken at trial. In fact, the plaintiff is actually following through on his previous position by petitioning the Court to resolve the issue of the offset now that the trial is over.
For the second principle of judicial estoppel, even if the plaintiffs attorney took a position during the trial that was “mutually exclusive” with his current position, there is insufficient evidence to suggest that the plaintiff “successfully persuaded” the Court to accept his position during the time of trial. The position that was adopted (that the matter be resolved after trial) was first proposed by the Court, not the plaintiff. See line 4 of the transcript, above. The transcript shows that the decision to handle the issue after trial was agreed to by all of the participants after discussion *273between the Court and counsel for the defendant. Therefore, it is a stretch to say that the two sentences spoken by the plaintiff in the above exchange persuaded the Court to take the action which was proposed by the Court in the first place. Mere non-objection by the plaintiff to the agreed-upon course of action is insufficient in my view to constitute “successful persuasion” of the Court.
III. Recovery of the Costs of Litigation
The plaintiff seeks to recover $14,381.25 in litigation costs including depositions, expert witness fees, court fees, and other charges. However, the schedule of costs provided by the plaintiff totals $14,593.57.8 Included in this amount is $8,025 for witness fees. Given that the denial of an offset is based in part on the theory that the plaintiff should use the larger award to cover the costs of the malpractice action, I will apply the strict rule in G.L.c. 292, §29 and reduce the amount for the experts to $6 per day per witness. With no evidence to the contrary, I will assume each witness is entitled to one day of compensation each. The net costs of the successful plaintiff are thus $6,586.57.
ORDER
For the foregoing reasons, it is hereby ORDERED that a final judgment enter for plaintiff in the amount of the net jury verdict of $81,250.00 plus interest from May 31, 2006 as calculated by the clerk’s office plus costs of $6,586.57, against defendant Dane M. Shul-man DBA Law Offices of Dane M. Shulman.
The jury awarded the plaintiff $125,000 with a deduction of 35% for contributory negligence. The net award is $81,250 plus interest.
“If you find that the plaintiff is entitled to damages in this malpractice case, that amount must be reduced by the amount the defendant attorney would have received pursuant to the contingent fee agreement.” MCLE Superior Court Civil Practice Jury Instructions §18.7.3 (2nd Edition 2008).
See Duncan v. Lord, 409 F.Sup. 687 (E.D.Pa. 1976); Carbone v. Tierney, 151 N.H. 521 (2004); Shoemake v. Ferrer, 168 Wn.2d, 193 (2010); Akin v. National Development and Research Corp., 299 S.W.3d 106 (Tex. 2009); DiStefano v. Greenstone, 357 N.J.Super 352 (2003); Campagnola v. Mulholland, 76 N.Y.2d. 38 (1990); McCafferty v. Musat, 817 P.2d 1039 (Colo.App. 1990); Foster v. Duggin, 695 S.W.2d 526 (Term. 1985); Kane v. Altagen, 107 Cal.App.3d 36; Andrews v. Cain, 406 N.Y.S.2d 168 (1978); Christy v. Saliterman, 288 Minn. 144 (1970).
In an exceptional case, the court in DiStefano rejected an offset and awarded attorneys fees for the malpractice suit as consequential damages, stating: “. . . the duplicate recovery, even though a windfall to the plaintiff, is considered the lesser evil to crediting this attorney with an undeserved fee where he has botched the job.” DiStefano v. Greenstone, 357 N.J.Super 352, 357 (2003). Although the present case was not handled in this manner, I note favorably the theory in DiStefano that the court should err in favor of the injured plaintiff in the legal malpractice case.
Moores was appealed from the Massachusetts District Court and the First Circuit applied Maine law in reaching a decision.
On this last point, Justice Burke in a dissent to Horn v. Wooster reframes the Moores decision as effectively an award in quantum memit. See Horn v. Wooster, 165 P.3d 69, 82.
Excerpt from the record of the Jury Charge Discussion from the trial Cintra v. Shulman, shortly after 3:01 pm on Tuesday, December 7, 2010. Transcript prepared by Diane Cercone, Official Court Reporter.
The $212.32 charge for the Middlesex County Deputy Sherriff was apparently omitted from the plaintiffs calculation. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2983951/ | Reinstated; Vacated and Remanded and Memorandum Opinion filed May 22,
2014.
In The
Fourteenth Court of Appeals
NO. 14-12-00913-CV
LEON THOMAS, Appellant
V.
CHANDRA JONES, Appellee
On Appeal from the 58th District Court
Jefferson County, Texas
Trial Court Cause No. A-189,572-A
MEMORANDUM OPINION
This is an appeal from a partial summary judgment signed August 22, 2012,
which was made final by an order of severance signed September 13, 2012.
Appellee Chandra Jones sued appellant for personal injuries after an automobile
accident. After Santa Fe Auto Insurance Company, appellant’s insurer, was placed
into receivership by the State of Texas and later declared insolvent, the appeal was
abated pursuant to the Texas Insurance Code. See Tex. Ins. Code §§ 443.008(d);
462.309. After expiration of the period for a stay as set out in Section 462.309,
appellee requested that we continue the abatement of this appeal so that the parties’
settlement of the underlying dispute could be completed. We granted the motion
and extended the abatement.
On May 15, 2014, the parties filed an agreed motion to vacate the judgment
and remand the case to the trial court for proceedings consistent with their
settlement agreement. See Tex. R. App. P. 42.1(a)(2). The motion is granted.
Accordingly, we reinstate the appeal and order the trial court’s judgment
signed August 22, 2012, vacated and set aside without regard to the merits. We
remand the cause to the trial court for further proceedings in accordance with the
parties’ settlement agreement.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Donovan and Brown.
2 | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1162243/ | 541 P.2d 656 (1975)
George Lavern ALLAN, Appellant,
v.
The STATE of Nevada, Respondent.
No. 7818.
Supreme Court of Nevada.
October 23, 1975.
Larry C. Johns, Johns & Johns, Las Vegas, for appellant.
Robert List, Atty. Gen., and George Holt, Dist. Atty., Las Vegas, for respondent.
*657 OPINION
PER CURIAM:
Appellant stands convicted of an infamous crime against nature, committed through oral copulation with a 14-year-old boy. See: NRS 201.190. Appellant here contends the trial court erred: (1) in allowing him to conduct his own defense; (2) in holding he could be convicted on the testimony of the boy alone, without corroboration; (3) in holding the "infamous crime" statute constitutional; and (4) in sentencing appellant under NRS 201.190 (1)(a) rather than NRS 201.190(1)(b). We reject all contentions raised.
1. Appellant wished to conduct his own defense. In fact, he refused to go forward with any member of the public defender's office as counsel, or to cooperate with members of that office in any manner. The judge canvassed appellant concerning his educational background and knowledge of the charge against him. He explained appellant's right to cross-examine witnesses, his privilege against self-incrimination, and the availability of compulsory process to bring witnesses before the court. The public defender remained throughout the trial to assist in any manner requested. Before the second day of trial appellant was given another opportunity for representation by the public defender's office and again he refused. Prior to trial, two psychiatrists examined appellant. Based on their reports and testimony, the district court determined appellant competent to stand trial, to aid in the defense with his attorney and to make any waivers that might be necessary. Under the circumstances, we cannot hold the court erred in finding appellant capable of a voluntary and intelligent waiver of his right to counsel. Cf. Hatten v. State, 83 Nev. 531, 435 P.2d 495 (1967); cf. Faretta v. California, ___ U.S. ___, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
2. Appellant next argues that the complainant, a 14-year-old boy, is an accomplice and that therefore evidence corroborative of his testimony was necessary.[1] NRS 201.190(1) speaks to "every person of full age who commits the infamous crime against nature."[2] We have previously defined "full age" to mean 18 years. Basurto v. State, 86 Nev. 567, 472 P.2d 339 (1970). NRS 201.190(1) is designed to protect, and not prosecute a 14-year-old. The complainant was not liable to prosecution for the identical offense and as such was not an accomplice. NRS 175.291(2); Geddes v. State, 90 Nev. 367, 526 P.2d 1180 (1974).
3. Appellant contends NRS 201.190 is unconstitutionally void for vagueness and also unconstitutional as applied to the facts of this case. The vagueness contention has been considered and rejected in the past, and we here see no reason to review *658 this issue. Jones v. State, 85 Nev. 411, 456 P.2d 429 (1969). Concerning the statute's application to this case, appellant argues the statute is unconstitutional when applied to "consenting adults." This contention, which other courts have upheld, certainly has force and will be duly considered in a proper case. See, for example: State v. Elliott, 539 P.2d 207 (N.M.App. 1975). However, a 14-year-old boy is not an adult for the purposes of NRS 201.190. Basurto v. State, cited above. We have previously upheld the statute's constitutionality in nonconsensual cases. Jones v. State, cited above. That holding is no less applicable where the victim, because of his tender age, is incapable of effective consent.
4. Finally, appellant contends he should have been sentenced pursuant to NRS 201.190(1)(b) rather than NRS 201.190(1)(a). The statutory mandate is clear. NRS 201.190(1)(a) provides the penalty if the "offense is committed upon the person of one who is under the age of 18 years." Here, the victim was 14 years old; appellant was properly sentenced.
Affirmed.
NOTES
[1] 175.291 Testimony of accomplice must be corroborated; sufficiency of corroboration; accomplice defined.
1. A conviction shall not be had on the testimony of an accomplice unless he is corroborated by other evidence which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration shall not be sufficient if it merely shows the commission of the offense or the circumstances thereof.
2. An accomplice is hereby defined as one who is liable to prosecution, for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.
[2] 201.190 Crime against nature: Punishment; limitations on parole, probation.
1. Except as provided in subsection 2, every person of full age who commits the infamous crime against nature shall be punished:
(a) Where physical force or the immediate threat of such force is used by the defendant to compel another person to participate in such offense, or where such offense is committed upon the person of one who is under the age of 18 years, by imprisonment in the state prison for life with possibility of parole, eligibility for which begins, unless further restricted by subsection 3, when a minimum of 5 years has been served.
(b) Otherwise, by imprisonment in the state prison for not less than 1 year nor more than 6 years. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1883137/ | 258 B.R. 427 (2001)
In re Marilyn M. MOSS, a/k/a Marilyn Margaret Bryant, a/k/a Marilyn Moss Bryant, a/k/a M. Margaret Bryant, a/k/a Marilyn Wall Bryant, a/k/a Marilyn Whitman Bryant, a/k/a Margaret ("Peggy") Whitman, a/k/a Margaret ("Peggy") Whitman Bryant, a/k/a Margaret Bryant, a/k/a Marge Bryant, a/k/a Mari Bryant, a/k/a Mary Bryant, a/k/a Anne Bryant, a/k/a Ann Whitman, a/k/a P.M. Whitman, a/k/a Ann Margaret Whitman, a/k/a Anne Margaret Whitman, a/k/a Anne M. Whitman Bryant, a/k/a Anne Margaret Whitman Bryant, a/k/a Anne Margaret Whitman Bryant Trust, a/k/a M. Whitman Bryant, a/k/a M. Margaret *428 Whitman Bryant, a/k/a Catherine L. Whitman, a/k/a Bryant Family Trust, a/k/a Solutions, Inc., a/k/a Santa Barbara Mortgage Co., Inc., a/k/a National Supply Corporation, a/k/a TCI Industries, a/k/a TCI Investments, a/k/a T.N. Ayrb Inv. Co., a/k/a Transpacific Conservancy, Inc., a/k/a M. Margaret Whitman Bryant Trust Dated April 18, 1997, a/k/a M. Margaret Whitman Bryant Trust Dated May 18, 1997, Debtor.
No. 98-43272-1.
United States Bankruptcy Court, W.D. Missouri, Western Division.
February 7, 2001.
*429 Marilyn M. Moss, pro se.
Steven C. Block, Kansas City, MO, trustee.
MEMORANDUM OPINION AND ORDER
JERRY W. VENTERS, Bankruptcy Judge.
This case comes before the Court at this juncture on the Trustee's Objection to Debtor's Exemptions, filed on July 24, 2000. In response, the Debtor in these proceedings, Marilyn M. Moss, filed a document entitled "Debtor's Motion for Order Overruling `Trustee's Objections to Debtor's Exemptions' and Motion to Strike" on October 10, 2000. A hearing was held on the Trustee's Objections and the Debtor's Motions at the Federal Courthouse in Kansas City, Missouri, on November 15, 2000.
The Court has reviewed the evidence, conducted its own research of the legal issues, and is now prepared to rule.
The following constitutes the Court's Findings of Facts and Conclusions of Law as required by Federal Rule of Bankruptcy Procedure 7052. This is core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A) and (B), and the Court has jurisdiction pursuant to 28 U.S.C. §§ 157 and 1334.
*430 I.
The Trustee objects to both the Debtor's original claims of exemption and to the Debtor's amended claims of exemption. We first address the Trustee's objection to the Debtor's amended claims of exemption.
The Trustee argues that the amended exemptions should be disallowed because: (1) the exemptions were filed in bad faith and prejudice the Debtor's creditors; (2) most of the listed property was fraudulently transferred or concealed by the Debtor and therefore cannot be claimed as exempt; (3) the Debtor has not used the proper exemption statutes in her Amended Schedule C.
Although there are ample grounds for the Court to reject the Debtor's amended claims of exemption based on Moss's bad faith and the concealment of assets she now seeks to exempt,[1] the Court will deny the Debtor's amended claims of exemption on the basis that she has not asserted proper exemption statutes.
As an initial matter, however, the Court comments that all of the Debtor's amended claims of exemption in property "owned by the M. Margaret Whitman Bryant Charitable Trust" (the "Trust") must be denied if the Court accepts as true the Debtor's assertion that the Trust owns that property.[2] Aside from the fact that the Trust, which the Debtor steadfastly maintains is not a debtor in these proceedings, has no standing to assert a claim of exemptions in Moss's bankruptcy, the Debtor's representation that those items are owned by some entity other than herself undermines her own right to claim an exemption in that property because debtors are only allowed to claim an exemption in property in which they have an interest. In re Thorpe, 251 B.R. 723, 724 (Bankr. W.D.Mo.2000). For the sake of argument, though, the Court will ignore the Debtor's representation that the property is owned by the trust (since we have already determined that there is no valid trust see this Court's Memorandum Opinion and Order in Adversary Proceeding No. 00-4091, entered contemporaneously herewith), and proceed on the assumption that Moss owns all of that property.
Moss cites two primary statutory bases for exemption. On the property she represents is owned by the Trust, she claims an exemption under California Code of Civil Procedure § 704.140.[3] On the property that Moss lists without qualification (the implication being that she owns it), she cites Revised Arizona Statutes §§ 33-1125, et seq. as the legal basis for her claims of exemption.[4] Moss's choice of exemption laws is misguided, however; she is not entitled to claim an exemption on either of the bases cited.
The Bankruptcy Code provides two exemption schemes in § 522(b): a federal *431 exemption scheme, contained in § 522(d), and an exemption scheme based on the State law of the debtor's domicile. 11 U.S.C. § 522(b). The State determines which exemption scheme should apply, i.e., whether it will "opt-out" of the federal exemption scheme and utilize the state's exemption statute. Missouri has chosen to opt-out. MO. REV. STAT. § 513.427; In re Smith, 254 B.R. 751, 753 (Bankr. W.D.Mo.2000). Therefore, Missouri exemption law will apply in this case if it is determined that Missouri was the domicile of the Debtor at the time of filing. And we determine that it was.
The Court bases this determination on the simple fact that the Debtor unambiguously attested on her bankruptcy petition that "she had been domiciled, or had a residence, principal place of business, or principal assets in this District for 180 days immediately preceding the date of the petition or for a longer part of such 180 days than in any other District." (emphasis added). It is no coincidence that the language used on the bankruptcy petition filing form follows that of 11 U.S.C. § 522(b)(2)(A); the purpose of requiring a debtor to complete the section concerning venue is, among other things, to prevent the kind of mischief that has occurred in this case. Moss signed her bankruptcy petition attesting, under penalty of perjury, that the information contained therein was true, and the Court will not hear her complain otherwise, now that her "choice" of domicile has proven inconvenient. Consequently, the only exemption statutes that apply in this case are those that are allowed under Missouri law, and the Debtor cannot avail herself of the Arizona or California statutory exemptions.
The Debtor cannot avail herself of an exemption based on California Code of Civil Procedure § 704.140 for another, equally compelling reason the issue of whether she is entitled to claim that exemption in any of the property directly or indirectly traceable to her personal injury settlement has already been adjudicated and decided against Moss by the Bankruptcy Court for the Central District of California on May 13, 1996 (see Trustee's Ex. 20A and Creditors Ex. C-016), and this Court will give full faith and credit to that decision. 28 U.S.C. § 1738.
Therefore, for the reasons stated above, the Court will sustain the Trustee's objections to the Debtor's amended claims of exemption.
II
Having sustained the Trustee's objections to the Debtor's amended claims of exemption, the Court does not need to rule on the Trustee's objections to the Debtor's original claims of exemption; however, in the interest of disposing of all the potential issues regarding the Debtor's claims of exemption, the Court makes the following observations regarding the Debtor's original claims of exemption (based on the assumption that she had not filed an Amended Schedule C):
1. The Trustee objects to the Debtor's claim of exemption in $1,000.00 cash on hand, pursuant to MO. REV. STAT. § 513(1), (3), (9) and (10), and § 513.440. The Trustee is correct in regard to § 513.430(1), (9) and (10), and § 513.440.[5] However, the Debtor would *432 have been entitled to claim $400.00 of the $1,000 cash on hand pursuant to MO. REV. STAT. § 513.430(3).[6]
2. The Trustee also objects to the Debtor's claim of exemption in a Smith Corona Typewriter (valued at $50.00), pursuant to MO. REV. STAT. § 513(1), (3), (9) and (10), and § 513.440. For the same reasons listed in footnote 5, the Debtor would not have been entitled to claim the typewriter as exempt pursuant to § 513.430(1), (9) and (10), or § 513.440. However, she would have been able to claim it as exempt pursuant to § 513.430(1).
III
As a final matter, the Court addresses one of the issues raised in the Debtor's "Motion for Order Overruling `Trustee's Objections To Debtor's Exemptions' and Motion to Strike." The Court only addresses one of her arguments because all of the other arguments presented in her Motion have either already been ruled on by this Court (e.g., whether venue is proper and whether this Court has personal jurisdiction over the creditors and the Debtor) or are wholly unsupported in law and fact (e.g., that the assets have so depreciated in value that the case should be dismissed and that the Trustee has "known from the beginning" that this Court lacks jurisdiction (which it doesn't)).[7] The only argument raised by the Debtor that is worth addressing is her contention that the Trustee's Objections are untimely; however, this argument fails along with the others.
The Debtor cites Bankruptcy Rule 4003(b) for the proposition that objections to a debtor's exemptions must be filed within 30 days after the conclusion of the meeting of creditors, and she argues that the Trustee's Objections, filed on July 24, 2000, were untimely because the original § 341 meeting of creditors was scheduled for September 2, 1998. We disagree with the Debtor's statement of the Rule and her application of it to the facts of this case.
First of all, the Debtor has indulged in an extremely selective reading of Rule 4003(b). Rule 4003(b), in its entirety, provides:
The trustee or any creditor may file objections to the list of property claimed as exempt within 30 days after the conclusion of the meeting of creditors held pursuant to Rule 2003(a) or the filing of any amendment to the list or supplemental schedules unless, within such period, further time is granted by the court. Copies of the objections shall be delivered or mailed to the trustee and to the person filing the list and the attorney for such person.
FED. R. BANKR. P. 4003(b) (emphasis added).
The italicized portion of the Rule, which Moss conveniently omitted in her Motion, unambiguously gives the Trustee 30 days from the filing of Moss's Amended *433 Schedules to object to the amended exemptions contained therein. Therefore, based on a complete reading of Rule 4003(b), the Trustee's Objections to the Debtor's amended exemptions were timely filed; she filed her Amended Schedules on June 28, 2000, and the Trustee filed his Objections on July 24, 2000, four days before the 30-day deadline had expired.
Moss also contends that the 30-day time period should run from September 2, 1998, the date scheduled for the original meeting of creditors because "no party in interest made any motion to extend time to conduct another § 341 meeting." This argument, however, ignores the plain language of the Rule, which indicates that the time period runs from the conclusion of the meeting of creditors, In re Bernard, 40 F.3d 1028, 1031 (9th Cir.1994), and Moss's meeting of creditors did not conclude until July 6, 2000, only eighteen days before the Trustee filed his Objections. Moreover, the Debtor's argument here is nothing short of preposterous considering that it was Moss's filing of fraudulent documents with the court requesting a continuance of the meeting on account of her fictional physical disabilities that caused the indefinite extension of the meeting of creditors.
Therefore, for the reasons stated above, it is
ORDERED that the Trustee's Objections to Debtor's Exemptions, filed on July 24, 2000, be and are hereby SUSTAINED. It is
FURTHER ORDERED that the Debtor's Motion for Order Overruling "Trustee's Objections to Debtor's Exemptions" and Motion to Strike be and are hereby denied.
SO ORDERED.
NOTES
[1] See this Court's Memorandum Opinion and Orders in Adversary Proceedings Nos. 00-4091, 00-4200, and 00-4203, entered contemporaneously herewith. The findings of fact and conclusions of law contained in those Memorandum Opinions and Orders are incorporated herein by reference.
[2] According to the Debtor's Amended Schedules, the Trust owns: cash from personal injury award, valued at $9,200.00; checking and financial account funds from Citizens Bank of Tulsa, valued at $20,000.00; contents of Winnebago mobile home, contents of Toyota 4-Runner, contents of Memorial South Storage and Cottonwood Super Storage, valued at $30,000.00; Winnebago mobile home, valued at $40,000.00; "4 vehicles" (presumably the Toyota 4-runner, Mercedes, Dodge Van, and Toyota Tacoma), valued at $37,000.00 (on Schedule C; on Schedule B she listed a value of $77,000.00); and financial account funds from Prudential account, valued at $2,700.00.
[3] Moss cites 28 U.S.C. § 1738 in conjunction with the California statute (§ 704.140). The Court assumes that she cites § 1738 for the purpose of instructing this Court to give "full faith and credit" to the California statute and not as an independent basis for an exemption.
[4] Additionally, Moss claims the Winnebago as exempt pursuant to both the California statute and the Arizona homestead exemption, REV. ARIZ. STAT. § 33-1101(A)(3). The combination of the two exemption laws is of no more effect than either one would have alone.
[5] Section 513.430(1) allows exemption and attachment from execution for "household furnishings, household goods, wearing apparel, appliances, books, animals, crops, or musical instruments that are held primarily for personal, family or household use . . . not to exceed one thousand dollars in value in the aggregate." Cash on hand is not one of the items exempted under this subsection. Section 513.430(9) applies to "[p]rofessionally prescribed health aids." While cash may cure many ills, it is not one recognized by the medical profession. Section 513.430(10) provides an exemption for Social Security benefits, unemployment compensation, veteran's benefits, disability benefits, alimony payments, pension plans, disability or death benefit plans or other similar plans established pursuant to Missouri statutes. The Debtor has failed to provide any evidence which would support a claim that the cash on hand is a proceed of any of the qualified plans listed in this section. And finally, section 513.440 pertains to the head of household exemption. Nothing in the record indicates the Debtor is a head of household and, therefore, she may not claim an exemption under this statute.
[6] Section 513.430(3), often called the "wildcard" exemption, exempts "[a]ny other property of any kind, not to exceed in value four hundred dollars in the aggregate . . ." MO. REV. STAT. § 513.430(3).
[7] The Court will also deny the Debtor's Motion to Strike as improper and unnecessary. Over the course of these bankruptcy proceedings, the Debtor has demonstrated a fundamental misunderstanding of the proper use of Federal Rule of Civil Procedure 12(f). The purpose of Rule 12 is not, as the Debtor has used it, to object to legal and factual accusations made in pleadings, but rather to rid pleadings of redundant, immaterial, impertinent or scandalous material or to raise the insufficiency of a defense. FED. R. CIV. P. 12(f). It appears to the Court that the Debtor moves to strike anything she doesn't like that is written in a pleading, and that is not a proper use of Rule 12(f). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609902/ | 866 P.2d 409 (1993)
116 N.M.App. 681
Debra Anne BREWSTER, Claimant-Appellant,
v.
COOLEY & ASSOCIATES and St. Paul Property & Liability, Respondents-Appellees.
No. 14549.
Court of Appeals of New Mexico.
December 10, 1993.
*411 Gerald A. Hanrahan, Albuquerque, for claimant-appellant.
Thomas R. Mack, Daniel Ramczyk, Miller, Stratvert, Torgerson & Schlenker, P.A., Albuquerque, for respondents-appellees.
OPINION
MINZNER, Chief Judge.
Claimant appeals the compensation order of the Workers' Compensation Administration (Administration). We discuss (1) timeliness of the appeal; (2) whether the workers' compensation judge (judge) properly awarded Respondents an offset for medical benefits paid under a prior settlement; (3) whether Respondents failed to prove with reasonable certainty that payment of current medical benefits would duplicate Claimant's prior settlement award; and (4) whether the judge erred in failing to prorate the offset over Claimant's life expectancy. For the reasons that follow, we hold that Claimant's appeal was timely filed, that the judge properly awarded Respondents an offset for medical benefits paid pursuant to Claimant's prior settlement, and that, under the circumstances existing here, the judge was not required to prorate the offset. Therefore, we affirm.
FACTS
Claimant was employed by Cooley & Associates (Cooley) as a vocational rehabilitation counselor and director of counseling. On January 3 and January 25, 1992, she sustained compensable injuries to her lower back in the course and scope of her employment with Cooley. Claimant sought care from Dr. Paul Legant. She filed her claim for compensation benefits on March 31, 1992.
Claimant underwent lumbar spinal surgery on April 2, 1992. Dr. Legant's preoperative and postoperative diagnosis was degenerative joint and degenerative disc disease. Claimant's surgery was necessitated by the January 1992 work injuries. She was discharged from the hospital on April 7, 1992. On her way home, Claimant was injured in an automobile accident, and had to return to the hospital for emergency treatment. The latter injury was determined to be a compensable consequence of the first two accidental injuries. Claimant continued working within her restrictions on a part-time basis from January 25 through April 2, and from April 30 through May 13. Claimant resigned her employment on May 13, 1992.
Claimant sustained a previous lower back injury on February 13, 1987, while employed by a prior employer. She did not miss any work as a result of the prior injury. Claimant did not receive any medical care for her February 1987 injury after June 1988. The Administration approved a lump sum settlement for the February 1987 injury on November 5, 1991. Claimant received compensation benefits of $6,460, as well as $13,165 in lieu of future medical benefits. As a result of the 1987 accident, Claimant sustained a ten per cent permanent physical impairment. Claimant's lower back was asymptomatic between June 1988 and January 2, 1992. She was not a candidate for lumbar spinal surgery prior to January 3, 1992.
Claimant was awarded temporary total disability benefits from January 25 through May 13, 1992 and benefits of $307.30 per week from May 13, 1992, until maximum medical improvement for the January 1992 injuries. Respondents were awarded an offset of $14.07 per week in weekly compensation benefits as a result of the prior settlement *412 regarding the 1987 injury. The judge also awarded Claimant all medical benefits related to the January 1992 injuries, but awarded Respondents an offset for the $13,165 paid in settlement of future medical benefits for the prior claim.
JURISDICTION
Respondents have moved to dismiss Claimant's appeal on the ground that it was untimely filed. Appellate rules for the time and place of filing a notice of appeal are mandatory. Govich v. North Am. Sys., Inc., 112 N.M. 226, 230, 814 P.2d 94, 98 (1991).
The Administration entered a compensation order on January 19, 1993. [R.P. 143-155] Claimant filed a notice of appeal in this Court on February 18, 1993, thirty days after entry of the compensation order. She served a copy of the notice of appeal on the Administration on the same date. Claimant filed a second notice of appeal with the Administration the following day. Citing SCRA 1986, 12-201(A), -202(A), and -601(B) and (C) (Repl. 1992), Respondents contend that Claimant was required to file timely notices of appeal with both this Court and the Administration. Because Claimant filed her notice of appeal with the Administration on the thirty-first day following entry of the compensation order, Respondents reason that this Court is deprived of jurisdiction.
SCRA 12-202(A) states that an appeal from the district court is taken by filing a notice of appeal with the district court clerk within the time allowed by SCRA 12-201. SCRA 12-201(A) provides that the notice of appeal shall be filed within thirty days after the date the order from which an appeal is taken is filed in the district court clerk's office. SCRA 12-601(B) states that an appeal from an administrative agency is taken by filing a notice of appeal with the appellate court clerk within thirty days from the date of the order from which the appeal is taken. See also Singer v. Furr's, Inc., 111 N.M. 220, 221, 804 P.2d 411, 412 (Ct.App. 1990). The latter rule also requires service of a copy of the notice of appeal on the administrative agency involved and all parties in accordance with SCRA 1986, 12-307 (Repl. 1992).
Respondents' assertion about filing the notice of appeal with the administrative agency apparently derives from SCRA 12-601(C), stating:
C. Substitution of administrative entity. Whenever in these rules a duty is to be performed by, service is to be made upon, or reference is made to the district court or a judge or clerk of the district court, the board, commission, administrative agency or official whose action is appealed from shall be substituted for the district court or a judge or clerk of the district court, except that any request for extension of time must be made to the appellate court.
Reading SCRA 12-601(B) and (C) together with SCRA 12-202(A), requiring the filing of the notice of appeal with the district court clerk, Respondents argue that appealing from an administrative agency order requires the timely filing of the notice of appeal with both the agency and the appellate court. We believe that such a construction is foreclosed by the language of SCRA 12-601(B), requiring service of a copy of the notice of appeal on the agency. We construe rules of procedure in accordance with the same rules as applied to statutes. State v. Eden, 108 N.M. 737, 741, 779 P.2d 114, 118 (Ct.App.), cert. denied, 108 N.M. 681, 777 P.2d 1325 (1989). Interpreting SCRA 12-601(C) as suggested by Respondents would render superfluous the language regarding service in SCRA 12-601(B). See Vaughn v. State Taxation & Revenue Dep't, 98 N.M. 362, 365-66, 648 P.2d 820, 823-24 (Ct.App. 1982) (statute must be construed so that no part of the statute is rendered surplusage or superfluous). We also note that SCRA 12-601(B) is titled "[i]nitiating the appeal." See Serrano v. State, Dep't of Alcoholic Beverage Control, 113 N.M. 444, 447, 827 P.2d 159, 162 (Ct.App. 1992) (legislatively-enacted section heading may be useful in determining legislative intent in ambiguously drafted statute). Thus, we believe that Claimant's timely filing of her notice of appeal with this Court was all that was required.
We conclude that Claimant timely filed her notice of appeal with this Court, thereby complying with the mandatory requirements *413 of our rules. Accordingly, we deny Respondents' motion to dismiss for lack of jurisdiction.
OFFSET FOR MEDICAL EXPENSES
Claimant challenges the following finding of fact and conclusions of law.
36. The $13,165 payment for future medical care was paid in anticipation of back surgery substantially similar to the surgical procedure performed on [Claimant] on April 2, 1992.
... .
10. [Respondents are] entitled to an offset or reduction of medical benefits due to the extent of $13,165.
... .
17. [Respondents] are entitled to a credit for benefits previously paid as part of the lump sum settlement approved on November 8, 1991 as indicated.
... .
19. [Claimant] [sic] is entitled to a credit for prepaid medical benefits in the amount of $13,165 as indicated in Conclusion # 10.
NMSA 1978, Section 52-1-47(D) (Repl. Pamp. 1991) (effective January 1, 1991), provides:
[T]he compensation benefits payable by reason of disability caused by accidental injury shall be reduced by the compensation benefits paid or payable on account of any prior injury suffered by the worker if compensation benefits in both instances are for injury to the same member or function or different parts of the same member or function or for disfigurement and if the compensation benefits payable on account of the subsequent injury would, in whole or in part, duplicate the benefits paid or payable on account of such prior injury.
Claimant contends that Section 52-1-47(D) does not expressly provide for an offset for prior medical benefits; hence, the judge engaged in improper judicial construction in awarding Respondents the offset in this case. Respondents assert that fundamental fairness and New Mexico's policy against double recovery require an offset for benefits previously paid as a result of Claimant's lower back injury. We conclude that "compensation benefits" as used in Section 52-1-47 include medical expenses.
Since Respondents sought the deduction by reason of Claimant's prior injury, they bore the burden of proof of establishing the right to the deduction. See Lea County Good Samaritan Village v. Wojcik, 108 N.M. 76, 80, 766 P.2d 920, 924 (Ct.App. 1988). An employer seeking an offset or deduction under Section 52-1-47(D) must present evidence of (1) the nature and extent of the claimant's prior disability; (2) the amounts of any previous awards and the amounts designated as compensation benefits; (3) the number of weeks of compensation benefits payable under prior awards or settlements; and (4) the extent to which payments for the last injury will duplicate payments previously made to the claimant for the same bodily member or function. Munoz v. Deming Truck Terminal, 110 N.M. 537, 540, 797 P.2d 987, 1000 (Ct.App. 1990).
Claimant contends that the offset provision of Section 52-1-47(D) is limited to overlapping weekly compensation benefits. She maintains that the clear language of the statute provides no authority for an offset or deduction for medical expenses. Claimant asserts that this issue was settled in Lea County Good Samaritan Village. We disagree. In Lea County Good Samaritan Village, we determined the method for calculating the amount of an offset for weekly disability benefits. In determining this offset, the fact-finder is to subtract from the total amount of compensation amounts proven to have been paid for medical expenses, vocational rehabilitation and attorney fees. Lea County Good Samaritan Village, 108 N.M. at 82, 766 P.2d at 926. The question before us in Lea County Good Samaritan Village was the method for determining the amount of offset for weekly compensation benefits, not whether Section 52-1-47(D) allows an offset for medical expenses. The latter question has not been before us until now.
Claimant also cites Mendez v. Southwest Community Health Services, 104 N.M. 608, 725 P.2d 584 (Ct.App.), cert. quashed, 104 N.M. 632, 725 P.2d 832 (1986), and Montney *414 v. State ex rel. State Highway Department, 108 N.M. 326, 772 P.2d 360 (Ct.App.), cert. denied, 108 N.M. 197, 769 P.2d 731 (1989), in support of her argument. In Mendez, we rejected an employer's argument that the claimant's receipt of unemployment compensation benefits barred her receipt of total disability benefits as a matter of law. 104 N.M. at 613-14, 725 P.2d at 689-90. We noted that states precluding double recovery in such situations had done so by statute, something our legislature had not seen fit to do. Id. at 614, 725 P.2d at 690. In Montney, we held that a claimant was not precluded from recovering benefits under both the Workers' Compensation Act and the Public Employees' Retirement Act for the same accidental injury where there was no statutory requirement under either Act for offset or credit or some other method to avoid overlapping or double payment. 108 N.M. at 330, 772 P.2d at 364. We said "where there is no statutory requirement for offset or credit or some other method to avoid overlapping or double payments, we will not do so by judicial construction." Id.
We are mindful of our duty in construing legislation to avoid reading into the statute provisions that were not intended. Cf. DeVargas v. Mason & Hanger-Silas Mason Co., 911 F.2d 1377, 1388 (10th Cir.1990) (court will not imply congressional intent that statute be applied retroactively, where Congress chose to remain silent), cert. denied, 498 U.S. 1074, 111 S.Ct. 799, 112 L.Ed.2d 860 (1991). At the same time, however, we must give effect to the intent of the legislature in construing a statute. Orcutt v. S & L Paint Contractors, Ltd., 109 N.M. 796, 798, 791 P.2d 71, 73 (Ct.App. 1990). "In determining this intent, we look primarily to the language used in the statute." Id.
While the legislature did not expressly refer to medical expenses in Section 52-1-47(D), we believe such expenses are encompassed by its reference to "compensation benefits payable by reason of disability." In Schiller v. Southwest Air Rangers, Inc., 87 N.M. 476, 478, 535 P.2d 1327, 1329 (1975), our Supreme Court held that medical expenses are "compensation" for purposes of allowing attorney fees under the attorney fees statute. In a plurality opinion decided under the old law, Judge Hendley stated that since medical expenses were found to be compensation for the purposes of allowing attorney fees, "they should be compensation for all purposes." Briscoe v. Hydro Conduit Corp., 88 N.M. 568, 570, 544 P.2d 283, 285 (Ct.App. 1975). We see no reason why medical expenses should not be treated similarly for purposes of Section 52-1-47(D), since such expenses are benefits payable by reason of a disability caused by an accidental injury. See Douglass v. State, Regulation & Licensing Dep't, 112 N.M. 183, 188, 812 P.2d 1331, 1336 (Ct.App.) (analysis evidences substantial interrelation between pertinent phrases), cert. denied, 112 N.M. 77, 811 P.2d 575 (1991). We conclude that the phrase "compensation benefits payable by reason of disability," when read together with the remainder of the statute, evinces a legislative intent that duplicative awards for medical expenses are subject to an offset or credit.
Our construction of Section 52-1-47(D) is further bolstered by New Mexico's strong policy against double recovery. See Washington v. Atchison, Topeka & Santa Fe Ry., 114 N.M. 56, 58, 834 P.2d 433, 435 (Ct.App. 1992). This policy extends to the area of workers' compensation. See Carter v. Mountain Bell, 105 N.M. 17, 23, 727 P.2d 956, 962 (Ct.App. 1986); see also Montoya v. AKAL Sec., Inc., 114 N.M. 354, 357, 838 P.2d 971, 974 (1992). In Carter, we approved a "fundamental fairness" approach, recognizing an employer's prejudgment payment contributions by equitable set-off at the time of judgment. 105 N.M. at 23, 727 P.2d at 962. This policy against double recovery is evident throughout the Workers' Compensation Act (Act). See, e.g., NMSA 1978, § 52-1-65 (Repl.Pamp. 1991) (credit for benefits paid under laws of other jurisdictions); NMSA 1978, § 52-1-70 (Repl.Pamp. 1991) (offset of unemployment compensation benefits).
SUFFICIENCY OF THE EVIDENCE
We next consider Claimant's challenge concerning the sufficiency of the evidence. The judge found that Claimant's medical expenses were for injury to the same member or function, as well as the extent to *415 which the payments for the second injury duplicated the payment for the prior injury. See § 52-1-47(D); Lea County Good Samaritan Village, 108 N.M. at 81, 766 P.2d at 925. Claimant argues that Respondents were required to prove with reasonable medical certainty that she would have incurred $13,165 in medical expenses between January and May 1992 solely as a result of the February 1987 work injury. We reject this contention. Respondents were only required to establish the criteria of Lea County Good Samaritan Village by a preponderance of the evidence. Id. We review the findings of the judge under the whole record standard of review. Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 127, 767 P.2d 363, 366 (Ct. App.), cert. denied, 109 N.M. 33, 781 P.2d 305 (1988). We examine all of the evidence, including evidence which "`fairly detracts'" from the administrative findings, as well as that evidence which supports the judgment below. Id. 108 N.M. at 129, 767 P.2d at 368 (quoting Universal Camera Corp. v. National Labor Relations Bd., 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951)).
Under this standard, we conclude that there was substantial evidence in the record as a whole to support the judge's finding that the $13,165 payment for future medical care was paid in anticipation of back surgery substantially similar to the surgical procedure ultimately performed in April 1992. Both injuries were to the lower back at L4-5. Dr. Legant testified in his deposition that Claimant's January 1992 injuries aggravated the February 1987 injury. He stated that the degenerative disc disease at L4-5 was a chronic change which preexisted the January 1992 injuries. A radiology report dated January 28, 1992, indicates that Claimant's disc disease had not changed since April 15, 1988. Dr. Legant performed surgery in April 1992 on the same anatomical changes which Claimant presented following the February 1987 injury. It was the same type of surgery considered, but not yet recommended by Dr. Stern, following the 1987 injury.
Finally, Claimant's attorney negotiated a settlement of the claim arising from the February 1987 injury. A series of letters and documents regarding the proposed settlement speaks of Claimant's possible need for future spinal surgery. These letters and documents demonstrate Claimant's understanding of her need for ongoing care for her back problems, as well as the possibility of future surgery. See Lea County Good Samaritan Village, 108 N.M. at 81, 766 P.2d at 925 (in determining right to deduction under Section 52-1-47(D), fact-finder may consider evidence of parties' intent at time settlement agreement approved regarding allocation of specific benefits in settlement).
Claimant emphasizes the judge's findings that the January 1992 injuries necessitated her surgery, and that she was not a candidate for lumbar spinal surgery prior to January 3, 1992. However, the need for surgery brought on by the latter injuries does not mean that the earlier injury did not contribute. As stated above, there was substantial evidence that the earlier injury did contribute. Further, Claimant and her attorney contemplated the need for future surgery in settling the prior compensation claim. We hold that Respondents satisfied their burden of proof under Section 52-1-47(D).
ISSUE CONCERNING PRORATION
Claimant's final argument is that any offset should be prorated over her life expectancy. See Paternoster v. La Cuesta Cabinets, Inc., 101 N.M. 773, 779, 689 P.2d 289, 295 (Ct.App. 1984) (recognizing potential hardships on workers where employer credits allowed, and suggesting options for repayment). Claimant points out that the judge's award of the $13,165 offset left her with $13,165 in unanticipated debt. Nevertheless, Claimant testified that as of the date of the hearing, she had not spent any part of the $13,165 on medical care. She had settled her prior claim only two months before the January 1992 injuries. Further, Respondents are responsible for all further medical care arising out of Claimant's work injuries with no further offset. Under these circumstances, we cannot say that the judge was required to prorate the offset. There was no evidence of the type of hardship present when an offset is immediately applied to weekly compensation benefits. See id. at 778-79, 689 P.2d at 294-95. We do not mean to suggest that proration is never appropriate in cases of *416 offsets for medical expenses. We only determine that the judge did not abuse his discretion in denying Claimant's request to prorate the offset under the facts of this case.
CONCLUSION
We conclude that Section 52-1-47(D) authorized the offset for medical expenses in this case. We further determine that the offset was supported by substantial evidence in the whole record. Finally, the judge did not err in failing to prorate the offset. Accordingly, we affirm.
IT IS SO ORDERED.
DONNELLY and BIVINS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1117079/ | 572 So. 2d 92 (1991)
James H. YATES, Jr.
v.
NAYLOR INDUSTRIAL SERVICES, INC. and American International Group.
No. 90-C-2575.
Supreme Court of Louisiana.
January 11, 1991.
*93 Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2232717/ | 363 N.W.2d 367 (1985)
219 Neb. 327
STATE of Nebraska, Appellee,
v.
Clyde W. Moss, Sr., Appellant.
No. 84-615.
Supreme Court of Nebraska.
February 15, 1985.
Jack Zitterkopf and John B. McDermott of McDermott, Depue & Zitterkopf, Grand Island, Neb., for appellant.
Paul L. Douglas, Atty. Gen., and L. Jay Bartel, Lincoln, Neb., for appellee.
KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN and GRANT, JJ.
PER CURIAM.
This is an appeal in a criminal case. The defendant was charged with first degree murder and pled guilty to the charge of murder in the second degree. Neb.Rev. Stat. § 28-304(1) (Reissue 1979). The defendant was sentenced to a term of life imprisonment, "but in any event not less than 20 years," in the Nebraska Penal and Correctional Complex.
The defendant appeals and assigns as error that the court erred in pronouncing an indeterminate sentence not authorized by law, and therefore invalid, and that the sentence as pronounced was excessive.
We remand the cause to the district court for resentencing. We held in State v. Stranghoener, 208 Neb. 598, 304 N.W.2d 679 (1981), and State v. Laravie, 192 Neb. 625, 223 N.W.2d 435 (1974), that under the present statute upon conviction for second degree murder the court is not authorized to pronounce an indeterminate sentence. The court may impose a definite term of years not less than the minimum authorized by law or, in the alternative, may impose a sentence of life imprisonment.
As the sentence is clearly invalid, the cause must be remanded for resentencing, and we therefore do not consider the second assignment of error.
AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED FOR RESENTENCING. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610026/ | 467 P.2d 11 (1970)
STATE of New Mexico ex rel. STATE HIGHWAY COMMISSION of New Mexico, Plaintiff-Appellant,
v.
Carl A. BASSETT, Josephine C. Bassett and Farmers Home Administration, Defendants-Appellees.
No. 8761.
Supreme Court of New Mexico.
March 30, 1970.
Boston E. Witt, Atty. Gen., Joseph L. Droege, Richard T. Whitley, Sp. Asst. Attys. Gen., Santa Fe, for appellant.
David A. Grammer, Jr., Douglas T. Francis, Albuquerque, for appellees.
PER CURIAM.
Upon consideration of Motion for Rehearing the opinion heretofore filed is withdrawn and the following substituted therefor:
OPINION
MOISE, Chief Justice.
The State Highway Commission appeals from a judgment of $5,317.20 entered in *12 favor of Carl M. Bassett and Josephine C. Bassett, after a non-jury trial of a condemnation action brought by appellant.
Appellees were the owners of a tract containing 73 acres located some distance north of Highway 66 and not abutting thereon. Appellant brought action to condemn a total of 7.596 acres of the southerly portion of appellees' property for the construction of Interstate Highway 40, being a four-lane, divided highway with a service road on the north side and an overpass across the highway at the southwest corner of appellees' property.
At the trial, appellant presented several witnesses who testified concerning the before and after value of appellees' land, basing their opinion of after value on prices received by appellees after the condemnation for acreage adjacent to the overpass, and sales of claimed comparable properties. The testimony was admitted over objection, but the trial judge, in finding 12, stated, "that there was no admissible evidence submitted by the State to show enhancement of the entire remainder so that the before and after value can be computed by deducting the value of the land taken from the total value before taking."
Appellant's attack is on this so-called finding. Appellees call attention to other findings, not attacked, which support the conclusion reached and would have us hold as we did in State ex rel. State Highway Comm. v. Pelletier, 76 N.M. 555, 417 P.2d 46 (1966), and in Board of Trustees of Town of Farmington v. Spencer, 75 N.M. 636, 409 P.2d 269 (1965), that no proper attack being made on the findings of before and after value, those findings must be taken as correctly stating the facts, and the appellant could not prevail.
We do not agree with this appraisal of the case. Although the attack is directed at what is denominated as finding No. 12, this so-called finding is not properly a finding of fact. Rather, it is a statement by the court that certain testimony received in evidence was not admissible and, accordingly, was not considered in arriving at the facts otherwise found. It follows that the issue presented is one of law concerning the admissibility and weight to be accorded the particular evidence presented. If relevant and admissible, it would be reversible error for the court to refuse to accord it any weight which, in effect, would amount to its exclusion. See Litzkuhn v. Clark, 85 Ariz. 355, 339 P.2d 389 (1959); Carroll v. Beavers, 126 Cal. App. 2d 828, 273 P.2d 56, 59 A.L.R. 2d 263 (1954); compare Davey v. Davey, 77 N.M. 303, 422 P.2d 38 (1967).
The particular evidence which was presented, and denied consideration although admitted, concerned actual sales by appellees of two tracts adjacent to the newly constructed highway, and one sale by a third party. Of course, these sales were subsequent to the taking and reflected increased value arising from the construction.
The question here presented is a narrow one. We are called upon to determine if the evidence of sales subsequent to the taking was admissible for the purpose of determining the compensation to which appellees were entitled as of the date of taking. As already noted, the court admitted opinion evidence of the value of the land taken, based on prices received by appellees for acreage adjacent to the property taken, as well as in sales of comparable properties. However, by finding 12, quoted above, the court made it clear that it did not consider that this proof was admissible as a basis for determining benefits to the property remaining after the taking. Accordingly, we must determine whether the court was correct in its expressed view.
The rules governing the question presented are set forth in an annotation appearing in 85 A.L.R. 2d 110, and summarized on page 113 as follows:
"The cases involving the question of the admissibility of evidence of the sale price of other real property to prove the value of the real property in controversy *13 reflect two principal views: (1) that the evidence is inadmissible, the minority view; and (2) that the evidence is admissible if the conditions surrounding the two pieces of real property are similar and if the sale of the other real property was neither too remote in point of time nor of such a character as to indicate that it did not represent the true value of the property, the majority view. * * * While there is language in some cases which seems to indicate the existence of a third view that such evidence is admissible in the absolute discretion of the trial judge, it is doubtful whether the courts in these cases intended anything more than a reaffirmance of the widely recognized principle that the determination whether conditions are sufficiently similar between the two tracts of land to justify the admission of evidence of the sale price of one on the issue of the value of the other rests in the sound discretion of the trial court."
Transwestern Pipe Line Company v. Yandell, 69 N.M. 448, 367 P.2d 938 (1961), is cited in support of a rule thus stated:
"* * * [T]he rule is well established that the decision of the question whether or not conditions surrounding another tract of land or the sale thereof are sufficiently similar to the circumstances of the pending case and the land involved therein so that evidence as to the sale price may be admitted to prove the value of the land in controversy rests largely within the discretion of the trial court." (85 A.L.R.2d at 126).
We quote from Yandell, supra:
"* * * We are aware of conflict of authority as to the admissibility of evidence of prices paid by a condemnor for similar property in the vicinity, as evidence of value, but it is generally accepted that what constitutes `similar or like property' is a determination which must vary with the individual circumstances of a case, Covina Union High School District of Los Angeles County v. Jobe et al., 174 Cal. App. 2d 340, 345 P.2d 78. A trial judge is granted a wide discretion in determining the admissibility of evidence of other sales, taking into consideration, among other things, whether the price paid was sufficiently voluntary to be a reasonable index of value. People v. Murata, 161 Cal. App. 2d 369, 326 P.2d 947. In the recent case of Colorado Interstate Gas Co. v. Uinta Development Co. (Wyo.) 364 P.2d 655, which involved condemnation proceedings for a pipeline easement, the court adhered to the majority rule that prices brought about under the actual threat of lawsuits furnished no fair basis of market value, whether or not it is similar to that in controversy. See also 4 Nichols, Eminent Domain, 3d ed. p. 71; 118 A.L.R. 869, supplemented in annotation at 174 A.L.R. 386, and cases cited therein.
"It further appears from the record that the evidence excluded by the pre-trial order and tendered at the trial purported to show that the prices paid by petitioner to other adjacent landowners was much less in amount even than petitioner's own witnesses on value testified to at the trial. If the trial court, in its discretion, determined that the prices paid to other landowners were not reasonable estimates of the value of the land in this case, or that the owners settled for less than the land might have brought on the open market in order to avoid litigation, this court will not rule that the trial court abused its discretion in excluding the evidence." (69 N.M. at 458, 459, 367 P.2d 938, 945).
We doubt that the rule can be better stated than in the above quotation. Even conceding the admissibility of the evidence not considered by the court as argued at length by appellant, appellant cites no reason, nor do we perceive of one, whereby we could declare that in so holding, the court abused its discretion.
We recognize that the cases cited above deal with sales of property other than the *14 subject of the litigation, whereas two of the sales sought to be introduced here were of the subject. We do not, however, perceive that the rule should be any different as to sales of the subject, since the same factors of comparability can also affect subject properties.
Appellant would have us hold that since the evidence was received, and since if in the court's discretion the testimony was permitted, necessarily the court erred in its determination that there was no admissible evidence to establish the facts as claimed by appellant. However, we do not so view the situation. Rather, it appears to us that the court, in its discretion, determined that the proof should not have been admitted, and accordingly should not be considered. In this posture, we are not moved to hold that in this conclusion it was in error.
It follows that the cause should be affirmed. It is so ordered.
COMPTON and TACKETT, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2983975/ | Motion Granted; Dismissed and Memorandum Opinion filed May 22, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00901-CV
BARBARA ULMER, Appellant
V.
DEREK ANTHONY JENKINS, SR., Appellee
On Appeal from the 309th District Court
Harris County, Texas
Trial Court Cause No. 2012-44247
MEMORANDUM OPINION
This is an appeal from a final decree of divorce signed July 26, 2013. On
May 16, 2014, appellant filed a motion to dismiss the appeal. See Tex. R. App. P.
42.1. The motion is granted.
Accordingly, the appeal is ordered dismissed.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Donovan and Brown. | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1876078/ | 458 F. Supp. 60 (1978)
CONCERNED DEMOCRATS OF FLORIDA and Edward Cohen, President of Concerned Democrats,
v.
Janet RENO, State Attorney of Dade County, Florida, and Robert Shevin, Attorney General of Florida.
No. 78-3994-Civ.-NCR.
United States District Court, S. D. Florida, Fort Lauderdale Division.
September 6, 1978.
*61 Steven Wisotsky, Fort Lauderdale, Fla., for plaintiff.
Janet Reno, State Atty., and Robert L. Shevin, Atty. Gen., in pro. per.
PRELIMINARY INJUNCTION
ROETTGER, District Judge.
Plaintiffs in this lawsuit, Concerned Democrats of Florida, filed suit urging this court to strike down Florida Statute § 105.09[1] as unconstitutional, and to enjoin the State Attorney of Dade County, Janet Reno, from enforcing that particular law.
Judges are elected at the first primary election if they receive a majority of the votes cast. If no candidate receives a majority *62 in the first primary, then the determining vote is taken at the general election. Plaintiffs contend typically, at the eleventh hour[2] that they desire to interview candidates for judicial office and, based on those interviews, to publicize their recommendations and endorsements to the voters of Dade County. They contend that the flat prohibition of Fla. Stat. § 105.09 impermissibly chills their First Amendment rights to free speech; that it violates their right to political association; that it violates their right to equal protection under the laws as provided in the Fourteenth Amendment; and that it correlatively violates the rights of the Dade County voters to receive political information.
A hearing was held on August 23, 1978, where plaintiffs, Concerned Democrats and its president Edward Cohen, and both defendants were represented. Upon the basis of the law and the evidence presented at the hearing, the court concludes that plaintiff is entitled to a preliminary injunction pending final determination on the merits.
FINDINGS OF FACT
1. Florida Statute § 105.09 enacted in 1971, punishes by fine and imprisonment any support, endorsement, or assistance given to a judicial candidate by a political party or partisan political organization.
2. The Concerned Democrats of Florida is an organization formed in 1968 and chartered by the Executive Committee of the Florida Democratic Party in 1972.[3] As such, it would fit within the definition of groups whose political activities are curtailed by the statute.
3. The Concerned Democrats comprises about 4,000 members in Florida interested in screening and endorsing candidates who are compatible with their political philosophy. Edward Cohen, its president, described the organization as "liberal Democrat" in political persuasion.
4. Mr. Cohen also testified that but for this particular statute, his group would interview and publish its recommendations about judicial candidates. However, because he might "go to jail" or because the liberty of some of the organization's members might be at stake, the Concerned Democrats have not endorsed judicial candidates.
Mr. Cohen also testified that the Concerned Democrats would seek to endorse judicial candidates who exhibited such traits as a good legal background and the ability to make decisions on the basis of the law. Apparently, whether the candidate opposes capital punishment, as plaintiff does, would also be considered. He testified that races for judicial office are already political, and that his group only wanted to be able to make their preferences known to the voters of Dade County.
5. The testimony of Mr. George DePontis, a political promoter and public relations professional, and of Mr. H. Lee Bauman, a judicial candidate, leads the court to find that judicial races in Florida are planned and promoted much like any other political race.
6. The expense of a primary election campaign (judges are elected in the primaries rather than in the general election) ranges from $20,000 to $50,000. A judicial candidate will be required to spend $10,000 to $15,000 more if a runoff election is required.
*63 7. Candidates for judicial office speak to and receive endorsements from such organizations as the AFL-CIO, the United Teachers of Dade, Fraternal Order of Police, Police Benevolent Association, Concerned Citizens of North Dade, National Organization of Women and others, such as condominium owners' associations (possibly the most effective of the endorsing organizations).
8. Judicial candidates seek to garner as much support as possible and would apparently welcome endorsements as well from political or partisan groups. However, by the operation of Fla. Stat. § 105.071[4], the candidate himself would still be prohibited from engaging in any partisan political party activities.
9. By operation of Fla. Stat. § 105.021 judicial officers in Florida are to be elected on separate non-partisan ballots.
CONCLUSIONS OF LAW
1. This court's jurisdiction is invoked pursuant to Title 28 U.S.C. §§ 1343(3), (4) and 1331. Plaintiffs' allegations that Fla. Stat. § 105.09 violates their rights guaranteed by the First and Fourteenth Amendments present this court with a case or controversy as required by Art. III, Sec. 2 of the United States Constitution. The parties are adverse to one another; there exists an actual controversy and the court is able to grant relief which will resolve the matter between them. See Muskrat v. United States, 219 U.S. 346, 31 S. Ct. 250, 55 L. Ed. 246 (1911); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S. Ct. 461, 81 L. Ed. 617 (1937). It is not necessary that plaintiffs actually expose themselves to criminal prosecution. Steffel v. Thompson, 415 U.S. 452, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (1974). The plaintiffs have a personal stake in the outcome of this case, and they are proper parties to contest the validity of this statute. Flast v. Cohen, 392 U.S. 98, 100-102, 88 S. Ct. 1942, 1953, 20 L. Ed. 2d 947 (1968); see also Morial v. Judiciary Commission of State of Louisiana, 565 F.2d 295 (5th Cir. 1977).
2. The principles of comity do not compel this court to abstain from considering the case. No criminal prosecution is pending, so there will be no disruption of ongoing state proceedings. If this court declines jurisdiction, then plaintiffs will be forced to forego what they believe to be constitutionally protected activities in order to avoid the harshness of a criminal prosecution. Steffel v. Thompson, supra.
3. The standards that apply in cases involving the granting of a preliminary injunction are well stated in Barrett v. Roberts, 551 F.2d 662 at 665 (5th Cir. 1977). There the court states:
In order to obtain preliminary injunctive relief, a litigant is required to demonstrate: (a) a substantial likelihood of success on the merits; (b) a substantial threat that the plaintiff will suffer irreparable *64 harm unless the preliminary injunction is granted; (c) that the threatened injury to the plaintiff if the injunctive relief is denied outweighs the possible harm to the defendants if the relief is granted; and (d) that the issuance of injunctive relief will serve the public interest. (citation omitted).
Accordingly the court will examine the facts of this case in light of the four requisites laid down by the Fifth Circuit.
4. The court concludes that plaintiffs are likely to prevail on the merits of this lawsuit. Plaintiffs have shown that the challenged statute substantially interferes with their desire to choose and endorse their choices for judicial office seekers. If this activity is protected by the First Amendment, then clearly the statute must give way. The court believes that conduct which involves scrutinizing and endorsing of political candidates is within the core of the First Amendment. Political activity has been given broad protection by the Supreme Court. The "advancement of political beliefs and ideas" is protected by the Constitution. Buckley v. Valeo, 424 U.S. 1, 15, 96 S. Ct. 612, 632-33, 46 L. Ed. 2d 659 (1976). And the right of a group to associate for the purpose of advancing political ideas is also "a form of `orderly group activity' protected by the First and Fourteenth Amendments." Cousins v. Wigoda, 419 U.S. 477, 487, 95 S. Ct. 541, 547, 42 L. Ed. 2d 595 (1975). Even though some state regulations of the election process are permissible and necessary, the Supreme Court has not hesitated to strike down election laws which interfere with a newspaper's right to comment on political candidates. See Mills v. Alabama, 384 U.S. 214, 86 S. Ct. 1434, 16 L. Ed. 2d 484 (1966); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S. Ct. 2831, 41 L. Ed. 2d 730 (1974). Also, Gore Newspapers Co. v. Shevin, 397 F. Supp. 1253 (S.D.Fla. 1975), affirmed 550 F.2d 1057 (5th Cir. 1977).
Having concluded that the statute substantially interferes with constitutionally protected activity, the court must now consider the state's interest in passing this statute, and if it can withstand constitutional scrutiny under the applicable standard of constitutional review. Counsel for the Florida Attorney General's office contended the State's interest was in maintaining the integrity and impartiality of the state judiciary. He contended the statute would inhibit domination of judges by political parties and politically partisan groups. The court agrees that maintaining the integrity and impartiality of the state judiciary is a compelling state interest. There can be no question that the state has a vital interest in assuring that its judges are free from direct political pressure; that they can render decisions independent of political ramifications; and that they can discharge their duties free from the pressure, sometimes subtle and sometimes otherwise, that can be applied by political groups.
In this type of situation, however, as the interference with First Amendment rights becomes more severe, the statutory means employed by the state must fit more closely the desired end. It must be the least restrictive alternative. See Morial v. Judiciary Commission of State of Louisiana, 565 F.2d 295 at 300 and discussion at note 5 (5th Cir. 1977). The Fifth Circuit has also stated that although control of the election process is a valid concern of the state, if the state seeks to control it by a law that is "unduly restrictive" then the law "may so impinge upon freedom of association as to run afoul of the First and Fourteenth Amendments." (citation omitted). Riddell v. National Democratic Party, 508 F.2d 770, 777 (5th Cir. 1975). When a law does run afoul of the First Amendment in a significant or substantial manner, then courts are obligated to invoke strict constitutional scrutiny. Id. at 776. Under such a test, the state is then required to show a compelling interest, to be achieved by statutory means that are "closely drawn to avoid unnecessary abridgement." First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S. Ct. 1407, 1421, 55 L. Ed. 2d 707 (1978).
Florida Statute § 105.09 most assuredly aids the state in maintaining the non-partisan qualities of its elections. It does promote a compelling state interest. *65 However, its ends do not fit tightly enough with its means. It is not "closely drawn", Bellotti, supra, nor is it the "least intrusive means of achieving its objective." Elrod v. Burns, 427 U.S. 347, 363-364, 96 S. Ct. 2673, 2684-2685 (1976).
In this case, the statute operates against private citizens who wish to express their political preferences. This is not a case involving the possible conflicts of politically active government employees, or a judge who seeks another elected office. U. S. Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 93 S. Ct. 2880, 37 L. Ed. 2d 796 (1973); Broadrick v. Oklahoma, 413 U.S. 601, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973); Morial v. Judiciary Commission of State of Louisiana, 565 F.2d 295 (5th Cir. 1977). There are certainly less restrictive alternatives available to the state; in fact, it appears that they already exist. The court feels that the state can permissibly achieve its goal of keeping judicial elections non-partisan by regulating the partisan activity of judges and judicial candidates. This appears to have been accomplished by Fla. Stat. § 105.071, see note 3, supra. Also the elections themselves are kept non-partisan by the operation of Fla. Stat. § 105.021 which specifically provides that judicial officers are to be elected on separate non-partisan ballots. With these two statutes, the state has succeeded in keeping the judicial candidates themselves and their election non-partisan. It cannot also control private citizens who wish to make their choices known. Having decided the likelihood of success on the basis of plaintiff's first two counts, the court will not at this time consider counts III and IV. If necessary, they may still be considered at the trial on the merits.
5. The court concludes that plaintiffs will suffer irreparably if enforcement of the statute is not enjoined. The elections are less than a month away, and plaintiffs are threatened with criminal prosecution. If they act, they face criminal sanctions from the state. If they wait, the elections will have come and gone.
6. There is no question that the injury to plaintiff, if the injunction is denied, will outweigh the injury to defendant if it is granted.
7. By promoting the exchange of political ideas, it appears that the public will be benefited by the preliminary injunction. This factor is troublesome because there is an obvious interest to both the public and the Legislature in having judicial candidates free of the appearance of impropriety. An appearance of partisanship will hardly foster public confidence in the courts. However, the court feels constrained under cases discussed in conclusion number 4, supra.
The strength of the first two factors compensates for the weakness in the fourth factor. Knights of K.K.K. v. East Baton Rouge Parish School Board, 578 F.2d 1122 (5th Cir. 1978) citing Texas v. Seatrain Int'l S.A., 518 F.2d 175 (5th Cir. 1975) and Siff v. State Democratic Executive Committee, 500 F.2d 1307 (5th Cir. 1974).
Accordingly, it is
ORDERED AND ADJUDGED that plaintiffs' request for preliminary injunction is granted. The State Attorney for Dade County, Florida is hereby enjoined from prosecuting the Concerned Democrats of Florida or any of its members for any violations of Fla. Stat. § 105.09 pending the final determination of this case on the merits.
NOTES
[1] Political activity in behalf of a candidate for judicial office limited . . .
1. No political party or partisan political organization shall endorse, support, or assist any candidate in his campaign for election to judicial office.
2. Any person who knowingly, in his individual capacity or as an officer of an organization, violates the provisions of this section is guilty of a misdemeanor of the second degree, punishable as provided in § 775.082 or § 775.083.
[2] The statute was enacted in 1971 but never challenged in a reported decision (or as far as is known, in any court), and plaintiffs filed suit three weeks before the election.
[3] Counsel for the Florida Attorney General argued that plaintiffs lacked standing to bring this lawsuit because they did not meet the statutory definition of political party or partisan political organization. However, counsel for defendant, Janet Reno, would not state that their office would decline to prosecute if plaintiffs proceeded to endorse judicial candidates. No facts were adduced at the hearing which relate to the plaintiff organization's legal status except the testimony of Edward Cohen which revealed his belief that Concerned Democrats of Florida were chartered by the Executive Committee in 1972. If so, and there are no facts to the contrary, then the plaintiff organization seems to fall within the range of groups defined in Fla. Stat. § 103.081.
[4] 105.071 Candidates for judicial office; limitations on political activity
A candidate for judicial office shall not:
(1) Participate in any partisan political party activities, except that such candidate may register to vote as a member of any political party and may vote in any party primary for candidates for nomination of the party in which he is registered to vote.
(2) Campaign as a member of any political party.
(3) Publicly represent or advertise himself as a member of any political party.
(4) Endorse any candidate.
(5) Make political speeches other than in his own behalf.
(6) Make contributions to political party funds.
(7) Accept contributions from any political party.
(8) Solicit contributions for any political party.
(9) Accept or retain a place on any political party committee.
(10) Make any contribution to any person, group, or organization for its endorsement to judicial office.
(11) Agree to pay all or any part of any advertisement sponsored by any person, group, or organization wherein the candidate may be endorsed for judicial office by any such person, group, or organization.
A candidate for judicial office or retention therein who violates the provisions of this section is guilty of a misdemeanor of the first degree, punishable as provided in § 775.082 or § 775.083.
Amended by Laws 1977, c. 77-175, § 38, eff. Jan. 1, 1978 | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1872598/ | 594 So. 2d 292 (1992)
Max FENELON, Petitioner,
v.
STATE of Florida, Respondent.
No. 77765.
Supreme Court of Florida.
February 13, 1992.
*293 Max Fenelon, pro se.
Richard L. Jorandby, Public Defender and Tanja Ostapoff, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for petitioner.
Robert A. Butterworth, Atty. Gen. and James J. Carney, Asst. Atty. Gen., West Palm Beach, for respondent.
BARKETT, Justice.
We review Fenelon v. State, 575 So. 2d 264 (Fla. 4th DCA 1991), based on asserted conflict with Merritt v. State, 523 So. 2d 573 (Fla. 1988), and Proffitt v. State, 315 So. 2d 461 (Fla. 1975), aff'd, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976).[1] The issue is whether the trial court erred in instructing the jury that it could consider flight as a circumstance inferring guilt.
Max Fenelon was tried and convicted of first-degree murder and attempted robbery with a firearm. Over defense objections, the trial court had given the jury instruction on flight.[2] On appeal, the district court affirmed, finding "that the record contains sufficient evidence to support the jury instruction on flight." Fenelon, 575 So.2d at 265.
Fenelon urges that under Florida law the evidence was insufficient for such an instruction. The State contends that even if the instruction was erroneously given, the error would be harmless in light of the evidence presented. That evidence included Fenelon's admission upon his arrest that he had fired the gun and run away from the scene;[3] the testimony of Herard Martelus that on the day of the murder Fenelon had a gun and told him that he planned to "jack" someone; the testimony of Betty George that she saw Fenelon running near the area of the shooting with the handle of a black gun protruding from his pocket, and that later that evening Fenelon told her that the gun had accidentally fired when he tried to scare a lady into giving him money; the testimony of Mona Lisa Rolle that Fenelon told her on the day of the shooting that a gun he was holding had accidentally discharged and a lady was shot.
We agree with the State that giving the flight instruction, even if erroneous, was harmless beyond a reasonable doubt in light of the evidence at trial supporting the defendant's guilt. Thus, we need not decide the initial question presented. However, *294 this case has raised serious concerns over the appropriateness of a jury instruction pertaining to evidence of flight.
Evidence that a defendant was seen at the scene of a crime, leaving the scene, or fleeing from the scene, in most instances, would be relevant to the question of the defendant's guilt. Such evidence, like any other evidence offered at trial, is weighed and measured by its degree of relevance to the issues in the case. The flight instruction, however, treats that evidence differently from any other evidence. It provides an exception to the rule that the judge should not invade the province of the jury by commenting on the evidence or indicating what inferences may be drawn from it.
Especially in a criminal prosecution, the trial court should take great care not to intimate to the jury the court's opinion as to the weight, character, or credibility of any evidence adduced.
Whitfield v. State, 452 So. 2d 548, 549 (Fla. 1984).
In reconsidering the flight instruction, we can think of no valid policy reason why a trial judge should be permitted to comment on evidence of flight as opposed to any other evidence adduced at trial. Indeed, the instruction has long been eliminated from the Florida Standard Jury Instructions in Criminal Cases, apparently in an effort to eliminate "[l]anguage which might be construed as a comment on the evidence." Fla. Std. Jury Instr. (Crim.), Committee Report at xvi (The Florida Bar Feb. 15, 1980). We also note that a number of other jurisdictions have expressed these same concerns and have either disapproved or strongly discouraged the use of a flight instruction. See People v. Larson, 194 Colo. 338, 572 P.2d 815, 817 (1977); State v. Wrenn, 584 P.2d 1231, 1233 (Idaho 1978); State v. Bone, 429 N.W.2d 123, 125-27 (Iowa 1988); State v. Cathey, 241 Kan. 715, 741 P.2d 738, 748-49 (1987); People v. Williams, 66 N.Y.2d 789, 497 N.Y.S.2d 902, 903, 488 N.E.2d 832, 833 (1985); State v. Stilling, 285 Or. 293, 590 P.2d 1223, 1230, cert. denied, 444 U.S. 880, 100 S. Ct. 169, 62 L. Ed. 2d 110 (1979); State v. Grant, 275 S.C. 404, 272 S.E.2d 169, 171 (1980); State v. Menard, 424 N.W.2d 382, 384 (S.D. 1988).
The difficulty inherent in the flight instruction is in deciding when "leaving" or "fleeing" actually indicates consciousness of guilt. Confusion over the application of the flight instruction is reflected by the many and varied circumstances under which the instruction has been given. For example, some cases indicate that "flight" means the defendant fled the scene of the crime. See, e.g., Feimster v. State, 491 So. 2d 321 (Fla. 3d DCA), review denied, 492 So. 2d 1331 (Fla. 1986); Haywood v. State, 466 So. 2d 424 (Fla. 4th DCA 1985), approved, 482 So. 2d 1377 (1986); Cremade v. State, 367 So. 2d 236 (Fla. 3d DCA 1979); Villageliu v. State, 347 So. 2d 445 (Fla. 3d DCA 1977), cert. denied, 355 So. 2d 518 (Fla. 1978); Martinez v. State, 346 So. 2d 1209 (Fla. 3d DCA), cert. denied, 354 So. 2d 983 (Fla. 1977); but see Jackson v. State, 575 So. 2d 181, 189 (Fla. 1991) ("Departure from the scene of the crime, albeit hastily done, is not the flight to which the jury instruction refers"). In contrast, other cases seem to define "flight" as leaving the jurisdiction. See, e.g., Ventura v. State, 560 So. 2d 217 (Fla.), cert. denied, ___ U.S. ___, 111 S. Ct. 372, 112 L. Ed. 2d 334 (1990); Green v. State, 571 So. 2d 571 (Fla. 3d DCA 1990); Gross v. State, 505 So. 2d 16 (Fla. 3d DCA 1987); Hargrett v. State, 255 So. 2d 298 (Fla. 3d DCA 1971). Still other cases use "flight" to mean the defendant ran from police or resisted arrest. See, e.g., Brown v. State, 526 So. 2d 903 (Fla.), cert. denied, 488 U.S. 944, 109 S. Ct. 371, 102 L. Ed. 2d 361 (1988); Bundy v. State, 455 So. 2d 330 (Fla. 1984), cert. denied, 476 U.S. 1109, 106 S. Ct. 1958, 90 L. Ed. 2d 366 (1986); Rodriguez v. State, 528 So. 2d 1373 (Fla. 3d DCA 1988); Bradley v. State, 468 So. 2d 378 (Fla. 1st DCA 1985), approved, 485 So. 2d 1285 (Fla. 1986); Brown v. State, 443 So. 2d 194 (Fla. 3d DCA 1983). And still other cases indicate that "flight" occurs where the defendant attempts escape from custody. See, e.g., Freeman v. State, 547 So. 2d 125 (Fla. 1989); Harvey v. State, 529 So. 2d 1083, 1086 (Fla. 1988), cert. denied, 489 U.S. 1040, 109 S. Ct. 1175, 103 L. Ed. 2d 237 (1989); Plasencia v. State, 426 So. 2d 1051 *295 (Fla. 3d DCA), review denied, 436 So. 2d 100 (Fla. 1983); Jordan v. State, 419 So. 2d 363 (Fla. 1st DCA 1982). Finally, the instruction has also been given where the defendant gave a false name, see Highsmith v. State, 580 So. 2d 234 (Fla. 1st DCA), review denied, 589 So. 2d 291 (Fla. 1991); but see Simpson v. State, 562 So. 2d 742 (Fla. 1st DCA) (error to instruct that giving a false statement could be considered evidence of defendant's guilt), review denied, 574 So. 2d 143 (1990); and where the defendant attempted suicide, see Walker v. State, 483 So. 2d 791 (Fla. 1st DCA), review denied, 492 So. 2d 1336 (Fla. 1986); contra Meggison v. State, 540 So. 2d 258 (Fla. 5th DCA 1989).
This Court has noted that "flight alone is no more consistent with guilt than innocence." Merritt v. State, 523 So. 2d 573, 574 (Fla. 1988); Whitfield v. State, 452 So.2d at 550. Thus, we have required "significantly more evidence in the record than flight standing alone" to support an instruction. Proffitt v. State, 315 So. 2d 461, 466 (1975), affirmed, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976); see also Wright v. State, 586 So. 2d 1024, 1030 (Fla. 1991) (flight instruction may be given only when supported by the evidence). However, there is much disagreement as to what kind and what quantum of evidence will support an instruction on flight. This problem is illustrated by the many cases where appellate courts found error in the trial courts' flight instructions because of insufficiency of the evidence. See, e.g., Wright, 586 So.2d at 1030. ("Merely fleeing the scene of a crime does not support a flight instruction."); Rhodes v. State, 547 So. 2d 1201 (Fla. 1989) (no evidence that defendant was fleeing to avoid prosecution when he was stopped by highway patrol for speeding); Lefevre v. State, 585 So. 2d 457 (Fla. 1st DCA 1991) (defendant's flight from shooting scene equally consistent with his theory of defense); Williams v. State, 427 So. 2d 331 (Fla. 3d DCA 1983) (insufficient evidence defendant fled scene to avoid prosecution); Barnes v. State, 348 So. 2d 599 (Fla. 4th DCA 1977) (no evidence defendant's flight from scene was for purpose of avoiding detection); compare Bundy v. State, 471 So. 2d 9 (Fla. 1985), cert. denied, 479 U.S. 894, 107 S. Ct. 295, 93 L. Ed. 2d 269 (1986) (evidence that defendant fled jurisdiction several days after the victim's disappearance indicated such flight was to avoid prosecution for that murder, as opposed to other crimes with which he was also charged), with Merritt v. State, 523 So.2d at 573 (defendant's escape attempt while en route to Florida to stand trial did not prove that such flight was to avoid prosecution of unrelated murder, even though defendant knew he was a suspect in that case).
In sum, we are troubled by the inconsistencies among the cases as well as with the lack of a meaningful standard for assessing what type of evidence merits the instruction. Indeed, at oral argument, neither party could articulate specific guidelines that trial courts should use to determine when the instruction should be given. We are thus persuaded that the better policy in future cases where evidence of flight has been properly admitted is to reserve comment to counsel, rather than to the court. See Jackson v. State, 435 So. 2d 984 (Fla. 4th DCA 1983), approved, Whitfield, 452 So.2d at 550.
Accordingly, we approve the result below although we direct that henceforth the jury instruction on flight shall not be given.
It is so ordered.
SHAW, C.J., and OVERTON, McDONALD, GRIMES, KOGAN and HARDING, JJ., concur.
NOTES
[1] We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution.
[2] The court instructed the jury:
Flight. A person accused of a crime raises no presumption of guilt. But that is a circumstance that goes to the jury to be considered by you with all other testimony. And the circumstances should be given such weight as you may determine it [is] entitled to. And the rule is when a suspected person in any manner endeavors to escape or by threatened prosecution attempts by flight or concealment such may be then one of series of circumstances [from] which guilt may be inferred.
[3] At trial, Fenelon recanted his statements made at the time of arrest. He denied participating in the robbery, which he said he had heard several other men planning. He claimed he had been in a nearby furniture store and ran away scared when he heard the shot and saw the victim bleeding from the mouth. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1903359/ | 807 So. 2d 198 (2002)
D.C., a child, Appellant,
v.
STATE of Florida, Appellee.
No. 4D01-2909.
District Court of Appeal of Florida, Fourth District.
February 20, 2002.
Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
We reverse the delinquency disposition order withholding adjudication and placing Appellant on probation. Appellant, as a result of the state's delay in serving him, was not arraigned until forty three (43) days after expiration of the ninety (90) day speedy trial period allotted from the date of his arrest. During that time, he was in the custody of the Department of Juvenile Justice. The state acknowledges that it was error to deny Appellant's motion to dismiss. R.K. v. State, 778 So. 2d 1098 (Fla. 4th DCA 2001); Fla. R. Juv. P. 8.090.
We remand with direction to vacate the order and for discharge Appellant accordingly.
STONE, WARNER, and FARMER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4517097/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-7681
DARVIS ADIB SANTIESTEBAN,
Petitioner - Appellant,
v.
JUSTIN ANDREWS, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Terrence W. Boyle, Chief District Judge. (5:18-hc-02036-BO)
Submitted: March 12, 2020 Decided: March 17, 2020
Before KING, KEENAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Darvis Adib Santiesteban, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darvis Adib Santiesteban, a federal prisoner, appeals the district court’s orders
dismissing without prejudice his 28 U.S.C. § 2241 (2018) petition, in which he sought to
challenge his sentence by way of the savings clause in 28 U.S.C. § 2255 (2018), and
denying his motion for reconsideration. Pursuant to § 2255(e), a prisoner may challenge
his sentence in a traditional writ of habeas corpus pursuant to § 2241 if a § 2255 motion
would be inadequate or ineffective to test the legality of his detention.
[Section] 2255 is inadequate and ineffective to test the legality of a sentence
when: (1) at the time of sentencing, settled law of this circuit or the Supreme
Court established the legality of the sentence; (2) subsequent to the prisoner’s
direct appeal and first § 2255 motion, the aforementioned settled substantive
law changed and was deemed to apply retroactively on collateral review;
(3) the prisoner is unable to meet the gatekeeping provisions of § 2255(h)(2)
for second or successive motions; and (4) due to this retroactive change, the
sentence now presents an error sufficiently grave to be deemed a fundamental
defect.
United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018).
We have reviewed the record and find no reversible error. Accordingly, we affirm
for the reasons stated by the district court. Santiesteban v. Andrews, No.
5:18-hc-02036-BO (E.D.N.C. Oct. 8, 2019; Oct. 30, 2019). We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional process.
AFFIRMED
2 | 01-03-2023 | 03-17-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2609928/ | 2 Cal. 3d 440 (1970)
467 P.2d 225
85 Cal. Rptr. 625
JAMES E. MACK, Petitioner,
v.
THE STATE BAR OF CALIFORNIA, Respondent.
Docket No. L.A. 29673.
Supreme Court of California. In Bank.
April 16, 1970.
*441 COUNSEL
James E. Mack, in pro. per., for Petitioner.
F. LaMar Forshee and Herbert M. Rosenthal for Respondent.
OPINION
THE COURT.
This is a proceeding to review a recommendation of the Disciplinary Board of the State Bar of California that petitioner be suspended from the practice of law for five years on conditions of probation, including actual suspension during the first two years.
Petitioner was admitted to practice in California in 1948. He practiced here until December 1959, at which time he moved to Arizona to engage *442 in the real estate business. After returning to California in the summer of 1965, he was employed as house counsel by Alpha Beta Acme Markets, Inc. (hereinafter referred to as "Alpha"). That employment continued until March 1, 1966, after which petitioner engaged in private practice.
In the summer of 1966, Alpha retained petitioner to represent it in recovering $1,820, which had been introduced in evidence in a criminal matter. In November 1966, petitioner instituted legal proceedings on behalf of Alpha in the Municipal Court for the Culver Judicial District of Los Angeles County. Subsequently, the Los Angeles Police Department deposited $1,820 with the clerk of the court, as trustee. On July 5, 1967, petitioner obtained an order directing the clerk to pay $1,820 to Alpha, in care of petitioner, its attorney. On July 7, 1967, petitioner notified Alpha by letter that he had obtained the order, and he sent Alpha a statement for fees and costs, totaling $463.26.
On July 18, 1967, the County of Los Angeles issued its warrant for $1,820, payable to petitioner, and delivered it to his office. Upon receipt of the warrant on July 20, 1967, petitioner personally endorsed it. It was deposited in petitioner's trust account at the Bank of America, Hollywood-Highland Branch. The balance in the account immediately prior to the deposit of the warrant was $10.11. After the warrant was deposited on July 20, 1967, the balance was $1,830.11.
Beginning July 21, 1967, petitioner withdrew funds from the trust account without making any remittance to Alpha. Some of the withdrawals were paid to petitioner personally, while others were made to, or for the benefit of, other clients of petitioner. At various times after July 20, 1967, the balance in the trust account was reduced to an amount far less than $1,820. The records of the account show that within 11 days after petitioner had deposited the $1,820 warrant, he had reduced the balance in the account to $42.85; and, despite deposits of over $1,500 in August 1967, the trust account balance had been reduced to $56.86 by August 21, 1967. Petitioner followed the same pattern of deposits and withdrawals on later occasions through February 1968.
Some time after October 1967 but before January 1968, Alpha questioned petitioner with regard to the status of his efforts to obtain the $1,820 on its behalf. On these occasions, petitioner failed to disclose to Alpha that he had received the $1,820 and falsely stated that he had not received the funds. On or about January 25, 1968, Alpha conducted an independent examination and confronted petitioner with its knowledge that he had received the warrant. Alpha then demanded payment of the amount petitioner owed it ($1,346.74 after deduction of petitioner's fees and costs).
*443 On January 25, 1968, the balance in petitioner's trust account was $12.63. Thereafter, on or before February 5, 1968, petitioner deposited a total of $2,847.31 in the trust account. One deposit was for $2,000, representing a check payable to petitioner from another client for moneys owed to petitioner by such client. On February 5, 1968, petitioner gave Alpha a check for $1,346.74 drawn on the trust account, but when Alpha first presented it for payment, it was dishonored "for uncollected funds," because the $2,000 check petitioner had deposited on February 5, 1968, had not been collected. Thereafter, Alpha again presented the check for payment, and it was dishonored for insufficient funds, the $2,000 check having by that time been dishonored by the drawee bank. Thereafter, the balance in petitioner's trust account remained at $607, but as of the date of the trial committee hearing on December 2, 1968, petitioner had made no restitution to Alpha.
The facts showing petitioner's failure to observe the requirements of rule 9 of the Rules of Professional Conduct[1] upon receiving funds belonging to his client, his misappropriation of such funds, and his issuing a check against his trust account with insufficient funds therein to cover the check are undisputed. The only issue presented by the petition for review is the proper degree of discipline, petitioner urging that the disciplinary board "failed to take into account mitigating circumstances established during the period of the transaction involved" and that the degree of penalty recommended by the disciplinary board is "unfair, unjust and unwarranted under all the circumstances."
(1) The burden is on petitioner to show that the disciplinary board's recommendation is erroneous or unlawful. (Corn v. State Bar, 68 Cal. 2d 461, 462 [1] [67 Cal. Rptr. 401, 439 P.2d 313]; McKinney v. State Bar, 62 Cal. 2d 194, 195 [2] [4] Cal. Rptr. 665, 397 P.2d 425].) As will hereinafter appear, however, petitioner has not met this burden.
At the hearing before the trial committee, petitioner attempted to convey the impression that his misappropriation of the funds was unintentional and that his failure to make restitution to Alpha was excusable. He asserted, in substance, that he had assumed the county would pay the $1,820 directly to Alpha; that because of his failure to have adequate records of *444 account, he did not know before October 1967 that he had received the $1,820 on behalf of Alpha in July 1967 and had used such funds; that he had never had sufficient funds since that time to repay Alpha; and that Alpha had indicated to him it could afford to lose the sum.
In testifying before the committee, petitioner indicated a belief that the court order had directed that the county make the payment directly to Alpha; and he had implied in a letter to Alpha on July 7, 1967, that payment would be made by the county directly to it. The order, however, which had been prepared by petitioner, specifically directed that payment be made to Alpha in care of petitioner.
Although there was some equivocation in petitioner's testimony as to whether he had personally received the warrant, he admitted that he had personally endorsed it (he identified the endorsed signature as his own) and that his secretary had deposited it in his purported trust account in the ordinary course of business pursuant to his general instructions. Under the circumstances, petitioner's statement that he did not know until October 1967 that the warrant had been received and deposited to his account in July is highly improbable.
As will hereinafter appear, prior to the time petitioner resumed private practice in 1966 he had been made aware of his professional responsibilities in handling trust funds. The evidence shows, however, that, despite this knowledge, petitioner soon after returning to private practice in 1966 used his trust account as a mechanism to hold and disburse funds of two clients free of the claims of certain of their existing creditors, as well as for his personal use.
Petitioner testified that he represented Western Transistor Corporation, which was his largest single client; that the corporation was in financial difficulty and was being constantly subjected to attachments and levies; that he used his trust account for the corporation and one of its officers, who was also in financial difficulty; that he also ran collections on behalf of the corporation through his trust account; that this made it extremely hard for him to balance the account, and he gave up trying to do so[2]; and that he expected to receive substantial fees for permitting the use of his trust account for the business purposes of the corporation and its officer.
*445 Although petitioner was the only person authorized to make withdrawals from the account, he maintained no specific ledger sheet or other record to explain his withdrawals or his deposits. He stated that he had no procedure to determine the source of deposits except his own memory and discussion with his secretary. Under the circumstances, petitioner's designation of his bank account as a "trust account" was nothing more than a sham compliance with rule 9. As stated by this court in Clark v. State Bar, 39 Cal. 2d 161, 174 [246 P.2d 1]: "... `The failure to keep proper books ... is in itself a suspicious circumstance.'"
(2) Although petitioner claims he did not discover until October 1967 that the $1,820 warrant had been deposited to his account in July 1967, he admitted that even after making such discovery in October, he failed to disclose to Alpha his receipt and use of the funds and falsely represented to Alpha that the "judge was giving [him] some trouble"; that he "didn't have the proper order"; and that he "hadn't received the funds." He stated that he "thought" his representations were "obviously an error" and he was not sure whether he acted as "a matter of pride." It is clear, however, that petitioner's acts of deceit did not result from mere error on his part and that he deliberately made such statements to conceal from Alpha his use of its funds.
Petitioner's conduct shows not only a violation of rule 9 but, in addition, bad faith toward his client. (See Cutler v. State Bar, 71 Cal. 2d 241, 250-251 [78 Cal. Rptr. 172, 455 P.2d 108].) Petitioner's deliberately deceiving his client is inexcusable. (McKinney v. State Bar, supra, 62 Cal. 2d 194, 196 [3].)
(3) Petitioner's bad faith toward his client is further shown by his action, or lack of action, with respect to making restitution. At the hearing, petitioner said: "At this point it's true that I have not yet made any restitution to Alpha Beta, I suppose for two reasons. One because of their statement they didn't want the money although they are entitled to it, it's theirs. Secondly, because as of this point yet I have not had $1,346 in one lump sum. And, thirdly, I was waiting for this hearing." Although petitioner claimed he lacked funds with which to make restitution, he admitted that his gross income during 1967 was $31,000 and that his net income was $17,000. He also admitted that he paid all his office overhead, amounting to between $900 and $1,000 per month, and had on hand money for his own purposes exceeding the amount he owed Alpha.
Furthermore, the record shows that, to petitioner's knowledge, Western Transistor Corporation, the client which gave him a $2,000 check, dated *446 February 2, 1968, deposited by him in his trust account February 5, 1968 (which check, as hereinabove indicated, was dishonored by the drawee bank), was in financial straits[3] and went into receivership two days after petitioner deposited the check. Petitioner nevertheless gave Alpha a check for $1,346.74 in restitution, knowing that if the $2,000 check was not paid, his check to Alpha would be returned for insufficient funds. In view of his close contact with Western Transistor Corporation, however, it is reasonable to assume that petitioner knew the $2,000 check would not likely be paid, and that he issued the $1,346.74 check to Alpha for the purpose of stalling it.
At the hearing before the trial committee, petitioner sought to show as mitigating circumstances the fact that from November 1967 to May 1968 he was having marital difficulties; and the disciplinary board in its findings took cognizance of this claim. It should be noted, however, that petitioner received the funds in July 1967 and almost immediately thereafter misappropriated them and that at least by October 1967, prior to the time he claims his domestic problems arose, he was aware the funds had been received and used by him, and he nevertheless failed to turn over to his client the amount to which it was entitled or to notify his client that he had received the funds.
In any event, petitioner's prior record shows that his misconduct resulted from factors other than his alleged emotional distress because of domestic difficulties. On September 12, 1960, in Bar Miscellaneous 2651 this court suspended petitioner for six months as a result of his misconduct in two matters, one occurring in 1958 and the other in the following year. In the first matter, the Board of Governors found that petitioner in November 1958 had obtained $5,000 in cash and the return of his personal promissory notes for $2,000 and $3,000, respectively, by giving his creditor a $10,200 promissory note, which petitioner had purportedly executed with a comaker, but that petitioner had wrongfully affixed the signature of another to the note as a comaker, without such person's knowledge or authorization. In the second matter, the Board of Governors found that on March 10, 1959, petitioner had received a $2,600 check from his client, to be retained by petitioner as trustee and used in connection with the purchase of certain real property by the client. Petitioner deposited the proceeds of the check in his trust account on March 10, 1959, but immediately withdrew $2,000 and misappropriated it. The real estate transaction was completed in March 1959 except for payment of the funds. On March 27, 1959, petitioner, on behalf of his client, delivered a $3,441 check to the title company, drawn on his trust account; but the check was returned unpaid *447 for insufficient funds. In spite of repeated requests by the title company for payment to complete the transaction, petitioner did not make full payment until July 21, 1959, almost four months later. Under the circumstances, it will be seen that petitioner was following a pattern which he had previously established and for which he had previously been disciplined.
(4) Petitioner's action in the present matter is sufficient to warrant the discipline recommended by the disciplinary board even without consideration of his prior record. (5) His prior record, however, may properly be considered in determining the appropriate discipline. (Eschwig v. State Bar, 1 Cal. 3d 8, 18-19 [81 Cal. Rptr. 352, 459 P.2d 904].) In Bruns v. State Bar, 18 Cal. 2d 667, 673 [117 P.2d 327], a disbarment matter, this court stated: "Although ten years have elapsed since the previous disciplinary proceedings against petitioner ... it is apparent that the discipline then administered did not succeed in imparting to him an understanding of the duties of an attorney to his clients and to the public."
Under the circumstances, further discipline is warranted, and the recommended discipline is lenient in view of the attitude shown by petitioner.
It is ordered that petitioner be suspended from the practice of law for a period of five years on conditions of probation, including actual suspension during the first two years, effective 30 days from the filing of this opinion.
NOTES
[1] Rule 9 of the Rules of Professional Conduct provides: "A member of the State Bar shall not commingle the money or other property of a client with his own; and he shall promptly report to the client the receipt by him of all money and other property belonging to such client. Unless the client otherwise directs in writing, he shall promptly deposit his client's funds in a bank or trust company, authorized to do business in the State of California, in a bank account separate from his own account and clearly designated as `Clients' Funds Account' or `Trust Funds Account,' or words of similar import...."
[2] Petitioner testified that when he opened his trust account in July 1966, and during the first few months thereafter, he made notations on his check book stubs and attempted to reconcile his bank statements. However, he said: "I started to keep the balance as I started the account. Until there were enough transactions in it particularly with Western Transistor it got confused and I stopped keeping the balance until I picked it up again or attempted to pick it up again in November [1967]."
[3] At the time Western Transistor Corporation issued the check February 2, 1968, it had notice from its bank that its account would be closed February 5, 1968. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/86070/ | 38 U.S. 26 (1839)
13 Pet. 26
WILLIAM R. SMITH, APPELLANT,
vs.
GUY RICHARDS, APPELLEE.
Supreme Court of United States.
*29 Mr. Berry and Mr. Crittenden, for the appellee.
*30 Mr. Justice BARBOUR delivered the opinion of the Court.
This case comes before us, by appeal from a decree of the Circuit Court for the southern district of New York.
I was a suit in equity, brought by the appellee against the appellant, to set aside a contract for fraud.
It appears that in December 1832, a tract of land, embracing a gold mine, called the Goochland mine, lying in the county of Goochland, Virginia, was purchased by the appellant, one-third for himself, and two-thirds for Nathaniel Richards, of the city of New York, at the price of about $14,000. In May, 1833, the appellant sold one-half of his third to Nathaniel Richards, for $15,000. In June, 1833, he sold five-sixths of the other half to the appellee and others, at the rate of $45,000 for the whole of that half.
The interest which the appellee acquired in this property, was one-eighth part of one-sixth, at the price of $5,625; as evidence of which he received from Nathaniel Richards, who acted as the appellant's agent in making the sale, a writing dated July 4th, 1833, acknowledging the receipt of the purchase money, in cash and several notes of hand. This paper described the property thus sold and bought, as one-eighth part of one-sixth of four hundred and fifty-six acres of land, and of one hundred acres purchased of David Moss, the deeds bearing date 17th of May, 1833; both parcels lying in the county of Goochland, and state of Virginia, and called the Goochland mine.
It declares that the receipts (that is of the cash and notes) entitle Guy Richards (the appellee) to the one-eighth portion of one-sixth *31 part of said property; and it assumed that form, as the paper shows, because the title to all was in Nathaniel Richards, although one-sixth part belonged to the appellant.
In the same paper is contained the following provision: "It is hereby expressly understood and agreed to by the said Guy Richards, that he is to contribute his full proportion of any expenses already incurred, or which may be incurred hereafter on the said premises, in searching for or developing any mine, or mines, in the erection of buildings, the purchase of machinery, and any other expenses for the above general object, which I may deem necessary. Signed by Nathaniel Richards."
This is the contract which the bill seeks to set aside; it alleges, that the appellee was induced to make it by various representations and declarations of the appellant, especially those contained in certain letters, particularly referred to in the bill, written by the appellant to Nathaniel and Charles H. Richards, which the bill charges to have been false, fraudulent and deceptive, and made for the purpose of deluding and deceiving the appellee and other persons, and inducing them to purchase at an exorbitant and unconscionable price; and by specimens of washings of said gold mine, which were exhibited to the appellee, as fair specimens and samples of the Goochland mine, which the bill charges were not fair samples; and that the appellant knew that they were not fair samples, and that he caused them to be exhibited to the appellees as fair specimens and samples of said mine, for the express purpose of defrauding him, by inducing him to purchase a part of his interest in said mine, upon the faith of said specimens, as well as the false, fraudulent, and deceptive representations. The bill further charges, that one of the letters of the appellant to Nathaniel Richards, dated January 21st, 1833, containing a description of the Goochland mine, was read to him, and the specimen exhibited to him, at the express request of the appellant, by Nathaniel Richards, in the month of June, 1833, a short time before his purchase.
It further charges, that the appellant had represented to the appellee, that he was well skilled in the business of mining, having been employed in that business in South America; that he understood the directions of veins in a mine, and the cost and expense of extracting gold from the foreign materials, by which it is surrounded, and in which gold is most usually found. That the Virginia Mining Company, relying upon the fitness of the appellant for the business aforesaid, and his skill in the principles and process of mining, employed him as their agent; and that during the whole time of the negotiations and representations concerning the Goochland mine, he was the agent of the Virginia Mining Company. That the appellee never was at the Goochland gold mine, nor did he ever visit the tract of land in which it was represented by the appellant to be situated; but that in the months of June and July, 1833, believing the appellant to be a man of strict honour, honesty, truth, and veracity, he reposed the most implicit faith in his declarations *32 with regard to said gold mine, and relied exclusively upon his representations, especially his letter of the 21st January, 1833, to Nathaniel Richards, and his several letters to Charles H. Richards, as containing accurate, fair, and correct descriptions of the Goochland mine.
The bill then proceeds to charge certain specific misrepresentations in the following particulars, to wit:
1st. That there are not, and never have been, any veins of gold whatever in the Goochland mine, and that that fact was well known to Smith, at the time when he wrote the letters, and made the representations before stated; and that neither one hundred nor any other number of feet, on a vein in said mine, was or were, at the date of the letter from the appellant to Nathaniel Richards, or at any other time, opened or developed.
2dly. That so far from there being rich veins of gold in the mine, as the appellant in the last mentioned letter (that is, as we understand it, of the 21st of January, 1833, to Nathaniel Richards) asserted that there were cuts, and searches which had recently, and since his purchase been made, at the said mine in various directions, and no veins of gold whatever could be discovered: and that the purchasers thereof, including the appellee, had been compelled, after many searches, sinking shafts, making cuts and experiments, and expending a great deal of money in the enterprise, to abandon the search after gold in said mine; to dismiss their workmen, and give up the project of mining altogether.
3dly. That there are, and were at the time of the appellant's representations in relation to said mine, fine particles of gold to be found on the premises, included within the bounds of the Goochland mine. But that such particles are and were so minute, so few, and so mixed up with sand and other foreign substances, that the cost of extracting the gold from such materials would far exceed the value of the gold when extracted: and that the four hundred and fifty-six acres, and the one hundred acres of land specified in the receipt of Nathaniel Richards, before stated, are utterly worthless as a gold mine; and the appellee's interest therein is of no value whatever.
4thly. That the specimens of washings of said gold mine, exhibited to the appellee and others, by the order and direction of the appellant, as fair specimens and examples of said gold mine, are not, and were not at the time when they were forwarded by the appellant to Nathaniel Richards, fair samples, or specimens of said mine; and the appellee expresses his belief that they were not taken from the Goochland mine.
5thly. That the Goochland premises do not contain veins of gold, nor any considerable deposites of gold; nor are they rich in gold, or of any value whatever, for any purpose of mining, either for gold, or any other metal.
The answer of the defendant, in various parts of it, utterly and unqualifiedly denies any intention or purpose to deceive or delude *33 the appellee, or that he had ever done, or permitted to be done, any thing to produce that effect. It denies that he ever made any inflated representations, or false descriptions of the mine, to induce any person to give an inordinate price for his interest therein. It insists that in the letter of the 21st January, 1833, to Nathaniel Richards, his object was to give a true and accurate account of the Goochland mine, so far as the facts could be ascertained by his own observation and from the information of others on whom he could rely; and that in those addressed to Charles H. Richards, no fact was stated as being known to him, which was untrue so far as facts are given, in reference to the Goochland mine; and that as well in the before mentioned letter to Nathaniel, as in those to Charles H. Richards, as far as opinions were expressed, they were honestly entertained, without any intention, motive, or purpose to deceive the appellee, or any person whatever. It insists that the specimens of gold ore sent by him to Nathaniel Richards were fair samples of the mine; and denies that these specimens were directed by him to be exhibited to the appellee, or any other person, with a design of deceiving or defrauding any person to whom they might be shown.
It insists, in general, that in all the statements he ever made, at any time, to any person concerning the Goochland mine, whether in writing or verbally, so far as facts were given within his knowledge, they were strictly true; so far as the information derived from others was given he believed it to be true; and so far as his opinion has been expressed on the subject of the Goochland mine, such opinion was honestly entertained, without any interest, motive, or view, directly, or indirectly, to deceive the appellee or any other person. It insists, that there are and were veins of gold in the Goochland mine, and that from personal examination, before any representation was made, he knows that the Goochland mine contains veins of gold of extraordinary richness, and of great intrinsic value. It insists that, at the time he wrote the letter to Nathaniel Richards, there were an hundred feet or upwards, according to his best judgment, developed on the vein in said mine.
The answer admits, that the appellant may have been informed by Nathaniel Richards, that he had shown or read the letter of the 21st January, 1833, to the appellee and others, but at what time he is unable to state: that he was informed by Charles H. Richards, that said letter had been read to him and others, including the appellee, before the purchase made by him and them of his interest in the Goochland gold mine: that he had been informed, and believes it to be true, that about the month of June, 1833, Nathaniel Richards did exhibit to the appellee and others the specimens or washings of gold ore, forwarded by the appellant, as specimens of the Goochland mine, and its productions of gold: that in June, 1833, the appellant wrote several letters to Charles H. Richards: that in describing the Goochland mine in those letters he used language of a very decided character, as being the very richest mine in Virginia, *34 or in the United States: that the appellant esteemed himself well skilled in the business of mining, and that the appellee relied on such skill in making the purchase: that during the whole time of the negotiation and representations concerning the Goochland mine, he was employed as the agent of the Virginia Mining Company: that the appellee did not visit the mine, or the tract of land on which it was, before he bought an interest therein: that the negotiation for the purchase of the mine was carried on principally through Nathaniel and Charles H. Richards: that he believes the appellee, when he purchased an interest in the gold mine, fully believed the declarations and representations and letters of the appellant to be true, so far as he may have been informed thereof; and that he purchased an interest therein in the full reliance that whatever this defendant had said, declared, or written on the subject of the Goochland mine, was strictly true; but does not admit that the appellee purchased solely on the faith of his representations, declarations, and letters.
Having thus stated the material allegations in the bill, and as well the denials as the admissions in the answer, we are enabled to see what the questions are which we are called upon to decide. But, before we state them, we will present, in a condensed form, those parts of the representation, the alleged falsehood of which constitutes the gravamen of the appellee's bill. In the letter from the appellant to Nathaniel Richards, under date of January 21st, 1833, in which he professes to give an account and his views of the Goochland mine, amongst other things, he states that there has been upwards of one hundred feet on the vein developed, which proves to be very rich indeed, much richer than any thing yet discovered in the United States; and the quanty of the gold surpasses any heretofore discovered in any country: that the surface is rich in gold. In regard to the formations in which the ore is found, he says It is quite wide, a distance in one place of twelve feet has been cut, and the veins are disseminated throughout the whole formation, in threads of from two to six inches wide, and in many have several concentrated together; at another point it has been found to be several feet wider: and that there is ore from this mine that will, without doubt, give several hundred penny weights of gold to the hundred pounds. This letter was written after the appellant had, as he himself says, made a careful personal examination of the vein as far as it had been developed, which he says was for a distance of one hundred feet lengthwise.
On the 11th of June, 1833, the appellant wrote to Nathaniel Richards, requesting him to show all the specimens, washings, plat, and description of the mine, to Guy, (the appellee,) and others. This letter and these specimens, washings, &c. were shown to the appellee in compliance with this request. The representations in relation to the mine, then, consist, in part, of the statements above, extracted from the letter of the 21st of January, 1833, which was shown or read to the appellee; and, in part, of the specimens, washings, *35 &c. exhibited to him at the appellant's request, whilst a negotiation was going on between the appellant and Charles H. Richards, for the purchase of the appellant's interest in the mine, for himself and others, of whom the appellee was one, and but a very short time before the purchase was made.
The first question in order is, were these representations true or untrue?
We have examined the evidence in the record on both sides, with much care. And we think it unnecessary to go into a detailed examination and comparison of that evidence here, inasmuch as it would extend this opinion to a useless length. We, therefore, will only state the conclusions of fact at which we have arrived. They are these:
We think it not true, that there was one hundred feet developed on the vein, which proved to be very rich indeed. We do not mean to say, that a continuous exposure of the vein for one hundred feet was implied by the use of the term developed; on the contrary, we are of opinion, from the evidence, that the sinking shafts, or making cuts, at intervals, for that distance, would satisfy the meaning of this expression, and that we think was done. But we mean to say, that although there was a small quantity of ore found in part of this vein, which was rich, yet in any one of the pits it was relatively a small proportion; that in some there was but little, and in one, we think the weight of evidence is, that there was none at all.
We think it not true, that the surface was rich in gold.
We think it not true, that the formation was at any point twelve feet wide, or that the veins were disseminated throughout the whole formation, in threads of from two to six inches wide, and in many had several concentrated together.
We think it not true, that there was ore from that mine, that would give several hundred pennyweights of gold to the hundred pounds. We will not say that there might not be a small piece selected which would yield at that rate: but we think that this representation was calculated to produce the impression, and justify the belief, that an hundred pounds of ore might be gotten together, which would produce several hundred pennyweights of gold. Any other interpretation of this language would, in our opinion, impute to the appellant the grossest deception.
We think that the specimens and washings which were forwarded to Nathaniel Richards were not fair samples of the mine.
The only proper purposes for which they could have been exhibited, was to enable purchasers to form an estimate of the richness of the mine: the appellant, therefore, in our opinion, ought to have caused to be exhibited, either specimens of the richest and poorest quality, so as to show the extremes, or some of an average quality knowing that the persons to whom he requested them to be exhibited, and amongst them the appellee, had never seen the mine. Any other sample, under the circumstances, could not fail to produce a false estimate of its value.
*36 Having come to these conclusions in relation to the facts of this case, the next inquiry in order is, what is the law of the case?
It is an ancient and well established principle, that whenever suppressio veri or suggestio falsi occur, and more especially both together, they afford a sufficient ground to set aside any release or conveyance.
This ancient principle, thus expressed with so much sententious brevity, is laid down in terms somewhat more comprehensive, and having a direct bearing on the present case, by a modern text writer on equity.
In 1 Maddock's Chancery, 208, it is thus stated. If, indeed, a man, upon a treaty for any contract, make a false representation, whether knowingly or not, by means of which he puts the party bargaining under a mistake upon the terms of bargain, it is a fraud, and relievable in equity. The doctrine thus laid down is almost in the very words used by the chancellor, in the case of Neville vs. Wilkinson, 1 Brown's Chan. Cases, 546, with the exception of the words, whether knowingly or not; and the part of the proposition embraced by these words, is founded upon the case of Ainslie vs. Medlicot, 9 Vesey, 21, which fully sustains Mr. Maddock. In this latter case the following strong language is used. "No doubt, by a representation a party may bind himself just as much as by an express covenant. If, knowingly, he represents what is not true, no doubt he is bound. If, without knowing that it is not true, he takes upon himself to make a representation to another, upon the faith of which that other acts, no doubt he is bound; though his mistake was perfectly innocent."
But the doctrine is laid down with more comprehensiveness and precision, by a still more modern writer on equity; who gives us, in the form of distinct propositions, what he considers the result of the various cases on the subject, and marks, with particularity, the modifications which belong to it.
In 1 Story's Equity, 201, 202, it is thus stated. "Where the party intentionally, or by design, misrepresents a material fact, or produces a false impression, in order to mislead another, or to entrap or cheat him, or to obtain an undue advantage of him; in every such case there is a positive fraud, in the truest sense of the terms; there is an evil act, with an evil intent; dolum malum, ad circumveniendum. And the misrepresentation may be as well by deeds or acts, as by words; by artifices to mislead, as by positive assertions."
Whether the party thus misrepresenting a fact, knew it to be false, or made the assertion without knowing whether it were true or false, is wholly immaterial; for the affirmation of what one does not know, or believe to be true, is equally in morals and law, as unjustifiable as the affirmation of what is known to be positively false. And even if the party innocently misrepresents a fact by mistake, it is equally conclusive; for it operates as a surprise and imposition on the other party. Or, as Lord Thurlow expresses it, in Neville vs. *37 Wilkinson "it misleads the parties contracting, on the subject of the contract."
The author of the treatise last cited thus states the modifications of the doctrine:
The misrepresentation must be of something material, constituting an inducement, or motive to the act, or omission of the other, and by which he is actually misled to his injury.
In the next place, the misrepresentation must not only be in something material, but it must be in something, in regard to which the one party places a known trust and confidence in the other. It must not be a mere matter of opinion, equally open to both parties for examination and inquiry; and where neither party is presumed to trust to the other, but to rely on his own judgment.
The doctrine of these text writers is illustrated by the cases in the books, some of which present very strong applications of it; for it is held to extend not only to the parties to the contract, but also to others, who, from gross negligence, are guilty of misrepresentation. Thus, for example, in the case of Pearson vs. Morgan, 2 Brown's Ch. Cases, 385, where A, being interested in an estate in fee, which was charged with £8000 in favour of B, was applied to by C, who was about to lend money to B, to know whether the £8000 was still a subsisting charge on the estate. A stated that it was, and C lent his money to B accordingly. It appeared, afterwards, that the charge had been satisfied: yet it was held that the money lent was a charge on the lands in the hands of A's heirs, because he either knew, or ought to have known the fact of satisfaction, and his representation was a fraud on C.
Of a similar character was the case of Hobbs vs. Norton, 1 Ver. 136, where one entered into an agreement for the purchase of an annuity, charged on the lands of a third person, and was encouraged in the course of the transaction by the latter, who suggested his own title, and it afterwards appeared, that such title was of a nature to have enabled the owner to avoid the annuity; yet he was, as to the purchaser, held under an obligation to confirm it.
Cases of this class present the principle in its strongest aspect; because in these cases, the parties making the representation were bound by it to prevent a loss to others, although they themselves derived no advantage from it; whereas, in those instances in which the parties to the contract made the representation, they would receive benefit to the amount of the loss which the misrepresentation would produce to the other party, who acted on the faith of it; if the Court did not relieve against it.
This principle has been adopted in the Courts of our own country. In Fulton's executors vs. Roosevelt, 5 John. Ch. Rep. 174, the case was this: Fulton was induced by the representations of Roosevelt, that he had discovered a valuable coal mine on the bank of the Ohio river, to contract for the purchase of a tract of land, stated by Roosevelt to embrace the mine; and besides giving to Roosevelt $4400. Fulton covenanted to pay him $1000 annually, for twenty *38 years; but the annuity was to cease, if, after the mine was faithfully worked by Fulton, it should not produce at least $12000, &c. And the land was accordingly conveyed to Fulton. It appeared that there was no coal mine within the boundaries of the land conveyed; although there was coal adjoining it, in the bed of the river, which was navigable, deep, and rapid: but the working of the mine, if practicable, would be very hazardous, expensive, and unprofitable. The contract on the part of Fulton was held to be founded in mistake and misrepresentation; and Roosevelt was perpetually enjoined from bringing any suit against Fulton, to recover the annuity agreed to be paid him.
In that case the chancellor says: whether the defendant made the statements in his letter to Fulton through mistake, or under the delusions of his own imagination, or by design, I am not able to say. It is sufficient for the decision of this case, that the representations are not supported, but are contradicted by proof, and that the claim of the annuity, upon such a state of the case, is unconscientious and unjust. And this decree was affirmed in the Court of errors, 2 Cowen, 129.
In the case of McFerran vs. Taylor & Massie, in this Court, in 3 Cranch, 281, the Court, after remarking that there was a material misrepresentation, and that the defendant had contended that it originated in mistake, not in fraud, say: from the situation of the parties, and of the country, and from the form of the entry, it was reasonable to presume, that this apology is true in point of fact; but the Court does not conceive that the fact will amount to a legal justification of the person who has made the misrepresentation. He who sells property on a description given by himself, is bound to make good that description; and if it be untrue in a material point, although the variance be occasioned by a mistake, must still remain liable for that variance.
The principles of these cases we consider founded in sound morals and law. They rest upon the ground that the party selling property must be presumed to know whether the representation which he makes of it is true or false. If he knows it to be false, that is fraud of the most positive kind; but if he does not know it, then it can only be from gross negligence: and in contemplation of a Court of equity, representations founded on mistake, resulting from such negligence, is fraud. 6 Ves. 180. 189. Jeremy, 385, 386. The purchaser confides in it, upon the assumption that the owner knows his own property, and truly represents it; and, as was well argued in the case in Cranch, it is immaterial to the purchaser whether the misrepresentation proceeded from mistake or fraud. The injury to him is the same, whatever may have been the motives of the seller.
We will next inquire whether the misrepresentation in this case comes up to the rule which has been laid down. In the first place, it must be of matters of fact; and it has been argued by the appellant's counsel, that the letter of the 21st of January, 1833, did not profess to state matters of fact, but to express opinions. It is certainly *39 true, that matters of opinion between parties dealing on equal terms, although falsely stated, are not relieved against; because they are not presumed to mislead, or influence the other party, when each has equal means of information. But we consider the representation in this case not the expression of opinion, but the statement of facts. The appellant, in giving a description of a mine in Virginia, which he desired to be exhibited to the appellee in New York, says, that one hundred feet on the vein had been developed, which proved to be very rich, much richer than any thing yet discovered in the United States. That the surface was rich in gold; that the formation was quite wide, and in one place twelve feet; that the veins were disseminated throughout the whole formation, in threads of from two to six inches wide; and that there was ore from the mine that would without doubt give several hundred pennyweights of gold to the hundred pounds. Now, as to one of these statements, beyond all question it is a matter of fact; we mean the one which describes the width of the formation and veins.
Having made a personal examination, he declares the formation to be wide, gives the actual width in one place, and then the width of the veins, in terms not of conjecture, but of the most positive assertion. He gives their dimensions by feet and inches. This statement, then, comes up to the standard of mathematical certainty. And even in regard to the others, he does not profess to speak of them from conjecture, but speaks of them as they are, without qualification. Take, for example, this: The surface is rich in gold. Not that he thinks it will turn out to be rich, but that it is rich. It was argued, that there was no standard by which to decide what quantity of gold would justify calling it rich. There is none by which it can be decided with mathematical certainty: but the law does not require it. Suppose that a seller was to describe to a distant purchaser, a tract of land as being rich, and it were proven to be poor, or very poor. Can it be that a Court of equity would not give relief in such a case? The certainty in the one case is as great as in the other; and the misrepresentation as to richness must be proven in each case, by the evidence of those who understood the quality of the one or the other.
In the next place the misrepresentation must be of something material, constituting an inducement or motive to the appellee to purchase, and by which he has been actually misled to his injury.
Now, in our opinion, that is emphatically the case in the suit before us. The mine, we think, not only constituted a motive, but the sole motive to the purchaser: he was induced to purchase an interest at a high price, in that which has turned out to be worthless; and he has, therefore, been misled greatly to his injury.
It must, in the next place, be in something in which the one party places a known trust and confidence in the other.
Nothing could be stronger than the confidence here, because the appellee had never seen the mine, and the appellant knew it; the appellee had seen the letter of description and specimens, and the *40 appellant knew that he had; the appellee confided in the truth of the appellant's representation, and his skill in mines, and in mining operations, and the appellant knew that he did.
But it has been earnestly contended at the bar, that whatever might be the effect of misrepresentation in cases in which there was nothing to countervail it; that in this case, at least, it cannot avail the appellee, on account of the particular character of the contract.
The purchase of an interest in the gold mine was made through the agency of Charles H. Richards, acting for himself and others, and amongst them, for the appellee. Richards, by his letter of the 18th June, 1833, to the appellant, amongst other things, said, "But after all the above named gentlemen (amongst whom was the appellee,) had seen your letter, we concluded, at any rate, we would look at the samples of ore, and have done so, and your letter describing the premises to N.R. (Nathaniel Richards,) he read to us. The ore is rich beyond dispute; but how much there is of it, remains to be seen. In regard to the extent of the mine, and its richness, we must, of course, rely on your judgment." The appellant in his letter of the 21st of June, 1833, in reply to the above letter of Charles H. Richards, speaking of the gold mine, says: "I, however, sell it for what it is, gold, or snow balls; and I leave it to you to decide, whether you will take it at my price, or not." It is said that the contract having been concluded, upon the basis of this correspondence, the purchase was one, with all faults; that is in effect, that the seller was absolved from all liability, by reason of any representation which he had made, in relation to the mine.
In support of this proposition, several cases have been cited at the bar: let us examine them. The case of Baglehole vs. Walters, 3 Camp. 154, was this: The defendant being about to sell a vessel, the subject of the suit had printed particulars of sale, of which a copy was delivered to the plaintiff, in the following words: "For sale, the good brig Iris, burthen per register 208 tons; will carry 17 keels of coal and glass, or 300 loads of timber: has lately delivered a cargo of sugar from the West Indies, in excellent condition: is well found in all kind of stores, which are in good condition. Hull, masts, yards, standing and running rigging, with all faults, as they now lie." The plaintiff purchased two-thirds of the ship, which defendant conveyed to him in the common form. The plaintiff undertook to prove, that at the time of the sale, the ship had several secret defects in her; that these were known to the defendant; and that he did not disclose them to the plaintiff. And he relied upon a previous case of Mellish vs. Motteaux, Peake's Cases, 215, in which Lord Kenyon had held that the seller of a ship is bound to disclose to the buyer, all latent defects known to him; observing that the terms to which the plaintiff acceded of taking the ship with all faults, and without warranty, must be understood to relate only to those faults which the plaintiff could have discovered, or which the defendants were unacquainted with. But Lord Ellenborough, *41 disapproving of the doctrine of the case above cited; held that where a ship is sold with all faults, the seller is not liable to an action, in respect of latent defects which he knew of without disclosing at the time of the sale, unless he used some artifice to conceal them from the purchaser.
In the same volume of Campbell, 505, a case is reported of Schneider and another vs. Heath, which was tried before Mansfield, Chief Justice; the opinion expressed by the Chief Justice is founded in so much good sense and justice, that we should have felt disposed, in a conflict of authorities, to have adopted it, even if it had not been, as, in the sequel of this opinion, we shall show it was, subsequently recognised and acted upon by the Court. The opinion is in these words: "The words," that is, with all faults as they lie, "are very large to exclude the buyer from calling upon the seller for any defect in the thing sold; but if the seller was guilty of any positive fraud in the case, these words will not protect him. There might be such fraud, either in a false representation, or in using means to conceal some defect. I think the particular is evidence here, by way of representation; that states the hull to be nearly as good as when launched, and that the vessel required a most trifling outfit. Now, is this true or false? If false, it is a fraud, which vitiates the contract. What was the fact? The hull was worm-eaten, the keel was broken, and the ship could not be rendered seaworthy, without a most expensive outfit. The agent tells us he framed this particular, without knowing any thing of the matter. But it signifies nothing, whether a man represents a thing to be different from what he knows it to be, or whether he makes a representation which he does not know at the time to be true or false, if in point of fact it turns out to be false." As it appeared in the case that means had been taken, fraudulently, to conceal the defects in the ship's bottom, the case may not be an authority in favour of the opinion above quoted; yet it serves to show that the doctrine on this subject was not then settled. About the time that this last case was decided, the case of Pickering vs. Dowson, reported in 4 Taun. 779, was decided in the Common Pleas. That also was the sale of a ship, with all faults. A copy of the particulars was delivered by the seller to the buyer, which, amongst other things, represented the ship as being copper fastened, and as having recently undergone a thorough repair. It was proven that the ship was not copper fastened, and that the defendant knew she was leaky. The Court adhered to the doctrine of Lord Ellenborough, in Baglehole vs. Walters, and held that the seller was not responsible. Now, it will be observed, that all these cases were cases of ships, where the thing which was the subject matter of the contract was in such situation that the buyer had a full opportunity to inspect and examine the truth of the representation; and this we take to be the ground of decision in them. The meaning, says Heath Justice, in Pickering vs. Dowson, of selling with all faults, is, "that the purchaser shall make use of his eyes and understanding *42 to discover what faults there are." This implies, in our opinion, that the thing must be in such situation as to enable him to make use of his eyes and understanding; and accordingly, in that case, "the full opportunity of the purchaser to inspect and examine the truth of the representation," is included in the marginal note of the case, as one of the terms of the proposition which exempts the seller from liability.
Now we think that this case is strikingly contradistinguished from that in the most important particular; that in this the purchaser had not full opportunity to inspect and examine. It is true, that it would have been in the purchaser's power to have travelled some hundreds of miles to Virginia, to examine the mine; so it was in the case which has been quoted from Johnson's Chancery Reports; but the Chancellor does not even intimate an idea that it was necessary for him to do so: so also in the case of Sherwood vs. Salmon, 5 Day's Reports, 439, the purchaser might by extraordinary diligence have examined the land; but the Court, in reference to this very subject, say, that where, from the remote situation of the land, or any other cause, a contract is made for the sale of land, without viewing it, there is the same reason that the seller should be responsible for a false affirmation respecting its quality, as for any other fraud.
We think we may safely lay down this principle, that wherever a sale is made of property not present, but at a remote distance, which the seller knows the purchaser has never seen, but which he buys upon the representation of the seller, relying on its truth, then the representation, in effect, amounts to a warranty; at least, that the seller is bound to make good the representation. No part of the reasoning of the cases which we have been reviewing applies to such a case; they proceed upon the idea, that where the subject of the sale is open to the inspection and examination of the buyer, it is his own folly and negligence not to examine. Chancellor Kent, in the second volume of his Commentaries, 484, 485, has justly said, that the law does not go to the romantic length of giving indemnity against the consequences of indolence and folly, or a careless indifference to the ordinary and accessible means of information. We think that this imputation cannot be made with any propriety against the appellee. The subject of the purchase was several hundred miles from him; he had never seen it; the seller knew that he had never seen it; in this situation he made a representation, both by description in his letter, and by the exhibition of specimens; the appellee bought upon the faith of that representation, the appellant knowing that the appellee had read the letter and seen the samples: finally, the appellee had a double confidence in the appellant; first, in his integrity, and secondly, in his skill in mining; and the appellant admits his belief that the appellee had this double confidence in him.
If, under these circumstances, the seller were not bound by his representation, we know not in what cases we ought to apply the *43 well-known and excellent maxim, "fides servanda est." We have now compared the cases, and upon principle, have shown, that they do not apply to this. But we will conclude our opinion, by referring to a case, later than all those which we have been examining, the reasoning of which is conclusive, as we think, in favour of the view which we have taken. It is the case of Shepherd vs. Kain, 5 Barn. & Al. 240. It was a case for the breach of warranty, as to the character of a ship. The advertisement for the sale of the ship described her as a copper fastened vessel; but there were subjoined these words: "The vessel, with her stores as she now lies, to be taken with all faults, without allowance for any defects whatever." It appeared at the trial, that the ship when sold, was only partially copper fastened, and that she was not what was called in the trade, a copper fastened vessel. It appeared also, that the plaintiff, before he bought her, had a full opportunity to examine her situation.
The Court said, the meaning of the advertisement must be that the seller will not be responsible for any faults which a copper fastened ship may have. Suppose a silver service sold with all faults, and it turns out to be plated; can there be any doubt that the vendor would be liable? With all faults, must mean, which it may have consistently with its being the thing described. Here, the ship was not a copper fastened ship at all; and therefore the verdict was right. This case decides, that even where the plaintiff had a full opportunity of examination, the term, all faults, did not exempt the seller from liability for any defect but what was consistent with its being the thing described; and, in effect, that the description amounted to a warranty. In the case before us, where the appellee had no opportunity for examination, (and in that respect the case is much stronger in his favour than the one just cited,) the terms of the sale, in our opinion, put upon the appellee no hazard or risk, but those which were consistent with the mine being such as it was described; that those terms in no degree exempted him from liability for misrepresentation; but if the mine had been such as described, then that they would have exempted him from any liability for failure in its anticipated produce.
It may be, that the appellant made the representation under the influence of delusion; but it is sufficient, to decide this case, for us to know that the representation was untrue in material parts of it. The decree of the Circuit Court is affirmed with costs.
Mr. Justice STORY dissenting.
In this case I have the misfortune to differ from a majority of my brethren. The bill seeks to set aside and rescind an executed contract, upon the ground of gross premeditated fraud, the contract being confessedly one of great hazard and founded in speculation. The answer fully and pointedly denies every allegation of fraud, and insists upon the most perfect good faith. The decree, by rescinding the contract, affirms the material charges of fraud stated in *44 the bill. After a careful consideration of the evidence in the record, my opinion is, that there is no just foundation for, or proof these charges. I do not propose to review the evidence, though take a very different view of it from what has been expressed in the opinion delivered by my brother Barbour; and there are many facts and circumstances, which have struck my mind with great force, which, I regret to find, are not deemed of equal importance by my brethren. I am not willing, by my silence, to sanction imputations upon the appellant, which cast so deep a shade upon his character, which the record shows has hitherto been without stain or reproach. In my opinion, the appellant stands acquitted of fraud, the victim, if you please, of a heated and deluded imagination, indulging in golden dreams; but in this respect he is in the same predicament with the appellee, and none other.
Mr. Justice M`LEAN dissented, stating that he agreed altogether with Mr. Justice Story.
Mr. Justice BALDWIN dissented, both as to the facts, and the law as stated in the opinion of the Court delivered by Mr. Justice Barbour.
On appeal from the Circuit Court of the United States for the southern district of New York. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the southern district of New York, and was argued by counsel. On consideration whereof, it is adjudged and decreed by this Court, that the decree of the said Circuit Court in this cause be, and the same is hereby affirmed, with costs.
NOTE. The counsel for the appellant afterwards presented a petition, praying for a re-hearing of this case, but the Court unanimously overruled the application. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2609932/ | 467 P.2d 789 (1970)
Leslie A. GROSS, Plaintiff in Error,
v.
Waldemar S. APPELGREN, et ux., et al., and Metropolitan Industrial Bank, a Colorado corporation, the Tappan Co., S. J. Culbertson, and Isaac H. Kaiser, Defendants in Error.
No. 22462.
Supreme Court of Colorado, En Banc.
January 19, 1970.
Rehearings Denied May 4, 1970.
*790 Michael B. Lavinsky, Denver, for plaintiff in error.
B. F. Napheys III, Denver, for defendants in error, Waldemar S. Appelgren et ux., et al.
Ben Klein, Denver, for defendant in error, Metropolitan Industrial Bank.
Gorsuch, Kirgis, Campbell, Walker & Grover, Leonard M. Campbell, John J. Mullins, Jr., Denver, for defendants in error, Tappan Co. and S. J. Culbertson.
Walter L. Gerash, Joseph Saint-Veltri, Denver, for defendant in error, Isaac H. Kaiser.
KELLEY, Justice.
This lawsuit, which was instituted by forty-eight plaintiffs to rescind twenty-four contracts for the purchase of kitchen equipment and to cancel and return the purchase money notes and mortgages, is here on a writ of error to review a judgment in the amount of $42,055.09 awarded by the court, without the intervention of a jury. The judgment in favor of the plaintiffs provided for rescission and several money judgments against Leslie A. Gross, Manufacturers' Advertising Agency, Inc. (MAA), Rex Touzalin and Herb Carmel, defendants, and money judgments for corresponding amounts against the plaintiffs and in favor of the defendant Metropolitan Industrial Bank (the Bank). The purpose of the money judgments was to effect the rescission. Consequently, the money judgments against Gross were in the identical amounts as the money judgments in favor of the Bank. The court permitted the Bank to recover on the theory that it was a holder in due course, but enjoined the Bank from foreclosing on the real estate mortgages securing the notes because of the fraud of Gross, MAA and its salesmen. Gross is the sole plaintiff in error and seeks reversal of the judgments against him. Plaintiffs, by cross-error, seek reversal of the Bank's judgments against them.
Gross and I. H. Kaiser, law partners, organized and owned MAA and transacted the business through it out of which the litigation arose. Both Kaiser and MAA were defendants in the action, Gross owning two-thirds and Kaiser one-third of the corporate defendant; Gross was president and a director, and Kaiser was secretary-treasurer and a director. At the time this lawsuit was instituted, MAA was insolvent. The complaint named fourteen defendants. Other defendants will be mentioned only to the extent necessary to furnish sufficient background for an understanding of the facts, issues and basis for the trial court's disposition of the case.
The forty-eight plaintiffs were twenty-four married couples who had purchased Tappan electronic ranges and Tappan "Fabulous 400" electric ovens from MAA under substantially identical circumstances. One of the plaintiffs is now deceased. Decedent and his wife both signed the documents in issue and owned their home in joint tenancy. Their rights and liabilities in the property, the transactions and the judgment herein were joint and several.
Although there was conflict in the evidence on some issues, in general the issues decided here are based upon the facts as found by the trial court or facts admitted by the party adversely affected by the judgment of this court. It should be noted that there is substantial evidence to support the findings of fact.
We disagree with the conclusion of law by the trial court that the Bank was a holder in due course. It was this conclusion which resulted in the court awarding the offsetting judgments.
Gross assigned five errors by the trial court in support of his argument for a reversal of the judgment. One relates to the insufficiency of the evidence to support a finding of fraud. The record amply supports the trial court on this point.
The second assignment is that the plaintiffs, by making from one to four payments on their notes, ratified the transactions. The payments were made to the Bank under threat of foreclosure of the *791 mortgages on their homes. Under the circumstances and in view of the trial court's finding that the payments did not constitute ratification, the plaintiffs were not precluded from thereafter rescinding the transactions. Holland Furnace Co. v. Robson, 157 Colo. 347, 402 P.2d 628; Bankers Trust Co. v. International Trust Co., 108 Colo. 15, 113 P.2d 656.
Third, Gross objected to the admission of certain evidence for want of sufficient foundation. An examination of the record fails to disclose such error.
As a fourth ground for reversal, Gross claims that "the judgment and order of rescission do violence to basic principles of logic, reason and fairness." As to this argument our answer will have to be gathered from the context of the opinion.
Because of the disposition we make of the case, our primary concern is with the issue raised by Gross (in his fifth assignment of error) and by the plaintiffs as to the correctness of the trial court's holding that the Bank was a holder in due course, as contemplated by C.R.S. 1963, 95-1-52.
To be a holder in due course the instrument must have been taken without notice of any infirmity in the instrument or defect in the title of MAA. Under the Negotiable Instrument Law the title of an instrument is defective when it or the signature thereto is obtained by fraud, duress, or force and fear, or other unlawful means, or for an illegal consideration, or when the holder negotiates it in breach of faith, or under such circumstances as amount to a fraud. C.R.S. 1963, 95-1-55. To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating it, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith. C.R.S. 1963, 91-1-56.
A review of the evidence will show that under the law the Bank is not a holder in due course.
MAA was incorporated on January 14, 1963, to purchase the assets and business of Regal Management. Regal was engaged in the retail sale of Nu-Tone intercommunication equipment for homes on the referral plan to selected prospects. All but $50 of the $6500 Regal purchase price was furnished by the Bank.
On February 13, 1963, MAA agreed in writing to sell to the Bank the secured notes arising out of MAA's sales of equipment to its customers. The Bank required the notes to be secured by real estate mortgages. Consequently, prospects for the sale of MAA's equipment were developed solely from lists of homeowners.
In March 1963, MAA arranged to buy Tappan electronic and conventional ranges for resale by means of the referral plan. Both the Tappan Company and its Colorado sales representative were defendants, but the trial court dismissed the claims against both defendants. At the instance and for the protection of Tappan, MAA gave John P. McGuire and Company a security interest, to the extent of the purchase price, in all Tappan equipment while stored in MAA's warehouse. MAA's financial condition was such that it could not pay the purchase price to Tappan until it received the proceeds of the purchasers' notes from the Bank. Tappan demanded security for this interim or "float period." To secure Tappan during the "float period" the Bank guaranteed MAA's obligation.
When the notes were transferred by MAA to the Bank it paid MAA the amount of each note less an amount representing "add on" interest at 8% per annum for four years, which was called "time differential."
It is also undisputed that Gross and Kaiser were attorneys for the Bank prior to the organization of MAA and during its existence; that a Mr. Lederman, the chief executive officer of the Bank, had general knowledge of the sales method employed by MAA; that the Bank dealt exclusively with MAA in connection with the acquisition of the notes, having no contact of any type with the makers (plaintiffs) prior to the *792 endorsement of the notes by MAA to the Bank.
All transactions between Manufacturers and the plaintiff couples were consummated from June through September 1963. Manufacturers' employees developed prospective customers from lists of homeowners and those who had satisfactory credit ratings. Prospects were invited to Manufacturers' sales offices for a demonstration of the Tappan "Fabulous 400" range and Tappan Electronic range. Immediately following the demonstration the prospects, by couples, were taken to a separate sales or "pitch room" where a sales representative made the presentation embodying the fraudulent representations which formed the basis for the rescission of the purchase contracts by the trial court.
After witnessing the demonstration and being subjected to the sales pitch, the plaintiffs signed a commission agreement, a modernization note and mortgage, a purchase order, a credit application, and, after installation, a completion certificate which they thought was a receipt for the equipment. Each couple was then given three Five Hundred Dollar Certificates.
The Modernization Note and Mortgage signed by each couple contained the following clause:
"As security for the payment of the above Note, the Makers hereby mortgage unto the Payee, successors and assigns, the following described real property known and numbered as _____________ in the City of ___________, County of _____________ and State of Colorado, and warrant the title to the same, subject to any existing encumbrances now of record:
_______________"
The blanks were not filled in at the time of execution of the instrument. Those who at first refused to sign because it appeared to be a mortgage on their homes were assured that such was not the case; that the serial numbers on the cooking equipment would be used in the space provided for the description of "real property" after its installation in their homes. Others testified that the salesman hurried them so that they did not have an opportunity to read the documents; that it wasn't necessary anyway because the documents didn't mean anything, and that the signing was "a mere formality."
When the documents were finally completed by MAA, the street address of the purchaser's home was inserted in the first blank space and the legal description on the bottom line following "existing encumbrances now of record." The plaintiffs learned for the first time that their homes were encumbered when, sometime later, the Bank notified them that it had purchased the notes from MAA.
MAA agreed to pay an enrollment commission of One Hundred Dollars for each family whose name and address was submitted "by the program members" to MAA "who are placed on the same program." To be qualified for the program, a family had to "own or be buying their home, have adequate available income to support their membership on the program, and have acceptable credit." (Emphasis added.)
Each of the plaintiff couples, in order to earn enrollment commissions, (1) gave MAA lists of prospects, and (2) invited friends and neighbors to their homes for demonstrations of the Tappan equipment. The home demonstrations were conducted by a representative of MAA. Although the names of the invitees, together with the names of other prospective members of "the plan," were submitted by plaintiffs to MAA, none of the plaintiffs' accounts was credited with commissions. As part of the contract each purchaser received three Five Hundred Dollar Certificates. These were complementary to the Commission Agreements. Among other provisions, this instrument provided that, when accompanied by fifteen rejection notices issued by MAA, it would be redeemed at the office of MAA for Five Hundred Dollars. The program members (purchasers) could submit to MAA names and addresses of families they considered to be bona fide prospective *793 program members, and MAA, at its election, "may" contact these families and arrange to demonstrate and present the program to them. The certificate further provided that MAA "shall give the program members a rejection notice or commission check, as may be appropriate, in respect to each family to whom the program is fully demonstrated and presented."
The trial court found that Gross, Touzalin, Carmel and others met frequently between April 1960 and August 1963, "to review and revise their sales presentation, with the purpose of making a more effective deception of prospective purchasers. They would listen to presentations in progress and also to a taped presentation of a sales `pitch' by Herb Carmel, all of which contained the false representations heretofore set out. They would agree as to which `line' was most convincing and revise the presentation accordingly."
Some, but not all, of the deceptive and false representations found by the court to have induced the plaintiffs to enter into purchase contracts were, (1) that the equipment could not be purchased in the open market or from another dealer; (2) that the referral plan was the only available method of purchase; (3) that the equipment could not be bought on a cash basis; (4) that to obtain the equipment the offer had to be accepted on the night of the demonstration; (5) that the equipment was available to the customer for demonstration purposes only and that it would be free to the customer; (6) that the customer would be under no legal obligation; (7) that there would be no mortgage on the purchasers' homes; (8) that "real property" on the Modernization Note and Mortgage referred to the Tappan equipment; (9) that on the basis of past experience from five to eight of the ten families who would view future demonstrations in the plaintiffs' homes would buy; and (10) that Tappan was behind the referral plan all the way and had adopted this method of distribution "to save the advertising expense."
On conflicting testimony the trial court found that the Bank did not have actual knowledge of the fraud surrounding the execution of the notes. It is undisputed, however, that on several occasions Mr. Lederman visited the offices of MAA when pre-sale demonstrations were being given and when sales presentations were being made. He denied that he overheard the representations which were made to the prospective purchasers. There was also testimony to the effect that the entire sales plan was explained to Mr. Lederman, which he also denied. However, he did admit that he knew MAA would pay the purchasers a "bird dog" fee, which he defined as a commission for referring other purchasers to MAA.
Tests other than "actual knowledge" may be used in resolving the issue of whether an endorsee of a promissory note is a holder in due course. Where the trial court has made no finding one way or the other on a particular question, this court may determine pure questions of law when it is warranted and supported by a record which could produce no other result. Klutts v. Parker, 158 Colo. 594, 409 P.2d 275.
Thus, the question to be resolved is whether, under the facts set out above, the Bank was a holder in due course of the several notes of the plaintiffs, and, therefore, not subject to the defense of fraud interposed by the plaintiffs; or, did the Bank not attain the status of a holder in due course because of its close relationship to the nominal payee and the transactions out of which the notes came into existence? In other words, did this close relationship establish, as a matter of law, a situation where it must be said that the Bank should be treated as a participant in the transactions and subject to all defenses which could be interposed against the original payee.
This precise question has not heretofore been answered by this court. However, one of the leading cases on the point is cited in the plaintiffs' and Gross' brief. Commercial Credit Co. v. Childs, 199 Ark. 1073, 137 *794 S.W.2d 260, 128 A.L.R. 726. Childs is cited and followed in many jurisdictions. The basic law which it enunciated is stated in this short quotation from the opinion:
"We think appellant was so closely connected with the entire transaction or with the deal that it can not be heard to say that it, in good faith, was an innocent purchaser of the instrument for value before maturity. * * *."
In 53 Harv.L.Rev. 1200, in a case note on Childs, supra, we find this cogent comment:
"By abandoning the test of the `white heart and the empty head' in the case of the transferee who is more like an original party to the transaction than a subsequent purchaser, this decision increases the protection afforded the consumer who has not received what he was promised. * * * The holding is desirable in that it shifts the risk of the dealer's insolvency to the party better able to bear it. And since holders in due course from the finance company will be protected, the decision does not clog negotiability."
Another of the more frequently cited cases is Commercial Credit Corp. v. Orange County Machine Works, 34 Cal. 2d 766, 214 P.2d 819. The basic facts, although different in detail, are similar to those here. It relied on Childs, supra. It stated the rule in this language:
"When a finance company actively participates in a transaction of this type from its inception, counseling and aiding the future vendor-payee, it cannot be regarded as a holder in due course of the note given in the transaction and the defense of failure of consideration may properly be maintained. Machine Works never obtained the press for which it bargained and, as against Commercial, there is no more obligation upon it to pay the note than there is to pay the installments specified in the contract."
In Unico v. Owen, 50 N.J. 101, 232 A.2d 405, the court said:
"In the field of negotiable instruments, good faith is a broad concept. The basic philosophy of the holder in due course status is to encourage free negotiability of commercial paper by removing certain anxieties of one who takes the paper as an innocent purchaser knowing no reason why the paper is not as sound as its face would indicate. It would seem to follow, therefore, that the more the holder knows about the underlying transaction, and particularly the more he controls or participates or becomes involved in it, the less he fits the role of a good faith purchaser for value; the closer his relationship to the underlying agreement which is the source of the note, the less need there is for giving him the tension-free rights considered necessary in a fast-moving, credit-extending commercial world."
Under facts substantially similar to those here, the New Jersey court denied the status of a holder in due course,
"* * * where the financer maintains a close relationship with the dealer whose paper he buys; where the financer is closely connected with the dealer's business operations or with the particular credit transaction; or where the financer furnishes the form of sale contract and note for use by the dealer, the buyer signs the contract and note concurrently, and the dealer endorses the note and assigns the contract immediately thereafter or within the period prescribed by the financer. * * *."
In support of the rule, the New Jersey court cited the following cases: Industrial Credit Company v. Mike Bradford & Co., 177 So. 2d 878 (D.C.App.Fla.1965); International Finance Corporation v. Rieger, 272 Minn. 192, 137 N.W.2d 172 (1965); Local Acceptance Company v. Kinkade, 361 S.W.2d 830 (Sup.Ct.Mo.1962); Mutual Finance Co. v. Martin, 63 So. 2d 649, 44 A.L.R. 2d 1 (Sup.Ct.Fla.1953); Commercial Credit Corp. v. Orange County Machine Works, 34 Cal. 2d 766, 214 P.2d 819 (1950); Commercial Credit Co. v. Childs, 199 Ark. 1073, 137 S.W.2d 260, 128 A.L.R. 726 (1940). See, also: American Plan Corp. v. Woods, 16 Ohio App. 2d 1, 240 N.E.2d 886; and Article by Professor Grant Gilmore, 63 *795 Yale Law Review 1057, "The Commercial Doctrine of Good Faith Purchase."
We hold that the Bank was so closely connected with the entire transaction that it cannot be heard to say under the circumstances here that it, in good faith, was a holder in due course of the several notes of the plaintiffs. But for the Bank's participation in the whole transaction from the inception of MAA to its bankruptcy, the fraudulent acquisition of the notes could not have been accomplished. If the Bank did not have actual knowledge of all of the fraudulent misrepresentations made by the representatives of MAA, it most assuredly had knowledge of sufficient facts that its action in taking the instruments amounted to bad faith. C.R.S. 1963, 95-1-56. Unico v. Owen, supra; Mutual Finance Co. v. Martin, supra; Commercial Credit Corp. v. Orange County Machine Works, supra; Commercial Credit Co. v. Childs, supra; American Plan Corp. v. Woods, supra.
Accordingly, we affirm the judgment of rescission entered by the trial court and its judgment declaring the real estate mortgages void. The several money judgments in favor of the plaintiffs and against Gross, Carmel, Touzalin and Manufacturers' Advertising Agency, Inc., and the money judgments in favor of the Bank and against the several plaintiffs are reversed. The cause is remanded to the trial court for the entry of judgments in favor of the several plaintiffs and against the Bank for the amounts of the several installment payments made to the Bank by the plaintiffs and each of them (see Order of May 2, 1966), and for such further proceedings and orders as may be necessary to effect the rescission and carry out the mandate of this court. The judgments dismissing the claims of the plaintiffs against Kaiser, The Tappan Company and S. J. Culbertson are affirmed.
PRINGLE, J., dissents.
GROVES, J., does not participate. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609967/ | 2 Wash. App. 192 (1970)
467 P.2d 378
HIGHLANDS PLAZA, INC., Respondent,
v.
VIKING INVESTMENT CORPORATION, Appellant.
No. 109-40594-1.
The Court of Appeals of Washington, Division One, Panel 2.
March 30, 1970.
*193 Hulbert Murray, for appellant.
Karr, Tuttle, Campbell, Koch & Campbell, Carl G. Koch, and Floyd L. Newland, for respondent.
HOROWITZ, A.C.J.
Plaintiff, Highlands Plaza, Inc. (Highlands), brought an action to obtain specific performance of an earnest money agreement, and, in the alternative, for damages. The trial court entered a judgment for damages in favor of the plaintiff (specific performance having been waived), and the defendant, Viking Investment Corporation (Viking), appeals. This is the second appeal. On the first appeal in Highlands Plaza, Inc. v. Viking Inv. Corp., 72 Wash. 2d 865, 435 P.2d 669 (1967), the Supreme Court reversed ordering a new trial. We take judicial notice of the records of the prior appeal. Perrault v. Emporium Dept. Store Co., 83 Wash. 578, 145 P. 438 (1915). For convenience, we restate the case.
Highlands and Viking executed an earnest money receipt and agreement on June 9, 1965. Mr. Howard A. Parker, a member and chairman of Viking's board of directors and a one-third stockholder of that company, acted as real estate broker on a commission basis. It was contemplated that Highlands was to secure financing for the purpose of building an apartment house on the subject property, the financing to be secured by a first mortgage against the property. By the terms of that agreement Viking agreed to sell to Highlands certain described "Bitter Lake Property" for $200,000, $75,000 cash on closing, the balance to be evidenced by a promissory note payable to Viking in the sum of $125,000 secured by a mortgage against the subject property, the mortgage to be subordinate to a construction loan. The earnest money receipt and agreement provided that "first mortgage will not exceed 75% of the lending institution's appraisal of the land and improvements." This provision was inserted at the suggestion of and for the benefit of *194 Viking. The agreement, which was on a printed form also provided that "Purchase is made subject to approval of financing within 60 days from the acceptance of this offer ..." It contained the following provision: "If financing is required, purchaser agrees to make application for same, immediately upon request of agent, sign necessary papers, and pay required costs at the lending institution selected by agent." Highlands took steps to obtain financing by Securities Mortgage Company and arranged for the preparation of preliminary plans. The title report issued by the title insurance company about October 1, 1965, indicated certain exceptions to the title which would require action by Viking to clear before the transaction would be closed.
Viking, anticipating the necessity of removing one such exception, had on or about July 13, 1965, executed an agreement with a Mr. Olson under the terms of which it was agreed that Mr. Olson would release his vendor's interest in the subject property if the promissory note and the second mortgage to be executed by Highlands calling for $1,500 a month payments with interest at 6 per cent per annum were assigned to him.
More time was needed to complete the closing and on more favorable terms. Howard A. Parker executed an agreement under date of September 30, 1965, on behalf of Viking reading as follows:
Earnest Money acceptance date to be extended to October 15, 1965. Purchaser and Seller agree to change the monthly payments to $700.00 (interest only) for a period of two (2) years or sooner, if occupancy on the apartments is filled to 90% capacity before said date. (Subject to approval by Carl Olson by Oct. 15, 1965).
Viking Investments September 30, 1965
Howard A. Parker
Highland Plaza, Inc.
By: Howard O. Wilson, Pres.
On October 22, 1965, a further agreement was executed reading as follows:
*195 Earnest money acceptance date to be extended to November 25, 1965. Purchaser and Seller agree to change the monthly payments to $700.00 (interest only) for a period of two (2) years or sooner, if occupancy on the apartments is filled to 90% capacity before said date. Subject to approval by Carl Olson by Nov. 25, 1965.
Viking Investments October 22, 1965
Howard A. Parker
Highlands Plaza, Inc.
By: Howard O. Wilson, Pres.
With consent of a Mr. Mooremeier of Mr. Parker's brokerage office, Highlands negotiated with Mr. Olson in an effort to obtain his consent. On November 4, 1965, Mr. Olson wrote a letter to Viking which, in part, stated: "I do hereby approve the extension of the closing date and to such further extensions as may be required not beyond December 15, 1965." On or about that date Viking notified Highlands to conduct no further negotiations with Mr. Olson. Mr. Olson's consent to the change in monthly payments had not been obtained and the court found that Viking stated: "that defendant would take care of that matter." Viking did not, however, negotiate with Mr. Olson after receiving the letter of November 4. The court further found that Mr. Olson might have consented to the provisions of the extension agreements if asked to do so and that Mr. Olson would have cooperated in attempting to arrange a release of his interest if asked to do so.
Shortly after the execution of the earnest money receipt and agreement, Highlands entered into negotiations for the sale of its interest in the subject property to a group headed by Mr. Ray Lotto. However, Mr. Lotto decided to deal with Viking directly. About the middle of December, 1965, Mr. Lotto's group offered to purchase the subject property from Viking for a sum substantially higher than the price Highlands had agreed to pay. On December 17, *196 1965, Viking wrote a letter to Highlands, the last part of which reads as follows:
Accordingly, we do hereby demand that you immediately submit to us your financing plans for our approval, and further that you deposit in escrow the $75,000.00 down-payment called for by the Earnest Money Receipt and Agreement. In the event you fail to do one or both of these conditions, or in the event we should disapprove of your financing plan, by 4:00 p.m. December 24, 1965, said Earnest Money Receipt and Agreement shall thereby become null and void.
Highlands on December 23, 1965, in response to the letter of demand, deposited with the escrow agent $70,000 (being the unpaid balance due after the down payment of $5,000 as earnest money which had theretofore been paid by Highlands, first by note and then by cash) a promissory note of $125,000, which called for payments of $700 per month, a statutory mortgage to secure the promissory note and escrow instructions. Viking after examining the instruments and deposit, rejected them as not in compliance with the earnest money receipt. Viking then requested a meeting with Highlands to discuss the matter, Mr. Mooremeier testifying that the purpose of the meeting was to induce Highlands to increase the pruchase price from $200,000 to $225,000. Highlands refused to have a meeting, withdrew its money from the escrow and commenced the legal action below.
Viking assigns error to the making of certain findings and conclusions. The court below found that the evidence introduced in the trial below was substantially the same as the evidence introduced in the trial of the first case considered by the court on the first appeal. In our opinion, there is substantial evidence and reasonable inference therefrom to support this finding on the issues of liability.
Viking contends that the earnest money receipt and agreement is illusory; i.e., its terms are too vague and indefinite to support a judgment of damages for breach of *197 contract.[1] It contends that the provision "Purchase is made subject to approval of financing within 60 days from the acceptance of this offer ... the first mortgage will exceed 75% of the lending institution's appraisal of the land and improvements." omits so many important details that the performance by the purchaser is in effect entirely optional or discretionary on the part of the purchaser. Viking calls attention to the omission of provisions dealing with the period of time of repayment, the interest rate, the initial service or discount charges, tax insurance and acceleration provisions, the party by whose efforts the loan is to be arranged and procured, the potential sources of money, the question of how onerous the terms of any proposed loan may be before justifying the purchaser's rejection thereof and the consequences of a prospective lender's withdrawal after tentative loan commitment has been given.
Highlands contends (1) that the earnest money receipt is sufficiently definite to be enforceable, particularly citing White & Bollard, Inc. v. Goodenow, 58 Wash. 2d 180, 361 P.2d 571 (1961), but that in any case (2) Viking is precluded by the law of the case from now raising the question on this second appeal; that the issues of the claimed illusory character of the earnest money receipt should have been presented on the first appeal when the validity of the earnest money receipt and agreement was necessarily involved; that because the court on the first appeal treated the earnest money receipt and agreement as valid, the decision of the court on the first appeal is binding upon the parties.
[1] We agree with Highlands. It has long been the law in this state (1) that in the absence of a substantial change of evidence on the second trial, questions determined or which could have been determined on the first appeal will *198 not be redetermined on the second trial and appeal. Zorich v. Billingsley, 55 Wash. 2d 865, 867, 350 P.2d 1010 (1960); Clark v. Fowler, 61 Wash. 2d 211, 377 P.2d 998 (1963); Perrault v. Emporium Dep't Store Co., 83 Wash. 578, 145 P. 438 (1915); Dennis v. Kass & Co., 13 Wash. 137, 42 P. 540 (1895); (2) it is enough if the contention advanced on the second appeal was necessarily involved in the decision on the first appeal even though no specific mention was made of the matter. Clark v. Fowler, supra; Buob v. Feenaughty Mach. Co., 4 Wash. 2d 276, 103 P.2d 325 (1940); (3) accordingly, the decision on the first appeal on substantially the same pleadings and evidence becomes the law of the case, binding upon the parties. Buell v. Park Auto Transp. Co., 138 Wash. 678, 244 P. 992 (1926); Toadvine v. Northwest Trust & State Bank, 128 Wash. 611, 224 P. 22 (1924); State ex rel. Nicomen Boom Co. v. North Shore Boom & Driving Co., 62 Wash. 436, 113 P. 1104 (1911). In Greene v. Rothschild, 68 Wash. 2d 1, 8, 402 P.2d 356, 414 P.2d 1013 (1965) the court discussed the doctrine of the law of the case at length. It held that the doctrine is a mere rule of practice and not a limitation on the court's power and that, accordingly, the court may in an appropriate case refuse to apply the doctrine. However, it quoted with approval the following statement:
It is, however, recognized that an appellate court's power to depart from its own ruling on a former appeal may be invoked not as a matter of right, but of grace and discretion, and should be exercised only sparingly or rarely, and for cogent reasons, after careful consideration of the situation involved in individual cases, or, more specifically, in a clear case under extraordinary or exceptional circumstances, in the interest of justice.
It is true that the term "financing" as used in the "subject to financing" clause contained in the earnest money receipt and agreement, does not reveal itself in required detail. If the instant earnest money receipt and agreement contained only the "subject to financing" clause, there is authority, as appellant contends, that would render the earnest money *199 receipt and agreement void. Gerruth Realty Co. v. Pire, 17 Wis. 2d 89, 115 N.W.2d 557 (1962); Krause v. Holand, 33 Wis. 2d 211, 147 N.W.2d 333 (1967) (a specific performance case). Neither of these cases involved the clause hereinafter discussed contained in the instant earnest money receipt and agreement. However, it has been pointed out that even in Wisconsin, interim contracts for the sale of realty are useful devices commonly used (Raushenbush, Problems and Practices with Financing Conditions in Real Estate Purchase Contracts. Wis. L. Rev. 566 (1963)); that it may properly be assumed that "subject to financing" clause was intended to permit the purchaser acting in good faith to determine what was the required financing. See, Comment: 46 Marquette L. Rev. 388 (1962-1963) discussing the reasoning used in Reese v. Walker, 77 Ohio L. Abs. 583, 151 N.E.2d 605 (1958); Aiken, "Subject to Financing" Clauses in Interim Contracts for Sale of Realty, 43 Marquette L. Rev. 265 (1960). The reasoning proposed would enable the use of an earnest money receipt as a contractual obligation whose utility is recognized. Hedges v. Hurd, 47 Wash. 2d 683, 289 P.2d 706 (1955) quoted with approval in White & Bollard, Inc. v. Goodenow, 58 Wash. 2d 180, 361 P.2d 571 (1961). Such an earnest money receipt would place an obligation of performance upon the purchaser rather than a mere privilege to perform as in the case of options for the purchase of real estate. Corinthian Corp. v. White & Bollard, Inc., 74 Wash. 2d 50, 52, 442 P.2d 950 (1968); Whitworth v. Enitai Lumber Co., 36 Wash. 2d 767, 220 P.2d 328 (1950). In the instant case the "subject to financing" clause was a condition precedent to the earnest money receipt and agreement becoming performable as a binding real estate contract. Instead of leaving to inference the purchaser's obligation to obtain the required financing, the earnest money receipt and agreement made such an obligation an express one. The agreement provided: "If financing is required, the purchaser agrees to make application for same, immediately upon request of agent, sign necessary papers, and pay required costs to the lending institution selected by agent." *200 The evidence here shows that the purchaser, Highlands, did proceed to obtain and obtained financing satisfactory to itself. It was prepared to close the transaction because it communicated the details of the financing to the seller in compliance with the seller's letter of December 17, 1965. Whatever indefiniteness existed concerning the nature of the financing required had been removed by the purchaser's pursuit of the very technique provided by the contract itself. Cf, Christofersen v. Radovich, 23 Wash. 2d 846, 162 P.2d 830 (1945); 55 Am. Jur. Vendor and Purchaser § 6 (1946).
Furthermore, the "subject to financing" clause was not intended for the protection of the seller and, therefore, seller's approval of the financing obtained by the purchaser was not required. However, even if the "subject to financing" clause was for Viking's benefit, the requirement was excused by Viking's insistence upon a nonexistent right of approval under threat of forfeiture. See Highlands Plaza, Inc. v. Viking Inv. Corp., 72 Wash. 2d 865, 876, 435 P.2d 669 (1967); White & Bollard, Inc. v. Goodenow, supra. Had the question of contract validity been raised on the first appeal, the court might well have upheld the validity on the basis of the foregoing considerations and cases. This is not "a clear case under extraordinary or exceptional circumstances" in which the overruling of a decision on a prior appeal in the same case is required "in the interest of justice." (Greene v. Rothschild, 68 Wash. 2d 1, 9, 402 P.2d 356, 414 P.2d 1013). We, therefore, see no justification for making a determination on this appeal which would in effect overrule the implied determination of validity so recently made on the first appeal. The trial court below held the earnest money receipt and agreement enforceable. Its action in doing so is correct as being in conformity with the holding of the Supreme Court on the first appeal.
Viking next contends that the extension agreements of September 30, 1965, and October 22, 1965, were not binding upon Viking because (1) Howard A. Parker had no authority to execute those agreements; and (2) that the approval of Carl Olson had not been obtained to the extensions of *201 time. The trial court found that Mr. Parker had the necessary authority to execute the extension agreements on behalf of Viking. The evidence showed that after the letter of December 17, 1965, had been received, Mr. Joseph D. Holmes, Jr., an attorney for Highlands, (unexpectedly called in to prepare the closing papers on behalf of Highlands) having been unable to contact Mr. Kendall A. Sanwick, president and member of the board of directors and a one-third stockholder in Viking, telephoned Mr. Robert Carl Detrich, a director, secretary, treasurer and one-third stockholder of Viking, and had been assured by him that Mr. Parker did have the requisite authority to sign the extension agreements. In the trial below, Mr. Kendall A. Sanwick, in part of his testimony, treated the extension agreements as valid although in other parts of his testimony, he denied that Mr. Parker had the requisite authority. Mr. Parker's testimony and reasonable inferences therefrom support the view that he had authority to execute the extension agreements. At the first trial, counsel for Viking both in his brief before the trial court and in his brief on the first appeal treated the extension agreements as binding upon Viking. In our opinion, substantial evidence supports the court's finding that Mr. Parker had authority to bind Viking by the extension agreements. Furthermore, in Highlands Plaza, Inc. v. Viking Inv. Corp., 72 Wash. 2d 865, 435 P.2d 669 (1967) the Supreme Court held that Mr. Olson's approval was not needed for the extension of time but was a condition only to the agreement to reduce payments. The court further held that if Mr. Olson's approval was required for the extension of time, the requirement was excused by Viking's action which, in effect, prevented Mr. Olson's consent from being obtained. Highlands Plaza, Inc. v. Viking Inv. Corp., supra, at page 875. The trial court's conclusion below was in conformity with the opinion of the Supreme Court on the first appeal rendered on substantially the same evidence.
[2] Viking further contends that its letter of December 17, 1965, did not constitute a repudiation of its contractual *202 obligation so as to constitute a breach of contract. On the first trial, Viking took the position that its letter was a demand that Highlands take all steps necessary for closing by December 24 at 4 p.m. The Supreme Court in its opinion held that because of the extensions of time, Highlands had until January 24, 1967, to perform (Highlands Plaza, Inc. v. Viking Inc. Corp., 72 Wash. 2d 865, 878, 435 P.2d 669 (1967)) and that, accordingly, the letter of December 17, 1965, "was well ahead of the date on which appellant's [Highlands'] performance was due."; that, accordingly, if Highlands' performance was defective it was "of no consequence" because "where such a breach occurs, no tender of performance by the promisee [Highlands] is necessary to his right to recovery against the promisor who has breached the contract." Viking now contends in its brief that the letter of December 17 should be read not
for complete performance of the transaction, but a statement that in the event the respondent failed to do one or both of the two conditions by the designated time, the Earnest Money Receipt and Agreement would thereby become null and void. It here should be noted that the respondent complied with one of the conditions, the deposit of the money.
The letter, however, stated:
In the event you fail to do one or both of these conditions, or in the event we should disapprove of your financing plan ... said Earnest Money Receipt and Agreement shall thereby become null and void.
The demand as written showed an intention to treat the earnest money receipt and agreement as void if Highlands failed to submit its financing plans for Viking's approval and failed to deposit the $75,000 down payment. The provision for submitting financing plans for approval was one for the benefit of the purchaser and was not required to be submitted to Viking. Mr. Sanwick testified that the financing plans as submitted were not satisfactory and were not approved. Furthermore, there was testimony by Mr. Parker himself that the letter of December 17, 1965, was written to induce the breach of contract rather than to require performance *203 because a higher offer had been received. The trial court below found that "The defendant called upon plaintiff to take steps for closing in order to induce a breach of contract because defendant had received a better offer for the Bitter Lake property." There is substantial evidence to support this finding and as is the case with respect to the other findings below, we are bound by such findings when supported by substantial evidence. Zillah Feed Yards, Inc. v. Carlisle, 72 Wash. 2d 240, 432 P.2d 650 (1967). Following the rejection of the financing plans, Viking treated the earnest money receipt and agreement as void and thereafter sold the property to Mr. Lotto's group.
[3] Viking finally contends that the findings of damages sustained and attorneys' fees awarded are not supported by substantial evidence. We have examined the record and disagree. Expert witnesses testified to the fair market value of the subject land at the date of the breach in December, 1965. The values testified to range from $275,000 to $310,000. The fact that the subject property was contracted to be sold in March, 1966, to Mr. Lotto's group for $250,000 does not necessarily establish its fair market value in December, 1965. We cannot weigh the evidence and then make our own determination that the price at which the property was later sold is more persuasive evidence of fair market value than the expert testimony as to the fair market value of the property at the date of the breach. Steele v. Queen City Broadcasting Co., 54 Wash. 2d 402, 341 P.2d 499 (1959).
On the question of attorneys' fees, there was expert testimony that would have justified a higher award than that allowed by the trial court. The court found that $5,000 was a reasonable fee for services at the first trial, $3,500 a reasonable fee for services on appeal, and in view of the successful results on the second trial, $6,000 was a reasonable fee for services at that trial. Viking's expert testimony was $5,000 on the first trial, $1,750 on appeal and $5,000 on the second trial, or a total of $11,750.
The trial court had the right to accept the testimony *204 offered on behalf of the respondent as substantial evidence. Under these circumstances we may not substitute our findings for those of the trial court. Thorndike v. Hesperian Orchards, Inc., 54 Wash. 2d 570, 343 P.2d 183 (1959).
The judgment is affirmed.
FARRIS and WILLIAMS, JJ., concur.
NOTES
[1] Viking particularly cites Gerruth Realty Co. v. Pire, 17 Wis. 2d 89, 115 N.W.2d 557 (1962); Krause v. Holand, 33 Wis. 2d 211, 147 N.W.2d 333 (1967); Aiken, "Subject to Financing" Clauses in Interim Contracts for Sale of Realty, 43 Marquette L. Rev. 265 (1960); Raushenbush, Problems and Practices with Financing Conditions in Real Estate Purchase Contracts, Wis. L. Rev. 566 (1963); Comment: 46 Marquette L Rev. 388 (1962-1963). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1032717/ | grounds by Griffith v. Kentucky, 479 U.S. 314, 326 (1987))). Appellant
must demonstrate that the procedure was unnecessarily suggestive and
that the resulting identification was unreliable. See Banks v. State, 94
Nev. 90, 94, 575 P.2d 592, 595 (1978); see also Manson v. Brathwaite, 432
U.S. 98, 114 (1977) (explaining that "reliability is the linchpin").
A one-on-one show-up confrontation between eyewitness and
suspect, such as occurred here, is inherently suggestive because it is
obvious to the eyewitness that law enforcement officials believe they have
apprehended the criminal; however, the confrontation may be justified
based on countervailing policy considerations. Jones, 95 Nev. at 617, 600
P.2d at 250. While such considerations were present, we conclude that the
one-on-one show-up in this case was unnecessarily suggestive.
Despite the unnecessarily suggestive procedure, we conclude
that the identification was reliable. See Gehrke v. State, 96 Nev. 581, 584,
613 P.2d 1028, 1030 (1980) (discussing the factors that weigh against the
corrupting effect of the suggestive procedure). In this instance, the
eyewitness had the opportunity to clearly see the robber's face in a well-lit
restaurant for an ample amount of time. She also exonerated two other
potential suspects shown to her by the police before identifying the
appellant and was absolutely certain of her identification just one day
after the incident. The reliability of the identification outweighs any
possible corrupting effect of the suggestive procedure, and the district
court did not err by refusing to suppress the show-up identification and
subsequent in-court identifications.
With regard to the photo lineup, we consider the totality of the
circumstances to determine whether the procedure was "so unduly
prejudicial as to fatally taint [the defendant's] conviction." Cunningham v.
SUPREME COURT
OF
NEVADA
2
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4:14-k4t=t4
State, 113 Nev. 897, 904, 944 P.2d 261, 265 (1997) (alteration in original)
(quoting Simmons v. United States, 390 U.S. 377, 383 (1968)). We have
examined the way in which the police performed the photo lineup as well
as the photos used and conclude that the procedure was not "so
impermissibly suggestive as to give rise to a very substantial likelihood of
irreparable misidentification!" See id. (quoting Simmons, 390 U.S. at
384). The district court did not err by refusing to suppress the photo
lineup identifications and subsequent in-court identifications.
Second, appellant claims that the district court erred in
several respects regarding his habitual felon adjudication. Because his
two prior felonies, which were filed in the same information, were of
similar character and part of a common scheme or plan and because he
pleaded to and was sentenced on both charges at the same time, appellant
argues that he cannot be a habitual felon under NRS 207.012. We have
held "that where two or more convictions grow out of the same act,
transaction or occurrence, and are prosecuted in the same indictment or
information, those several convictions may be utilized only as a single
prior conviction for purposes of applying the habitual criminal statute."
Rezin v. State, 95 Nev. 461, 462, 596 P.2d 226, 227 (1979) (internal
quotation marks omitted). As appellant was convicted of two separate
robberies that occurred two months apart at two different locations, we
are not convinced that his crimes were part of the same act, transaction,
or occurrence and conclude that the district court did not err by
adjudicating appellant a habitual felon under NRS 207.012.
Appellant further argues that the district court violated his
statutory and due process rights by failing to conduct a hearing and
render findings pursuant to NRS 207.016, which requires the court to
SUPREME COURT
OF
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3
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conduct a hearing when a defendant denies any previous conviction
charged. NRS 207.016(3). Because appellant did not deny the previous
convictions, we conclude a hearing was not necessary and the district
court did not err.
Appellant also claims that, under Apprendi v. New Jersey, 530
U.S. 466 (2000), he was entitled to a jury trial on the habitual offender
allegations. We have held that our habitual offender statutes do not
violate App rendi, as the court performs no additional fact-finding but, at
most, exercises discretion in choosing to adjudicate a defendant a habitual
criminal. See O'Neill v. State, 123 Nev. 9, 15-17, 153 P.3d 38, 42-43
(2007). We note that NRS 207.012, the habitual felon statute under which
appellant was adjudicated, offers no discretion but mandates the
imposition of a sentence within the prescribed range if two qualifying
felonies are proven. A jury trial on the habitual offender allegation was
not warranted; accordingly the district court did not err.
Third, appellant alleges that the district court erred by
refusing to proffer the "two reasonable interpretations" jury instruction.'
When a jury has been properly instructed on reasonable doubt, it is not
error to refuse to give an additional instruction on the issue. Hall v. State,
89 Nev. 366, 371, 513 P.2d 1244, 1247-48 (1973); Holland v. United States,
348 U.S. 121, 139-40 (1954). We conclude that the jury was properly
'Appellant's proposed jury instruction stated that "[i]f the evidence
in this case is susceptible to two constructions or interpretations, each of
which appears to you to be reasonable, and one of which points to the guilt
of the defendant, and the other to his innocence, it is your duty, under the
law, to adopt that interpretation which will admit of the defendant's
innocence, and reject that which points to his guilt."
SUPREME COURT
OF
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4
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11' ' "Ty;-1, -T
17, '1136fivANWSEWaelf,4" .: I
instructed on reasonable doubt and that the district court did not commit
error in refusing to give the proposed instruction.
Lastly, appellant argues that cumulative error warrants
reversal of his conviction. Because there was no error by the district court,
there is no error to cumulate. Accordingly, we
ORDER the judgment of conviction AFFIRMED.
1 _
.
J.
Gibbon s
t,,c0( J.
Douglas
Saitta
cc: Hon. Elissa F. Cadish, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
5
(0) 1947A | 01-03-2023 | 07-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1122116/ | 220 Or. 102 (1960)
348 P.2d 1112
SPRINGER
v.
POWDER POWER TOOL CORPORATION
Supreme Court of Oregon.
Argued November 20, 1958.
Reversed and remanded January 27, 1960.
*103 Donald S. Richardson, Portland, argued the cause for appellant. With him on the brief were Philip A. Levin and Green, Richardson, Green & Griswold, Portland.
Verne W. Newcomb, Portland, argued the cause for respondent. With him on the brief were Sabin, Dafoe & Newcomb, Portland.
Before PERRY, Chief Justice[*], and ROSSMAN, McALLISTER[**] and O'CONNELL, Justices.
REVERSED AND REMANDED.
McALLISTER, C.J.
This is an action on behalf of three former employees of the defendant, Powder Power Tool Corporation, to recover wages claimed to be due because of a retroactive pay increase granted by a collective bargaining agreement between the defendant and the union representing its employees. The three employees assigned their claims to plaintiff who brought the action as assignee. The circuit court tried the case without a jury and found for the defendant. Plaintiff appeals.
*104 As a result of an election held on March 27, 1953, District Lodge No. 24 of the International Association of Machinists, hereinafter referred to as the "union", was on April 6, 1953 certified by the National Labor Relations Board as the sole collective bargaining agent for defendant's employees. Immediately after such certification the union and defendant began to negotiate but a collective bargaining agreement was not executed until August 24, 1953. The agreement provided for increased wage rates and further provided that the agreement should be effective as of April 1, 1953. The pertinent portions of the agreement read as follows:
"ARTICLE XVII WAGES
"The wage rates which shall be effective during the term of this agreement are set forth in Appendix `A' annexed hereto and made a part hereof, pursuant to provisions incorporated herein.
"ARTICLE XVII DURATION OF AGREEMENT
"This agreement shall become effective on April 1, 1953, and shall remain in full force and effect for a period of one (1) year. At the end of said year and the end of each yearly period thereafter, this Agreement shall be renewed automatically for periods of one (1) year unless either party gives written notice of a desire to modify, amend or terminate same at least sixty (60) days prior to the yearly effective date of this Agreement in which event such agreement shall terminate."
The three employees for whose benefit this action was brought were employed by defendant both before April 1, 1953 and for several months thereafter but were no longer in defendant's employ when the agreement was executed on August 24, 1953. They were paid to the time their employment was terminated *105 at the wage scale then in effect. The sole question is whether the retroactive pay increase applied to employees who were employed by defendant after April 1, 1953 but who were no longer working for defendant when the contract was entered into.
1. Since this is in essence an action by individual employees against their employer to recover retroactive pay claimed to be due under a collective bargaining agreement, we are not deprived of jurisdiction by § 301 of the Labor Management Relations Act of 1947, 29 USCA § 185[1], as interpreted in Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S. Ct. 912, 1 L ed2d 972. Assuming that § 301 is applicable and that a federal court might also have jurisdiction, the courts seem agreed that the state and federal jurisdiction is concurrent. McCarroll v. L.A. County Etc. Carpenters, 49 Cal2d 45, 315 P2d 322; Coleman v. Local No. 570, 181 Kan 969, 317 P2d 831; Bridges v. F.H. McGraw & Company (Ky), 302 S.W.2d 109; McLean Distributing Co. v. Brewery & Bev. Drivers, 254 Minn 204, 94 NW2d 514, 521; Steinberg v. Mendel Rosenzweig Fine Furs, 9 Misc2d 611, 167 NYS2d 685; Anchor Motor Freight N.Y. Corp. v. Local Union No. 445, 5 App Div2d 869, 171 NYS2d 511; Gen. Bldg. Contrs' Assn. v. Local No. 542, 370 Pa 73, 87 A2d 250, *106 254; and Phila. Mar. Assn. v. Longshoremen's Assn., 382 Pa 326, 115 A2d 733.
In Lincoln Mills the court, in holding that the substantive law to be applied in suits under § 301 of the Labor Management Relations Act is federal law, said:
"The question then is, what is the substantive law to be applied in suits under § 301 (a)? We conclude that the substantive law to apply in suits under § 301 (a) is federal law, which the courts must fashion from the policy of our national labor laws. See Mendelsohn, Enforceability of Arbitration Agreements Under Taft-Hartley Section 301, 66 Yale L.J. 167. The Labor Management Relations Act expressly furnishes some substantive law. It points out what the parties may or may not do in certain situations. Other problems will lie in the penumbra of express statutory mandates. Some will lack express statutory sanction but will be solved by looking at the policy of the legislation and fashioning a remedy that will effectuate that policy. The range of judicial inventiveness will be determined by the nature of the problem. See Board of Commissioners v. United States, 308 U.S. 343, 351. Federal interpretation of the federal law will govern, not state law. Cf. Jerome v. United States, 318 U.S. 101, 104. But state law, if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy. See Board of Commissioners v. United States, supra, at 351-352. Any state law applied, however, will be absorbed as federal law and will not be an independent source of private rights. * * *"
In the following cases it has been recognized that under the doctrine of Lincoln Mills federal law must be applied. See Karcz v. Luther Manufacturing Co., 155 NE2d 441 (1959); McCarroll v. L.A. County Etc., Carpenters, supra; Tool & Die Makers Lodge No. 78 *107 Int. Assn. Mach. v. G.E., 170 F Supp 945 (Ed Wis) and Ingraham Co. v. Local 260, Int. Union of E.R. & M. Workers, 171 F Supp 103, 107 (DC Conn).
However, it is not necessary to choose between state and federal law in this case. We find ourselves in the same position as the supreme court of Massachusetts in Karcz v. Luther Manufacturing Co., supra, which, like the case at bar, was a suit by individual employees to enforce their rights under a collective bargaining agreement. In that case the court said:
"* * * We have been guided in the decision of the present cases by general principles of contract law which appear to be applied with uniformity in this and other jurisdictions and would presumably form a part of any body of Federal law which may be developed under any view of what was said in the Lincoln Mills case at pages 456-457 of 353 U.S., at pages 917-918 of 77 S.Ct."
The impact of Lincoln Mills on cases in this field was not raised in the trial court or in this court and we will not extend our discussion of it here. The case has provoked much comment. See Gregory, The Law of the Collective Agreement, 57 Mich. L Rev 635; Bickel and Wellington, Legislative Purpose and the Judicial Process: The Lincoln Mills Case, 71 Harv L Rev 1; Meltzer, The Supreme Court, Congress, and State Jurisdiction Over Labor Relations, 59 Col L Rev 269, 276; Hays, State Courts and Federal Preemption, 23 Mo L Rev 373, 398; and Note, 71 Harv L Rev 1169, 1172.
2. Although there are several theories on which the right is granted it is now generally recognized that an employee may sue his employer to collect benefits accruing to the employee under a collective labor *108 agreement made between his employer and the union. See 2 Williston, Contracts (3rd ed) 985, § 379A and Annotation, 18 ALR2d 352. The various theories which have been applied are succinctly summarized in 3 Buffalo L Rev 270, as follows:
"Several theories were developed early under which the individual employee could secure access to the courts. First, a collective agreement, while not thought to be itself enforceable by anyone, was considered to be a `custom or usage' which could be incorporated by the individual into his personal employment contract. Second, the agreement was treated by a few courts as a `mutual general offer to be closed by specific acceptance.' Third, some courts thought the collective agreement itself was enforceable by the individual on the ground that the employees were parties to the agreement, the union merely negotiating it on their behalf as a duly authorized agent. Fourth, a majority of courts allowed the individual to sue on the agreement itself on the theory that it was a third party beneficiary contract between the union and the employer for the benefit of the individual members of the union."
The great weight of modern authority adopts the legal theory that the employee is a third party beneficiary of the labor agreement. McKay v. Loew's Inc., 182 F2d 170 (9th Cir 1950); Marranzano v. Riggs Nat. Bank, 184 F2d 349 (DC Cir 1950); Sublett v. Henry's Turk & Taylor Lunch, 21 Cal2d 273, 131 P2d 369; Dierschow v. West Suburban Dairies, Inc., 276 Ill App 355; Yazoo & M.V.R. Co. v. Sideboard, 161 Miss 4, 133 S 669; Hudak v. Hornell Industries, 304 NY 207, 106 NE2d 609; Gulla v. Barton, 164 App Div 293, 149 N.Y.S. 952; H. Blum & Co. v. Landau, 23 Ohio App 426, 155 N.E. 154; Johnson v. American Railway Express Co., 163 SC 191, 161 S.E. 473; Cross Mountain Coal Co. v. Ault, 157 Tenn 461, 9 S.W.2d 692; 2 *109 Williston, Contracts (3rd ed) 985, § 379A and Annotation, 18 ALR2d 352. There are also many cases holding that individual employees may sue under a collective bargaining agreement without mentioning the theory under which the right is recognized. See Ryan v. Ryan, 156 Kan 348, 133 P2d 119; Tynan v. KSTP, Inc., 247 Minn 168, 77 NW2d 200; Atkinson v. Thompson, (Tex Civ App) 311 S.W.2d 250, 255 and Beatty v. Chicago, B. & Q.R. Co., 49 Wyo 22, 52 P2d 404. In at least a few instances there has been a conscious recognition that these cases do not fit precisely into the traditional concept of third party beneficiary actions and that the rule applied may be sui generis. See J.I. Case Co. v. Labor Board, 321 U.S. 332, 64 S. Ct. 576, 88 L ed 762; Association of Westinghouse v. Westinghouse El. Corp., 210 F2d 623 (3rd Cir 1954), aff'd 348 U.S. 437, 75 S. Ct. 488, 99 L ed 510; and Woodward Iron Company v. Ware, 261 F2d 138, 141 (5th Cir 1958).
Defendant relies heavily on Shelley v. Portland Tug & Barge Co., 158 Or 377, 76 P2d 477, but we think the case is clearly distinguishable. In that case, decided in 1938, an employee sued to recover benefits which he claimed were due him under a contract made between his employer and a union. In holding that the employee could not sue on the contract, this court relied almost entirely on the admitted fact that no employee of the company was a member of the union. However, if the case is inconsistent with what is said here, it must yield to modern developments in the law of labor relations. Pfeifer v. Lowes Lumber Co., 206 Or 115, 291 P2d 744, was an action by individual employees against their employers to recover vacation pay alleged to be due under the provisions of a collective bargaining agreement. The right of the *110 employees to bring an action to recover benefits due them under the contract was not challenged in this court and not mentioned in the opinion.
We now reach the terminal question of whether plaintiff's assignors are entitled to retroactive pay for the period during which they worked after April 1, 1953.
3. This court subscribes to the objective theory of contracts. Rushlight Co. v. City of Portland, 189 Or 194, 219 P2d 732. Restatement, Contracts, § 230 p. 310 explains that theory as follows:
"The standards of interpretation of an integration, except where it produces an ambiguous result, or is excluded by a rule of law establishing a definite meaning, is the meaning that would be attached to the integration by a reasonably intelligent person acquainted with all operative usages and knowing all the circumstances prior to and contemporaneous with the making of the integration, other than oral statements by the parties of what they intended it to mean."
4. The agreement in this case states "This agreement shall become effective on April 1, 1953 and shall remain in full force and effect for a period of one (1) year." It specifies that wage rates "shall be effective during the term of this agreement." We believe this language is clear and free from ambiguity. Since the parties have agreed that the contract should be effective as of April 1, 1953, we are bound to construe it as if it were made on that date. If it had been entered into on April 1, 1953, plaintiff's assignors without question would have been entitled to pay at the new rate for they were then employees of the company. By providing that the contract should be retroactive to that date, the same result was accomplished and *111 employees for whose benefit this action is brought are entitled to the retroactive pay. See McKinley v. Johnstown Traction Co., 58 Pa D & C 346. See also McNeil v. Peoples Life Ins. Co., (MCA DC 1945) 43 A2d 293; Lookout Oil and Refining Co. v. Guffey (ED Tenn) 12 Labor Cases (CCH) 70, 315; United States Steel Products Co., 5 Lab Arb 355 (1946) and C.B. Cottrell & Sons Co., 12 Lab Arb 97 (1949).
Defendant was not required to make the agreement retroactive and whether the new wage rates were to be retroactive probably was the subject of bargaining. The agreement might have limited the retroactive aspect to employees who were employed at the time the agreement was executed. If the parties had so intended it is reasonable to presume that they would have said so. Finding no such limitation we are not at liberty to insert one.
The parties have agreed on the amount due plaintiff if his assignors were entitled to the retroactive pay increase. The case is reversed and remanded with directions to enter judgment for the plaintiff, together with a reasonable attorney's fee to be determined by the court.
NOTES
[*] Chief Justice when argued.
[**] Chief Justice when decided.
[1] Sec. 301. (a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
(b) Any labor organization which represents employees in an industry affecting commerce as defined in this Act and any employer whose activities affect commerce as defined in this Act shall be bound by the acts of its agents. Any such labor organization may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States. Any money judgment against a labor organization in a district court of the United States shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609957/ | 467 P.2d 109 (1970)
Arthur E. PEASE, aka Emery arthur pease, appellant,
v.
Wesley S. TAYLOR, Respondent.
No. 5909.
Supreme Court of Nevada.
March 25, 1970.
*110 Ross & Crow, Carson City, for appellant.
Lester H. Berkson, Zephyr Cove, Jerry C. Lane, Carson City, for respondent.
OPINION
MOWBRAY, Justice.
Appellant Arthur E. Pease was one of three comakers of a 90-day, $16,500 promissory note dated September 15, 1966. Respondent Wesley S. Taylor was the named beneficiary of the note. The note was not paid. Taylor sued Pease for the $16,500 plus interest and attorney fees. Pease's only defense was that the transaction was usurious.[1] Pease contends (1) that an amount less than the $16,500 was advanced by Taylor and (2) that from that amount Taylor further withheld "brokers' fees" that constituted prepaid interest in excess of the legal rate.[2] We cannot reach that question, because the findings of the district judge make no reference, express or implied, to the usury question.[3]
NRCP 52 provides in part:
"(a) Effect. In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment; * * *."
It is true that this court has repeatedly held that even in the absence of express findings, if the record is clear and will support the judgment, findings may be implied. State ex rel. Dept. of Highways v. Olsen, 76 Nev. 176, 351 P.2d 186 (1960); Chisholm v. Redfield, 75 Nev. 502, 347 P.2d 523 (1959).
Not so, when the record is not clear, as in this case. Richfield Oil Corp. v. Harbor Ins. Co., 85 Nev. 185, 452 P.2d 462 (1969); Lagrange Constr., Inc. v. Del E. Webb Corp., 83 Nev. 524, 435 P.2d 515 (1967); Robison v. Bate, 78 Nev. 501, 376 *111 P.2d 763 (1962); Janzen v. Goos, 302 F.2d 421 (8th Cir.1962).
We therefore remand the case to the district court, so that adequate findings of fact and conclusions of law may be made by the district judge to the end that this court may appropriately review the issues presented on this appeal.
COLLINS, C.J., and ZENOFF, BATJER, and THOMPSON, JJ., concur.
NOTES
[1] NRS 99.050:
"1. Parties may agree, for the payment of any rate of interest on money due, or to become due, on any contract, not exceeding, however, the rate of 12 percent per annum. Any judgment rendered on any such contract shall conform thereto, and shall bear the interest agreed upon by the parties, and which shall be specified in the judgment; but only the amount of the original claim or demand shall draw interest after judgment.
"2. Any agreement for a greater rate of interest than herein specified shall be null and void and of no effect as to such excessive rate of interest."
[2] The oral testimony and documentary evidence received during the trial centered about that contention.
[3] "NOW, THEREFORE, as Findings of Fact the Court finds:
"1. That on or about September 15, 1966 the Defendant executed and delivered for valuable consideration a promissory note in the amount of $16,500.00 to Plaintiff, which note is in evidence as Plaintiff's Exhibit A.
"2. That the Exhibit A promissory note has not been paid and is in default from September 15, 1966.
"3. That Plaintiff is owed by Defendant the sum of $16,500.00 with interest thereon at 7% per annum from September 15, 1966 until paid.
"4. That pursuant to the terms of said note the Plaintiff is entitled to reasonable attorneys fees.
"CONCLUSIONS OF LAW
"1. That Plaintiff is entitled to Judgment in the sum of $16,500.00 together with interest thereon at 7% per annum from September 15, 1966 until paid.
"2. That Plaintiff is entitled to reasonable attorneys fees in the sum of $2,500.00." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609960/ | 2 Wash. App. 318 (1970)
467 P.2d 862
ALFRED TRIPPEL et al., Respondents,
v.
DAIRYLAND MUTUAL INSURANCE CO., Appellant.
No. 101-40554-1.
The Court of Appeals of Washington, Division One, Panel 1.
April 13, 1970.
Murray, Dunham & Waitt and Wayne Murray, for appellant.
Horswill, Keller, Rohrback, Waldo & Moren and Harold Fardal, for respondents.
FARRIS, J.
Alfred Trippel and Irene L. Trippel, husband and wife, and Irene Trippel as guardian ad litem for Richard Trippel, their son, and Mabel McCammant brought a declaratory judgment action to declare that a 1954 Oldsmobile automobile purchased on or about October 31, 1966, was insured by Dairyland Mutual Insurance Company under the terms of an automobile bodily injury and property damage liability insurance policy issued by the insurance company to Alfred Trippel as the named insured *319 when said automobile while being driven by the son, Richard Trippel, was involved in an accident with the respondent Mabel McCammant on November 9, 1966.
The insurance company appeals from an adverse judgment.
On January 22, 1965, the insurance company issued an automobile liability policy to Alfred Trippel. By endorsement dated July 14, 1966, the described automobile became a 1964 Chrysler and by endorsement dated July 15, 1966, Richard Trippel, the 16-year-old son of the named insured Alfred Trippel became a permissive driver under the policy.
On July 18, 1966, a 1954 Chevrolet automobile was purchased. Title and registration was in the name of Alfred Trippel. Richard Trippel paid the full purchase price of $75, was responsible for all repairs to the car and purchased the vehicle license. This Chevrolet was operated until on or about August 2, 1966, when it stopped running. It was licensed for the years 1966 and 1967. After the accident, a mechanic for the insurance company put the 1954 Chevrolet into running condition. The total cost of the repairs was $36.58.
On or about October 31, 1966, Alfred Trippel purchased a 1954 Oldsmobile automobile. On November 9, 1966, while that automobile was being driven by Richard Trippel, it collided with Mabel McCammant, a pedestrian.
The Trippels did not notify the insurance company of the acquisition of the 1954 Chevrolet or the 1954 Oldsmobile, nor did they request that either vehicle be insured prior to November 9, 1966.
The pertinent provision of the insurance policy is:
IV Automobile Defined, Trailers, Private Passenger Automobile, Two or More Automobiles, Including Automatic Insurance:
(a) Automobile. Except with respect to Coverage C-2 and where stated to the contrary, the word "Automobile" means:
(1) Described Automobile the motor vehicle or trailer described in this policy or, if none is so *320 described, any private passenger automobile owned on the effective date of this policy by the named Insured or by his spouse if a resident of the same household;
...
(4) Newly Acquired Automobile an automobile, ownership of which is acquired by the named Insured or his spouse if a resident of the same household, if (i) it replaces an automobile owned by either and covered by this policy, or the company insures all automobiles owned by the named Insured and such spouse on the date of its delivery, and (ii) the named Insured or such spouse notifies the company within thirty days following such delivery date.
The trial court concluded:
The owner of the 1954 Chevrolet automobile at all times was the plaintiff ALFRED TRIPPEL.
Conclusion of law 2.
The 1954 Chevrolet automobile at all times material herein was an operable automobile and that at the time of the accident of November 9, 1966, the plaintiff, ALFRED TRIPPEL owned three automobiles, to wit: a 1964 Chrysler Newport, a 1954 Chevrolet, and a 1954 Oldsmobile.
Conclusion of law 3.
[1] In considering an identical automatic insurance clause the California court stated the rule:
This provision is in the alternative, applicable either if a newly acquired car is a replacement or if at its delivery date the company insures all automobiles then owned by the insured.
Birch v. Harbor Ins. Co., 126 Cal. App. 2d 714, 720, 272 P.2d 784 (1954). See also Williams v. Standard Acc. Ins. Co., 158 Cal. App. 2d 506, 322 P.2d 1026 (1958). The language of the insurance policy is clear and unambiguous. It must be given effect in accordance with its plain meaning. Tucker v. Bankers Life & Cas. Co., 67 Wash. 2d 60, 406 P.2d 628 (1965).
The Trippels do not deny the failure to give notice of ownership or to request insurance. They argue that the automobile was owned by the son, Richard Trippel, an *321 argument specifically rejected by the trial court. They also urge that the 1954 Chevrolet was excluded from consideration because it was not reasonable to insure it. They rely upon language in Green v. American Home Assur. Co., 169 So. 2d 213 (C.A. La. 1964) and Canal Ins. Co. v. Brooks, 201 F. Supp. 124 (W.D. La. 1962), aff'd per curiam, 309 F.2d 751 (5th Cir.1962).
The language of the policy requiring that all automobiles owned by the named insured be included within the express coverage of the policy does not contemplate a vehicle which a reasonable person would not, on account of its condition, include in a policy of public liability insurance.
Green v. American Home Assur. Co., supra at 216.
The difficulty with respondents' position is the factual pattern and not the rule. Here, the cost of putting the 1954 Chevrolet into running condition was specifically found to be $36.58. The trial court concluded from the evidence that the car was operable at all times material herein. That conclusion is supported by the record.
There is also substantial evidence to support the trial court's conclusion that the 1954 Chevrolet was owned by Alfred Trippel, the named insured.
There is but one reasonable interpretation of the clear language of paragraph 4 of the insurance policy; the insurance company must have insured all vehicles owned by the insured at the time the additional automobile was acquired. The trial court's conclusion that this condition was not met is supported by substantial evidence. After specifically finding, upon substantial evidence, that the 1954 Chevrolet was an operable car owned by the insured and not insured by Dairyland, it was error for the trial court to decide that the 1954 Oldsmobile was insured by Dairyland on November 9, 1966.
The judgment is reversed.
JAMES, C.J., and SWANSON, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876004/ | 490 So.2d 1362 (1986)
Bobby Amos DALLAS, Appellant,
v.
STATE of Florida, Appellee.
No. 85-1673.
District Court of Appeal of Florida, Fifth District.
July 10, 1986.
James B. Gibson, Public Defender, and Kenneth Witts, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Jim Easley, Asst. Atty. Gen., Daytona Beach, for appellee.
UPCHURCH, Chief Judge.
Bobby Dallas appeals from a sentence imposed after a negotiated plea. Dallas had been charged with kidnapping, robbery, two counts of aggravated assault, second degree grand theft, two counts of attempted first degree murder, two counts of shooting into a building and use of a firearm while committing or attempting to commit a felony.
Under the plea agreement, Dallas pleaded no contest to kidnapping, robbery, aggravated assault and use of a firearm while committing a felony and in return the state nol prossed the remaining charges. There *1363 was no agreement as to any particular sentence, and the state specified that it would recommend a sentence of forty years which exceeded the recommended guideline sentence of nine to twelve years imprisonment.
The court imposed a forty year sentence, giving as its reasons:
Defendant jeopardized safety of numerous people by driving his vehicle in excess of 85 m.p.h. down public highways while being pursued by police and fired his weapon at a Florida Highway Patrol trooper during the chase by police officers. The shot penetrated an occupied mobile home creating an extreme risk to the physical safety of both citizens and law enforcement officers.
This departure is invalid since the reasons were factually based on the charges which were dropped as part of a plea agreement. Cummings v. State, 489 So.2d 121 (Fla. 1st DCA, 1986); Baxter v. State, 488 So.2d 647 (Fla. 5th DCA, 1986).
REVERSED and REMANDED for resentencing.
DAUKSCH and ORFINGER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1907896/ | 270 B.R. 281 (2001)
In re Larry Kenneth ALEXANDER, Debtor.
Larry Kenneth Alexander, DebtorAppellant,
v.
Mary Jo A. Jensen-Carter, TrusteeAppellee.
No. 01-6025MN.
United States Bankruptcy Appellate Panel of the Eighth Circuit.
Submitted October 2, 2001.
Filed November 15, 2001.
*282 *283 Karl A. Oliver, Roseville, MN, for appellant.
Mary Jo A. Jensen-Carter, St. Paul, MN, pro se.
Before KOGER, Chief Judge, WILLIAM A. HILL and SCHERMER, Bankruptcy Judges.
KOGER, Chief Judge.
Debtor Larry Kenneth Alexander appeals from an Order of the Bankruptcy Court[1] denying his request for relief under Fed.R.Civ.P. 60(b) and 11 U.S.C. § 105. For the reasons that follow, we affirm.
FACTUAL BACKGROUND
Three days prior to filing his pro se Chapter 13 bankruptcy petition on June 18, 1998, Alexander moved out of his marital home at 875 Laurel Avenue, St. Paul, Minnesota. Because he was not physically residing at the 875 Laurel address at the time he filed his Chapter 13 petition, Alexander listed his address on his bankruptcy petition as 175 North Lexington Parkway, St. Paul, Minnesota, which was the address of the property where he was living while he and his wife were separated and when he filed his bankruptcy petition. Although he listed the 175 North Lexington property as his address, Alexander nevertheless claimed a homestead exemption for the 875 Laurel residence on his bankruptcy schedules.
After the Chapter 13 Trustee objected to the homestead exemption because Alexander had referred to the wrong statute, Alexander amended his schedules, claiming the 875 Laurel Avenue residence exempt under Minnesota's correct homestead statute. The Chapter 13 Trustee again objected, this time on the ground that Alexander was not physically residing at that property when he filed his petition and, therefore, it did not qualify as his homestead.
The Bankruptcy Court conducted an evidentiary hearing and entered an Order dated December 3, 1998, granting the Trustee's objection and ruling that 875 Laurel was not exempt in Alexander's case because he was not physically living in the residence on the day he filed his bankruptcy petition. At the same time, the Bankruptcy Court also converted Alexander's Chapter 13 case to Chapter 7.
Alexander timely appealed the Order granting the Trustee's objection to the homestead exemption. On August 4, 1999, the District Court for the District of Minnesota affirmed the Bankruptcy Court's decision and Alexander appealed that decision to the Eighth Circuit Court of Appeals. While the appeal was pending in the Eighth Circuit, the District Court stayed its Order on the condition that Alexander post a bond, which he failed to do. *284 As a result, following a motion by one of the creditors involved in that litigation, the Eighth Circuit dismissed Alexander's appeal on November 17, 2000, suggesting in its opinion that the appeal itself had no merit.
Meanwhile, while the appeal was pending in the Eighth Circuit, Alexander's converted Chapter 7 case progressed in the Bankruptcy Court. Alexander again attempted to claim a homestead exemption for the 875 Laurel Avenue residence in his Chapter 7 case, arguing that he had moved back into that residence prior to the conversion and that, under the Eighth Circuit's decision in Armstrong v. Lindberg (In re Lindberg), 735 F.2d 1087 (8th Cir. 1984), the date of conversion controlled which property he could claim exempt as his homestead. The Chapter 7 Trustee objected on the grounds that Lindberg had been overruled by the enactment of the 1994 Bankruptcy Code, that the date of the original petition controlled which property Alexander could claim as his homestead, and, again, that Alexander was not residing at the 875 Laurel address when he filed his original petition.
On June 30, 1999, the Bankruptcy Court granted the Chapter 7 Trustee's objection to the homestead exemption, see In re Alexander, 236 B.R. 679 (Bankr.D.Minn. 1999), and Alexander appealed to the Bankruptcy Appellate Panel. On October 21, 1999, the BAP affirmed, ruling that Lindberg had been overruled by the enactment of the 1994 Code. See In re Alexander, 239 B.R. 911 (8th Cir. BAP 1999). Alexander took the case up again to the Eighth Circuit and, on January 8, 2001, the Eighth Circuit affirmed the Bankruptcy Court's decision, declaring Lindberg to be overruled by the new Code and, therefore, the date of the original petition controlled which property Alexander could claim as his homestead. See In re Alexander, 236 F.3d 431 (8th Cir.2001). On February 13, 2001, the Eighth Circuit denied Alexander's motion to rehear the case en banc.
Meanwhile, while all this was going on in Alexander's case, Alexander's wife, Georgina Stephens, filed a separate Chapter 7 case on August 17, 1998, about a month after Alexander had filed his original petition. At that time, she was living at 875 Laurel Avenue with their minor son and Alexander was residing at the 175 North Lexington address. Ms. Stephens listed the 875 Laurel address as her address on her bankruptcy petition but she did not claim any ownership interest in the property nor did she claim any homestead exemption in her bankruptcy schedules. Rather, she listed a rent payment in the amount of $1,175 per month which she said was the result of an agreement between Alexander and her that she pay him rent while they were separated. She did not list an ownership interest in the residence because, although she and Alexander had lived there together for many years before the separation, he was the only one listed on the deed. Consequently, Ms. Stephens, who was represented by an attorney in her bankruptcy proceedings, did not believe she had any interest in the property.
However, apparently due to the difficulty he was having claiming a homestead exemption in the 875 Laurel property in his own bankruptcy proceedings, Alexander, pro se, filed an "Amended Schedule A & C to Correct Description of Realty Claimed Exempt" in his wife's case, crudely attempting to exempt the property on his own behalf as a "dependant" of Ms. Stephens. His is the only signature that appears on this document; Ms. Stephens did not sign the document purporting to amend her schedules, nor did her attorney. In addition, no one notified any of the creditors in Ms. Stephens' case of the *285 "Amended Schedules" filed by Alexander in her case and so there were no objections made to Alexander's attempt to claim the homestead exemption in Ms. Stephens' case. Ms. Stephens received a discharge in her Chapter 7 case on November 18, 1998.
A few months thereafter, on June 7, 1999, Ms. Stephens filed a second bankruptcy petition, this time under Chapter 13. As she had done in her first case, Ms. Stephens, who was again represented by counsel, listed her address as 875 Laurel, but she again did not list any interest in the property, nor did she claim an exemption for it in her schedules. She again stated she was paying her husband rent in the amount of $1,175 per month and confirmed the rental arrangement in an e-mail to the Trustee herein dated August 9, 1999.
As he had attempted to do in Ms. Stephens' first case, on October 4, 1999, Alexander, pro se, filed another "Amended Schedule A & C to Correct Description of Realty Claimed Exempt" in Ms. Stephens' Chapter 13 case, again attempting to exempt the property on his own behalf as a "dependant" of his wife in her case. And again, no one notified the Chapter 13 Trustee or the creditors and, as a result, there were no objections to Alexander's attempt to claim the homestead exemption in his wife's case. The Chapter 13 Trustee in Ms. Stephens' case subsequently abandoned all property in her case, apparently unaware that Alexander was claiming an interest and exemption in the house on his wife's behalf in her case. Ultimately, Ms. Stephens voluntarily dismissed her Chapter 13 case in December 1999.
Subsequently, in February 2001, after the appeals were exhausted in Alexander's case and it had been finally determined that Alexander could not exempt the 875 Laurel property in his own bankruptcy case, the Trustee offered Alexander the opportunity to buy the property for the fair market value, advising Alexander and Stephens that if they did not purchase the property from the estate, they would need to vacate the premises so it could be sold for the benefit of the estate. Unable or unwilling to purchase the property from the Trustee and facing eviction, Alexander filed a pro se motion in the Bankruptcy Court seeking relief under Fed.R.Civ.P. 60(b) and 11 U.S.C. § 105. Among other things, Alexander asked the Bankruptcy Court to find that Ms. Stephens was entitled to claim an exemption in the 875 Laurel property as her homestead. The Bankruptcy Court denied the motion by Order dated April 17, 2001. This is the Order being appealed herein.
Meanwhile, shortly after the Bankruptcy Court denied the Rule 60(b) Motion, on April 30, 2001, Ms. Stephens, represented by counsel, commenced an action in the United States District Court for the District of Minnesota on her own behalf and the behalf of her minor son against the Trustee herein, claiming that she had exempted the 875 Laurel property as her homestead in her bankruptcy cases and that the Trustee's attempt to take possession of the property and liquidate it for the benefit of Alexander's bankruptcy estate violated the discharge injunction and automatic stay in her case, as well as her constitutional rights to her homestead under Minnesota law. In conjunction with this action in the District Court, Ms. Stephens filed a motion for temporary injunction seeking to enjoin the Trustee from evicting her and her son from the residence. That motion was heard by a magistrate judge on June 1, 2001, at which time the magistrate judge refused to grant the injunctive relief, indicating on the record that Ms. Stephens had not properly claimed the residence as her homestead in *286 her bankruptcy cases and stating that the Court believed that Ms. Stephens' motion may have violated Rule 11. The magistrate judge entered a written Order dated June 5, 2001, requiring Ms. Stephens and her attorney to show cause why they should not be sanctioned under Rule 11 for filing the motion for preliminary injunction. Ms. Stephens has appealed the magistrate judge's Order and the Trustee has filed a motion to dismiss Ms. Stephens' complaint in the District Court. Those items are still pending.
Now before us is Alexander's appeal of the Bankruptcy Court's denial of his Rule 60(b) and 11 U.S.C. § 105 motion.
STANDARD OF REVIEW
The standard of review for a denial of a Rule 60(b) motion is whether the Bankruptcy Court abused its discretion; this review does not include review of the underlying decision which was not appealed. Printed Media Servs., Inc. v. Solna Web, Inc., 11 F.3d 838, 842 (8th Cir.1993); In re Yukon Energy Corp., 227 B.R. 150, 151-52 (8th Cir. BAP 1998). The denial of a request pursuant to 11 U.S.C. § 105 is also reviewed under an abuse of discretion standard. See McGowan v. Ries (In re McGowan), 226 B.R. 13, 16 (8th Cir. BAP 1998).
DISCUSSION
Alexander bases his appeal on two primary points: (1) that the Bankruptcy Court, throughout the various proceedings in his case, erred in concluding that he could not claim the 875 Laurel property exempt as his own homestead; and (2) that the proceedings by the Trustee and the Bankruptcy Court in attempting to recover the 875 Laurel property in his case are void ab initio because they violated the automatic stay and discharge injunction in his wife's bankruptcy cases. Alexander cannot prevail here under either theory, primarily because he is either re-hashing arguments which have already been decided and affirmed by other courts or which should have been raised in the earlier proceedings.
As to the first point, Alexander correctly asserts that, as a general proposition, claimed exemptions are presumed to be valid and the Trustee bears the burden of proving that an exemption is invalid. Alexander incorrectly claims, however, that the Trustee failed to meet her burden in his case and that the Bankruptcy Court improperly shifted the burden to Alexander to prove that the 875 Laurel residence was his homestead. Rather, as the Bankruptcy Court found in its first decision on the homestead exemption, the presumption of the validity of Alexander's original claimed homestead exemption was rebutted by the fact that he declared, under penalty of perjury, that he was residing a the 175 North Lexington Parkway address at the time he filed his original bankruptcy petition. By objecting to the claimed exemption and pointing this fact out, as well as showing that Alexander was, in fact, living at 175 North Lexington at that time, the Trustee met her burden. The Bankruptcy Court so found and, in its opinion dismissing the appeal, the Eighth Circuit declared the appeal itself as having "complete lack of merit." Consequently, the issue of whether Alexander could have claimed the 875 Laurel address as his homestead in his original petition has already been decided by the Bankruptcy Court and affirmed by the Eighth Circuit and could not be relitigated in the subsequent Rule 60(b) motion.
With the issue as to whether Alexander could claim the 875 Laurel property as his homestead in his original petition having been decided against him, Alexander next attempted to claim an exemption in the 875 *287 Laurel residence as his homestead on the ground that he did live there on the date his case was converted to Chapter 7. At the time he made that argument to the Bankruptcy Court, In re Lindberg arguably permitted that. However, as discussed above, the Bankruptcy Court, the BAP, and the Eighth Circuit Court of Appeals determined that In re Lindberg had been overruled by the new Bankruptcy Code and that the date of Alexander's original petition controlled which property he could claim as his homestead.
In addition, contrary to Anderson's assertion that this second decision (as to whether he could claim the exemption in his converted Chapter 7 case) was interlocutory or that the Bankruptcy Court merely "certified" the question of Lindberg's viability, the Eighth Circuit also plainly affirmed the Bankruptcy Court's ruling that Alexander could not claim the 875 Laurel address as his homestead in the converted case, either. Specifically, the Eighth Circuit expressly said, after declaring Lindberg to be overruled by the new Code, "We further hold that the Bankruptcy Court correctly sustained the Chapter 7 Trustee's objection to Alexander's homestead exemption. See In re Smoinikar, 200 B.R. 640, 644 (Bankr.D.Minn.1996) (Minnesota homestead exemption law requires that debtor `actually occupy' residence)." In re Alexander, 236 F.3d at 433.
Thus, at this point, the Eighth Circuit has affirmed the Bankruptcy Court's determinations that Alexander could not claim the 875 Laurel homestead exemption in the original Chapter 13 case because Alexander did not live there when he filed that petition and that he could not claim it in his converted Chapter 7 case because the original filing date controlled and, as it had already found in its first decision, Alexander did not live there when he filed the original petition.
As a result, following the second decision by the Eighth Circuit in Alexander's case, the Bankruptcy Court had nothing more to consider as to whether Alexander could claim the homestead exemption in the 875 Laurel property in his own bankruptcy case. Nevertheless, Alexander still asserted in his Rule 60(b) motion, and he asserts here, that the Bankruptcy Court should have considered factors including, among other things, that he was only temporarily out of the family home when he filed his original petition, that his family remained there throughout, and that under Minnesota law, he was entitled to claim the homestead under those circumstances. These are all items which were or should have been raised when the Bankruptcy Court first considered whether Alexander could claim the exemption in his original petition.
"A Rule 60 motion is not the vehicle for restating old complaints and rearguing old evidence dealt with earlier in the proceedings." Kieffer v. Riske (In re Kieffer-Mickes, Inc.) 226 B.R. 204, 210 (8th Cir. BAP 1998). Moreover, "[t]he law of the case doctrine prevents relitigation of a settled issue in a case and requires that courts follow decisions made in earlier proceedings to insure uniformity of decisions, protect the expectations of the parties, and promote judicial economy." In re Usery, 242 B.R. 450, 457 (8th Cir. BAP 1999); see also Klein v. Arkoma Prod. Co., 73 F.3d 779, 784 (8th Cir.1996). When a case has been decided by the Eighth Circuit on appeal and remanded, every question which was decided by the Eighth Circuit, whether expressly or by necessary implication, is finally settled and determined, thus creating a mandate for the lower court. See Klein, 73 F.3d at 784.
The [lower court] is bound by the decree and must carry it into execution according to the mandate. . . . It may not "alter *288 it, examine it except for purposes of execution, or give any further or other relief or review it for apparent error with respect to any question decided on appeal."
Id. (citations omitted)
The Bankruptcy Court was bound by the Eighth Circuit's previous decisions in this case and could not consider Alexander's arguments in the Rule 60(b) motion, either new or re-hashed, as to whether he was entitled to claim the 875 Laurel property as his homestead. Consequently, we will not address them further here.
That being the case, with the Bankruptcy Court having conclusively determined that Alexander could not claim the homestead exemption in his own case, Alexander next asserts that the Bankruptcy Court should have considered Ms. Stephens' alleged exemption in the property. Specifically, Alexander asserts that the actions taken by the Trustee and the Bankruptcy Court in his case regarding the 875 Laurel property are all void ab initio because they violated the automatic stay and discharge injunction in Ms. Stephens' bankruptcy cases.
This argument fails for several reasons. First, Ms. Stephens' cases were progressing simultaneously with Mr. Alexander's cases. If Ms. Stephens had properly claimed an exemption in this property and if her exemption was relevant in this bankruptcy case, this argument should have been raised in the Bankruptcy Court long ago. As with Alexander's other arguments in this appeal, this belated Rule 60(b) motion is not the time to raise the issue of Ms. Stephens' alleged exemption in the property.
In addition, Ms. Stephens' interest in the property is irrelevant in the context of Mr. Alexander's bankruptcy case, except perhaps to the extent to which Alexander asserts that Trustee and Bankruptcy Court in his cases have violated the automatic stay and discharge injunction in Ms. Stephens' bankruptcy cases. As a result, and since there is a separate action pending involving Ms. Stephens' rights in the property, we make no determination here as to her rights in the property under Minnesota law. Rather, we limit our discussion here to the very narrow issue of whether the Trustee's actions in this case violated the automatic stay or discharge injunction in Ms. Stephens' cases.
In order for that to have occurred, Ms. Stephens must have claimed an interest in and exemption for the 875 Laurel property in her cases. For these purposes, we will assume that, if Ms. Stephens had properly claimed an exemption in the property as her homestead in her bankruptcy cases, the Trustee herein may have violated the discharge injunction in her case and would not be able to evict her and administer the property in Alexander's case. Nevertheless, contrary to Alexander's assertions herein, there is no evidence in the record before us that Ms. Stephens did properly claim an interest in or an exemption for the property in either of her bankruptcy cases and, as a result, neither the Trustee nor the Bankruptcy Court in Alexander's case violated the automatic stay or discharge injunction in her case.
Particularly, the record before us includes the schedules and purported amended schedules filed in Ms. Stephens' bankruptcy cases, as well as certain other documents from her cases, including an August 9, 1999 e-mail to the Trustee herein in which Ms. Stephens confirms that she was paying Alexander rent on the property. In neither of Ms. Stephens' cases is the 875 Laurel property listed on her Schedules A or C. In addition, even giving Mr. Alexander a very generous interpretation *289 of the "Amended Schedule A & C to Correct Description of Realty Claimed Exempt" and assuming it could be construed as amending Ms. Stephens' Schedules A & C in the manner Alexander contends it does (which we seriously question), in neither case were the "amended schedules" served on the proper parties. Furthermore, since the Trustees in her cases were apparently unaware of the claim of homestead exemption due to the lack of notice and misleading nature of the document, the Trustees' purported abandonment of such property was ineffectual.[2]
As a result, the Bankruptcy Court properly rejected the argument that Rule 60(b) relief should be granted based on Ms. Stephens' alleged exemption in the property and the Trustee's purported violation of the automatic stay and discharge injunction.
We therefore conclude that Alexander's Rule 60(b) motion was properly denied on the merits.
Alternatively, even if the arguments asserted by Alexander in the Rule 60(b) motion had merit or had not been precluded because the Eighth Circuit has already decided them, the Bankruptcy Court properly denied Alexander's motion for relief under Fed.R.Civ.P. 60(b) because the motion was untimely brought. Rule 60(b) provides in pertinent part:
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.
Fed.R.Civ.P. 60(b).[3]
Alexander's Rule 60(b) motion was filed on February 20, 2001. In effect, he is seeking relief from orders entered by the Bankruptcy Court on December 3, 1998, and June 30, 1999. In order to avoid the one-year limitation, Alexander asserts his motion was brought under Rule 60(b)(6) which must be made within a "reasonable time."
Regardless which subsection of the rule Alexander brings his motion under, in no event was it brought within a reasonable time. "What constitutes a reasonable time is dependent on the particular facts of the case in question and is reviewed for abuse of discretion." Watkins v. Lundell, 169 F.3d 540, 544 (8th Cir.1999). In this case, it would not have been an abuse of discretion for the Bankruptcy Court to have found that it was *290 unreasonable to wait over two years after the first order was entered, and after the Eighth Circuit issued an unfavorable result, to bring this motion.
Finally, Alexander asserts the Bankruptcy Court erred in failing to give his pro se pleadings liberal application and that he is therefore entitled to relief under 11 U.S.C. § 105. As the Bankruptcy Court has mentioned, despite the fact that he is not an attorney, Alexander demonstrates remarkable understanding of complicated legal arguments and his pleadings and briefs are well done. In any event, while pro se litigants may be entitled to liberal construction of their pleadings, the record simply does not support the argument that Alexander did not receive such favorable treatment or that he is entitled to relief under § 105 or any other theory.
In sum, Alexander is, in effect, asking the Bankruptcy Court to ignore the Eighth Circuit's rulings in his case, something the Bankruptcy Court could not do and something which neither Rule 60(b) nor 11 U.S.C. § 105 were ever intended to permit.
CONCLUSION
For the foregoing reasons, we conclude that the Bankruptcy Court did not abuse its discretion in denying Alexander's motion under Rule 60(b) and 11 U.S.C. § 105. The judgment is therefore affirmed.
NOTES
[1] The Honorable Dennis D. O'Brien, United States Bankruptcy Judge for the District of Minnesota.
[2] In addition, based on the transcript of the proceedings Ms. Stephens instituted in the District Court for the District of Minnesota, which is included in the record before us, it is clear that the magistrate judge has likewise concluded that Ms. Stephens did not properly claim an interest or exemption in the property.
[3] Rule 60(b) is made applicable to bankruptcy proceedings by Fed. R. Bankr.P. 9024. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4516833/ | In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00091-CV
___________________________
IN RE M.K., Relator
Original Proceeding
Trial Court No. CV-18-1003
Before Bassel, Kerr, and Wallach, JJ
Per Curiam Memorandum Opinion
MEMORANDUM OPINION
The court has considered relator’s petition for writ of mandamus and motion
for emergency relief and is of the opinion that relief should be denied. Accordingly,
relator’s petition for writ of mandamus and motion for emergency relief are denied.
Per Curiam
Delivered: March 13, 2020
2 | 01-03-2023 | 03-17-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2576774/ | 490 F. Supp. 2d 111 (2007)
REDER ENTERPRISES, INC. f/k/a Berkshire Armored Car Service, Inc., Plaintiff
v.
LOOMIS, FARGO & CO. CORPORATION, Defendant.
C.A. No. 06-30168-MAP.
United States District Court, D. Massachusetts.
June 1, 2007.
*112 Jennifer A. Rymarski, Mark E. Bluver, Shatz, Schwartz & Fentin PC, Springfield, MA, for Plaintiff.
Michael J. Keefe, Paul R. Keane, Martin; Magnuson, McCarthy and Kenney, Boston, MA, for Defendant.
MEMORANDUM AND ORDER RGARDING REPORT AND RECOMMENDATION WITH REGARD TO DEFENDANT'S MOTION TO DISMISS (Docket Nos. 8 & 15)
PONSOR, District Judge.
This is an action for breach of contract in which Defendant has moved to dismiss based upon the form-selection clause in the applicable contract. The Motion to Dismiss was referred to Chief Magistrate Judge Kenneth P. Neiman for report and recommendation.
On May 1, 2007, Judge Neiman issued his Report and Recommendation, to the effect that Defendant's motion should be allowed and the case dismissed, without prejudice. His memorandum reminded the parties that they had ten days from the receipt of the Report and Recommendation to file objections, See Report and Recommendation (Dkt. No. 15) at 15, n. 5. No objection to the Report and Recommendation has been filed by either party.
Having reviewed the substance of the Report and Recommendation and finding it meritorious, and noting that there is no objection, the court, upon de novo review, hereby ADOPTS the Report and Recommendation. Based upon this, the court hereby ALLOWS Defendant's Motion to Dismiss (Dkt. No. 8) and orders the case dismissed, without prejudice. The clerk will enter a judgment of dismissal. This case may now be closed.
It is So Ordered.
REPORT AND RECOMMENDATION WITH REGARD TO DEFENDANT'S MOTION TO DISMISS (Document No. 8)
NEIMAN, Chief United States Magistrate Judge.
In this case, Reder Enterprises., Inc. f/k/a Berkshire Armored Car Service, Inc. ("Plaintiff") seeks relief for breach of contract and for the alleged tortious use and appropriation of confidential information by Loomis, Fargo & Co. Corporation ("Defendant"). Pursuant to Fed.R.Civ.P. 12(b)(6), Defendant has moved to dismiss Plaintiff's complaint in its entirety, arguing that an enforceable forum-selection clause requires Plaintiff to bring the action in Texas.[1]
*113 Defendant's motion to dismiss has been referred to this court for a report and recommendation. See 28 U.S.C. § 636(b)(1)(B). For the reasons stated below, the court will recommend that Defendant's motion be allowed.
I. STANDARD OF REVIEW
In ruling on a Rule 12(b)(6) motion to dismiss, the court must accept as true all factual allegations in a plaintiff's complaint and construe all reasonable inferences in its favor. See Gorski v. New Hampshire Dep't of Corrections, 290 F.3d 466, 473 (1st Cir.2002); Estate of Soler v. Rodriguez, 63 F.3d 45, 53 (1st Cir.1995). A dismissal for failure to state a claim is appropriate if it appears, according to the facts alleged, that the plaintiff cannot recover on any viable theory. Rumford Pharmacy, Inc. v. City of East Providence, 970 F.2d 996, 998 (1st Cir.1992).
II. BACKGROUND
The following factual allegations come directly from the complaint and are stated in a light most favorable to Plaintiff. See Coyne v. City of Somerville, 972 F.2d 440, 443 (1st Cir.1992). The court has also considered the two contractual documents attached to and incorporated into the complaint the parties' Mutual Confidentiality Agreement dated August 26, 2003, and their Letter of Intent executed in May of 2004 both of which are addressed more fully below. See Alternative Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir.2001) (noting that such documents may be properly considered under Rule 12(b)(6)).
Plaintiff is a Massachusetts corporation which operated an armored car business for nearly forty-five years under the name of Berkshire Armored Car Services, Inc., providing services to various financial institutions and retail establishments. (Complaint ¶¶ 1, 5.) Defendant is a Texas business registered in Massachusetts as a foreign corporation. (Id. ¶ 2.) In 2003, Plaintiff and Defendant entered into preliminary discussions regarding Defendant's purchase of Plaintiff's assets, including its customer accounts and equipment. (Id. ¶ 7.)
To that end, on August 26, 2003, the parties signed a Mutual Confidentiality Agreement hereinafter the "MCA" which outlined their future intention to disclose confidential and proprietary information to one another. (Id. ¶ 8.) Paragraph 7 of the MCA, entitled "Governing Law and Equitable Relief," provides as follows:
This Agreement shall be governed and construed in accordance with the laws of the State of Texas and the parties consent to the exclusive jurisdiction of the state courts and U.S. federal courts located there for any dispute arising out of this Agreement. Both parties agree that in the event of any breach or threatened breach by receiving party, the disclosing party may obtain, in addition to any other legal remedies which may be available, such equitable relief as may be necessary to protect disclosing party against any such breach or threatened breach.
(Complaint, Exhibit A ¶ 7.) As is evident, paragraph 7 contains three separate clauses: (1) a clause granting each party the right to obtain equitable relief in the event of a breach or threatened breach of the MCA's confidentiality provisions; (2) a choice-of-Texas-law clause; and, most importantly for present purposes, (3) a forum-selection clause which broadly provides that "for any dispute arising out of *114 the [MCA]" the parties consent "to the exclusive jurisdiction of the state and . . . federal courts" of Texas. (Id.)
On May 14, 2004, Plaintiff signed a Letter of Intent drafted by Defendant hereinafter the "LOI" which summarized the terms of the contemplated sale; including the offered assets, conditions precedent, closing date, and non-competition provisions. (Complaint, Exhibit B.) The LOI did not contain a forum-selection clause.
Shortly after executing the 0-1, Plaintiff furnished Defendant with confidential information and customers. (Complaint ¶¶ 10-12.) Plaintiff also disclosed information regarding its routes and price structure to allow Defendant to complete its due-diligence and evaluate Plaintiff's business prior to the asset sale. (Id. ¶¶ 10, 16.) According to the complaint, "[t]he Confidential Information was provided to Defendant under the terms of [both] the Confidentiality Agreement [i.e., the MCA] and the LOI." (Id. ¶ 11.)
In June or July of 2004, negotiations between Plaintiff and Defendant broke down and, as a result, the asset sale was never consummated. (Id. ¶ 13) Accordingly, Plaintiff requested the return of its confidential and proprietary information. (Id. ¶ 14.) Unfortunately for Plaintiff, however, numerous customers had already "terminated their contracts with Plaintiff and . . . entered [into] contracts with . . . Defendant." (Id. ¶ 15.) As a result, Plaintiff claims, it suffered financial hardship and had to sell its remaining assets to another buyer while its principal, Gerard S. Reder, was forced into filing a voluntary bankruptcy petition. (Id. ¶ 18.)
In September of 2006, Plaintiff filed this action in the Massachusetts Superior Court for Berkshire County and Defendant thereafter removed it to this forum. Plaintiffs complaint contains five counts: breach of contract (Count I), interference with contractual relations (Count II), "misrepresentation/fraud/deceit" (Count III), violation of Mass. Gen. L. ch. 93A (Count IV), and conversion of trade secrets in violation of Mass. Gen. L. ch. 93, § 42 (Count V). In due course, Defendant filed the instant motion to dismiss.
III. DISCUSSION
In the court's view, this is a fairly straightforward "forum-selection" matter. As will be described, the court agrees with Defendant that the parties validly agreed to the exclusive jurisdiction of the Texas courts and Plaintiff offers no convincing argument to the contrary. Accordingly, the court will recommend that Defendant's motion to dismiss be allowed. Still, there are several nuanced aspects of the analysis which require greater explanation.
A. Framing the Issue
The court begins with the well-settled principle that, "in the light of present-day commercial realities," a forum-selection clause "should control absent a strong showing that it should be set aside." M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 92 S. Ct. 1907, 32 L. Ed. 2d 513 (1972). More to the point, a court is required to enforce a duly-executed forum-selection clause unless the objecting party can "clearly show that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching." Id. See Restatement (Second) of Conflict of Laws § 80 (1988 rev.) (forum-selection clauses are to be enforced when it is fair and reasonable to do so). See also D'Antuono v. CCH Computax Sys., Inc., 570 F. Supp. 708, 711 (D.R.I. 1983) ("The recalcitrant party (here, the plaintiff) bears a heavy burden of proof in his attempt to show unreasonableness." (citing Bremen, 407 U.S. at 17, 92 S. Ct. 1907)).
Before applying these principles to the instant matter, the court makes two preliminary *115 comments. First, essentially following the parties' lead, the court has analyzed the forum-selection clause at issue pursuant to federal common law as established through Bremen and its progeny. As it turns out, there is no conflict between federal common law and either Texas or Massachusetts law regarding the enforceability of forum-selection clauses. See Doe v. Seacamp Ass'n, 276 F. Supp. 2d 222, 224 (D.Mass.2003) ("federal common law and Massachusetts law treat forum selection clauses identically") (citation and internal quotation marks omitted); In re AIU Ins. Co., 148 S.W.3d 109, 112 (Tex. 2004) (using Bremen as template for analyzing forum-selection clause under Texas law). Accordingly, there is no need to reach the nettlesome Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), issue of which law might otherwise apply in this diversity case. See Silva, 239 F.3d at 386 n. 1. See also Lambert v. Kysar, 983 F.2d 1110, 1116 & n. 10 (1st Cir.1993) (declining to confront "the daunting question of whether forum-selection clauses are to be treated as substantive or procedural for Erie purposes," observing that the Supreme Court has not yet resolved the issue and noting circuit split on proper approach).
Second, Plaintiff's argument to the contrary, there is no question that, on its face, the forum-selection clause contained in the MCA governs this lawsuit. Put simply, this case, in the court's opinion, is clearly a "dispute arising out of the MCA and, hence, covered by that contract's broadly-worded forum-selection clause. For example, Count I of the complaint alleges violation of "the contract" and makes direct reference to Defendant's alleged breach of the confidentiality provisions contained in the MCA. (Complaint ¶¶ 20-21.) Similarly, Count III directly cites the MCA and its confidentiality provisions as a source of Defendant's tortious misrepresentation, fraud and deceit. (Id. ¶¶ 29-33.) Finally, Count V alleges conversion of trade secrets, i.e., the "confidential information," in contravention of "the strict guidelines of the [MCA]." (Id. ¶¶ 40-43.)
To be sure, these three counts Counts I, III and V also cite the LOI (see id. ¶¶ 20, 30 and 40) while the interference with contractual relations and chapter 93A counts Counts II and IV do not specifically mention the MCA (but see id. ¶ 26) (alleging in Count II that "Defendant intentionally interfered with Plaintiffs contracts with [its] customers by soliciting these customer[s] and offering them competitive pricing because it had knowledge of Plaintiffs pricing and route structure"), ¶ 37 (alleging in Count IV that "Defendant violated [chapter 93A] by utilizing Plaintiffs Confidential Information in order to gain a competitive advantage over Plaintiff in the guise of a desire to purchase Plaintiffs assets") and ¶ 38 (alleging in Count IV that "Defendant violated [chapter 93A] when it, having Plaintiffs pricing structure and route schedule, `cherry picked' customers from the Plaintiff making it impossible for Plaintiff to conduct a profitable business based on its established customer runs"). These distinctions, however, are of no moment.
As indicated, the forum-selection clause in the MCA is intentionally broad, i.e., it governs "any dispute" which can be said to be "arising out of that contract. As described, the complaint easily falls within that generous scope. See, e.g., Omron Healthcare, Inc. v. Maclaren Exports Ltd., 28 F.3d 600, 601-03 (7th Cir.1994) (distribution agreement with a clause stating that "[t]he parties hereto agree that all disputes arising out of this Agreement which cannot be resolved amicably between the parties shall be referred to the High Court of Justice in England" held to cover trademark infringement dispute); Roby v. Corporation of Lloyd's, 996 F.2d *116 1353, 1358-66 (2nd Cir.1993) (insurance syndication agreement stating that "Each party hereto irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute and/or controversy of whatsoever nature arising out of or relating to the [Name's] membership of, and/or underwriting of insurance business at, Lloyd's" was held to cover claims under civil RICO and federal securities law); Crescent Int'l, Inc. v. Avatar Communities, Inc., 857 F.2d 943, 944-45 (3rd Cir.1988) (agreement to sell real estate on commission stating that "any litigation upon any of [its] terms . . . shall be maintained" in a court in Miami, Florida was held to cover civil RICO claims); Stewart Org., Inc. v. Ricoh Corp., 810 F.2d 1066, 1070 (11th Cir.1987) (it was "clear from the language of the agreement that the forum selection clause encompassed any dispute arising out of or in connection with the dealer-manufacturer relationship," because it referred to "any `case or controversy arising under or in connection with this Agreement'"); Terra Int'l, Inc. v. Mississippi Chem. Corp., 922 F. Supp. 1334, 1382 (N.D.Iowa 1996) (holding that forum-selection clause in licensing agreement was broad enough to encompass tort, negligence and strict liability claims); Stephens v. Entre Computer Centers, Inc., 696 F. Supp. 636, 638 (N.D.Ga.1988) (holding that forum-selection clause that referred to "any action" applied to tort claims, because it covered "all causes of action arising directly or indirectly from the business relationship evidenced by the contract").
Within this district, Judge Reginald C. Lindsay has held that a similarly-worded forum-selection clause i.e., one that governed "any claim related to or arising from" the contract at issue covered not only claims directly based on that contract but, as well, tort claims that grew out of the contractual relationship. Doe, 276 F.Supp.2d at 227. Here, too, the fact that several of the five claims sound in tort and/or do not cite the MCA (either exclusively or in conjunction with the LOI) does not make the MCA's forum selection provision any less applicable. As Judge Lindsay explained, "[t]he [plaintiffs]' argument that their tort claims do not involve the same operative facts as a parallel claim for breach of contract,' is unavailing, if not specious." Id. (quoting Lambert, 983 F.2d at 1121-22). See also id. at 227-28 (citing with approval McAdams v. Mass. Mut. Life Ins. Co., 2002 WL 1067449, at *12 (D.Mass. May 15, 2002) (Freedman, J.)). Even the Massachusetts state court decision upon which Plaintiff most centrally relies held that "[a] plaintiff should not be allowed to vitiate the effect of a forum selection clause simply by alleging peripheral claims that fall outside its apparent scope." Jacobson v. Mailboxes Etc. U.S.A., Inc., 419 Mass. 572, 646 N.E.2d 741, 746 (1995).
B. Plaintiff's Arguments
Having established the existence of a broadly-governing forum-selection clause, the court now addresses what are essentially three arguments in support of Plaintiffs effort to escape its reach. None of these arguments, in the court's estimation, warrants denial of Defendant's motion to dismiss.
First, Plaintiff makes much of the fact that, in negotiating the LOI in the Spring of 2004, the parties discussed, but never included in that document, a choice-of-law provision.[2] "Since the LOI contains no *117 choice-of-law provision," Plaintiff argues, "[Defendant]'s claims must be reviewed under traditional Erie and substantive law considerations." (Plaintiffs Brief at 7.) "The result of that analysis," Plaintiff continues, "clearly indicates [that] the case was properly brought in Massachusetts, should remain in Massachusetts, and should be governed by Massachusetts law." (Id.)
There are several problems with Plaintiffs argument. First, a court is ordinarily precluded from looking beyond the four-corners of a complaint here, to Defendant's emails (see n. 2) in a Rule 12(b)(6) motion to dismiss. See Young v. Lepone, 305 F.3d 1, 10-11 (1st Cir.2002). As described, the four-corners of this complaint demonstrate that the parties' dispute falls easily within the broad forum-selection clause contained within the MCA. Moreover, even were the court to consider the emails now proffered by Plaintiff, they demonstrate at most that the parties were negotiating a choice-of-law provision for the LOI, not a choice-of-forum clause. The clear distinction between the two is never quite recognized by Plaintiff. At bottom, even if the LOI intentionally contained no forum-selection clause let alone no choice-of-law provision it would be of no consequence to the court's analysis.
Second, Plaintiff argues that enforcement of the MCA's forum-selection clause would be "unreasonable" under the circumstances. See Bremen, 407 U.S. at 15, 92 S. Ct. 1907. "To establish that a particular choice-of-forum clause is unreasonable, a resisting party must present evidence of fraud, undue influence, overweening bargaining power or such serious inconvenience in litigating in the selected forum that it is effectively deprived of its day in court." Fireman's Fund Am. Ins. Companies v. Puerto Rican Forwarding Co., 492 F.2d 1294, 1297 (1st Cir.1974). The court finds Plaintiff's argument wanting.
To frame its unreasonableness argument, Plaintiff cites nine factors articulated by Judge Bruce M. Selya when he was a district judge in Rhode Island: (1) "[t]he identity of the law which governs the construction of the contract"; (2) "[t]he place of execution of the contract(s)"; (3) "[t]he place where the transactions have been or are to be performed"; (4) "[t]he availability of remedies in the designated forum"; (5) "[t]he public policy of the initial forum state"; (6) "[t]he location of the parties, the convenience of prospective witnesses, and the accessibility of evidence"; (7) "[t]he relative bargaining power of the parties and the circumstances surrounding their dealings"; (8) "[t]he presence or absence of fraud, undue influence or other extenuating (or exacerbating) circumstances"; and (9) "[t]he conduct of the parties." D'Antuono, 570 F.Supp. at 712 (citations omitted). See also Doe, 276 F.Supp.2d at 225 (citing D'Antuono factors with approval). "While each of these factors has some degree of relevance and some claim to weight," Judge Selya explained, "there are no hard-and-fast rules, no precise formula. The totality of the circumstances, measured in the interests of justice, will and should ultimately control." Id.
In the court's view, the totality of the circumstances, viewed through the prism of the nine cited factors, does not sustain Plaintiffs "heavy" burden of proving unreasonableness. Doe, 276 F.Supp.2d at 225; D'Antuono, 570 F.Supp. at 711. The first factor, the governing law, is at best a wash; although two of the complaint's counts are grounded in Massachusetts statutes, the MCA, as noted, includes a broadly-worded choice-of-Texas-law provision. The second factor, the place of execution, is also a toss-up; Defendant executed *118 the MCA and LOI in Texas while Plaintiff appended his signature to those contracts in Massachusetts. For similar reasons, the court believes that the third factor, the place of performance, favors each state equally. And since Plaintiff ignores the fourth and fifth factors which concern, respectively, the availability of remedies in Texas and the public policy of Massachusetts the court has not considered them here.
The sixth factor which deals with the location of the parties, the convenience of prospective witnesses, and the accessibility of evidence is also inconsequential. Witnesses and evidence are obviously located in each state. To be sure, the court is not unsympathetic to Mr. Reder's situation; he is 79 years old and said to be in frail health. (See Document No. 12 (Aff. of Gerard Reder) ¶¶ 28.)[3] As Judge Lindsay recognized in Doe, however, "the standard for declining to enforce a forum selection clause because of inconvenience to one of the parties does not apply in situations in which it simply may be difficult . . . for the party seeking an alternative forum to litigate in the contractual forum." Id., 276 F.Supp.2d at 226. "Rather," Judge Lindsay explained, a plaintiff "must be able to show that [he] would suffer `such serious inconvenience in litigating in the selected forum that [he is] effectively deprived of [his] day in court.'" Id. (quoting Fireman's Fund, 492 F.2d at 1297) (in turn, citing Bremen, 407 U.S. at 12-19, 92 S. Ct. 1907). That is surely not the situation here.[4]
As for the seventh factor, the court believes that the parties' relative bargaining power actually militates in Defendant's favor. As Defendant notes, the parties are each sophisticated business entities that, through counsel, negotiated their transactions at arm's length. And as "[r]ecent case law makes it clear[,] . . . neither lack of commercial sophistication nor the use of `boilerplate' or form contracts will render a forum selection clause automatically unenforceable." Id. (upholding forum-selection clause in standard "summer camp" contract signed by the plaintiff's parents). See also Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593, 111 S. Ct. 1522, 113 L. Ed. 2d 622 (1991) (holding passenger ticket containing forum-selection clause enforceable notwithstanding lack of opportunity to negotiate); Silva, 239 F.3d at 389 (employer's alleged superior bargaining power deemed insufficient to void forumselection clause contained in employment contract).
That leaves only the eighth and ninth factors, i.e., the conduct of the parties coupled with the presence (or absence) of fraud, undue influence or the like. These factors, in the court's view, do not adequately tip the balance in Plaintiffs favor. Granted, at least one of Plaintiffs causes of action sounds in fraud; but the "fraud exception" "`does not mean that mean that any time a dispute arising out of a transaction is based upon an allegation of fraud . . . the clause is unenforceable. Rather, it means that [a] . . . forum selection clause in a contract is not enforceable if the inclusion *119 of that clause in the contract was the product of fraud or coercion.'" Lambert, 983 F.2d at 1121 (quoting Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 n. 14, 94 S. Ct. 2449, 41 L. Ed. 2d 270 (1974)) (emphasis in original) (ellipses and alteration added by First Circuit). There is no such allegation here. In sum, there are no policy reasons to void the parties' forumselection clause.
The court now turns to Plaintiffs third and final argument, namely, that a Texas order for equitable relief e.g., an injunction pertaining to Defendant's misuse of confidential information, as apparently allowed by paragraph 7 of the MCA would be unenforceable in Massachusetts. (See Plaintiffs Brief at 16.) Aside from the fact that Plaintiff offers no caselaw in support of this argument, Plaintiff is mistaken. It is well-established that "[a] final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land," and the Supreme Court "has never placed equity decrees outside the full faith and credit domain." Baker v. Gen. Motors Corp., 522 U.S. 222, 233, 234, 118 S. Ct. 657, 139 L. Ed. 2d 580 (1998). Accordingly, the court has little choice but to reject this third argument and, hence, recommend that the MCA's forum-selection clause be enforced.
III. CONCLUSION
For the reasons stated, the court recommends that Defendant's motion to dismiss be ALLOWED. If adopted by the district court, this case would be dismissed without prejudice. See Silva, 239 F.3d at 386 (affirming "without prejudice" dismissal of action governed by valid, enforceable and mandatory forum-selection clause); Offshore Sportswear, Inc. v. Vuarnet Int'l, B.V., 114 F.3d 848, 850-51 (9th Cir.1997) ("Because a dismissal to enforce a forum selection clause is not a determination on the merits of any cause of action, it is appropriately `without prejudice' so that the merits can be litigated elsewhere.").[5]
NOTES
[1] Although Defendant also cites Fed.R.Civ.P. 12(b)(1) and (3) which, respectively, govern dismissals for lack of subject matter jurisdiction and improper venue the First Circuit analyzes a motion to dismiss based upon a forum selection clause pursuant Rule 12(b)(6). See Silva v. Encyclopedia Britannica, Inc., 239 F.3d 385, 387-88 (1st Cir.2001).
[2] In essence, Plaintiff notes that its attorney suggested in emails to Defendant's attorney that a Massachusetts choice-of-law clause ought to be included in both the LOI and the ultimate asset sale agreement, but Defendant's attorney preferred to "argue about it later." (See Plaintiff's Brief, Exhibits A-D.)
[3] Again, the court would typically not consider Mr. Reder's affidavit at the Rule 12(b)(6) stage since it is outside the four-corners of the complaint. See Young, 305 F.3d at 10-11. Even when considered, however, Mr. Reder's assertions do not alter the court's analysis.
[4] At oral argument, Defendant reminded the court that Mr. Reder is not a party, merely a witness. Moreover, the court sees no reason why Mr. Reder cannot be deposed in Massachusetts or allowed to testify by remote electronic means. See, e.g., Fed.R.Civ.P. 30(b)(7). See also Fed.R.Civ.P. 29 (parties may stipulate that depositions be taken "at any . . . place"); Fed.R.Civ.P. 32(a)(3)(c) (deposition may be used at trial if witness is unable to testify because of age, illness or infirmity).
[5] The parties are 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 these findings and recommendations must file a written objection with the Clerk of this Court within ten (10) days of the party's receipt of this Report and Recommendation. The written objection must specifically identify the portion of the proposed findings or recommendations to which objection is made and the basis for such objection. The parties are further advised that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court order entered pursuant to this Report and Recommendation. See Keating v. Secretary of Health & Human Services, 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia Copete, 792 F.2d 4, 6 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir.1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir.1980). See also Thomas v. Am, 474 U.S. 140, 154-55, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985). A party may respond to another party's objections within ten (10) days after being served with a copy thereof. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609844/ | 866 P.2d 951 (1994)
S. UTSUNOMIYA ENTERPRISES, INC., a Hawai'i corporation, Plaintiff/Third-Party Plaintiff,
v.
MOOMUKU COUNTRY CLUB, a Hawai'i partnership, Chuck Maples and Les Hirahara, Defendants/Third-Party Plaintiffs-Appellants, and
James L. Watson, D.D.S., Defendant, and
Terry S. Hand, dba Hand Properties;
Mary Anne Bruno and Akie Yoshikawa, Third-Party Defendants, and
Japan Grand Prix (Hawai'i), Ltd., Intervenor-Appellee.
No. 16751.
Supreme Court of Hawaii.
January 19, 1994.
Reconsideration Denied February 3, 1994.
*955 David Schulmeister (Cynthia M. Johiro, with him on the briefs, of Cades, Schutte, Fleming & Wright), Honolulu, for defendants/third-party plaintiffs-appellants.
Paul R. Mancini (Matthew V. Pietsch and Lea O. Hong, with him on the briefs, of Case & Lynch), Kahului, Maui, for intervenor-appellee.
Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.
MOON, Chief Justice.
Defendants/third-party plaintiffs-appellants Moomuku Country Club, Chuck Maples, and Les Hirahara (collectively, Moomuku) appeal from orders entered in the Second Circuit Court: (1) denying intervenor-appellee Japan Grand Prix (Hawai'i), Ltd.'s (JGP) motion to expunge a lis pendens; (2) granting JGP's motion for partial summary judgment; and (3) granting JGP's motion for attorneys' fees, costs, and judgment against Moomuku. Through these aforementioned motions, the circuit court ultimately held that Moomuku had breached its covenant against *956 encumbrances contained in a limited warranty deed conveying real property to JGP because the property was encumbered by a lis pendens filed in conjunction with a complaint alleging an equitable lien on the property.
On appeal, we review questions of first impression: (1) whether a lis pendens constitutes an "encumbrance" within the scope of a covenant against encumbrances contained in a deed; and (2) whether a lis pendens may be based on a claim to an equitable lien against property. We hold that a valid lis pendens is an encumbrance on real property. However, we also hold that the filing of a lis pendens must be limited in application to actions directly seeking to obtain title to or possession of real property, and, by that standard, the lis pendens in this case was invalid. We further hold that a mere claim to an equitable lien on property is not an encumbrance, and therefore, we vacate the order of the circuit court granting JGP's motion for attorneys' fees, costs, and judgment against Moomuku.
I. BACKGROUND
On or about June 22, 1990, Moomuku entered into a land purchase agreement with Ulupalakua Ranch, Inc. for the purchase of 156 acres of real property located on the island of Maui (the property).[1] On August 13, 1990, Moomuku and S. Utsunomiya Enterprises, Inc. (Utsunomiya) signed a "Letter of Intent To Purchase" (letter of intent) wherein Moomuku acknowledged that it was willing to sell, and Utsunomiya was willing to purchase, the property for $11,000,000.00. In an "Addendum" to the letter of intent, Utsunomiya agreed to pay a non-refundable deposit of $200,000.00 to Moomuku; however, a disagreement arose between Moomuku and Utsunomiya regarding the purpose of the non-refundable deposit, which dispute formed the genesis of this action.
Moomuku claimed that the letter of intent and the addendum together formed an option agreement under which Utsunomiya paid the non-refundable deposit in exchange for the option to proceed with purchase of the property after a fourteen-day due diligence period. During the fourteen-day period, Utsunomiya had the opportunity to investigate breaks in the record chain of title. Utsunomiya, on the other hand, claimed that the $200,000.00 was a deposit to be applied to the total purchase price and that the sale was conditioned upon Moomuku's ability to convey "free and clear title" by January 3, 1991.
Utsunomiya subsequently received a title report revealing numerous breaks in the property's chain of title. Concluding that Moomuku would not be able to convey free and clear title by the closing date, Utsunomiya notified Moomuku, by letter dated August 31, 1990, that it was rescinding the letter of intent and demanded return of its deposit.[2] Having received no response, Utsunomiya again wrote Moomuku on September 18, 1990, demanding return of the deposit. Utsunomiya maintains that Moomuku never responded or attempted to assure it that clear title could be conveyed by the closing date.
On October 8, 1990, Utsunomiya filed a complaint in the Second Circuit Court seeking recovery of the $200,000.00 deposit as well as punitive damages, attorneys' fees, and costs. Among other allegations, Utsunomiya claimed that Moomuku misrepresented its ability to convey clear title. Utsunomiya simultaneously filed a "Notice of Lis Pendens" against the property alleging that the deposit was paid towards the purchase thereof. Moomuku, in turn, filed a third-party complaint against Utsunomiya's realtors, Terry Hand, dba Hand Properties, Mary Ann Bruno, and Akie Yoshikawa (collectively, third-party defendants), claiming that any harm Utsunomiya may have suffered was as a result of the third-party defendants' failure to accurately communicate the condition of title to Utsunomiya.
Based on Utsunomiya's declaration of rescission of the letter of intent, Moomuku began negotiations to sell the property to JGP. On October 25, 1990, JGP agreed to *957 purchase the property[3] for $8,000,000.00, and the parties executed a "Land Purchase Agreement" wherein they agreed that JGP would place $6,750,000.00 in escrow by November 25, 1990, and pay the balance due ($1,250,000.00) at closing, which would be no later than January 15, 1991. At some point after execution of the land purchase agreement, but before closing, JGP learned of Utsunomiya's lis pendens filed against the property. JGP then attempted to condition payment of the purchase price on expungement of the lis pendens. Moomuku refused, contending the lis pendens was invalid because it was not based on any alleged interest in the property and also because clear title was not a condition of closing under the land purchase agreement.
On December 3, 1990, Moomuku filed a "Motion to Expunge Notice of Pendency of Action" in the circuit court alleging that, because Utsunomiya was not seeking to purchase or obtain use or title to the property, its lis pendens was inappropriate. Moomuku claimed that Utsunomiya's lis pendens was invalid under Hawai'i Revised Statutes (HRS) § 634-51 (1985)[4] because Utsunomiya's action was not one "concerning real property or affecting the title or the right of possession of real property[.]" HRS § 634-51. However, the hearing on the motion to expunge was continued by stipulation of the parties and never moved on again by Moomuku. Nonetheless, Utsunomiya responded by filing an amended complaint and amended lis pendens on January 16, 1991 this time alleging that it had a lien on Moomuku's interest in the property to the extent of its $200,000.00 deposit. Utsunomiya also alleged it had remained ready and willing to comply with the letter of intent until January 3, 1991, but because clear title had not been conveyed by that date, it was entitled to foreclose on the lien.
Meanwhile, JGP deposited the initial $6,750,000.00 of the purchase price into escrow. Thereafter, JGP informed Moomuku that it was financially unable to deposit the remaining $1,250,000.00 into escrow by January 15, 1991, as required under the land purchase agreement. The parties therefore agreed that JGP would execute a promissory note secured by a mortgage on the property for $1,250,000.00 payable directly to Moomuku's principals, Hirahara and Maples, which would become due on September 30, 1991. In discussing the promissory note, Moomuku contends that the subject of the lis pendens was never addressed. Subsequently, Ulupalakua Ranch completed its sale of the property to Moomuku, which in turn placed a limited warranty deed into escrow, and closed the sale to JGP on January 16, 1991. On February 5, 1991, Maples assigned his one-half interest in the promissory note to James Watson.
On September 5, 1991, JGP executed a "Simple Interest Modification Agreement" extending the due date on the promissory note wherein JGP and Moomuku agreed that: (1) $250,000.00 would be due on September 30, 1991, plus interest at eighteen percent per annum accruing from September 5; and (2) the balance of $1,000,000 would become due on November 29, 1991, after which time interest would accrue on any unpaid balance at a rate of twenty-four percent per annum.
In mid-November 1991, JGP claims it became aware that Utsunomiya's amended lis pendens still appeared on the title to the property. JGP complained that Utsunomiya's "encumbrance" prevented it from closing its loan with Finance Factors, Ltd. JGP had intended that the loan would be secured by the property and the proceeds utilized to pay off the promissory note. Thus, JGP renewed its demand that Moomuku take steps to have the amended lis pendens removed.
JGP, apparently unwilling to rely any longer on Moomuku to relieve the alleged encumbrance, successfully intervened in the lawsuit between Utsunomiya and Moomuku on December 3, 1991. On December 9, 1991, JGP *958 filed a "Motion For Expungement Of Notice And Amended Notice Of Pendency Of Action And Declaratory Relief Or, Alternatively, For Leave To Deposit Money Into Court And For Related Relief" (motion to expunge or deposit money) and simultaneously (1) counterclaimed against Utsunomiya alleging that Utsunomiya acted "maliciously" and caused JGP damage when it filed and refused to release the lis pendens knowing the lis pendens was not authorized by law; and (2) cross-claimed against Moomuku essentially alleging breach of the limited warranty deed and land purchase agreement.
In its motion to expunge or deposit money, JGP argued, as Moomuku had, that Utsunomiya's lis pendens and amended lis pendens were improper because they did not involve the property per se. Alternatively, JGP requested leave to deposit $250,000.00 with the court to (1) secure Utsunomiya's alleged claim to damages, (2) cancel any interest Utsunomiya might claim in the property, and (3) discharge $250,000.00 of JGP's indebtedness on the promissory note. The court denied the motion to expunge the lis pendens on January 8, 1992, but granted JGP's alternative request to deposit money with the court. Further, the court ordered that, simultaneously with JGP's deposit of $250,000.00, (1) Utsunomiya would have no further right or interest in the property, (2) Utsunomiya must execute a release of the lis pendens and amended lis pendens, and (3) Moomuku must execute a release of the mortgage securing the promissory note when all monies due on the note were paid.
The record indicates that by February 4, 1992, JGP had deposited monies into an escrow account sufficient to satisfy its debt on the promissory note. However, Hirahara would not execute a "Lender's Demand Statement," which would have authorized the escrow holder to deduct and deposit in the Second Circuit Court $250,000.00 due to Hirahara from JGP. Hirahara believed that one-half of that money ($125,000.00) should come from money due to Watson (Maples' assignee of one-half interest in the note). Consequently, JGP moved for an Order to Show Cause as to why Hirahara should not be held in contempt for failure to comply with the court's January 8, 1992 order. The court denied the motion without prejudice and allowed the identification of Watson as a Doe defendant.
Based on the addition of Watson to the action, on April 1, 1992, JGP amended and renewed its motion to expunge or deposit money originally filed on December 9, 1991, requesting the same relief and, in addition, that (1) the substance of the court's January 8, 1992 order apply to Watson, and (2) the court order that JGP was not required to pay interest on the promissory note at the note's twenty-four percent default rate because Hirahara's actions prevented JGP from securing a loan to satisfy the note. On May 21, 1992, the court again denied the motion to expunge the lis pendens and granted the alternative motion to deposit money with the court. At the same time, the court ordered JGP to deposit $481,882.60 with the court of which: (1) $250,000.00 was allegedly due Hirahara under the promissory note, (2) $125,000.00 was allegedly due Watson as assignee of Maples under the note, (3) $42,742.87 allegedly due Hirahara and Watson as interest due on the note, and (4) $62,500.00 constituted security for attorneys' fees, interest, and costs potentially due to Hirahara and Watson. All other relevant provisions of the January 8, 1992 order were re-issued. On June 5, 1992, Utsunomiya filed a release of the lis pendens and amended lis pendens.
On June 8, 1992, JGP moved for partial summary judgment against Moomuku, claiming that, as a matter of law, the existence of Utsunomiya's "encumbrance on title" constituted a breach of the limited warranty deed and the land purchase agreement. In addition, JGP claimed that as a result of Moomuku's alleged breach: (1) JGP was required to pay only certain rates of interest under the note; (2) Moomuku was responsible for any excess interest, attorneys' fees, and costs due Watson because of JGP's failure to pay the note on time; and (3) JGP was entitled to costs and attorneys' fees incurred in intervening in the suit. On August 20, 1992, the court granted JGP's motion in its entirety.
On September 21, 1992, Utsunomiya and Moomuku settled their dispute and provided for release of certain funds deposited with *959 the court. In the interim, Watson had moved for summary judgment on June 26, 1992, claiming that he was a holder of the note in due course. The court entered its order granting Watson's motion on November 16, 1992.
Having prevailed on its motion for partial summary judgment, JGP filed a "Motion For Attorneys' Fees And Costs And For Judgment" (motion for fees, costs, and judgment) on October 20, 1992 to determine the actual amount of damages it was entitled to as a result of Moomuku's breach of the limited warranty deed and the land purchase agreement. In particular, JGP requested $76,428.25 in attorneys' fees and $3,217.84 in costs. JGP further requested that the judgment against Moomuku include an award identical in amount to any damages JGP would have to pay Watson. The motion was granted on December 10, 1992, the court ordering judgment against Moomuku in a total amount of $97,253.83, representing $55,485.99 as compensation for the amount Watson had been awarded against JGP, and awards of $38,550.00 and $3,217.84 for attorneys' fees and costs, respectively. The December 10, 1992 order was certified as final pursuant to Hawai'i Rules of Civil Procedure (HRCP) 54(b), and this timely appeal followed.
II. DISCUSSION
A. Procedural Challenges
Before addressing the merits of this appeal, we focus on several arguments made by JGP based on procedural grounds, alleging that the merits should not be reached.
Initially, JGP argues that this appeal should be dismissed because Moomuku has failed to name Utsunomiya as an "appellee" to this appeal. In particular, JGP claims that Utsunomiya is an indispensable party because: (1) the relief Moomuku seeks by this appeal, that is, a ruling that the lis pendens was invalid, cannot be granted without jurisdiction over Utsunomiya; (2) JGP still has a pending claim for damages in the circuit court based on Utsunomiya's alleged improper filing of the lis pendens, and Utsunomiya would be prejudiced if this court holds that the same was invalid; and (3) both JGP and Moomuku moved for expungement of the lis pendens, and there is thus no adversary to Moomuku on appeal regarding the validity of the lis pendens. We reject these arguments.
The notice of appeal in this case was served on all named parties, including Utsunomiya. The Hawai'i Rules of Appellate Procedure (HRAP) do not require an appellant to designate in the notice of appeal who shall be an appellee. See HRAP 3(c) (1984). Appellee-designations are automatically determined pursuant to HRAP 3(d) (1984), which provides in relevant part:
Denomination of parties. The party appealing from the judgment ... shall be denominated the appellant.... All other parties shall be denominated appellees[.]
Therefore, because the notice of appeal in this case was properly served on Utsunomiya, Utsunomiya is an appellee on this appeal. As an appellee, Utsunomiya was free to file an answering brief and defend its lis pendens in this court;[5] neither this court nor Moomuku can compel Utsunomiya's participation in this appeal. Any prejudice Utsunomiya may suffer because of our decision regarding the validity of the lis pendens will be a product of Utsunomiya's choice not to oppose Moomuku's request for relief from this court. Moreover, JGP has taken the position that we need not find that the lis pendens was valid in order to affirm its recovery. Consequently, the fact that JGP does not specifically oppose Moomuku's attack on the validity of the lis pendens does not render Moomuku's appeal defective.
JGP next challenges Moomuku's standing to contest the circuit court's May 21, 1992 order (which, in part, denied JGP's motion to expunge the lis pendens, but, alternatively, ordered its release), arguing that Moomuku was not "aggrieved" by the order. JGP essentially contends that Moomuku benefitted from the May 21 order because that order compelled liberation of the property from the *960 lis pendens. In a related argument, JGP asserts that the appeal is moot because the lis pendens was released and the parties have settled the dispute underlying the lis pendens. Thus, JGP concludes that "[t]he issue of whether the [trial] court should have initially expunged the lis pendens is merely an academic question[.]" We disagree with both arguments.
This court has recognized an aggrieved party as "one who is affected or prejudiced by the appealable order." Montalvo v. Chang, 64 Haw. 345, 351, 641 P.2d 1321, 1326 (1982) (citations omitted). Moomuku was demonstrably aggrieved by the May 21 order for the same reason that the appeal is not moot. As discussed more fully below, it is evident from the record that the circuit court granted summary judgment in favor of JGP on its breach of warranty claim based on the foundational conclusion that Utsunomiya's lis pendens was valid and enforceable.[6]
JGP separately insists that this court may not review the May 21 order because it was not certified as final pursuant to HRCP 54(b). The record clearly reflects that only the court's December 10, 1992 order was certified under HRCP 54(b); however,
[i]n cases such as this, where the disposition of the case is embodied in several orders, no one of which embraces the entire controversy but collectively does so, "it is a necessary inference from 54(b) that the orders collectively constitute a final judgment and ... entry of the last of the series of orders gives finality and appealability to all."
Island Holidays, Inc. v. Fitzgerald, 58 Haw. 552, 561, 574 P.2d 884, 890 (1978) (citing City & County of Honolulu v. Midkiff, 57 Haw. 273, 275, 554 P.2d 233, 234 (1976) and adding emphasis). Thus, certification of the December 10, 1992 order, which resolved all issues remaining between JGP and Moomuku, necessarily rendered every preliminary ruling upon which it was predicated final and appealable as well. Clearly, the December 10, 1992 order was predicated on the May 21, 1992 order. The December 10 order awarded JGP damages based on Moomuku's breach of the limited warranty deed the determination of breach was set forth in the court's August 20, 1992 order granting JGP summary judgment on that issue. In turn, as discussed above, the August 20, 1992 summary judgment order was based, in part, on the May 21 order denying JGP's motion to expunge the lis pendens.
Finally, JGP argues that Moomuku's acceptance of the money JGP deposited with the circuit court pursuant to the May 21 order estops Moomuku from challenging that order on appeal. As a general rule, voluntary acceptance of the benefit of a judgment or order is a bar to the prosecution of an appeal therefrom. See 4 Am.Jur.2d Appeal and Error, § 250, at 745 (1962); Troyer v. Gilliland, 247 Kan. 479, 799 P.2d 501 (1990); Lee v. Brown, 18 Cal. 3d 110, 132 Cal. Rptr. 649, 553 P.2d 1121 (1976). The theory supporting this rule is that by accepting the benefit of or acquiescing in a judgment or order, or by otherwise taking a position inconsistent with the right of appeal therefrom, a party is deemed to have impliedly waived his or her right to have such judgment or order reviewed by an appellate court. Lee, 18 Cal.3d at 114, 132 Cal. Rptr. at 651, 553 P.2d at 1123; Trollope v. Jeffries, 55 Cal. App. 3d 816, 824, 128 Cal. Rptr. 115, 120 (1976); see also Goo v. Hee Fat, 34 Haw. 123, 129 (1937).
However, the general rule does not apply where the outcome of the appeal could have no effect on the appellant's right to the benefit accepted. 4 Am.Jur.2d, supra, § 253 at 748, Troyer, 247 Kan. at 482, 799 P.2d at 504; Lee, 18 Cal.3d at 115, 132 Cal.Rptr. at 651, 553 P.2d at 1123. Thus, no waiver of appeal is implied in those cases in which the appellant is concededly entitled to the accepted benefit; in other words, a party may appeal from a distinct portion of a severable and independent judgment or order while accepting the benefit of the unaffected remaining part. 4 Am.Jur.2d, supra, *961 §§ 253-54 at 748-51; Lee, 18 Cal.3d at 115, 132 Cal.Rptr. at 651, 553 P.2d at 1123.
Although it may be that Moomuku accepted the "benefit" of that portion of the May 21 order which granted JGP's alternative motion to deposit money into the court, it certainly did not accept or acquiesce to the first and separate part of that order which denied JGP's motion to expunge the lis pendens. In fact, Moomuku continued to challenge the validity of the lis pendens throughout the entire proceeding in the circuit court. Moreover, based on the issues presented, the outcome of this appeal can have no effect on Moomuku's right to retain the money withdrawn from the circuit court. Accordingly, we conclude that Moomuku is not estopped from appealing the May 21 order.
Having disposed of these preliminary procedural challenges, we now turn to the merits of Moomuku's appeal.
B. Covenant Against Encumbrances
Moomuku primarily directs our attention on appeal to the issue whether Utsunomiya's lis pendens was valid under HRS § 634-51. Although that issue is crucial, it must be analyzed in the context of the circuit court's award of summary judgment to JGP because it is that ruling that directly led to JGP's recovery of damages against Moomuku. With that focus, we address Moomuku's argument that the circuit court erred in granting summary judgment against it on JGP's claim that Moomuku breached the covenant against encumbrances contained in the limited warranty deed.
On appeal, an order of summary judgment is reviewed under the same standard applied by the trial courts. Summary judgment is proper where the moving party demonstrates that there are no genuine issues of material fact and it is entitled to a judgment as a matter of law. Kaneohe Bay Cruises, Inc. v. Schuster, 75 Haw.___, ___, 861 P.2d 1, 6 (1993); State v. Magoon, 75 Haw. ___, ___, 858 P.2d 712, 718, recon. denied, 75 Haw. ___, 861 P.2d 735 (1993); Feliciano v. Waikiki Deep Water, Inc., 69 Haw. 605, 607, 752 P.2d 1076, 1078 (1988).
The limited warranty deed by which Moomuku conveyed the property to JGP in this case provided in part:
And the Grantor [Moomuku] covenants with the grantee [JGP] that the former is now seised in fee simple of the property granted; that the latter shall enjoy the same without any lawful disturbance; that the same is free from all encumbrances made by persons claiming by, through or under the Grantor, except the liens or encumbrances hereinbefore mentioned, and except also the liens or encumbrances created or permitted by the Grantee after the date hereof; and that Grantor will WARRANT and DEFEND the Grantee against the lawful claims and demands of all persons claiming by, through and under the Grantor, except as aforesaid.
(Emphasis added.)[7] Moomuku presents several arguments in support of its position, namely: (1) although focusing on the covenant against encumbrances, JGP actually treats that covenant as if it were a warranty of marketable title;[8] (2) a lis pendens is not itself an encumbrance; and (3) an alleged encumbrance must be valid to breach the covenant.
1. At the time Moomuku conveyed the property to JGP, there was no enforceable lien in existence that would have constituted a breach of covenant.
The parties' dispute centers around the proper application of the phrase "free *962 from all encumbrances." The quoted language is commonly recognized as a warranty or covenant against encumbrances. 7 Thompson on Real Property, § 3138, at 275 (1962) [hereinafter Thompson]; 6A Powell on Real Property, ¶ 900[2][c], at 81A-135 (1993) [hereinafter Powell]; Leach v. Gunnarson, 290 Or. 31, 36, 619 P.2d 263, 266 (1980). A covenant against encumbrances is an agreement to indemnify the covenantee in the event that he or she suffers any loss to the value of the premises due to the existence of an encumbrance. Powell, supra, ¶ 900[2][c], at 81A-135. Further, the covenant "protects the grantee against all encumbrances that exist as of the date of the delivery of the deed, whether the encumbrance was known or unknown to the grantee at the time." Leach, 290 Or. at 36, 619 P.2d at 266.
Significantly, in alleging that the property was encumbered in its motion for partial summary judgment against Moomuku, JGP never clearly distinguished between Utsunomiya's claim to a lien on the property and its concurrent filing of a lis pendens on the property. Likewise, the circuit court's order granting the motion merely references, as the critical factor, "[t]he encumbrance placed by [Utsunomiya] on title to [the property]." Although the distinction is material, we nevertheless hold, as a matter of law, that neither Utsunomiya's alleged lien nor its lis pendens were encumbrances on the property in breach of the covenant against encumbrances.
We begin with the cardinal principle that the covenant against encumbrances is a present covenant, breached, if at all, at the time of the conveyance, and not thereafter. 20 Am.Jur.2d, Covenants, Conditions, and Restrictions, § 83, at 646-47 (1965); Powell, supra, ¶ 900[2], at 81A-135; Thompson, supra, § 3186, at 306-07. It is also established that "[t]he covenant [against encumbrances] is not broken ... unless the alleged outstanding lien, encumbrance, or title is valid, legal and subsisting." 20 Am. Jur.2d, supra, § 83, at 647, 647-48 n. 9 (citing cases) (emphasis added); Magun v. Bombaci, 40 Conn.Supp. 269, 492 A.2d 235, 236 (1985) (encumbrance must be enforceable); Boulware v. Mayfield, 317 So. 2d 470 (Fla. App.1975); Smith v. McKelvey, 28 Ohio App. 361, 365-66, 162 N.E. 722, 733 (1928) ("a covenant against encumbrances is not violated by the existence of an apparent encumbrance which is not in fact such; a grantor ought not to be held to have covenanted against the assertion of an unfounded claim to have a lien, unless the language of the covenant shall expressly so read"). Simply stated, the covenant against encumbrances is not breached unless the alleged encumbrance is, at the time of conveyance, actually in existence, valid, and enforceable.
To the extent that it is relevant to this appeal, we agree with Moomuku that Utsunomiya's amended complaint alleged a claim to an equitable lien against the property. However, an equitable lien is not judicially recognized until a judgment is rendered declaring its existence. Loomis v. Priest, 274 F.2d 513, 517-18 n. 13 (5th Cir. 1960), cert. denied, 365 U.S. 862, 81 S. Ct. 828, 5 L. Ed. 2d 824 reh'g denied, 366 U.S. 978, 81 S. Ct. 1927, 6 L. Ed. 2d 1268 (1961); Hise v. Superior Court of Los Angeles County, 21 Cal. 2d 614, 627, 134 P.2d 748, 755 (1943); 51 Am.Jur.2d Liens, § 22, at 161 (1970). Until such time, a claimed equitable lien is "a mere floating equity" that is unenforceable and does not encumber property. Loomis, 274 F.2d at 517-18 n. 13 and accompanying text; People v. One 1960 Ford 2DHTTHBD, 228 Cal. App. 2d 571, 577, 39 Cal. Rptr. 636, 640 (1964); Shipley v. Metropolitan Life Ins. Co., 25 Tenn.App. 452, 158 S.W.2d 739, 741 (1941). This rule is consonant with the overwhelming majority of cases that hold that an inchoate right to a lien is not a present encumbrance. See, e.g., Annotation, Unpaid Public Improvement as Constituting Breach of Covenant or Defect in the Vendor's Title, 72 A.L.R. 302 (1931).[9] No such equitable lien *963 was ever judicially recognized in this or any other action. Accordingly, at the time Moomuku conveyed the property to JGP, there was no enforceable lien in existence that would have constituted a breach of the covenant. Having resolved that issue, we now consider the only other possible basis for the order granting partial summary judgment.
2. A lis pendens is an "encumbrance" as that term has been traditionally defined.
The primary issue raised by JGP's summary judgment motion in this case was whether a lis pendens itself constitutes an "encumbrance." The parties have not cited, nor have we found, any authority directly on point.
An "encumbrance" is any right or interest existing in a third person that diminishes the value of the estate to the grantee, but which is consistent with the passage of the estate to the grantee. Powell, supra, ¶ 900[2], at 81A-135.
Although the word encumbrance is said to have no technical, legal meaning, the [term] is construed broadly to include not merely liens such as mortgages, judgment liens, taxes, or others to which the land may be subjected to sale for their payment, but also attachments, leases, inchoate dower rights, water rights, easements, restrictions on use, or any right in a third party which diminishes the value or limits the use of the land granted.
Monti v. Tangora, 99 Ill.App.3d 575, 580-81, 54 Ill. Dec. 732, 737, 425 N.E.2d 597, 602 (1981). Stated more succinctly, an encumbrance is any "burden resting either on the real estate itself, or on the title thereto, which tends to lessen the value, or interferes with its free enjoyment." Thompson, supra, § 3183 at 274.
Similarly, a lis pendens does not prevent title from passing to the grantee, but operates to cause the grantee to take the property subject to any judgment rendered in the action supporting the lis pendens. Moreover, it is widely recognized that a recorded lis pendens can have a substantial adverse impact on the grantee's use of or benefit in the land. It has been noted that
the practical effect of a recorded lis pendens is to render a defendant's property unmarketable and unusable as security for a loan. The financial pressure exerted on the property owner may be considerable, forcing him to settle not due to the merits of the suit but to rid himself of the cloud upon his title.
La Paglia v. Superior Court, 215 Cal. App. 3d 1322, 1326, 264 Cal. Rptr. 63, 66 (1989) (citations omitted); accord 5303 Realty Corp. v. O & Y Equity Corp., 64 N.Y.2d 313, 319-20, 486 N.Y.S.2d 877, 881, 476 N.E.2d 276, 280 (1984). In the present case, JGP adduced unchallenged evidence that Utsunomiya's lis pendens prevented JGP from using the property as security for a loan to pay off the purchase price. Because a lis pendens itself operates as a burden on the property "tend[ing] to lessen the value[] or interfere[] with its free enjoyment," separate and apart from the underlying claim, see Thompson, supra, § 3138, at 274, we hold that a lis pendens is an "encumbrance" as that term has been traditionally defined.
C. Validity of Utsunomiya's Lis Pendens
Moomuku's most compelling argument, however, is that the lis pendens in this case was not authorized by law and its existence, therefore, did not violate the covenant against encumbrances; that is, Moomuku urges, in effect, that Utsunomiya's lis pendens was not "valid, legal, and subsisting."
As previously noted, on May 21, 1992, the circuit court denied JGP's motion to expunge Utsunomiya's lis pendens. Moomuku contends that the lis pendens should have been expunged because the action upon which it was based was not consistent with *964 the filing of a lis pendens under HRS § 634-51. Whether a lis pendens should be expunged is a question to be resolved in the exercise of the trial court's discretion; accordingly, the trial court's decision is reviewed for an abuse of that discretion. See Harada v. Ellis, 4 Haw.App. 439, 444-45, 667 P.2d 834, 838-39 (1983); Greenberg v. Superior Court, 131 Cal. App. 3d 441, 182 Cal. Rptr. 466 (1982).
HRS § 634-51 provides:
Recording notice of pendency of action. In any action concerning real property or affecting title or the right of possession of real property, the plaintiff, at the time of filing the complaint, and any other party at the time of filing a pleading in which affirmative relief is claimed, or at any time afterwards, may record in the bureau of conveyances a notice of the pendency of the action, containing the names or designations of the parties, as set out in the summons or pleading, the object of the action or claim for affirmative relief, and a description of the property affected thereby. From and after the time of recording the notice, a person who becomes a purchaser or incumbrancer of the property affected shall be deemed to have constructive notice of the pendency of the action and be bound by any judgment entered therein if the person claims through a party to the action; provided that in the case of registered land, section 501-151 shall govern.
This section authorizes the recording of the notice of the pendency of an action in a United States District Court, as well as a state court.[10]
HRS § 634-51 (1985).
Thus, a lis pendens may only be filed in connection with an action (1) "concerning real property," (2) "affecting title" to real property, or (3) "affecting ... the right of possession of real property." Kaapu v. Aloha Tower Dev. Corp., 72 Haw. 267, 269-70, 814 P.2d 396, 397 (1991) (citing HRS § 634-51).
In determining the validity of a lis pendens, courts have generally restricted their review to the face of the complaint. 5303 Realty Corp. v. O & Y Equity Corp., 64 N.Y.2d 313, 320, 486 N.Y.S.2d 877, 882, 476 N.E.2d 276, 281 (1984); Urez Corp. v. Superior Court, 190 Cal. App. 3d 1141, 1149, 235 Cal. Rptr. 837, 842 (1987). Furthermore, these same jurisdictions hold that the likelihood of success on the merits is irrelevant to determining the validity of the lis pendens. 5303 Realty Corp., 64 N.Y.2d at 320, 486 N.Y.S.2d at 881, 476 N.E.2d at 280; Urez Corp., 190 Cal.App.3d at 1149, 235 Cal. Rptr. at 842 (citing proposition that expungement procedure is not a mini-trial on the merits of the underlying action). We adopt the approach employed in 5303 Realty Corp. and Urez Corp.
In the instant action, Moomuku claims that Utsunomiya's Complaint merely alleged monetary damages, never challenging Moomuku's right to title or possession of the [p]roperty. An action whose essence is monetary damages does not affect title or right of possession to property, and does not present a proper basis for a lis pendens.
It is true that Utsunomiya's original complaint did not claim an interest in the property. However, Utsunomiya's amended complaint (filed in response to Moomuku's motion to expunge the lis pendens) alleged a lien on Moomuku's interest in the property because the $200,000 deposit was part of the purchase price and also prayed for foreclosure on the lien. Nonetheless, Moomuku urges this court to hold that an equitable lien appended to a claim for monetary relief is not a proper basis for a lis pendens. Accordingly, Moomuku calls into issue the proper interpretation of HRS § 634-51.
*965 1. The language of HRS § 634-51 is ambiguous.
The interpretation of a statute is a question of law which this court reviews under the right/wrong standard. Vail v. Employees' Retirement Sys., 75 Haw. 42, ___, 856 P.2d 1227, 1234, recon. denied, 75 Haw. ___, 861 P.2d 735 (1993). The court's foremost obligation in construing a statute "`is to ascertain and give effect to the intention of the legislature' which `is obtained primarily from the language contained in the statute itself.'" State v. Magoon, 75 Haw. ___, ___, 858 P.2d 712, 719, recon. denied, 75 Haw. ___, 861 P.2d 735 (1993) (quoting Franks v. City and County of Honolulu, 74 Haw. 328, 334-35, 843 P.2d 668, 671 (1993)). Further, statutory language must be read in the context of the entire statute and construed in a manner consistent with its purpose. Franks, 74 Haw. at 335, 843 P.2d at 671 (citation omitted). "If the statutory language is ambiguous or doubt exists as to its meaning, `[c]ourts may take legislative history into consideration in construing a statute.'" Id. at 335, 843 P.2d at 671-72 (citation omitted). In the case at bar, Utsunomiya did not challenge Moomuku's right to title or possession of the property per se. Instead, Utsunomiya made a claim against Moomuku's equity interest in the property to the extent of its $200,000 deposit, and thus, recorded the notice of lis pendens presumably based on the belief that its claim "concerned" or "affected" the property. We believe the language "concerning real property or affecting title or the right of possession of real property" found in HRS § 634-51 is ambiguous. We therefore examine whether allowing a lis pendens to be filed based on an alleged equitable lien against property would be consistent with the purpose of HRS § 634-51.
2. HRS § 634-51 is construed restrictively.
In order to place the purpose of HRS § 634-51 in perspective, some historical reference is appropriate. HRS § 634-51 is clearly a codification of the common law doctrine of lis pendens.
At common law [under the doctrine of lis pendens] the mere existence of a lawsuit affecting real property was considered to impart constructive notice that anyone who acquired an interest in the property after the suit was filed would be bound by any judgment in that suit.
La Paglia, 215 Cal.App.3d at 1326, 264 Cal. Rptr. at 66 (citations omitted). Further,
[t]he purpose of the doctrine was to assure that a court retained its ability to effect justice by preserving its power over the property, regardless of whether a purchaser had any notice of the pending suit. Courts and commentators acknowledged the doctrine's potentially harsh impact on innocent purchasers, but they willingly accepted this as a necessary concomitant to preserving the judicial power.
5303 Realty Corp., 64 N.Y.2d at 319, 486 N.Y.S.2d at 881, 476 N.E.2d at 280 (citations omitted); accord Kaapu, 72 Haw. at 269, 814 P.2d at 397 ("`[t]he purpose of the doctrine is to provide the courts with control over property involved in actions pending before them'") (citation omitted). In this regard, the doctrine of lis pendens protected a plaintiff from having his or her claim to the property defeated by the subsequent alienation of the property to a bona fide purchaser during the course of the lawsuit. See Kaapu, 72 Haw. at 269, 814 P.2d at 397.
However, to ameliorate the harsh effect of the common law rule on third parties, legislatures have, over time, enacted lis pendens statutes to limit the legal fiction of "constructive knowledge" of pending claims to those instances where a notice of lis pendens was recorded. La Paglia, 215 Cal.App.3d at 1326, 264 Cal. Rptr. at 66; see 5303 Realty Corp., 64 N.Y.2d at 319, 486 N.Y.S.2d at 881, 476 N.E.2d at 280. In this respect, the history of lis pendens legislation has been construed as indicative of the intent to restrict rather than broaden application of lis pendens. Urez Corp., 190 Cal.App.3d at 1145, 235 Cal. Rptr. at 839.
3. Because Utsunomiya does not claim title to or a right of possession of the property, HRS § 634-51 is not implicated and the lis pendens should have been expunged.
Here, Moomuku maintains Utsunomiya invoked Hawai'i's lis pendens statute to *966 accomplish a purpose for which it was not intended. As previously noted, Moomuku argues that rather than claiming title to or a right of possession in the land, Utsunomiya, in its amended complaint, merely sought to "secure a prejudgment writ of attachment under the guise of a lis pendens to secure its damages without making any evidentiary showing or posting the required bond." We conclude that Utsunomiya's amended lis pendens was not authorized by HRS § 634-51.
There is ample authority to support the proposition that when an executory contract for the sale of real property fails or is rescinded due to actions of the vendor, the vendee is entitled to an equitable lien on the property in the amount the vendee has paid on the purchase price. See Annotation, Right of Vendee Under Executory Land Contract to Lien for Amount Paid on Purchase Price, 33 A.L.R. 2d 1384 (1954). There is also some authority supporting the filing of a lis pendens based on this equitable lien. See Annotation, 33 A.L.R.2d, § 12, at 1405 (citing Interboro Operating Corp. v. Commonwealth Secur. & Mortg. Corp., 269 N.Y. 56, 198 N.E. 665 (1935)) and Metz v. Forest Hills Homes, 197 Misc. 968, 95 N.Y.S.2d 29 (1949)); see also 33 A.L.R.2d, § 14, at 1406 (citing Skinner v. Scholes, 59 N.D. 181, 229 N.W. 114 (1930)). Essentially, the theory in these cases is that, although title or possession to the property in question was not sought, the transaction upon which the action was based and the action itself "concerned" the land. However, we find more persuasive the authority that holds that the lis pendens statute must be strictly construed and that the application of lis pendens should be limited to actions directly seeking to obtain title to or possession of real property.
In Urez Corp., the plaintiff was a former holder of a second deed of trust on property in which the security interest was lost (the deed of trust was rendered defunct) when the property was sold at a foreclosure sale. The property was purchased by a corporation newly formed by one of the members of the original entity that owned the property subject to the plaintiff's second deed of trust. The plaintiff later filed a complaint alleging fraud with respect to the corporation's purchase of the property. In his complaint, the plaintiff sought: (1) a judicial declaration "that he was the owner of a beneficial interest in the property and held a lien against it to secure payments of the amounts due under the second [deed of trust]," and (2) the imposition of a constructive trust on the property. 190 Cal. App. 3d at 1144, 235 Cal.Rptr. at 839. In holding that the lis pendens should have been expunged, the California Court of Appeals reviewed the history of the doctrine of lis pendens and then turned to the complaint, observing that the claims for relief at issue were
essentially a fraud action seeking money damages with additional allegations urged to support the equitable remedies of a constructive trust or an equitable lien. [Plaintiff] does not claim any ownership or possessory interest in the subject property. Rather, he seeks reinstatement or creation of a "beneficial" interest in the property for the purpose of securing payment of money owed him under his defunct second trust deed.
Id. at 1149, 235 Cal. Rptr. at 842. The court concluded:
[T]he fact remains that [plaintiff's] purported interest does not go to legal title or possession of the subject property. Even before foreclosure, [plaintiff] was a lienholder whose lien did not transfer any interest in title. (Civ.Code, § 2888.) He does not seek rescission of the foreclosure sale or conveyance of the subject property to himself. At bottom, the "beneficial" interest [plaintiff] claims in the subject property is for the purpose of securing a claim for money damages. In our view[,] allegation of this interest is not an action affecting title or possession of real property.
We conclude, therefore, that allegations of equitable remedies, even if colorable, will not support a lis pendens if, ultimately, those allegations act only as a collateral means to collect money damages. It must be borne in mind that the true purpose of the lis pendens statute is to provide notice of pending litigation and not to make plaintiffs secured creditors of defendants *967 nor to provide plaintiffs with additional leverage for negotiating purposes.
Id. at 1149, 235 Cal. Rptr. at 842-43 (emphasis added). In so concluding, the court declined to follow two other much criticized California Court of Appeal cases. See id. at 1146-49, 235 Cal. Rptr. at 840-42 (disapproving Okuda v. Superior Court, 144 Cal. App. 3d 135, 192 Cal. Rptr. 388 (1983) (lis pendens may be based on claim to equitable lien on property intended to secure payment of alleged monetary damages) and Coppinger v. Superior Court, 134 Cal. App. 3d 883, 185 Cal. Rptr. 24 (1982) (lis pendens may be based on action seeking constructive trust which would secure purely monetary interest)).
We find the discussion in Urez to be well-reasoned and therefore adopt it here. Such a narrow construction of Hawai'i's lis pendens statute is counseled by sound authority recognizing the real potential for abuse of lis pendens. Indeed, as we have noted, one court has acknowledged that
[w]hile the [California] lis pendens statute was designed to give notice to third parties and not to aid plaintiffs in pursuing claims, the practical effect of a recorded lis pendens is to render a defendant's property unmarketable and unsuitable as security for a loan. The financial pressure exerted on the property owner may be considerable, forcing him to settle not due to the merits of the suit but to rid himself of the cloud upon his title. The potential for abuse is obvious.
La Paglia, 215 Cal.App.3d at 1326, 264 Cal. Rptr. at 66 (citations omitted). This court is in accord. See Kaapu, 72 Haw. at 269, 814 P.2d at 397 ("[a]lthough the doctrine [of lis pendens] may be applied to actions other than foreclosures, we agree with courts that restrict the application of the doctrine, in order to avoid its abuse") (citing Moseley v. Superior Court of Orange County, 177 Cal. App. 3d 672, 678, 223 Cal. Rptr. 116, 119 (1986)); see also Harada, 4 Haw.App. at 444, 667 P.2d at 838; 5303 Realty Corp., 64 N.Y.2d at 323, 486 N.Y.S.2d at 884, 476 N.E.2d at 283.
A fair reading of Utsunomiya's amended complaint reveals that it is predominantly a fraud and breach of contract complaint (obviously amended to allege an equitable lien) seeking damages. We agree with Moomuku that Utsunomiya does not claim title to or a right of possession of the property. Thus, HRS § 634-51 is not implicated and Utsunomiya's amended lis pendens should have been expunged. The circuit court abused its discretion in failing to do so.
Thus, based on the foregoing, we hold that the circuit court erred in granting summary judgment in favor of JGP on its claim that Utsunomiya's alleged equitable lien on the property and the amended lis pendens were encumbrances which breached the limited warranty deed.
D. The Land Purchase Agreement
Finally, JGP argues that Moomuku's appeal is frivolous because, regardless of whether the limited warranty deed was breached, Moomuku has not challenged the circuit court's primary reason for granting summary judgment below; the "principal basis" on which JGP claims it moved for summary judgment "was that [a]ppellant Moomuku breached the Land Purchase Agreement when it failed to deliver title to [JGP] free from the Utsunomiya lien." JGP concludes that the circuit court's decision "should be upheld on this ground alone."
In particular, JGP argues:
In the present case, ¶ 6 of the Land Purchase Agreement specifically provided that [a]ppellant Moomuku was to convey title to [JGP] by way of Limited Warranty Deed subject only to non-delinquent real property taxes and to such other matters as were agreed upon in writing by the parties. Further, when taken in the context of the entire Agreement ... it was proper for the trial court to conclude that under ¶ 6 of the Land Purchase Agreement ... [Moomuku was] required to deliver title to [JGP] which was free from encumbrances or other defects which were not agreed to in writing.... [This] covenant ... survived closing under ¶ 18 of the Land Purchase Agreement.
(Emphasis in original.) We find this argument to be without merit.
*968 First, it has been long established under the doctrine of merger that, upon delivery and acceptance of the deed, the provisions of the underlying contract for conveyance are merged into the deed and thereby become extinguished and unenforceable. Dobrusky v. Isbell, 740 P.2d 1325, 1326 (Utah 1987); B-E Construction v. Hustad Dev. Corp., 415 N.W.2d 330, 331 (Minn.App.1987). Excepted from this doctrine are those promises "`which are additional or collateral to the main promise to convey the land and are not inconsistent with the deed as given.'" Snyder v. Sperry and Hutchinson Co., 368 Mass. 433, 442, 333 N.E.2d 421, 427 (1975) (citation omitted).
The covenant in the contract to be deemed collateral and independent so as not to be merged or satisfied in the execution of the deed must not look to or be connected with the title, possession, quantity or emblements of the land which is the subject of the contract.
Thompson, supra, § 4458, at 44 (Supp.1981) (footnote omitted). Accordingly, the exception is limited to
covenants which would naturally be omitted from the deed so that their absence in the deed does not manifest an intent by the parties that they be there merged.... Covenants respecting the existence of encumbrances... do not fall within this exception, for they go to the very essence of what is to be conveyed and will almost certainly be the subject of provisions in the deed.
Sperry, 368 Mass. at 442, 333 N.E.2d at 427 (citations omitted).
Based on our review of the land purchase agreement, we conclude that it imposed no obligation on Moomuku to convey title above and beyond that which it covenanted to do in the limited warranty deed. Therefore, the duties set forth in ¶ 6 of the land purchase agreement merged with and were extinguished by delivery and acceptance of the deed. Consequently, we hold that the land purchase agreement afforded no independent right upon which JGP was entitled to summary judgment.
III. CONCLUSION
Based on the foregoing, we hold that the circuit court erred in granting JGP's motion for partial summary judgment. Consequently, the court also erred in granting JGP's motion for fees, costs, and judgment against Moomuku based on Moomuku's purported breach of the limited warranty deed and land purchase agreement. Accordingly, the circuit court's December 10, 1992 order granting JGP's motion for fees, costs, and judgment is vacated and this case is remanded with direction to enter judgment in favor of Moomuku on JGP's cross-claim.[11]
NOTES
[1] The property was comprised of twelve separate parcels collectively denominated as Tax Map Key No. 2-1-05-26.
[2] Utsunomiya estimated that approximately five quiet title actions would be necessary to clear title an effort it believed could not realistically be completed by the closing date.
[3] At the time, Moomuku had not completed purchase of the property from Ulupalakua Ranch.
[4] In Hawai'i, the doctrine of lis pendens is codified as HRS § 634-51. Although HRS § 634-51 provides for the recording of a "notice of pendency of action," we employ the term "lis pendens" throughout this opinion as the equivalent of a notice of pendency of action for all practical purposes.
[5] We note that in addition to being properly served with the notice of appeal, Utsunomiya was also served with copies of the opening and answering briefs filed in this appeal.
[6] The circuit court's conclusion that Utsunomiya's lis pendens was valid and enforceable is necessarily implied from the court's denial of JGP's motion to expunge.
[7] Moomuku does not contend the lis pendens or Utsunomiya's underlying claim was expressly excepted from the relevant covenant.
[8] "Marketable" title warrants that title is not only free from encumbrances, but that title is also free from
"any reasonable doubt as to its validity, and such as a reasonably intelligent person, who is well informed as to the facts and their legal bearings, and ready and willing to perform his contract, would be willing to accept in the exercise of ordinary business prudence. Accordingly, a marketable title must be so far free from defects as to enable the purchaser not only to hold the land in peace but also, if he wishes to sell it, to be reasonably sure that no flaw will appear to disturb its market value."
Clarke v. Title Guaranty Co., 44 Haw. 261, 269-70, 353 P.2d 1002, 1007 (1960) (quoting Sinclair v. Weber, 204 Md. 324, 104 A.2d 561 (1954)).
[9] We acknowledge that there is some authority to the contrary which holds that a lien for the unpaid assessment of public improvements need not necessarily be perfected at the time of conveyance to violate the covenant against encumbrances. But even in those cases, the courts had found that, at the time of conveyance, the potential lienholder's right to impose a lien and the grantor's liability therefor were undeniable; in other words, on the day of conveyance, an enforceable lien existed for all intents and purposes. See id. at 302-05, 312-17; 20 Am.Jur.2d, supra, § 86-87, at 650-52; cf. Cooper v. Island Realty Co., 16 Haw. 92, 95 (1904) (enforceable tax assessment made before conveyance was encumbrance although it was not made express lien until after conveyance). However, as we hold today, an equitable lien is not enforceable until judicially recognized and must be so recognized before an actual conveyance in order to constitute a breach of the covenant against encumbrances.
[10] In 1972, HRS § 634-51 (then HRS § 634-76) was amended. In suggesting the amendment, the Committee on Coordination of Rules and Statutes reported:
The present section is similar to § 409 of the California Code of Civil Procedure, with minor differences.... The language "concerning real property," and a provision with respect to federal actions, both of which were added to the California statute by the laws of 1959, c. 382, have been inserted here.
Report of the Committee on Coordination of Rules and Statutes, Vol. I, Reporter's Notes HRS § 634-76 (1971). Thus, we find California courts' interpretation of California's lis pendens statutes particularly relevant here.
[11] Based on our holding, we need not address the balance of the arguments raised in Moomuku's briefs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609845/ | 866 P.2d 1291 (1994)
W.A.R.M.; and David Dovala, Sheriff of Natrona County, Wyoming, in his official capacity, Appellants (Plaintiffs),
v.
Frank BONDS, as Risk Manager and Administrator of the Procurement Service Division of the Department of Administration and Information, Appellee (Defendant).
No. 93-33.
Supreme Court of Wyoming.
January 7, 1994.
*1292 Judith A. Studer, argued of Schwartz, Bon, Walker & Studer, Casper, for appellant.
John W. Renneisen, Deputy Atty. Gen. and Nicholas Vassallo, Asst. Atty. Gen., argued for appellee.
Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.
CARDINE, Justice.
Sheriff Dovala brought this action in the Natrona County District Court seeking declaratory judgment holding that the Wyoming State Self-Insurance Act, W.S. 1-41-101 to 111 (1988 & Cum.Supp.1993), covered the county sheriff being sued in his official capacity under 42 U.S.C. § 1983 (§ 1983). It comes to us as a certified question of law under W.R.A.P. 11.
We answer the certified question in the negative.
The certified question is:
Is a sheriff covered by the State Self-Insurance Act (§ 1-41-101, et seq.) for claims brought pursuant to 42 USC § 1983 against a sheriff in his official capacity in a pending lawsuit?
FACTS
The parties stipulated to the following facts:
1. Thomas Lauck, David Rhodes, Kurlee Roberts, individually and on behalf of other persons similarly situated, sued the Board of County Commissioners of Natrona County, Wyoming, and David Dovala, Sheriff of Natrona County, in his individual and official capacities, and John Doe, U.S. Marshall, et al. The action [was] filed in the United States District Court for the District of Wyoming. * * *.
2. As part of the above-described action, Lauck, et al. assert claims pursuant to 42 USC § 1983 arising out of the care and treatment of inmates at the Natrona County Detention Center.
3. Sheriff David Dovala was elected as Sheriff of Natrona County in November of 1990 and took office in January of 1991. Pursuant to § 18-6-302 (W.S.1977), the county sheriff shall keep the jail and be responsible for the manner in which it is kept. A sheriff duly elected in the state of Wyoming is a "peace officer" under the provisions of § 7-2-101 (W.S.1977).
4. Sheriff David Dovala was served with a copy of a Summons and Complaint in Lauck, et al.
5. Eric Easton, County Attorney for Natrona County, forwarded a copy of the above-referenced suit to Monty Lauer, Risk Supervisor, Department of Administration and Information, Division of Procurement Services, pursuant to letter of October 9, 1992.
6. Frank Bonds, as Risk Manager and Administrator of the Procurement Service Division of the Department of Administration and Information for the State of Wyoming, is charged by statute with providing legal services for the defense of claims covered by the State Self Insurance Act and to pay out of the self-insurance account those claims that have been settled or reduced to final judgment as provided in the State Self Insurance Act. Monty Lauer, Risk Supervisor, works directly under Frank Bonds and is charged with the administration of claims under the State Self Insurance Act.
7. Monty Lauer, Risk Supervisor, responded to the County Attorney pursuant to letter dated October 12, 1992. His letter acknowledged receipt of the above-referenced suit. The letter stated: "Sheriff Dovala is named both in his `individual and official capacity.' The State will defend Sheriff Dovala only in his `individual capacity'."
8. Monty Lauer, as Risk Supervisor, retained the services of [a law firm] to *1293 represent David Dovala, Sheriff of Natrona County, in his individual capacity. [That firm] filed an Answer on behalf of the sheriff in his individual capacity dated October 22, 1992.
9. The Wyoming Association of Risk Managers ("W.A.R.M.") hired [another law firm] to represent the interests of the Board of County Commissioners of Natrona County, Wyoming. An Answer was filed on the Commissioners' behalf dated October 26, 1992.
10. Thereafter, W.A.R.M. retained the services of [a third law firm] to represent Sheriff David Dovala in his official capacity only.
11. The rights, duties, and obligations of Frank Bonds, as Risk Manager and Administrator of the Procurement Service Division of the Department of Administration and Information, and those under him, are set forth in § 1-41-101, et seq.
12. The rights, duties, and obligations of W.A.R.M. towards its participating public entities are set forth in the Wyoming Association of Risk Management Joint Powers Agreement and Memorandum of Liability Coverage. [record references omitted]
I. DISCUSSION
Although the parties have framed the certified question based on the assumption that Sheriff Dovala and similarly situated peace officers are covered by the Wyoming State Self-Insurance Act when sued under § 1983 in their individual capacity, discussions at oral argument and further review of the act have raised serious questions concerning the correctness of that assumption. Therefore, before analyzing the official capacity question, we first address whether the sheriff is covered by the act in his individual capacity.
A. Self-Insurance Act Coverage
The relevant portions of the Wyoming State Self-Insurance Act provide as follows:
(c) Expenditures shall be made out of the self-insurance account for the following claims which have been settled or reduced to final judgment:
* * * * * *
(iv) Claims against a peace officer employed by the University of Wyoming or a local government arising under 42 U.S.C. 1983 or other federal statutes * * *:
* * * * * *
(B) The conditions and limitations of subsection (e) of this section apply to all claims under this paragraph.
* * * * * *
(e) The state shall defend claims against its public employees, or a state judicial officer exercising the authority vested in him, arising under 42 U.S.C. 1983 or other federal statutes, subject to the following conditions:
(i) The state shall defend and, to the extent provided by paragraph (v) of this subsection, indemnify any of its public employees against any claim or demand, whether groundless or otherwise, arising out of an alleged act or omission occurring in the scope of duty;
* * * * * *
(v) Unless the act or omission upon which a claim is based is determined by the court or jury to be within the public employee's scope of duty, no public funds shall be expended in payment of the final judgment against the public employee[.]
Wyoming Statute 1-41-103 (Cum.Supp.1993) (emphasis added). The act defines "public employees" as
[v] any officer, employee or servant of the state, provided the term:
(A) Includes elected or appointed officials, peace officers and persons acting on behalf or in service of the state in any official capacity, whether with or without compensation;
(B) Does not include:
* * * * * *
(III) Any local government employees or officials including county and prosecuting attorneys.
*1294 Wyoming Statute 1-41-102 (Cum.Supp.1993) (emphasis added). The act incorporates the definition of "peace officer" found at W.S. 7-2-101 (Cum.Supp.1993), which provides in part:
(iv) "Peace officer" means:
(A) Any duly authorized sheriff, under sheriff or deputy sheriff who has qualified pursuant to W.S. 9-1-701 through 9-1-707[.]
In addition, the act provides:
(a) Except as otherwise provided in subsection (b) of this section, the risk manager shall:
* * * * * *
(iv) Provide legal services for the defense of claims covered by this act through the attorney general or through private attorneys approved by the attorney general[.]
Wyoming Statute 1-41-105 (1988) (emphasis added).
When construing statutes, we first review the language of the statute to determine whether it is ambiguous. If we find it to be unambiguous, we apply its plain meaning and do not consult the numerous rules of statutory construction. If, however, we find the statute ambiguous, that is "its meaning is uncertain, doubtful, or if a single term can fairly be said to mean different things," then we may resort to the rules of statutory construction. Moncrief v. Wyoming State Bd. of Equalization, 856 P.2d 440, 443 (Wyo.1993) (quoting Amoco Production Co. v. State, 751 P.2d 379, 381 (Wyo.1988)).
We find that the Wyoming State Self-Insurance Act is ambiguous with respect to who and what is covered under the act; stated another way, the question presented is who are the insured. Unlike most private insurance policies where the terms of the policy specifically identify those individuals or entities insured by the policy, the State Self-Insurance Act fails to directly identify the insured parties. Subsections (a) and (b) of W.S. 1-41-103, designate how the self insurance fund is created and maintained. Subsection (c) is concerned with payment of claims "which have been settled or reduced to final judgment," including claims made "against a peace officer employed by * * * a local government arising under 42 U.S.C. 1983." Subsection (e) designates those claims which the State has a duty to defend and to indemnify.
The ambiguity arises because of inconsistencies between subsections (c) and (e). Subsection (e) requires that the State provide a defense to and indemnify claims brought against state "public employees." "Public employees" are defined as "peace officers * * * acting on behalf or in service of the state." "Public employee" does not include "any local government * * * official." Thus, the Natrona County Sheriff is not a public employee for whom the State must provide a defense.
If, however, a claim based on § 1983, brought against a local government "peace officer," is reduced to final judgment or has been settled, subsection (c) requires payment by the State out of the self-insurance account. The term peace officer means "any duly authorized sheriff." W.S. 7-2-101. The Natrona County Sheriff is a local government peace officer.
The statute, therefore, in one breath provides that a § 1983 judgment or agreed settlement against a local government "peace officer" be paid by the State out of the self-insurance fund; but, in the next breath, provides that there is no duty to defend or indemnify § 1983 claims against "local government officials." Adding further confusion to the scenario, W.S. 1-41-105 requires the risk manager to "provide legal services for the defense of claims covered by" the act.
When construing an ambiguous statute, we seek to discover the intent of the legislature by applying rules of statutory construction. Story v. State, 755 P.2d 228, 231 (Wyo.1988), cert. denied 498 U.S. 836, 111 S. Ct. 106, 112 L. Ed. 2d 76 (1990). In our search for legislative intent, we
look to the mischief the statute was intended to cure, the historical setting surrounding its enactment, the public policy of the state, the conclusions of law, and other prior and contemporaneous facts and circumstances, making use of the accepted *1295 rules of construction to ascertain a legislative intent that is reasonable and consistent.
State ex rel. Motor Vehicle Div. v. Holtz, 674 P.2d 732, 736 (Wyo.1983).
Although legislative history and legislative intent are rarely discoverable in Wyoming, the State Self-Insurance Act here does provide some insight:
The legislature recognizes that certain liability insurance policies of the state of Wyoming have been cancelled, that no responsive bids have been received and that there exists a need to develop a method to handle claims brought under the Wyoming Governmental Claims Act and arising under federal law. The legislature declares that the appropriate remedy is to create an account for self-insurance of the state and to provide for a loss prevention program.
W.S. 1-41-101 (1988) (emphasis added). That statement of intent suggests that the act was intended to provide coverage for the State, not local governments and their employees.
Legislative intent can also be gleaned from the preamble, included when the State Self-Insurance Act was enacted and published as a session law in 1986, which explained the act as:
creating the self-insurance account within the earmarked revenue fund to be administered for the payment of certain claims against the state and its public employees and peace officers brought under the Wyoming Governmental Claims Act or arising under federal law * * *.
1986 Wyo.Sess.Laws ch. 74 (emphasis added). The language of this preamble suggests that the act was intended to insure those claims brought against the State, the state's public employees, and peace officers. There is no mention of local government employees. Whether the State Self-Insurance Act was intended to cover only "state peace officers"e.g., highway patrolmenor "all peace officers"e.g., county sheriffsis, however, unclear in the preamble because of the placement of the term "its." If the term "its" modifies both "public employees" and "peace officers," then the act covers only "state peace officers"; but if "its" modifies "public employees" only, then the act likely was intended to cover "all peace officers."
Additional insight into the legislature's intent when enacting the State Self-Insurance Act appears in other legislation passed at the same time and in conjunction with the State Self-Insurance Act. The 1986 Legislature, in addition to enacting the "State Self-Insurance Act," also passed the "Local Government Insurance Program." 1986 Wyo.Sess. Laws ch. 81 and W.S. 1-42-101 through 1-42-112. Just as the legislature had declared that the "State Self-Insurance Act" was intended to cover the state, they similarly declared that the "Local Government Insurance Program" was intended to insure local governments. See W.S. 1-42-101 (1988). However, "peace officers" were and are specifically excluded from coverage under the "Local Government Insurance Program." See W.S. 1-42-103(c)(i) & (e)(i) (Cum.Supp.1993) and 1986 Wyo.Sess.Laws ch. 81 § 1. The fact that "peace officers" were specifically excluded from the "Local Government Insurance Program" and were specifically mentioned in the ambiguous coverage sections of the "State Self-Insurance Act" demonstrates that the legislature intended the "State Self-Insurance Act" to cover "all peace officers." See W.S. 1-41-103(c)(iv) (Cum.Supp.1993) and 1986 Wyo.Sess.Laws ch. 74 § 1.
Additional support for this construction can be found in W.S. 9-2-1017 (1989) which was amended when the "State Self-Insurance Act" was enacted in 1986. Wyoming Statute 9-2-1017 was amended to provide:
(a) The state of Wyoming through the department shall purchase a comprehensive professional liability policy providing coverage for all peace officers if:
(i) Coverage is available at a reasonable cost; and
(ii) It is economically more feasible to provide coverage through the purchase of insurance than through self-insurance as provided by W.S. 1-41-101 through 1-41-111.
See 1986 Wyo.Sess.Laws ch. 74 § 2. The language of that statute evidences an intent that W.S. 1-41-101 through 1-41-111, the *1296 "State Self Insurance Act," covered all peace officers, not just "state peace officers."
Resolving the ambiguity under the act, the legislative history suggests that the State Self-Insurance Act was intended to cover § 1983 actions brought against all peace officers in their individual capacity, as defined at W.S. 7-2-101, including county sheriffs. Having determined the basic coverage question, we now turn to the certified question of coverage for official capacity suits.
B. Official Capacity Actions
Appellant Sheriff Dovala argues that the plain language of the State Self-Insurance Act does not distinguish between official capacity and individual capacity § 1983 actions and, therefore, the act covers him whether the action is brought against him in his individual or in his official capacity. Appellee, the risk manager of the State Self-Insurance Act (risk manager), asserts that a § 1983 action against a governmental agent in his or her official capacity is no different than suing the governmental entity whom the governmental agent represents and since local governments, like Natrona County, are not covered by the State Self-Insurance Act, then the act does not cover the sheriff of Natrona County when sued in his official capacity.
The United States Supreme Court, in Kentucky v. Graham, explained that a § 1983 action against a governmental officer in his or her "official capacity" is to be treated as a suit against the government agency, who is the real party in interest. 473 U.S. 159, 165-66, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114 (1985). That court reaffirmed the holding in Graham when it said, "the real party in interest in an official-capacity suit is the governmental entity and not the named official * * *." Hafer v. Melo, ___ U.S. ___, 112 S. Ct. 358, 361, 116 L. Ed. 2d 301 (1991). Therefore, based on the United States Supreme Court's construction of the federal legislation 42 U.S.C. § 1983, the suit against Sheriff Dovala in his "official capacity" should be treated as a suit against the governmental entity for which he is an agent.
Sheriff Dovala counters this conclusion by asserting that the plain language of the State Self-Insurance Act does not exclude coverage of "official capacity" claims and that federal case law should not control the interpretation of a state statute. The section of the act which grants coverage of peace officers sued under § 1983, 1-41-103(c)(iv), states:
Expenditures shall be made out of the self-insurance account for the following claims which have been settled or reduced to final judgment:
* * * * * *
(iv) Claims against a peace officer employed by * * * a local government arising under 42 U.S.C. 1983 * * *[.]
We agree that federal case law has no binding effect on the construction of a Wyoming statute. We are, however, bound by federal case law in determining what types of claims may "arise under 42 U.S.C. 1983." As was previously noted, a claim which is brought against a peace officer in his or her "official capacity" is actually against a governmental entity not a "claim against a peace officer." Graham, 473 U.S. at 165, 105 S. Ct. at 3105, Hafer, ___ U.S. ___, 112 S.Ct. at 361. Therefore, the only claim against a peace officer which can "arise under 42 U.S.C. 1983" is a suit against the peace officer in his or her "individual or personal capacity." Since a § 1983 suit against a peace officer in his or her "official capacity" is a claim against his or her county, not a claim against the peace officer, it is not covered by the State Self-Insurance Act.
It is undisputed that the "State Self-Insurance Act" does not provide coverage to local governments, including county governments. Natrona County is the entity which Sheriff Dovala represents. Sheriff Dovala is a county sheriff, and a county sheriff is a "county officer." W.S. 18-3-102 (Cum.Supp.1993). A "county officer" has his or her office in the county and is paid by the county. W.S. 18-3-103 and -107 (Cum.Supp.1993). The county sheriff manages the county jail for the county commissioners, but the county commissioners control the construction, necessary repairs and the settling of expenses for the jail. W.S. 18-6-201, 18-6-302, 18-6-303 (1977 & Cum.Supp.1993). Therefore, a *1297 § 1983 action against Sheriff Dovala in his "official capacity" is really a § 1983 action against Natrona County, which is not covered by the State Self-Insurance Act.
CONCLUSION
A § 1983 claim against a county sheriff in his or her official capacity is not covered by the State Self-Insurance Act because a § 1983 official capacity action against a sheriff is really a § 1983 claim against the county and therefore is not a claim "against a peace officer employed by * * * a local government arising under 42 U.S.C. 1983," as is required by the act.
The answer to the certified question is, no. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609849/ | 866 P.2d 1207 (1993)
In the Matter of The Reinstatement of William C. PAGE, to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.
SCBD 3893.
Supreme Court of Oklahoma.
December 21, 1993.
Carl Hughes, Hughes, White, Adams & Grant, Oklahoma City, for petitioner.
Gloria Miller White, Asst. Gen. Counsel, Oklahoma Bar Ass'n, Oklahoma City, for Oklahoma Bar Ass'n.
*1208 ALMA WILSON, Justice:
William C. Page resigned from the Bar Association on December 9, 1987, pending disciplinary proceedings after this Court had previously imposed an interim suspension subsequent to criminal conviction.[1] He had been convicted in federal court by a jury of "engaging in racketeering activities affecting interstate commerce, in violation of 18 U.S.C. § 1962(c), and of obstructing, delaying, and affecting interstate commerce by means of extortion under color of official right as an assistant district attorney and as a special district judge, in violation of 18 U.S.C. § 1951." United States v. Page, 808 F.2d 723, 725 (10th Cir.1987). His convictions were affirmed in the cited case, and the trial court's denial of a motion for new trial was affirmed in United States v. Page, 828 F.2d 1476 (10th Cir.1987). When Page filed his resignation he requested that the Court approve it making it effective on the date of his interim suspension. This Court approved his resignation, and granted his request, making it effective October 24, 1983. Page first applied for reinstatement on May 8, 1991, but requested that this Court allow him to withdraw *1209 his application, which this Court granted. He has again applied for reinstatement.
After a hearing before the trial panel in which the Bar Association called no witnesses, the trial panel, consisting of two members, concluded Page had established by clear and convincing evidence that he is a person who possesses good moral character, and possesses the competency and learning in the law required for admission to practice law in Oklahoma. Additionally, it concluded "the Petitioner has further established all other minimum criteria necessary for reinstatement as outlined in Matter of Clifton, 787 P.2d 862 (Okla. 1990) and Matter of Smith, ___ P.2d ___, (Okla. 1993), 64 O.B.J. 1191 (April, 1993)."
Although the trial panel's recommendations are entitled to great weight, they are merely advisory in nature. This Court does not sit in review of the panel's recommendations but instead exercises original jurisdiction in matters involving the licensing of members of this bar. Matter of Reinstatement of Kamins, 752 P.2d 1125, 1129 (Okla. 1988). The decision concerning the reinstatement of Page rests with this Court.
Page was admitted to the bar on July 23, 1957, practiced law in Oklahoma City as an attorney in private practice, as a prosecutor in the Oklahoma County District Attorney's Office, and as a District Judge. He was a member of the Oklahoma Bar Association from 1957 to 1983. Since his resignation, effective October 24, 1983, Page has not practiced law in any state. Instead, he worked as a clerk in the law office of Carl Hughes, and continuously read legal articles and periodicals during the time of his suspension and resignation. He kept abreast of current legal trends having attended continuing legal education courses sponsored or approved by the Oklahoma Bar Association. He presented testimony of witnesses regarding his legal skills and personal morals. The panel found that "the Oklahoma Bar Association presented no objectionable testimony to the reinstatement of the Petitioner."
A review of the transcript reveals that his witnesses included four judges, two attorneys, a sheriff, a correctional treatment specialist for the Federal Bureau of Prisons, and a former F.B.I. agent. All expressed high regard for Page. Most witnesses expressed disbelief that Page had actually done the crimes for which he was convicted. All agreed that knowledge of his conviction did not diminish their high regard of him.
During his testimony, Page was asked to give the trial panel an overview concerning the charges for which he was convicted. He answered that he was convicted of four counts of what was essentially bribery. He explained that two of the counts were the result of his attorney-client relationship with Richard Riley, whom he had defended in criminal cases. Page testified that Riley owed him a fee prior to the time he began working for the District Attorney in Oklahoma County. He testified that when Riley began paying him in July of 1981, Page bought a car and used the money to make car payments. Page continued to receive checks each month from Riley after he began working as an assistant district attorney in October, 1981. In 1982 Riley was arrested on a drug charge and told investigating officers that he was paying Page bribes. Riley testified at Page's trial that during telephone conversations between the two Page would ask for car payments, which was a code word for a bribe. Page testified during the reinstatement hearing that as a result of this testimony, Page was convicted on two counts.
Page also testified he was accused and convicted of taking $1,000.00, while he was an assistant district attorney, from a man named Sullivan to dismiss a case against his son. The case was dismissed. Page gave his explanation for the dismissal, testifying that the dismissal was inadvertent, and that he never saw Sullivan during that time. Page testified that the final count of which he was convicted was during the time he was a special judge. A man he had represented on drunk driving charges named Randolph Scott telephoned him at home and asked about disposing of some guns Scott had. Page testified he told Scott that he should not have guns because he was a convicted felon. The conversation turned to the fact Scott wanted his driver's license back and Scott asked how he could do it. Page testified he told Scott to go to the Department of Corrections, fill out *1210 their form and ask for a pardon. Page related that Scott then told him "Well, old buddy, if you'll do that I'll get my daddy and he'll get $1000 and we'll give it to you. I know you can't take it with the job you've got, but I'll give it to you under the table and nobody will know anything about it." Page testified he never asked for nor received the money, and never received the application for the pardon, but he was convicted because of the conversation.
The Tenth Circuit opinions in this case reveal that Richard Riley subsequently recanted his testimony, and Page used this as one argument in favor of a new trial. The trial court had concluded that Riley's affidavit and his testimony at the hearing recanting his earlier testimony during the criminal trial were false. In both opinions, the Tenth Circuit noted that Page "was convicted primarily out of his own mouth; the most damaging evidence at trial came from his recorded conversations with Riley."[2]
In reinstatement proceedings, this Court examines the evidence de novo to determine: (1) present moral fitness of the petitioner, (2) petitioner's demonstrated consciousness of the wrongful conduct and disrepute such conduct has brought the profession, (3) extent of the petitioner's rehabilitation, (4) seriousness of the original misconduct, (5) petitioner's conduct subsequent to discipline, (6) time elapsed since the original discipline, (7) petitioner's character, maturity, and experience at the time of discipline, and (8) petitioner's present competence in legal skills. Matter of Clifton, 787 P.2d 862, 863 (Okla. 1990).
Ten years have elapsed since Page's original suspension. His conduct subsequent to discipline has been exemplary. There is no evidence that during this time Page has acted other than as a model citizen. He has continued his legal education. All the evidence indicates that Page is presently a fit and moral person who possesses competent legal skills. The obstacles to reinstatement involve whether he has demonstrated consciousness of the wrongful conduct and disrepute such conduct has brought the profession, and the seriousness of the original misconduct.
It is clear from his testimony that Page maintains that he was innocent though convicted. He testified he understood that the case brought great disrepute to the profession and expressed remorse for the embarrassment brought on the judiciary and the profession. He acknowledged that he was in a difficult position in maintaining his innocence because if he testified that he did the acts for which he was convicted, he could demonstrate consciousness of wrongful conduct and show his rehabilitation. Yet he maintains his innocence while acknowledging that our legal system is good and his conviction lawful.
*1211 Page argues that his assertion of innocence should not prevent his reinstatement to the Oklahoma Bar Association. He cites In re Hiss, 368 Mass. 447, 333 N.E.2d 429 (1975). Hiss was convicted of two counts of perjury in his testimony before a Federal grand jury. He served one and one-half years in prison and was disbarred as a result of his conviction. Twenty-two years later he filed a petition for reinstatement. During his hearing, Hiss continued to assert his innocence and the Board of Bar Overseers considered itself bound to recommend that reinstatement be denied. The Massachusetts court examined three issues: (1) whether the crimes of which Hiss was convicted were so serious in nature that he should forever be precluded from seeking reinstatement; (2) whether statements of repentance and recognition of guilt were necessary prerequisites to reinstatement; and (3) whether Hiss had demonstrated his fitness to practice law in that state.
The Massachusetts court held that the criminal convictions could not be retried in bar proceedings, but noted that Hiss was not trying to do that. The court observed: "Nevertheless, the serious nature of the crime and the conclusive evidence of past unfitness to serve as an attorney do not necessarily disqualify Hiss at the present time."[3] The court concluded: "Neither the controlling law nor the legal standard for reinstatement to the bar requires that one who petitions for reinstatement must proclaim his repentance and affirm his adjudicated guilt."[4] The court also took note of the argument of Hiss that miscarriages of justice are possible. The Massachusetts court agreed that a failure to recognize the possibility of miscarriages of justice would "place a mantle of absolute and inviolate perfection on our system of justice, and that this is an attribute that cannot be claimed for any human institution or activity." In re Hiss, 333 N.E.2d at 436-437.[5] The court readmitted Hiss to the bar. Hiss stands for the proposition that a petitioner does not have to admit guilt in order to be reinstated.
We agree that a petitioner's assertion of innocence, standing alone, is not a bar to reinstatement. This is consistent with our holding in Reinstatement of Cantrell, 785 P.2d 312 (Okla. 1989) in which we cited Hiss. The petitioner's assertion of innocence is merely one of the facts taken in consideration by this Court in determining whether a petitioner should be reinstated.
Nevertheless, the burden on one seeking reinstatement is a heavy one. Title 5 Ohio St. 1991, ch. 1, app. 1-A, Rule 11.4 provides in pertinent part:
An applicant for reinstatement must establish affirmatively that, if readmitted or if the suspension from practice is removed, the applicant's conduct will conform to the high standards required of a member of the Bar. The severity of the original offense and the circumstances surrounding it shall be considered in evaluating an application for reinstatement. The burden of proof, by clear and convincing evidence, in all such reinstatement proceedings shall be on the applicant. An applicant seeking such reinstatement will be required to present stronger proof of qualifications than one seeking admission for the first time. The proof presented must be sufficient *1212 to overcome the Supreme Court's former judgment adverse to the applicant. Feelings of sympathy toward the applicant must be disregarded.
In Cantrell, this Court reasoned:
As already stated, reinstatement is not automatic. Certainly, the more severe the offense, the heavier burden the Applicant must overcome. However, our rules speak of when an attorney may apply for reinstatement, not if he can at all. Each case for reinstatement must be reviewed on its own merits. Each case will fail or succeed on the evidence presented and the circumstances peculiar to that particular case.
Cantrell, 785 P.2d at 314.[6] Cantrell had been convicted of attempted perjury by subornation. He later received a full, complete and unconditional pardon from the Governor of Oklahoma. A pardon has been defined as "an act of grace, proceeding from the powers intrusted with the execution of the laws, which exempts the individual upon whom it is bestowed from the punishment which the law inflicts for the commission of a crime." Territory v. Richardson, 9 Okla. 579, 60 P. 244, 245 (1900). The effect of the pardon is "a remission of guilt" and relief from the consequences of a particular crime. Richardson, 60 P. at 246. In Cantrell, the fact of pardon was one of the considerations in determining that Cantrell should be reinstated. In spite of the severity of the crime, a pardon is strong evidence favoring the petitioner.
Although Page presented reputable witnesses who expressed their disbelief in his guilt, most admitted they did not know the details presented at trial. We must accept those convictions as fact, that during the time he was an assistant district attorney and a special district judge, Page accepted bribes and conspired to accept bribes in return for interference in pending criminal investigations and litigation. He is convicted of using his office to interfere with the judicial processes of law enforcement.
While most of the disciplinary proceedings before this Court involve improper handling of matters involving a client or clients, accepting bribes to pervert justice goes to the very heart of the legal system and is therefore a most severe impropriety. It affects not just one or a few individuals; its impact is on the public and undermines our judicial system, which must maintain public confidence in order to function and serve in balance with the other branches of government for an ordered society. This Court has the primary duty to make its determination concerning reinstatement based on safeguarding the interests of the public, the courts and the legal profession. Matter of Reinstatement of Kamins, 752 P.2d at 1130. While Page presented uncontested evidence of his present good moral character, which this Court accepts and commends, the severity of the offenses for which he was convicted and our duty to maintain the confidence of the public in our judicial system requires that his petition for reinstatement be denied.
The Petition for Reinstatement of William C. Page to membership in the Oklahoma Bar Association and to the Roll of Attorneys is hereby DENIED. On application of the Oklahoma Bar Association costs are assessed against Page in the sum of $539.55. The costs are to be paid by order of this Court within thirty (30) days of the date of mandate of this opinion.
*1213 HODGES, C.J., LAVENDER, V.C.J., and SIMMS, HARGRAVE, KAUGER, SUMMERS and WATT, JJ., concur.
OPALA, J., not participating.
NOTES
[1] Rules Governing Disciplinary Proceedings, 5 Ohio St. 1991, ch. 1, app. 1-A, Rule 7.3 provides: "Upon receipt of the certified copies of such indictment or information and the judgment and sentence, the Supreme Court shall by order immediately suspend the lawyer from the practice of law until further order of the Court. In its order of suspension the Court shall direct the lawyer to appear at a time certain, to show cause, if any he has, why the order of suspension should be set aside. Upon good cause shown, the Court may set aside its order of suspension when it appears to be in the interest of justice to do so, due regard being had to maintaining the integrity of and confidence in the profession."
[2] Page, 828 F.2d at 1479; Page, 808 F.2d at 731. These recorded conversations with Riley were not included in the record of this matter. The first opinion gives the following facts concerning Page's dealings with Riley:
"Richard Riley was a client of defendant Page before defendant became an assistant district attorney. During an investigatin by the Oklahoma Bureau of Narcotics (OBN), Riley sold methamphetamine to two OBN undercover agents and boasted to them that he could get cases `fixed' through then Assistant District Attorney Page. In an attempt to discover if Riley's claim was ture, one of the agents asked Riley if defendant could get narcotics charges against his girlfriend, Marilyn Nicolai, dismissed. This was a fictitious charge, and `Nicolai' actually was an OBN undercover agent. Riley stated that he could fix the case for $500.
"Riley called defendant to discuss the Nicolai charge on several occasions. Unbeknownst to defendant, the FBI recorded one of those conversations, in which defendant appears to have agreed to fix the case in exchange for a `car payment.' `Car payment' appeared to be a code that Riley and defendant used to refer to bribes. Throughout the trial, defendant claimed that Riley had agreed to make car payments for defendant to pay past attorney fees that he owed.
"At trial Riley was the government's principal witness. He testified to several instances in which he claimed he had paid defendant to intervene in pending criminal matters. These incidents allegedly occurred while defendant was an assistant district attorney and a special district judge. Evidence also suggested that defendant was aware that Riley was selling illegal drugs and that he provided Riley with information about investigations of Riley to protect him. Finally, there was evidence that defendant accepted payments from people other than Riley in exchange for fixing cases." Page, 808 F.2d at 726.
[3] In re Hiss, 333 N.E.2d at 433.
[4] In re Hiss, 333 N.E.2d at 435. The court reasoned: "Statements of guilt and repentance may be desirable as evidence that the disbarred attorney recognizes his past wrongdoing and will attempt to avoid repetition in the future. However, to satisfy the requirement of present good moral character in the tests for reinstatement noted above, it is sufficient that the petitioner adduce substantial proof that he has `such an appreciation of the distinctions between right and wrong in the conduct of men toward each other as will make him a fit and safe person to engage in the practice of law.' In re Koenig, 152 Conn. 125, 132, 204 A.2d 33, 36 (1964). See In re Stup, 272 Ky, 593, 598-599, 114 S.W.2d 1094 (1938). Such an appreciation, if deeply felt and strongly anchored, will serve as a firm foundation and justification for the order of reinstatement. Mere words of repentance are easily uttered and just as easily forgotten. [Footnote omitted.]" In re Hiss, 333 N.E.2d at 436.
[5] The Massachusetts court concluded: "We do not believe we can say with certainty in this case, or perhaps any case, what is the true state of mind of the petitioner. Thus, we cannot say that every person who, under oath, protests his innocence after conviction and refuses to repent is committing perjury." In re Hiss, 333 N.E.2d at 437.
[6] In Cantrell we noted the argument of the Bar Association, that this Court should adopt a rule that a disbarred attorney, guilty of a particularly egregious offense against the legal profession, would be forever barred as incapable of any meaningful rehabilitation. We categorically rejected taht argument and quoted the following from Hiss, 333, N.E.2d at 434: "Such a harsh, unforgiving position is foreign to our system of reasonable, merciful justice. It denies any potentiality for reform of character. A fundamental precept of our system ... is that men can be rehabilitated. `Rehabilitation ... is a "state of mind" and the law looks with favor upon rewarding with the opportunity to serve, one who has achieved "reformation and regeneration."' Time and experience may mend flaws of character which allowed the immature man to err. The chastening effect of a severe sanction such as disbarment may redirect the energies and reform the values of even the mature miscreant. There is always the potentiality for reform, and fundamental fairness demands that the disbarred attorney have opportunity to adduce proofs." (Citations omitted.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609867/ | 866 P.2d 514 (1994)
125 Or. App. 666
In the Matter of the Compensation of Arlene J. Koitzsch, Claimant.
Arlene J. KOITZSCH, Petitioner,
v.
LIBERTY NORTHWEST INSURANCE CORPORATION and Agripac, Inc., Respondents.
90-13984; CA A74860.
Court of Appeals of Oregon.
Argued and Submitted December 10, 1992.
Decided January 5, 1994.
Linda C. Love argued the cause and filed the brief for petitioner.
James D. McVittie, Appellate Counsel, Liberty Northwest Ins. Corp., argued the cause and filed the brief for respondents.
Before RICHARDSON, C.J., and DEITS, J., and DURHAM, J. pro tem.
DURHAM, Judge pro tem.
Claimant seeks review of an order of the Workers' Compensation Board that rejected her claim for additional disability compensation. She contends that the Board erred in considering the findings of a doctor who was not her treating physician. We review for errors of law, ORS 656.298(6); ORS 183.482(8), and reverse.
The referee awarded claimant, a former cannery worker, 34 percent permanent partial disability for her carpal tunnel syndrome. The degree of disability included impairment from loss of sensation. Claimant's physician, Dr. Johnson, found that claimant suffered from a total loss of sensation. Employer referred claimant to Dr. Nathan, who found only a partial loss of sensation. Nathan also criticized many of Johnson's findings. The referee relied on Nathan's impairment findings in awarding 34 percent disability.
*515 Claimant appealed to the Board, arguing that ORS 656.245(3)(b)(B) allows consideration only of the impairment findings by her attending physician for purposes of evaluating her disability. That subparagraph provides, in part:
"Except as otherwise provided in this chapter, only the attending physician at the time of claim closure may make findings regarding the worker's impairment for the purpose of evaluating the worker's disability."[1]
The Board concluded that the referee improperly based his disability award on Nathan's findings, but reasoned that employer could use those findings "for purposes of supporting or impeaching the opinion and ratings offered by Dr. Johnson." The Board concluded that Johnson's findings of impairment were not reliable and that claimant, consequently, had failed to meet her burden to prove entitlement to a greater disability award. The Board affirmed the referee's award, because employer did not argue that it should be reduced. Claimant assigns error to the Board's reliance on Nathan's impairment findings, because he was not the attending physician.
Our goal in interpreting the statute is to discern the legislative intent. ORS 174.020; Porter v. Hill, 314 Or. 86, 91, 838 P.2d 45 (1992). We look first to the statute's text and context. If those sources do not disclose the legislature's intent, we resort to legislative history. Bartz v. State of Oregon, 314 Or. 353, 357, 839 P.2d 217 (1992).
ORS 656.245(3)(b)(B) is ambiguous, because it is capable of more than one reasonable interpretation and does not expressly foreclose use of an independent medical examiner's findings for impeachment. The context of the statute does not indicate the legislature's intended meaning. Therefore, we look to legislative history. ORS 656.245(3)(b)(B) was added during the 1990 special session. Or.Laws 1990, ch. 2, § 10. One goal of the special committee that considered the comprehensive changes to the workers' compensation laws in 1990 was to reduce the costs created by independent medical examinations. Representative Bob Shiprack of the special committee explained:
"There's also some dramatic cuts in litigation costs. The elimination of the independent medical exams on extent of disability, for instance. Significant savings there." Tape Recording, Special Committee on Workers' Compensation, May 3, 1990, Tape 6, Side B at 270.
Senator Joyce Cohen, a member of the same committee, responded to a witness' concern about problems created by independent medical examination:
"The independent medical exams have been essentially removed * * * at least in the same configuration that they are being used now." Tape Recording, Special Committee on Workers' Compensation, May 4, 1993, Tape 11, Side A at 210.
Those references indicate that the legislature intended to eliminate Board reliance on independent medical examinations as a basis for its evaluation of a worker's disability. The objective of the statute was to save employers the cost of such examinations and to require the Board to consider only the attending physician's impairment findings in evaluating a disability. The Board's interpretation defeats that objective, because it invites employers to pay for independent *516 medical examinations that might develop findings that employers could use to impeach the attending physician's findings. The legislature intended to eliminate the incentive to incur those costs.
We recognize the distinction between offering an independent medical examiner's impairment findings for impeachment, rather than as proof of employer's factual contention regarding the extent of impairment. However, the statute does not make that distinction. An independent medical examiner's impairment findings that the employer offers for impeachment are, nonetheless, findings regarding the worker's impairment that evaluate the disability. The legislature intended to permit only the attending physician to make such findings. The Board violated ORS 656.245(3)(b)(B) by receiving and considering the impairment findings of an independent medical examiner.
Because the Board relied on Nathan's impairment findings, we cannot say that the Board would have reached the same result despite that error. We remand for reconsideration of the record in compliance with ORS 656.245(3)(b)(B).
Reversed and remanded for reconsideration.
NOTES
[1] One of the disability rating procedures "otherwise provided" by chapter 656 is the provision for arbiters to resolve all disagreements over the rating of disability in the claim closure. ORS 656.268 provides, in part:
"(4) * * *
"* * * * *
"(e) If a worker objects to the notice of closure, the worker first must request reconsideration by the department under this section.
"* * * * *
"(7) If the basis for objection to a notice of closure or determination order issued under this section is disagreement with the impairment used in rating of the worker's disability, the director shall refer the claim to a medical arbiter appointed by the director. At the request of either of the parties, a panel of three medical arbiters shall be appointed. * * * The findings of the medical arbiter or panel of medical arbiters shall be submitted to the department for reconsideration of the determination order or notice of closure, and no subsequent medical evidence of the worker's impairment is admissible before the department, the board or the courts for purposes of making findings of impairment on the claim closure." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611811/ | 180 Ariz. 313 (1994)
884 P.2d 199
Betty Ann LUCERO, a single woman; Ida Marie Valdez, a minor, by and through her mother and next friend, Betty Ann Lucero, Plaintiffs-Appellants,
v.
Lawrence VALDEZ, a single man, Defendant-Appellee.
No. 1 CA-CV 90-662.
Court of Appeals of Arizona, Division 1, Department E.
April 14, 1994.
Review Denied November 29, 1994.[*]
*314 Harris & Palumbo, P.C. by John David Harris, Kevin W. Keenan, Phoenix, for plaintiffs-appellants.
Mitten, Goodwin & Raup, by Donald F. Froeb, Brian Michael Goodwin, Steven P. Kramer, Phoenix, for defendant-appellee.
OPINION
FIDEL, Presiding Judge.
The parties are Utah residents. Plaintiff brought this tort claim against her husband in the Superior Court of Arizona for damages sustained in a single vehicle accident that occurred while they were traveling through Arizona from their Utah home. The parties married between the accident and the time plaintiff filed suit. The trial court granted defendant's motion for summary judgment, holding that plaintiff's claim was barred by Utah's law of interspousal immunity.
Arizona abrogated the interspousal immunity doctrine in 1982. On a question of intrafamily immunity, however, the law of the state of domicile, if ascertainable, takes precedence over the law of the state where the tort occurred. The dilemma in this case is that the Utah Supreme Court at least partially abrogated Utah's law of interspousal immunity in 1980 but has chosen to leave the extent of abrogation unsettled since that time. The issues, therefore, on appeal are whether the trial court correctly interpreted *315 Utah law, whether Utah law is indeed ascertainable, and whether the trial court instead should have applied Arizona law.
I. CHOICE OF LAW PRINCIPLES
Arizona courts are guided in choice of law questions by the Restatement of Conflict of Laws. Bates v. Superior Ct., 156 Ariz. 46, 48, 749 P.2d 1367, 1369 (1988) (citing Schwartz v. Schwartz, 103 Ariz. 562, 565, 447 P.2d 254, 257 (1968)). The Restatement provides that, in a tort case, the law of the state with "the most significant relationship to the occurrence and the parties" must determine their rights and liabilities. Restatement (Second) of Conflict of Laws § 145(2) (1971) [hereinafter Restatement].
Section 6(2) of the Restatement lists general factors that help to identify the state with the most significant relationship to the action and the parties:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
Id. § 6(2).
In further guidance, section 145(2) lists contacts to be considered when applying the principles of section 6 to issues of tort law:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.
Id. § 145(2).
Among the contacts listed in section 145(2), the most significant to a question of interspousal immunity is not the place where injury occurred, but rather the spouses' place of domicile. See Schwartz v. Schwartz, 103 Ariz. 562, 566, 447 P.2d 254, 258 (1968). This is because "the state of the family domicile ... has the primary responsibility for establishing and regulating the incidents of the family relationship ...." Id. at 564, 447 P.2d at 256 (quoting Emery v. Emery, 45 Cal. 2d 421, 289 P.2d 218, 223 (1955)); see also Restatement § 169(2) (in questions of intrafamily immunity, the "applicable law will usually be the local law of the state of the parties' domicil."). Accordingly, because Utah, the domiciliary state, is the state of "most significant relationship," we must attempt to determine and apply its law of interspousal immunity. In this case, however, a significant question arises concerning the "ease in the determination and application" of Utah law. See Restatement § 6(2)(g).
II. INTERSPOUSAL IMMUNITY IN UTAH LAW
Our examination of Utah law begins with Taylor v. Patten, 2 Utah 2d 404, 275 P.2d 696 (1954). There, by a 3-2 margin, the Utah Supreme Court reinstated a wife's intentional tort claim against her husband. The court considered whether interspousal immunity was compatible with Utah statutes that enable wives to sue and be sued, enforce liabilities, and take actions to protect their rights "as if unmarried." Id., 275 P.2d at 697 (citing Utah Code Ann. ("U.C.A.") §§ 78-11-1, 30-2-2, and 30-2-4 (1953)). In the lead opinion, two members of the majority concluded:
From the foregoing it is clear that the legislature intended to establish the separate identity of the husband and wife in all property and personal rights the same as if they were not married. Giving these statutes a liberal construction to effect their objects and in the interest of justice requires us to hold that a wife can sue and be sued the same as if she were unmarried, even for the recovery of damages from her husband for intentional personal injury.
Id., 275 P.2d at 698.
The third member of the majority limited his concurrence to the facts that the tort occurred while the parties' divorce action was *316 pending but unconcluded and reserved judgment "as to the more comprehensive proposition that such a suit could be maintained at any time during the marriage relation." Id., 275 P.2d at 699 (Crockett, J., concurring).
Nine years later, in Rubalcava v. Gisseman, 14 Utah 2d 344, 384 P.2d 389 (1963), a 4-1 decision written by Judge Crockett, who wrote the special concurrence in Taylor, the Utah Supreme Court overruled Taylor[1] and held that a wife could not sue her husband for a tort arising during their marriage. The majority acknowledged, though with express reluctance, that "the idea that the husband is the master of the house" an historic element of interspousal immunity retained only "minimal" persuasive force. Id. at 391.[2] Yet public policy continued to favor interspousal tort immunity, according to the majority, to prevent spouses from bringing collusive suits to collect from their insurers. Id. The majority found no impediment to this policy in the statutes discussed in Taylor v. Patten. Rather, the majority concluded, these statutes abolished interspousal immunity only in contract and property cases; had the legislature intended to abolish interspousal immunity in tort cases as well, it would have done so explicitly. Id. at 393.[3]
Rubalcava remained the last word on the subject for seventeen more years; but in Stoker v. Stoker, 616 P.2d 590 (Utah 1980), a still divided Utah Supreme Court reversed field once again. In Stoker, another intentional tort claim by a wife against her husband, the court turned to the statutes it had analyzed twice before and this time reaffirmed the interpretation given in the Taylor lead opinion. Id. at 592. The two dissenters, in an opinion by Justice Crockett, reiterated the Rubalcava argument that the legislature had abrogated interspousal immunity only in contract and property cases and had left interspousal tort immunity intact. Id. at 593-94. The three members of the majority, however, expressly rejected that analysis. Id. at 591. After quoting U.C.A. section 30-2-4, see supra note 3, the majority stated:
The statute authorizes [a wife] to prosecute and defend all actions for the preservation and protection of her rights and property, as if unmarried. It speaks of rights and of property in the disjunctive, and, all actions for the preservation and protection of her rights would certainly include a right to be free from an intentional tort of her husband.
Id. (emphasis added).
Stating further that the Utah Married Women's Act should be liberally construed so as to promote justice, the majority concluded:
*317 To read into our Married Women's Act, a proscription against a wife suing her husband, would be to construe it so strictly as to add a provision which the legislature did not put there.
Id.
The Utah Supreme Court has not revisited the issue of interspousal immunity since Stoker, though it has had three chances to do so. The question therefore confronts us whether the Stoker majority intended to limit its decision to the facts, rejecting interspousal tort immunity for intentional tort claims only, or whether it intended a wholesale rejection, not only in intentional tort claims but in negligence claims as well.
The Utah Supreme Court has twice recognized since Stoker that this question remains open. In a 1987 case, the court concluded that a household exclusion clause absolved a liability insurer of the duty to defend a husband in his wife's personal injury suit. State Farm Mut. Auto. Ins. Co. v. Mastbaum, 748 P.2d 1042 (Utah 1987). In upholding the validity of the exclusion, the majority opinion chose not to address the issue of interspousal immunity. Justice Zimmerman, in a concurring opinion, explained:
Inasmuch as there are no grounds for reversing the instant case, I think it unnecessary for us to decide at this juncture whether Stoker v. Stoker, 616 P.2d 590 (Utah 1980), abrogated interspousal immunity with respect to actions grounded in negligence as well as those grounded in intentional torts.
Id. at 1044-45 (Zimmerman, J., concurring).
A year later, in Noble v. Noble, 761 P.2d 1369 (Utah 1988), the court expressly reserved the issue once again. In the parties' divorce proceeding, the trial court found that the husband had intentionally shot his wife. When the wife brought a separate tort suit against the husband, the trial court dismissed her intentional tort claim as precluded by the prior divorce trial and dismissed her negligence claim as barred by interspousal immunity. Id. at 1370. The supreme court reinstated the intentional tort claim and held that the husband was estopped from denying that he had intentionally shot his wife. Id. at 1374-75. But the court declined to review dismissal of the negligence claim, explaining:
In Stoker, this Court held that [interspousal immunity] had been abrogated with respect to intentional torts .... We have never had occasion to decide whether this abrogation extended to negligence claims, and we do not do so in this case. It is unnecessary for us to reach that question because our disposition of [the wife's] intentional tort action makes it a certainty that she will have a remedy for her injuries.
Id. at 1375 n. 7 (emphasis added).
In 1989, the court chose once again to leave the issue unresolved. In Forsman v. Forsman, 779 P.2d 218 (Utah 1989), a California couple had an automobile accident while driving through Utah, and the wife brought a negligence claim against her husband in the Utah courts. The trial court dismissed the suit on the ground of interspousal immunity; and the supreme court reversed, applying the law of California, the domiciliary state, without deciding the viability of interspousal immunity in negligence cases under Utah law. Id. at 220.
There are two ways to read Forsman. One way is to suppose that the court would not have considered the choice of law between California and Utah unless it had concluded that its own law differed from that of California. By this analysis, our dissenting colleague reads into Forsman an unarticulated determination that Utah continues to observe interspousal immunity in negligence actions. We think it unlikely, however, that the court would have chosen by silent indirection to resolve a question it had so pointedly declared unresolved in each of the two preceding years in Noble and State Farm. Rather, because California law had conclusive preference under established choice of law principles, deference to California gave the court a clear path to resolution and freed it a third time from deciding whether Stoker's abrogation of interspousal immunity extended to negligence claims.[4]
*318 III. APPLICATION OF STOKER RATIONALE
Because the Utah Supreme Court has chosen not to resolve the question "whether Stoker ... abrogated interspousal immunity with respect to actions grounded in negligence as well as those grounded in intentional torts," State Farm, 748 P.2d at 1044-45, we have two alternative courses in this case. The first course is to try, by examining the reasoning of the Utah cases, to resolve the question Utah has chosen to leave open. The second is simply to accept the law of Utah as unsettled on this issue and fall back on Arizona law. We conclude that the first course is preferable. Where, as here, there is reasoning to guide us in predicting how the domiciliary state would resolve the case before us, we undertake the prediction in keeping with our policy of deference to domiciliary law on questions of interspousal immunity. Schwartz, 103 Ariz. at 566, 447 P.2d at 258.
We have deliberately defined our task as that of predicting how the Utah Supreme Court would resolve the case before us. In doing so, we analogize the role of a state court ascertaining and applying the common law of another state to that of a federal court obliged to ascertain and apply state common law. When an issue of state law arises in federal court and there is no controlling decision by the state's highest court, the federal court is obliged to predict what the state's highest court would decide if confronted with the issue. E.g., Aetna Casualty & Sur. Co. v. Sheft, 989 F.2d 1105, 1108 (9th Cir.1993). Similarly, where, as here, "[t]he highest court of a state ... [has decided] analogous cases in conflicting and inconsistent ways," the court of the forum owes it to the litigants to predict how the state court would resolve the conflict in the case at hand.[5] Arthur L. Corbin, The Laws of the Several States, 50 Yale L.J. 762, 772 (1941). Professor Corbin put the matter sharply:
When the rights of a litigant are dependent on the law of a particular state, the court of the forum must do its best (not its worst) to determine what that law is. It must use its judicial brains, not a pair of scissors and a paste pot.
Id. at 775.
An example of the approach that Corbin commends is McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657 (3d Cir.1980). There, the Third Circuit, obliged to apply Ohio law, concluded that a prior Ohio Supreme Court holding, though never expressly overruled, had been so undermined by inconsistent subsequent reasoning as to warrant the prediction that the Ohio court would no longer similarly rule. Id. at 664-66. The court stated:
[O]ur prediction "cannot be the product of a mere recitation of previously decided cases." In determining state law, a federal tribunal should be careful to avoid the "danger" of giving "a state court decision a more binding effect than would a court of that state under similar circumstances." Rather, relevant state precedents must be scrutinized with an eye toward the broad policies that informed those adjudications, and to the doctrinal trends which they evince.
Id. at 662 (quoting Becker v. Interstate Properties, 569 F.2d 1203, 1205-06 (3d Cir.1977) and 1A James W. Moore et al., Moore's Federal Practice ¶ 0.307, at 3077 (2d ed. 1979)).[6] We similarly approach our predictive obligation in this case.
*319 Proceeding therefore to the issue, we find that the rationale the Stoker court articulated in rejecting the doctrine of interspousal immunity applies equally to negligence cases as to cases of intentional torts. Grounding its decision in a Utah statute that authorized a married woman to prosecute and defend all actions for the preservation and protection of her rights and property, the Stoker majority wrote, "all actions for the preservation and protection of her rights would certainly include a right to be free from an intentional tort of her husband." Stoker, 616 P.2d at 591. Our dissenting colleague may reason from the last part of the quoted sentence that Stoker applies only to cases of intentional torts. Yet if we look to Stoker's reasoning, as we must, to predict how the court will resolve the undecided question of immunity in negligence cases, we cannot escape the paraphrase that "all actions for the preservation and protection of a married woman's rights" would equally include a right to be free from a husband's negligent tort.
Just as our colleague ignores the import of Stoker's reasoning on this point, she also ignores that neither the Rubalcava opinion nor the Stoker opinion attributes any merit to the distinction she finds dispositive between negligence and intentional tort claims. Indeed, the Rubalcava majority pointedly rejected such a distinction, stating: "no basis can be found [in our statutes] for any distinction between intentional or unintentional torts. Under them the plaintiff either has a right to bring an action in tort, or she does not." Rubalcava, 384 P.2d at 392 (emphasis added).
In short, because in Rubalcava the Utah Supreme Court decisively rejected any distinction, for purposes of interspousal immunity, between negligent and intentional torts, and because in Stoker that court rejected interspousal immunity for reasons that apply equally to negligent and intentional torts, we conclude that the Utah Supreme Court, if squarely presented with this case, would apply the reasoning of Stoker and hold that interspousal immunity has been abrogated in Utah in cases of negligent torts.
IV. EASE IN DETERMINATION AND APPLICATION OF UTAH LAW
Although we have attempted to predict the course that Utah law will take, we acknowledge an element of guesswork in any such prediction. Between 1954 and 1980, the Utah Supreme Court twice reversed its interpretation of the governing statutes on the subject, each time by a divided court; and since 1980 the court has three times avoided deciding how its previous cases should be read. Because a future court might foreseeably choose to reverse field once again, it would be a pretense for either the majority or the dissent to suggest that Utah law on this subject is clear.
Accordingly, we point out that an alternative basis for reversing summary judgment in this case is to fall back on Arizona law. Though the Restatement, as we have indicated, denotes a preference for domiciliary law on issues such as this, it also directs us to consider "ease in the determination and application of the law to be applied." Restatement § 6(2)(g).[7] In this case Arizona law, in contrast to Utah law, is readily determined. *320 Interspousal immunity was unequivocally abolished for public policy reasons in Fernandez v. Rome, 132 Ariz. 447, 452, 646 P.2d 878, 883 (1982). Thus, should Utah law be regarded as indeterminate on this subject, we find that Arizona law permits the plaintiff to go forward with this case.
V. CONCLUSION
For the foregoing reasons, we reverse summary judgment entered for defendant and remand for further proceedings consistent with this opinion.
GRANT, J., concurs.
McGREGOR, Judge, dissenting.
Because I would hold that the trial court correctly applied Utah law to the question of interspousal immunity and that Utah has not abrogated the law of intrafamily immunity in negligence actions between spouses, I respectfully dissent.
The majority recognizes, and I agree, that Utah, as the domiciliary state of the parties to this action, is the state of most significant relationship and that Utah law therefore should govern the rights and liabilities of the parties.[8] Our obligation, as the court in a sister jurisdiction confronting a conflict in laws, is to decide and apply the current state of Utah law. We have neither authority nor reason to develop or extend Utah's law. Rather, we must respect and give effect to the public policy choice made by Utah on the question of interspousal immunity, even though it differs from the public policy choice made by Arizona on that question.
I.
My analysis of Utah decisions leads me to conclude that, unlike Arizona, Utah recognizes the doctrine of interspousal immunity in negligence actions. Although the majority finds much uncertainty in Utah law, that state has never abolished the doctrine in negligence actions. Furthermore, the Utah Supreme Court, in its most recent decision related to interspousal immunity,[9] clearly acknowledges that Utah has not changed its position on this issue.
In Rubalcava v. Gisseman, 384 P.2d 389 (Utah 1963), the Utah Supreme Court expressly held that interspousal immunity barred tort actions between husband and wife. Seventeen years later, in Stoker v. Stoker, 616 P.2d 590 (Utah 1980), the same court held that interspousal immunity did not bar an action for personal injuries resulting from an intentional tort. Stoker did not, however, abolish interspousal immunity in actions for negligence. Subsequent Utah decisions provide no reason to conclude otherwise. E.g., Noble v. Noble, 761 P.2d 1369, 1375 & n. 7 (Utah 1988) (supreme court restored ex-wife's claim of intentional tort; distinguishing question whether Stoker abrogates negligence claims); Forsman v. Forsman, 779 P.2d 218, 219 (Utah 1989) (in a similar factual setting, the Utah Supreme Court acknowledged the doctrine of interspousal immunity, citing Rubalcava, but applied California law to litigants domiciled in California). Until Utah abolishes the doctrine, general principles of jurisprudence lead me to the conclusion that the doctrine remains in effect.
I believe the Utah court's decision in Forsman, the most recent Utah decision to speak to the issue of interspousal immunity, critically undermines the majority's conclusion that current Utah law has abolished interspousal immunity in negligence actions. In Forsman, the Utah Supreme Court reviewed a trial court's order granting summary judgment against a plaintiff domiciled in California. The trial court, addressing the precise question of Utah law at issue here, held that the plaintiff's negligence "action against her husband was barred by the doctrine of interspousal immunity ...." 779 P.2d at 218. On review, the supreme court did not find the trial court erred in applying the doctrine of interspousal immunity to a negligence action. Rather, the court concluded that "Utah law should not be applied" to determine the issue *321 of interspousal immunity. In reaching that decision, the court first referred specifically to Rubalcava, which upheld the doctrine of interspousal immunity. The court then noted that California, the state of the parties' domicile, had abrogated interspousal immunity. Id. at 219. Having established that distinction in law, the court undertook a detailed analysis of the very conflicts-of-law provisions of the Restatement that the majority regards as central to defining our approach in this action. After considering the Restatement and the law of several other jurisdictions, including Arizona, the Utah court adopted the Restatement rule for choice of law. Accordingly, the court reversed and remanded, instructing the trial court "to apply the law of the domicile on the issue of interspousal immunity." Id. at 220.
The majority would negate the impact of Forsman by finding two ways to read that decision. The first interpretation, which I find more likely but which the majority rejects, is "to suppose that the [Utah Supreme Court] would not have considered the choice of law between California and Utah unless it had concluded that its own law differed from that of California." Maj. op. at 317, 884 P.2d at 203. By rejecting that interpretation, the majority fails to apply established choice-of-law principles. When an action raises a potential conflict of law, the first question a court must address is "whether there is a true conflict between the laws of the two jurisdictions on the issue presented by the litigation." Waggoner v. Snow, Becker, Kroll, Klaris & Krauss, 991 F.2d 1501, 1506 (9th Cir.1993). No true conflict exists unless "the laws of the two jurisdictions differ and both states have a legitimate interest in having their law apply." Id., quoting Ledesma v. Jack Stewart Produce, Inc., 816 F.2d 482, 484 (9th Cir.1987). If no conflict exists on the controlling issue, the court need not address the choice-of-law issue. Utah applied that approach in St. Paul Fire and Marine Ins. v. Commercial Union Assurance, 606 P.2d 1206 (1980). In that case, the appellant argued that Wyoming law, rather than Utah law, should apply to questions of contract interpretation. The court rejected the invitation to consider Wyoming law, finding "no conflict of laws issue which necessitates a decision on choice of law." Id. at 1208, n. 1.
The same analysis applies to the decision in Forsman. The Utah court had no reason to consider choice-of-law issues unless a conflict existed between Utah and California law on the immunity issue. The court had no reason to direct the trial court to consider the issue under California law on remand unless doing so could produce a different result from that caused by applying Utah law. Contrary to the suggestion of the majority, the court gives no indication whatever that Utah law is unsettled; it simply defers to California in an area in which its law conflicts with that of Utah.
Unlike the majority, I do not believe Stoker, on which the court relies heavily, can be interpreted as a sweeping abrogation of interspousal immunity in all instances. In Stoker, the court referred to Wayne F. Foster, Annotation, Modern Status of Interspousal Tort Immunity in Personal Injury and Wrongful Death Actions, 92 A.L.R. 3d 901, 923 et seq. (1979), which discusses abrogation of and exceptions to immunity. See Stoker, 616 P.2d at 592. Significantly, the cited section includes a lengthy explanation about exceptions for intentional torts, the issue specifically addressed in Stoker. Foster, 92 A.L.R. 3d at 926-27. Further, the Stoker court expressly reaffirmed Taylor v. Patten, 2 Utah 2d 404, 275 P.2d 696 (1954), which permitted actions between spouses for intentional torts occurring during the interlocutory period of a divorce action while the spouses were living apart. Stoker, 616 P.2d at 592. These statements suggest that the Stoker court intended to do exactly what its opinion says: limit the abrogation of interspousal immunity to intentional tort actions.
I must conclude that had the Utah court wished to join those states that have abolished interspousal immunity for negligence actions, it could have done so in Stoker, in Noble, or in Forsman. The combination of the Stoker court's emphasis on permitting intentional tort actions, the Noble court's distinction between immunity for negligent acts and immunity for intentional acts, and the recognition in Forsman that Utah's law conflicts *322 with that of states that have abolished interspousal tort immunity convinces me that Utah has chosen not to join the vast majority of jurisdictions that have abolished interspousal immunity in negligence actions.
II.
As an alternative basis for its decision, the majority concludes that, because an "element of guesswork" inheres in predicting the future course of Utah law, we can reverse summary judgment by falling back on Arizona law. Again, I respectfully dissent.
In the often murky universe of choice-of-law questions, few principles are as firmly established as that which applies to this action. The clear view of the Restatement (Second) of Conflict of Laws and of Arizona law is that the state of the parties' domicile has the most significant interest in determining questions of intrafamily immunity, and the law of the domiciliary state controls, absent unusual circumstances not present here.
The Restatement repeatedly recognizes the overarching interest of the domiciliary state in deciding intrafamily immunity issues. Section 6(2) of the Restatement defines basic choice-of-law principles. Comment f to that section states: "[T]he state of the spouses' domicile is the state of dominant interest when it comes to the question whether the husband should be held immune from tort liability to his wife (see § 169)." Comment d to section 145, which instructs as to the principles applicable to selecting the state with the most significant relationship to the rights of parties with respect to issues in tort, states in relevant part:
Experience and analysis have shown that certain issues that recur in tort cases are most significantly related to states with which they have particular connections or contacts ....
[T]he local law of the state where the parties are domiciled, rather than the local law of the state of conduct and injury, may be applied to determine whether one party is immune from tort liability .... An example is the issue of intra-family immunity, which, as stated in § 169, is usually determined by the local law of the state of the spouses' common domicil.
Section 169, which specifically governs intrafamily immunity, similarly provides: "The applicable law [to determine whether one member of a family is immune from tort liability to another member of the family] will usually be the local law of the state of the parties' domicile." Comment b supplies further emphasis: "Whatever the true explanation, the state of the parties' domicil will almost always be the state of dominant interest, and, if so, its local law should be applied to determine whether there is immunity in the particular case."
If additional authority were required for the principle that we should apply the law of the domiciliary state to decide this issue of immunity, the Arizona Supreme Court supplied that authority in Schwartz v. Schwartz, 103 Ariz. 562, 447 P.2d 254 (1968). There the court considered whether to apply the law of Arizona or that of New York to determine a question of interspousal tort immunity. The "significant contacts" of the states were precisely as they appear here: Arizona was the place of injury and place of conduct and New York was the parties' domicile and the place at which the parties' relationship was centered. The court held without difficulty that New York's law controlled: "With domicile to be given the greatest weight, the determination as to which state has the most significant contacts with the issue of interspousal tort suits becomes evident. New York law ... should be applied." Id. at 566, 447 P.2d at 258.
The majority recognizes that Utah is the state of "most significant relationship" and that the domiciliary state's law generally determines the disposition of intrafamily tort actions. It finds an alternative basis for its decision to reverse the trial court's summary judgment, however, in the seldom-used "ease in determination" general factor set out in Restatement 6(2)(g) and two cases in which the factor receives mention, as one factor of many.[10]
*323 I believe the majority's reliance upon Restatement 6(2)(g) is misplaced for a number of reasons. First, I am aware of no instance, and neither the parties nor the majority provides any, in which a court relied upon section 6(2)(g) to overcome a principle as strongly established as that applying domiciliary law to issues of intrafamily immunity. Indeed, read in the context of all the factors recited by Restatement 6(2), section 6(2)(g) appears to be the least important. In contrast to the lengthy comments explaining the other factors, the Restatement states simply:
Ideally, choice-of-law rules should be simple and easy to apply. This policy should not be overemphasized, since it is obviously of greater importance that choice-of-law rules lead to desirable results. The policy does, however, provide a goal for which to strive.
Restatement § 6 cmt. j. Given the Restatement's emphasis on determining the state having the most significant relationship to the litigants and the strong presumption for applying the law of the state of domicile, the majority should not "overemphasize" section 6(2)(g) as the sole factor directing this court to apply Arizona law to this case.
Moreover, neither of the two cases cited by the majority in support of its decision to apply Arizona law involves a choice-of-law analysis similar in fact or law to that presented here. In both cases, the court considered section 6(2)(g) in cases in which other choice-of-laws factors were relatively even.
In Flotech, Inc. v. E.I. Du Pont de Nemours Co., 627 F. Supp. 358 (D.Mass. 1985), aff'd, 814 F.2d 775 (1st Cir.1987), the two plaintiffs, one with its principal place of business in Massachusetts and the other in New Jersey, filed a diversity action in Massachusetts federal court suing Du Pont, a Delaware corporation. The Flotech court recognized that each state had an interest in the matter. Although the court found that Massachusetts law provided easily determinable and clear legal precedent for the plaintiffs' product defamation action, it based its decision to apply the forum law equally on the section 6(2) factors of certainty, predictability, and uniformity of result and on the basic policies of tort law. The court also noted that the needs of the interstate system pointed to no particular state and found that "[o]n balance, there is no compelling reason not to apply Massachusetts law." Id. at 363.
The Flotech court's rationale does not apply here because this case does not present the same even balance of factors for section 6 analysis. Flotech simply did not involve a situation in which any clear preference existed for applying one state's law. In further contrast, in this case the basic policy of interspousal tort law and the needs of the interstate system point directly to application of the law of Utah as the state of domicile rather than Arizona, the forum state. Given the strong preference for applying the law of the state of domicile, I see a compelling reason not to apply Arizona law in this case.
The factual and legal concerns in Baird v. Bell Helicopter Textron, 491 F. Supp. 1129 (N.D.Tex. 1980) are equally distinct from those in this case. Baird, an action filed in Texas, presented a choice-of-laws question involving Canada, the domicile of the plaintiffs/third party defendants, and Texas, the domicile of the defendant and the site of manufacture of the helicopter involved in a crash from which this products liability claim arose. The court analyzed the relative interests of Texas and Canada by applying the factors listed in Restatement 6(2). It concluded that Texas law would apply to the products liability claim due to the significant policy interests advanced by applying the law of the forum state, Texas, and the absence of similar policy concerns under Canadian law. Id. at 1140-1141. The court also found that the ease in determining and applying Texas law in a Texas court, as opposed to the law of a foreign legal system, Canada, supported application of the forum law. Id. at 1141.
In obvious contrast, the intrafamily policy interests involved in this case strongly favor Utah law over Arizona law. The majority recognizes that Arizona has relatively minor competing policy concerns and even concedes that these interests would not normally supersede the preference for domiciliary law in intrafamily immunity issues. Additionally, the concerns for ease of determination and application in Baird derive primarily from that court's conclusion that British Columbia's *324 policy concerns would be better served by applying Texas law. Id. In contrast, Utah's policy concerns related to interspousal immunity would be undermined by applying Arizona law to permit litigation to continue. I believe the majority has extended section 6(2)(g) far beyond its intended bounds.
III.
I agree with the majority that Utah has not explicitly determined whether the doctrine of interspousal immunity applies to premarital torts. We must defer, however, to the determination of the Utah Supreme Court that interspousal immunity furthers the public policies of promoting marital harmony and eliminating the "temptation to collusion." Rubalcava, 384 P.2d at 391-92. Utah courts have never disclaimed this public policy rationale, and those reasons apply with equal force to actions between spouses involving conduct that occurred prior to the marriage. That conclusion is consistent with the approach taken by the Delaware Supreme Court in another of the minority of jurisdictions that has not abolished interspousal tort immunity. The Delaware court noted that in determining the point in a relationship the doctrine of interspousal tort immunity applies, the courts must look to the marital status of the parties at the time their rights are judicially determined, not at the time of the injury or at the time the action was filed. Hudson v. Hudson, 532 A.2d 620, 624 (Del. 1987) (specifically holding that the spouses' subsequent divorce "remove[d] the bar against spousal immunity" to interspousal litigation); see also Taylor, 275 P.2d at 700 (Crockett, J., concurring) (acknowledging that the policy factors supporting interspousal immunity essentially do not exist after the couple has filed for divorce). Significantly, the Hudson court acknowledged the same policy concerns of avoiding fraud and collusion and maintaining family peace and harmony as motivate the Utah courts. Hudson, 532 A.2d at 622.
Because the parties in this case are currently married, applying the doctrine of immunity furthers Utah's expressed interest in protecting marital harmony and preventing fraud and collusion, despite the premarital nature of Mrs. Lucero's injury. Under these facts, I conclude that the doctrine of interspousal immunity applies to preclude a negligence action based on a premarital tort.
IV.
For the foregoing reasons, I would affirm the trial court's grant of summary judgment.
NOTES
[*] Martone, J., of the Supreme Court, voted to grant the petition for review.
[1] Judge Crockett indicated in a footnote that he regarded Taylor as distinguishable on the ground stated in his concurring opinion in that case that the tort there had occurred while a divorce action was pending. He added, however, that he did not expect his "concurring colleagues to join in the expression of this footnote." Rubalcava, 384 P.2d at 394 n. 17.
[2] An annotation on the subject describes the common law foundation of interspousal immunity as follows: "[I]t was said at common law that husband and wife were one person, and that person was the husband, so that it was both morally and conceptually objectionable to permit a tort suit between two spouses." Wayne F. Foster, Annotation, Modern Status of Interspousal Tort Immunity in Personal Injury and Wrongful Death Actions, 92 A.L.R. 3d 901, 906 (1979) [hereinafter Foster, 92 A.L.R.3d].
[3] U.C.A. § 30-2-4, discussed in both opinions, provided:
A wife may receive the wages for her personal labor, maintain an action therefor in her own name and hold the same in her own right, and may prosecute and defend all actions for the preservation and protection of her rights and property as if unmarried. There shall be no right of recovery by the husband on account of personal injury or wrong to his wife, or for expenses connected therewith, but the wife may recover against a third person for such injury or wrong as if unmarried, and such recovery shall include expenses ... paid or assumed by husband.
The lead opinion in Taylor emphasized the broad assertion in the first sentence of this statute that a wife has a general right to prosecute all actions for the protection of her rights. 275 P.2d at 697. The Rubalcava majority, however, interpreted the first sentence as limited to actions concerning wages and property. It emphasized instead the reference in the second sentence to the wife's right to recover against a third person, concluding that the legislature had only meant to free a wife to pursue a tort claim against a third person and not against her husband. 384 P.2d at 393.
[4] The dissent writes: "The Utah court had no reason to consider choice-of-law issues unless a conflict existed between Utah and California law on the immunity issue." We find rather that, because California law clearly controlled, the Utah court had no reason to resolve what it had previously defined as an unsettled question of Utah law.
[5] Utah law is not only unsettled on the question whether interspousal tort immunity has been abrogated in negligence as well as intentional tort cases. This case presents the further question whether Utah would extend interspousal negligence immunity if it still exists to premarital torts. Utah has never addressed that question; it would present a matter of first impression in that state. Among the states that have declined as yet to abrogate common law immunity, some have held the doctrine inapplicable to premarital torts. See generally Foster, 92 A.L.R. 3d at 940-44.
[6] Accord Rock Island Improvement Co. v. Helmerich & Payne, Inc., 698 F.2d 1075, 1078 (10th Cir.1983) (refusing to follow Oklahoma Supreme Court case decided by split court with strong dissent after predicting that Oklahoma Supreme Court would do likewise given intervening statute undermining policy underlying the decision); Warner v. Gregory, 415 F.2d 1345, 1347 (7th Cir.1969) (refusing to follow Illinois Supreme Court decision after concluding that an Illinois appellate court correctly predicted that the Illinois Supreme Court would do likewise); Fahs v. Martin, 224 F.2d 387, 398-99 (5th Cir.1955) (refusing to follow an 1897 Florida Supreme Court decision representing a minority view after predicting that the Florida Supreme Court would do likewise).
[7] Although we have not found any cases that offer an in-depth analysis of factor § 6(2)(g), some courts have considered that factor along with others in choosing forum law over that of another state. E.g., Flotech, Inc. v. E.I. Du Pont de Nemours Co., 627 F. Supp. 358, 363 (D.Mass. 1985), aff'd, 814 F.2d 775 (1st Cir.1987) (choosing forum law in a product defamation and disparagement suit because it "is easily determinable" and "provides clear precedent directly on point"); Baird v. Bell Helicopter Textron, 491 F. Supp. 1129, 1147 (N.D.Tex. 1980) (In a personal injury claim arising from a helicopter crash in the jungles of Surinam, with Canada the domicile of the plaintiffs and third-party defendants and Texas the domicile of the defendant and the place where the helicopter was manufactured and serviced, the court chose Texas law rather than Canadian law, explaining that for reasons of familiarity and ready availability of precedent, the law of the forum would be easier to apply.).
[8] The majority does reserve an alternative basis, which I discuss below, for its decision to overturn the trial court's judgment.
[9] Forsman v. Forsman, 779 P.2d 218 (Utah 1989).
[10] Section 6(2)(g) identifies the "ease in the determination and application of the law to be applied" as the final factors relevant to the choice of applicable law. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611817/ | 884 P.2d 1138 (1994)
77 Hawai`i 362
ALLSTATE INSURANCE COMPANY, an Illinois corporation, Appellant,
v.
Brian HIROSE, Appellee.
No. 15745.
Supreme Court of Hawai`i.
October 20, 1994.
Richard B. Miller (William C. McCorriston, Lisa M. Ginoza and K. Rae McCorkle, with him on the briefs, of McCorriston, Miho & Miller), Honolulu, for appellant Allstate Ins. Co.
Bert S. Sakuda (of Cronin, Fried, Sekiya, Kekina & Fairbanks, and Thomas D. Collins, with him on the briefs), Honolulu, for appellee Brian Hirose.
Corlis J. Chang of Goodsill, Anderson, Quinn & Stifel, on the amicus brief, Honolulu, for amicus curiae Nat. Ass'n of Independent Insurers.
*1139 Before LUM, C.J.,[*] MOON, KLEIN and LEVINSON, JJ., and HEEN, Intermediate Court of Appeals Associate Judge assigned by reason of vacancy.
MOON, Chief Justice.[**]
Appellant Allstate Insurance Company (Allstate) filed a complaint for declaratory relief under federal diversity jurisdiction in the United States District Court for the District of Hawai`i (USDC). Allstate sought a declaration of its rights and responsibilities under its insurance policy, issued to James Hirose, concerning the combining of two or more coverage limits of underinsured motorist (UIM) benefits under a single policy [hereinafter, intra-policy stacking].[1]
Following motions for summary judgment, the USDC certified to this court the question whether the laws of the State of Hawai`i permit intra-policy stacking of multiple UIM coverage limits. We accepted certification and now answer the question in the affirmative.
I. BACKGROUND
The underlying facts are not in dispute. On September 16, 1990, Brian Hirose was injured in an automobile accident with Kevin Kirk. Hirose settled with Kirk for the liability limits of Kirk's insurance policy in the amount of $35,000.
At the time of the accident, Hirose was operating a 1986 Nissan, which was owned by his father, James Hirose. Allstate insured the Nissan, along with a second vehicle, a 1989 Honda, under a single policy (the policy) issued to Hirose's father. Both vehicles carried UIM limits of $35,000 for each person and $70,000 for each accident. Allstate charged and Hirose's father paid separate premiums in identical amounts for the UIM coverages for each vehicle.
Because Hirose's damages exceeded the amount of the settlement with Kirk, Hirose sought UIM benefits under the policy. Allstate did not dispute that Hirose qualified as an insured under the policy and paid Hirose $35,000 in accordance with the limits for UIM benefits for the Nissan, the vehicle involved in the accident. However, Hirose sought to stack the policy's UIM benefits for both insured vehicles.
Allstate denied stacking based on (1) a general provision in the policy prohibiting the combining of limits of two or more vehicles and (2) a subsequent amendment to the policy, limiting Allstate's liability for UIM coverage (collectively, the anti-stacking provisions). The general policy provision provides:
Combining Limits of Two or More Autos Prohibited
Unless otherwise provided by law, the following provision will apply:
If you have two or more autos insured in your name and one of these autos is involved in an accident, only the coverage limits shown on the declarations page for that auto will apply. When you have two or more autos insured in your name and none of them is involved in an accident, you may choose any single auto shown on the declarations page and the coverage limits applicable to that auto will apply.
The limits available for any other auto covered by the policy will not be added to the coverage for the involved or chosen auto.
The Policy at 3-4 (emphasis added). The amendment to the policy contains a "limits of liability" provision, which provides in pertinent part:
4. These limits are the maximum Allstate will pay for Underinsured Motorists Insurance for any one motor vehicle accident regardless of the number of:
*1140 (a) claims made;
(b) vehicles or persons shown on the declarations page; or
(c) vehicles involved in the accident.
Any amounts payable under this coverage will be excess to and will not duplicate amounts paid or payable under any Automobile Personal Injury Protection. No injured person may recover duplicate benefits for the same elements of loss under this or any other underinsured motorists insurance, including approved plans of self-insurance.
The Policy Amendment at 12 (emphasis added).
Allstate filed a complaint for declaratory relief on March 20, 1991, seeking a determination of its rights and responsibilities under the policy. Based on the anti-stacking provisions of the policy, Allstate maintained that it had no duty to pay Hirose more than one $35,000-limit in UIM benefits for his injuries arising out of the accident.
Hirose filed a motion for summary judgment, contending that the anti-stacking provisions of the policy are unenforceable because they violated Hawai`i's public policy and were contrary to the insured's expectations; therefore, he was entitled to the second $35,000 limit in UIM coverage. Allstate filed a cross motion for summary judgment essentially asserting that the anti-stacking provisions of the policy are valid under Hawai`i law.
Following oral arguments on the summary judgment motions, the USDC submitted the following certified question of law, which this court accepted:
Whether, in an automobile insurance policy issued pursuant to Hawaii Revised Statute [(HRS)] § 431:10C-301 (1988) and covering two vehicles owned by the named insured, a provision prohibiting "stacking" of multiple [UIM] coverage limits is unenforceable as contrary to Hawaii statutory law or public policy?
II. DISCUSSION
Allstate argues that this court should honor the unambiguous terms of the policy's anti-stacking provisions because the legislature chose to remain silent on the issue of stacking of UIM coverage limits. Hirose, on the other hand, essentially argues that, the UM statute also lacked express language allowing stacking of UM coverages, however, the legislative histories of the UM and UIM statutes support the case law that has allowed the practice of stacking UM coverages[2] and therefore should be similarly applied to this case. Allstate contends that our case law, which allows stacking of UM coverages, has been based on the existence of a stated statutory minimum for UM coverage. Allstate submits that the legislature's failure to include a statutory minimum for UIM coverage is the distinguishing factor that renders the UM stacking cases inapplicable here.
Our duty in interpreting statutes is to give effect to the legislature's intent which is obtained primarily from the language of the statute. See Franks v. City and County of Honolulu, 74 Haw. 328, 339, 843 P.2d 668, 673 (1993). However, we must construe statutory language in a manner consistent with the purpose of the statute. Methven-Abreu v. The Hawaiian Ins. & Guaranty Co., Ltd., 73 Haw. 385, 392, 834 P.2d 279, 284, reconsideration denied, 73 Haw. 625, 838 P.2d 860 (1992). Thus, where the statute is silent as to a claimed purpose of the statute we turn to the legislative history. Franks, 74 Haw. at 335, 843 P.2d at 671.
A. The UIM Statute
Our review of the language and the legislative history of the UIM statute does not reveal an express intent by the legislature to require, or ban, stacking of UIM benefits.[3] Rather, the legislature explicitly *1141 left the issue of stacking to the judiciary, stating: "Judicial decisions on stacking of benefits are not affected by this bill, and it is your Committee's intent to leave the issue of stacking to judicial determination." Sen. Conf. Comm. Rep. No. 215, in 1988 Senate Journal, at 675. In accepting this task, we look to the legislative evolution of UIM insurance for guidance.
In 1985, the UM statute, HRS § 431-448 (1985) (originally enacted in 1965), was amended to include UIM coverage. The underscored language below reflects the amendments to HRS § 431-448:
Automobile liability; coverage for damage by uninsured or underinsured motor vehicle. (a) No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle, shall be delivered, issued for delivery, or renewed in this State, with respect to any motor vehicle registered or principally garaged in this State, unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in section 287-7,[[4]] under provisions filed with and approved by the insurance commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom, provided[, however,] that the coverage required under this section shall not [be applicable] apply where any insured named in the policy shall reject the coverage in writing.
(b) Each insurer shall offer to each policyholder or applicant for a motor vehicle liability policy optional additional insurance coverage for loss resulting from bodily injury or death suffered by any person legally entitled to recover damages from owners or operators of underinsured motor vehicles.
(c) The term "underinsured motor vehicle," as used in this section, means a motor vehicle with respect to the ownership, maintenance, or use of which the sum of the limits of liability of all bodily injury liability insurance coverage applicable at the time of loss to which coverage afforded by such policy or policies applies is less than the liability for damages imposed by law. A motor vehicle shall also be deemed uninsured within the meaning of this section if, after the occurrence of a loss described in this section, the owner or operator thereof is unknown.
HRS § 431-448 (1985) (emphasis added) [hereinafter, the 1985 amendment].
In 1987, the legislature recodified and amended the UM statute as HRS § 431:10C-301, which provided:
Required motor vehicle policy coverage. (a) In order to meet the requirements of a no-fault policy as provided in this article, an insurance policy covering a motor vehicle shall provide:
(1) Coverage specified in section 431:10C-304; and
(2) Insurance to pay on behalf of the owner or any operator of the insured motor vehicle using the motor vehicle with the express or implied permission of the named insured, sums which the owner or operator may legally be obligated to pay for injury, death, or damage to property of others, except property owned by, being transported by, or in the charge of the insured, which arise out of the ownership, operation, maintenance, or use of the motor vehicle.
(b) A motor vehicle insurance policy shall include:
(1) Liability coverage of not less than $35,000 for all damages arising out of accidental harm sustained by any one person as a result of any one accident applicable to each person sustaining accidental harm arising out of ownership, *1142 maintenance, use, loading, or unloading of the insured vehicle;
(2) Liability coverage of not less than $10,000 for all damages arising out of injury to or destruction of property including motor vehicles and including the loss of use thereof, but not including property owned by, being transported by, or in the charge of the insured, as a result of any one accident arising out of ownership, maintenance, use, loading, or unloading, of the insured vehicle; and
(3) With respect to any motor vehicle registered or principally garaged in this State, liability coverage provided therein or supplemental thereto, in limits for bodily injury or death set forth in section 287-7, under provisions filed with and approved by the commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage in writing.
HRS § 431:10C-301 (Spec.Pamphlet 1987).
HRS § 431:10C-301(b) was then amended in 1988, adding the following UIM provision, which is applicable to the present case:
(4) Coverage for loss resulting from bodily injury or death suffered by any person legally entitled to recover damages from owners or operators of underinsured motor vehicles. An insurer may offer the underinsured motorist coverage required by this paragraph in the same manner as uninsured motorist coverage; provided that such offer of both shall:
(A) Be conspicuously displayed so as to be readily noticeable by the insured;
(B) Set forth the premium for the coverage adjacent to the offer in such a manner that the premium is clearly identifiable with the offer and may be easily subtracted from the total premium to determine the premium payment due in the event the insured elects not to purchase the option; and
(C) Provide for written rejection of the coverage by requiring the insured to affix the insured's signature in a location adjacent to or directly below the offer.
HRS § 431:10C-301(b)(4) (Supp.1991)[5] [hereinafter, the 1988 amendment].
The legislative history of the 1988 amendment indicates that UM and UIM shared the same purpose, that is, "to require insurers to offer coverage for underinsured motor vehicles in motor vehicle insurance policies." Hse. Stand. Comm. Rep. No. 1150-88, in 1988 House Journal, at 1248. The legislature specifically intended that UM and UIM be treated alike:
Under this bill, [UIM] coverage would be treated in the same manner that [UM] coverage is presently treated, i.e. as a means of protection, through voluntary insurance, for persons who are injured by motorists whose liability policies are inadequate to pay for personal injuries.
Sen. Conf. Comm. Rep. No. 215, in 1988 Senate Journal, at 675 (emphasis added); see also Hse. Stand. Comm. Rep. No. 1150-88, in 1988 House Journal, at 1248 and Hse. Stand. Comm. Rep. No. 126-88, in 1988 House Journal, at 826.
In light of the legislature's express intent that UIM coverage be treated in the same manner as UM coverage, we deem it pertinent to examine the treatment of stacking of UM benefits in this jurisdiction.
B. Stacking of UM Coverages
Although the statutory language of HRS § 431-448 was silent as to stacking of UM coverage, this court has interpreted the statute as permitting the stacking of UM benefits in Walton v. State Farm Auto Ins., 55 Haw. 326, 518 P.2d 1399 (1974); Allstate Ins. Co. v. Morgan, 59 Haw. 44, 575 P.2d 477 (1978); and American Ins. Co. v. Takahashi, *1143 59 Haw. 59, 575 P.2d 881, reh'g denied, 59 Haw. 102, 577 P.2d 780 (1978).
In Walton, the plaintiff-insured John Walton was injured in an automobile accident while riding as a passenger in a vehicle owned by Gary Seto (the host driver). The driver of the other vehicle involved in the accident was uninsured. Walton recovered the maximum amount of UM coverage ($10,000) from the host driver's policy. Although Walton obtained a $25,000 judgment against the uninsured motorist, Walton was unable to collect the judgment because the uninsured motorist had voluntarily filed bankruptcy. Walton, 55 Haw. at 326-27, 518 P.2d at 1399-1400.
Walton then presented his claim for $10,000 to his own insurer, State Farm Mutual Insurance Company (State Farm). State Farm argued that, in accordance with a policy provision, because Walton was injured in a vehicle it did not insure, the UM provision applied only in excess over any other similar insurance available to Walton.[6] In other words, because Walton had already collected $10,000 from Seto's insurance and, because Walton's UM coverage was also limited to $10,000, there was no "excess" over the "other insurance" (Seto's UM coverage); therefore, State Farm took the position that there could be no recovery against Walton's own insurer.
We invalidated the "other insurance" policy provision providing only excess insurance over any other of the insured's applicable coverage and adopted the majority rule from other jurisdictions that "state statutory provisions... must be interpreted as invalidating clauses in insurance policies that, if effectuated, would reduce the benefits directly payable by the injured-insured's insurer to a sum below the statutory minimum." Id. at 328-29, 518 P.2d at 1401 (emphasis added). At that time, the statutory minimum in Hawai`i, incorporated by reference into the UM statute, HRS § 431-448, was "not less than $10,000" for bodily injury to one person in any one accident.
In Morgan, the plaintiff, while operating a vehicle she did not own, was injured as the result of an automobile accident with an uninsured motorist. Morgan, 59 Haw. at 45-46, 575 P.2d at 478. The plaintiff's father owned three vehicles, all insured under a single automobile policy issued by Allstate, and he paid separate premiums for each vehicle. The plaintiff, as a member of her father's household, sought to obtain and stack $10,000 in UM coverages for each vehicle insured under the policy, amounting to $30,000. Id. at 46, 575 P.2d at 479. In ruling on the declaratory action filed by Allstate, the circuit court determined that the terms of the policy at issue should be construed to permit stacking of UM coverage. Allstate appealed.
On appeal, we determined that "the phrase `with respect to any motor vehicle' indicates that separate [UM] coverage, in at least the minimum statutorily required amounts, must be provided for each automobile insured under a policy of liability insurance." Id. at 48-49, 575 P.2d at 480 (emphasis added). We therefore allowed the intra-policy stacking of UM coverages, notwithstanding the fact that none of the insured vehicles were involved in the accident.
In Takahashi, we examined a similar issue as that raised in Morgan, that is, whether the insureds under American Insurance Company's (American) policy covering two automobiles were entitled to recover UM benefits of $20,000, the statutory minimum coverage on one automobile per accident, or $40,000 (the combined limits on both automobiles per accident), when the insureds were injured while traveling in a third, independently owned and insured automobile. The circuit court determined that the insureds were entitled to receive UM benefits, but *1144 held American liable for the maximum limit on one automobile per accident, and not both automobiles.
On appeal, we determined that the limits of liability clause[7] in American's policy was inconsistent with our decision in Morgan and held that the "coverage applie[d] separately but fully to both automobiles insured under the policy," Takahashi, 59 Haw. at 63-64, 575 P.2d at 883-84, stating once again that the insurer "cannot reduce its liability for [UM] coverage below the statutory required minimum amounts for each uninsured vehicle." 59 Haw. at 64, 575 P.2d at 884 (citation omitted).
Thus, although the UM statute did not expressly permit stacking, this court has held consistently that the language of the statute requiring minimum coverage for each insured motor vehicle provides the basis for stacking of UM coverages. Further, it is undisputed that, as a result of the aforementioned cases, the practice of stacking UM coverages has continued throughout and beyond the relevant period in this case.
C. Stacking of UIM Coverages
As previously noted, Allstate contends that our case law allowing stacking of UM coverages has been based on the existence of a stated statutory minimum for UM coverage. Pointing to the 1985 amendment, Allstate focuses on the language "in limits for bodily injury or death set forth in section 287-7" and "with respect to any motor vehicle" in subsection (a), dealing with UM coverage, which phrases are conspicuously absent from subsections (b) and (c), dealing with UIM coverage. Consequently, Allstate maintains that the distinguishing factor that renders the UM stacking cases inapplicable to the case at bar is the legislature's failure to include a statutory minimum for UIM coverage.
Hirose, on the other hand, argues that because this court held in Mollena v. Fireman's Fund Insurance Co., 72 Haw. 314, 816 P.2d 968 (1991), "that the statutory minimum amount that insurers must offer for UIM coverage was the same as for UM," this court's basis for allowing stacking in UM cases should be applied to UIM cases. Allstate, however, maintains that "the Mollena opinion is devoid of any suggestion that UM and UIM coverages are identical or that the coverage requirements of one necessarily appl[ies] to the other." We disagree.
In Mollena, Fireman's Fund Insurance Company (Fireman's), in accordance with HRS § 431-448(b), forwarded a letter to its policyholders in early 1986 purporting to offer optional UIM coverage. Fireman's offer letter stated, in part, "underinsured/uninsured motorist coverage $35,000 limit." Appellants Mollena and Costa, Fireman's policyholders, were each injured in separate automobile accidents in late 1986 and 1987. Both recovered liability policy limits of $35,000 each from the third-party tortfeasor involved in their respective accidents, and both sought UIM benefits from Fireman's; however, their claims were denied on the basis that their respective policies did not include UIM coverage. Although Mollena and Costa alleged that they had never received Fireman's offer letter, they contended that the letter was not a legally sufficient offer under HRS § 431-448 and, therefore, UIM coverage must be implied as a matter of law. The primary issue on appeal was whether, based on the language of section 431-448, written rejection of UIM coverage by Fireman's policyholders was required to relieve an insurer from providing such coverage. In our analysis, we explained:
HRS § 431-448 is divided into three subsections: subsection (a) relates to uninsured motorist coverage, the offer of coverage [in the minimum amount of $35,000], and written rejection; and subsections (b) *1145 and (c) relate to underinsured motorist coverage. The phrase "under this section" and "as used in this section" in HRS § 431-448(a) and (c), respectively, illustrate the fact that subsections (a) and (c) apply to the entire section (or statute), and not just within their respective subsections. As Costa notes, if the word "section" were replaced with "subsection," HRS § 431-448 would be meaningless. Further, the legislature carefully distinguished between the use of "section" and "subsection" in Act 181. As a part of Act 181, HRS § 431-448 was amended to add underinsured motorist coverage. See Act 181, §§ 1-8, 1985 Haw.Sess.Laws 309-313. We conclude, therefore, that HRS § 431-448(a) which requires written rejection of uninsured coverage also applies to offers of underinsured motorist coverage described in HRS § 431-448(b) and (c).
Id. at 323-24, 816 P.2d at 973.
We also noted that in State Farm Mutual Automobile Insurance Co. v. Robinol, 699 F. Supp. 819 (D.Haw.1988), the United States District Court for the District of Hawaii held the phrase "shall be delivered, issued for delivery, or renewed," found only in subsection (a), also applied to subsections (b) and (c), that is, that offers of UM coverage must be made when the policy is delivered, issued for delivery, or renewed. Mollena, 72 Haw. at 324, 816 P.2d at 973. We adopted the Robinol court's reasoning that "[because] the underinsured provisions were made a part of the statute which contained offer of coverage provisions, the legislature intended that pre-existing language be applied to underinsured motorist coverage as well." Id. (citation omitted). We declared that "[i]t is clear that HRS § 431-448(b) and (c) should be read in conjunction with HRS § 431-448(a)." Id.
Because we determined that "HRS § 431-448(b) and (c) should be read in conjunction with HRS § 431-448(a)," id., and because subsection (a) required minimum UM coverage "with respect to any motor vehicle" the statutory language this court relied on in holding that stacking of UM coverage was allowed in Walton, Morgan, and Takahashi we held that the required offer of UIM coverage to Mollena and Costa, pursuant to HRS § 431-448, was the statutory minimum of $35,000 each. Mollena, 72 Haw. at 326, 816 P.2d at 974.
In so holding, we specifically stated that "Mollena and Costa are entitled, as a matter of law, to implied offers in the minimum amount to be offered for uninsured motorist coverage as required under HRS §§ 287-7, 294-10(a), and 431-448,[8] which in this case amounts to $35,000 each to Mollena and Costa." Id.
Allstate essentially argues that this court's determination of the amount of $35,000 was purely as a result of the fact that the amount was consistent with Fireman's legally insufficient offer of $35,000 and had no bearing on the statutory minimum of $35,000 required to be offered for UM coverage. We believe that Allstate's position is untenable because it disregards this court's construction, in pari materia, of the interrelated subsections of HRS § 431-448, as well as our holding, which specifically incorporated HRS §§ 287-7 and 294-10(a).
Based on Mollena, we must read HRS §§ 431:10C-301(b)(3) and (b)(4) in conjunction with each other when construing the various subsections of the statute. In so doing, we reach the same conclusion as we did in Mollena that the UM and UIM provisions in subsections (b)(3) and (b)(4) are also interrelated and overlapping. For example, we note that under the UIM provision, subsection (b)(4) states that UIM may be offered in the same manner as UM "provided that such offer of both shall" comply with subsections (b)(4)(A), (B), and (C). We further note that subsection (b)(3) of the UM provision refers to the requirement that rejection of UM coverage by the insured must be in writing, while subsection (b)(4)(C) reiterates the identical requirement of written rejection of UIM coverage. Whether the overlapping was "intentional" or coincidental, it confirms the legislative intent that both coverages be treated alike and that the subsections be read in conjunction with each other.
*1146 Given the legislature's expressed intent that UIM and UM coverages be treated alike, we assume that in promulgating the 1988 amendment, the legislature was then aware of the "present" treatment of UM coverage, that is, that this court, since 1974, had consistently ruled in favor of stacking UM coverage, commencing with Walton. See Marsland v. Pang, 5 Haw.App. 463, 485, 701 P.2d 175, 192, cert. denied, 67 Haw. 686, 744 P.2d 781 (1985) ("we must ... assume that the legislature was aware of the state of the law ... at [the time it legislated]"). Moreover, Allstate concedes that it, like other insurance companies, routinely allowed UIM stacking after the adoption of the initial UIM statute in 1985 and continued this practice through the 1988 legislative session.
Our review of the 1988 legislative history confirms the correctness of our assumption that the legislature was aware of the ongoing practice of stacking UM coverage. The legislative history also reveals that the legislature considered proposals to prohibit the practice of stacking not only UM but UIM coverage, which reasonably implies that the legislature was also aware of the ongoing practice of stacking UIM coverages as well:
The DCCA [Department of Commerce and Consumer Affairs] testimony further stated that the case law does not allow carte blanche stacking of uninsured/underinsured motorist coverages; rather, the Supreme Court has established very explicit guidelines limiting recovery to only those seriously injured claimants who would fail to receive fair compensation in the absence of stacking.
Your Committee, upon consideration of DCCA testimony, has amended this bill by deleting the proposed new Subsection (d).
Sen. Stand. Comm. Rep. No. 2062, in 1988 Senate Journal, at 892.
Notwithstanding proposals to ban stacking of UM/UIM coverages, the 1988 legislature, as previously noted, "[left] the issue of stacking to judicial determination." Sen. Conf. Comm. Rep. No. 215, in 1988 Senate Journal, at 675. Nevertheless, in November 1989, Allstate issued its policy amendment precluding UIM stacking and readjusted its premium to reflect anti-UIM stacking because it believed that the legislature did not intend to require stacking of UIM coverage. Allstate explains that the reason it permitted UIM stacking under its pre-1989 amendment policy was because its pre-November 1989 provision "was admittedly ambiguous as to stacking."
Allstate also contends that the legislative history establishes that Hawai`i's legislature did not intend to require stacking of UIM benefits because, with regard to the original (1985) version of the UIM statute, the legislature had considered setting statutory minimum limits for UIM coverage, but specifically chose not to do so. Allstate argues that the legislature intended the insurers and their policyholders to agree on the amount of UIM coverage. In support, Allstate cites to the following:
Testimony on the "underinsured" coverage provision indicated that such optional coverage would provide additional protection to the injured party. Since the intent of the no-fault law is to provide speedy and adequate protection to the injured party at the least possible cost, your Committee is in favor of the underinsured coverage. The coverage being optional, however, your Committee believes that the coverage amounts of $125,000 and $150,000 should not be stated in the law but should be a matter between the insurance company and the insured.
Sen. Stand. Comm. Rep. No. 689, in 1985 Senate Journal, at 1181. We disagree with Allstate's interpretation of the legislative history.
Indeed, the 1985 legislature received proposals to set the minimum UIM coverages at $125,000 and $150,000. We believe, however, that by rejecting these proposals and indicating that such substantial amounts "should be a matter between the insurance company and the insured," id., the legislature did not intend to imply that there was no minimum UIM coverage and that any amount of such coverage would be left to negotiations between the parties. Allstate's reading of the legislative history, as it relates to the interpretation of the 1985 UIM statute, would produce absurd and unjust results and distort *1147 the intent and purpose of UIM protection if the amount of UIM coverage were left to the insurance companies and its policyholders. Statutes should be interpreted according to the intent, meaning, and purpose of the overall statutory scheme and not in a manner that would lead to absurd and unjust results. Franks v. City and County of Honolulu, 74 Haw. 328, 334-35, 341, 843 P.2d 668, 671, 674 (1993); see also Methven-Abreu v. Hawaiian Ins. & Guar. Co., 73 Haw. 385, 834 P.2d 279, reconsideration denied, 73 Haw. 625, 838 P.2d 860 (1992); Schmidt v. Board of Dir. of Ass'n of Apartment Owners of Marco Polo, 73 Haw. 526, 836 P.2d 479 (1992).
"[I]nsurance policies are contracts of adhesion and are premised on standard forms prepared by the insurer's attorneys[.]" Sturla, Inc. v. Fireman's Fund Ins. Co., 67 Haw. 203, 209, 684 P.2d 960, 964 (1984). Because such contracts of adhesion reflect the unequal bargaining power between an insurer and its policyholders, we cannot take seriously Allstate's suggestion that the legislature intended such parties to negotiate the amount of UIM coverage.
Traditional contract law was designed for a paradigmatic agreement that had been reached by two parties of equal bargaining power by a process of free negotiation. Today, however, in routine transactions the typical agreement consists of a standard printed form that has been prepared by one party and assented to by the other with little or no opportunity for negotiation. Commonplace examples include purchase orders for automobiles, credit card agreements, and insurance policies....
. . . .
Dangers are inherent in standardization, however, for it affords a means by which one party may impose terms on another unwitting or even unwilling party. Two circumstances facilitate this imposition. First, while the party that proffers the form has had the advantage of time and expert advice in preparing it, the other party is usually completely or at least relatively unfamiliar with its terms. That party may have no real opportunity to read the form, and is often not expected to do so. The opportunity to read it may be diminished by the use of fine print and convoluted clauses. Second, bargaining over terms may not be between equals or, as is more often the case, there may be no opportunity to bargain at all. The standard form may be used by an enterprise with such disproportionately strong economic power that it simply dictates the terms. Or the form may be a take-it-or-leave-it proposition, often called a contract of adhesion, under which the only alternative to complete adherence is outright rejection. It would, indeed, defeat the purpose of standardization if the other party were free to negotiate over its terms.
E. Allan Farnsworth, Contracts, § 4.26, at 310-12 (2d ed. 1990).
Thus, it would be absurd to believe that the legislature intended an insurer would be able to comply with a statutory obligation to offer UIM optional coverage unless there were at least some minimum requisite amount. See Mollena, supra. To hold otherwise would allow insurers to offer UIM coverage in such minimal amounts that the purpose and intent of protecting the victims injured by financially irresponsible motorists would be undermined.
III. CONCLUSION
Based on the foregoing, we hold that the statutory minimum of UIM coverage was $35,000 at the time of the accident and, under the circumstances of this case, UIM coverage, as with UM coverage, was also subject to stacking.
NOTES
[*] Chief Justice Lum, who heard oral argument in this case, retired from the bench on March 31, 1993. See Hawai`i Revised Statutes (HRS) § 602-10.
[**] At the time this case was argued, Justice Moon was an associate justice of the supreme court. On March 31, 1993, he was sworn in as Chief Justice of the Supreme Court of Hawai`i.
[1] Intra-policy stacking, that is, stacking of multiple stated policy limit coverages under one policy, differs from "inter-policy" stacking where multiple policy limit coverages under more than one policy are stacked.
[2] See Walton v. State Farm Auto Ins., 55 Haw. 326, 518 P.2d 1399 (1974); Allstate Ins. Co. v. Morgan, 59 Haw. 44, 575 P.2d 477 (1978); American Ins. Co. v. Takahashi, 59 Haw. 59, 575 P.2d 881, reh'g denied, 59 Haw. 102, 577 P.2d 780 (1978).
[3] We note that as of January 1, 1993, stacking of UM and UIM coverages is specifically prohibited unless the insured purchases a policy that contains a stacking option. See 1993 Haw.Sess.L., Act 123 at 209 (requiring insurers offer to its policyholders the option to purchase stacking or non-stacking policies).
[4] HRS § 287-7 required that "[every automobile liability policy or bond] is subject to a limit, exclusive of interest and costs, of not less than the liability coverages stated in Section 294-10(a)." HRS § 294-10(a) required "[l]iability coverage of not less than $35,000 for all damages arising out of accidental harm sustained by any one person as a result of any one accident[.]"
[5] HRS § 431:10C-301(b)(4) became effective six months after its approval date of June 13, 1988. See 1988 Haw.Sess.L., Act 306, § 1, 575, 576.
[6] The applicable State Farm policy provision provided:
Under [the uninsured motorist provisions of the policy] with respect to bodily injury to an insured while occupying a motor vehicle not owned by a named insured under this coverage, the insurance hereunder shall apply only as excess insurance over any other similar insurance available to such occupant, and this insurance shall then apply only in the amount by which the applicable limit of liability of this coverage exceeds the sum of the applicable limits of liability of all such other insurance.
Walton, 55 Haw. at 327 n. 1, 518 P.2d at 1400, n. 1 (emphasis in original).
[7] The limits of liability clause involved in Takahashi provided:
Regardless of the number of ... (4) automobiles or trailers to which this policy applies,
....
(C) the limit for Uninsured Motorists Coverage stated in the declarations as applicable to "each accident" is the total limit of the company's liability for all damages because of bodily injury sustained by one or more persons as the result of any one accident.
Takahashi, 59 Haw. at 63 n. 5, 575 P.2d at 883 n. 5.
[8] See supra note 4. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609951/ | 467 P.2d 822 (1970)
Sam BOBRICK, Individually and doing business as Bobrick Construction Co., and Bobrick Enterprises, Inc., Plaintiffs in Error,
v.
Dan TAYLOR and Jorene Taylor, Defendants in Error.
No. 22899.
Supreme Court of Colorado, In Department.
April 6, 1970.
*823 Jerry N. Snyder, Denver, for plaintiffs in error.
Peter J. Little, Denver, for defendants in error.
GROVES, Justice.
This was an action for damages and other relief resulting from an alleged trespass by the defendants (plaintiffs in error here) upon the residential property of the plaintiffs (defendants in error). The case was tried to the court, which entered judgment against both defendants for $875, with interest and costs. We affirm.
According to the allegations of the complaint the plaintiffs purchased their property from the defendant corporation (Bobrick Enterprises, Inc.). The conveyance to the plaintiffs was not offered in evidence and we are unable to find in the record the name of the grantor; but inferences from the testimony support this allegation of the complaint. According to Mr. Bobrick's testimony, there was a contract (apparently with the defendant corporation as vendor and contractor) dated April 30 (no year given) under which the plaintiffs were to purchase the land, upon which the contractor was to construct a residence. The deed conveying the property to the plaintiffs was dated September 18, 1965, and the plaintiffs moved into the new residence on September 20, 1965. A week or ten days later those portions of the property which were not occupied by the residence were graded by the defendant corporation. According to Mr. Bobrick, the contract of April 30th provided for a "fenced in" back yard. This fence was not constructed until the last few days of 1965.
The natural surface of plaintiffs' land and that adjacent on the south sloped downward toward the south. Following the construction of the plaintiffs' dwelling, the defendant corporation constructed a residence on the lot immediately south of the plaintiffs' lot. The ground level of the residence to the south was about three feet lower than the ground level of the plaintiffs' dwelling. Two days before the fence was constructed, and while the plaintiffs were not at home, a contractor acting for the defendant corporation moved earth from the south portion of plaintiffs' lot and the north portion of the adjoining lot. In this operation, the land at the north end of the lower lot was graded down so that water thereon would flow to the north. The purpose was to have the bottom of a "V" at the common property line into which water would drain from each property and then flow along the common line to the street. The operation on the north part of the adjoining property would have caused a perpendicular wall of earth to be situated on the plaintiffs' side of the common line. Consequently, the contractor removed earth from the south portion of *824 plaintiffs' property in order to create a slope instead of the "drop off." The plaintiffs contend that this slope was steep, while the defendants assert that it was gentle. Surface water caused some erosion on the slope.
The defense was substantially as follows: The fence could not be constructed until the property was "fine graded." The property had not been fine graded until two days prior to construction of the fence. The plaintiffs understood that the fine grading would precede the construction of the fence and, therefore, no trespass took place with reference to the grading. The plaintiffs were not damaged by the grading, which was performed according to proper plans, and, if they had planted grass on the slope, no erosion would have taken place.
The fact that we might have found the testimony of the defendants more convincing is immaterial. The primary question before us is whether there was sufficient competent evidence to support the judgment. Kearney Inv. Corp. v. Capitol Federal Savings and Loan Assn. of Denver, Colo., 452 P.2d 1010. There was sufficient evidence.
The evidence presented by the plaintiffs was that the fine grading was done shortly after the time they moved into their dwelling; that they did not know that there would be any more grading; that no one sought or obtained permission to perform further grading; and that the grading at the end of the year was not only damaging but unnecessary. This was sufficient to support a finding of trespass.
The plaintiff husband and a contractor called by plaintiffs testified that, if the earth removed from the plaintiffs' property were replaced, it would wash away unless a retaining wall were constructed along the property line. The contractor made an estimate of $875.88 as the cost of constructing a retaining wall and replacement of soil. The defendants contend that it was error to admit evidence of a retaining wall as there was no mention of it in the complaint. The complaint prayed for restoration of the premises, relocation of a fence, and for damages for unlawful trespass in the amount of $2,500. The court awarded only damages and, under the testimony of the plaintiff husband and the contractor, the retaining wall was necessary to restore the premises to their original condition. The cost of the retaining wall was therefore a proper item of damage.
The defendants claim that the proper measure of damages would be the difference in market value of the land before and after the alleged trespass, citing Frankfort Oill Company v. Abrams, 159 Colo. 535, 413 P.2d 190, and Lentz v. Carnegie Bros. & Co., 145 Pa. 612, 23 A. 219. The contractor who gave the estimate included an item of $220 to "deliver and pour fill behind retaining wall." There was no testimony as to the value of the land at any time. The only other testimony concerning the amount of damage was a statement by a contractor called by the defendants that it would cost $100 to $120 to replace the earth on plaintiffs' property. Under the state of the record, Colorado Bridge & Construction Co. v. Preuit, 75 Colo. 107, 224 P. 222 is more in point than the cases cited by defendants. The judgment is not inconsistent with the rulings in these cases.
During the trial, the judge informed the parties in open court that he intended to view the property. No objection was made by either party. In the motion for new trial and here the defendants have contended that the court abused its discretion "by examining the property in question and substituting its opinion for that of expert witnesses." We can find nothing in the recordand nothing has been pointed out to usto indicate that the inspection of the premises had an improper influence on the court. We must assume that the purpose of the inspection was to better enable the court to apply and understand the testimony. San Luis Valley Land & Cattle Co. v. Hazard, 114 Colo. *825 233, 157 P.2d 144; Medano Ditch Co. v. Adams, 29 Colo. 317, 68 P. 431. This was proper and, we think, desirable.
It is urged that there is nothing in the record to support a judgment against the individual defendant. The plaintiffs rely on the testimony of Sam Bobrick that he directed the work to be performed. Neither side has favored us with any citation of authority except that the plaintiffs quote Yakes v. Williams, 129 Colo. 427, 270 P.2d 765 as saying that certain defendants "who neither directed nor countenanced any act of trespass * * * are not liable." Therefore, plaintiffs state that, conversely, one who directed an act is liable. We do not adopt the converse logic, but find that under the state of the record Valley Development Co. v. Weeks, 147 Colo. 591, 364 P.2d 730 and Snowden v. Taggart, 91 Colo. 525, 17 P.2d 305, support the judgment against the individual defendant.
We consider other assignments of error as being without merit.
Judgment affirmed.
DAY, HODGES and KELLEY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2236014/ | 929 N.E.2d 174 (2006)
367 Ill. App.3d 1104
IN RE MARRIAGE OF ROGALSKI.
No. 2-06-0386.
Appellate Court of Illinois, Second District.
September 29, 2006.
Aff'd as mod. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4516834/ | In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00053-CV
___________________________
IN RE DARYL GREG SMITH, Relator
Original Proceeding
Trial Court No. 325-584465-15
Before Sudderth, C.J.; Gabriel and Womack, JJ.
Per Curiam Memorandum Opinion
MEMORANDUM OPINION
The court has considered relator’s petition for writ of mandamus and
“Relator’s Emergency Motion to Modify Temporary Relief Granted February 18,
2020” and is of the opinion that relief should be denied. Accordingly, relator’s
petition for writ of mandamus and motion to modify temporary relief are denied.
Per Curiam
Delivered: March 13, 2020
2 | 01-03-2023 | 03-17-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/250059/ | 274 F.2d 743
Merton SHAPIRO et al.v.PARAMOUNT FILM DISTRIBUTING CORPORATION et al., Appellants.
No. 13074.
United States Court of Appeals Third Circuit.
Argued Feb. 2, 1960.Decided Feb. 11, 1960.
Arlin M. Adams, Philadelphia, Pa., for appellants except 20th Century-Fox Film Corp.
John F. Caskey, New York City, for Twentieth Century-Fox Film Corp.
Wm. A. Schnader, W. Bradley Ward, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., Royall, Koegel, Harris & Caskey, New York City, on the brief for Paramount Film Distributing Corp., Columbia Pictures Corp., Universal Film Exchanges, Inc.; United Artists Corp., RKO Radio Pictures, Inc.; and Twentieth Century-Fox Film Corp., appellants.
Louis J. Goffman, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., on the brief, for Warner Brothers Pictures Distributing Corp., and Stanley-Warner Management Corp., appellants.
William A. Gray, Philadelphia, Pa., on the brief, for William Goldman Theatres, Inc., appellant.
Arthur Littleton, John N. Schaeffer, Jr., Morgan, Lewis & Bockius, Philadelphia, Pa., on the brief, for Fox Philadelphia Building, Inc., appellant.
Nochem S. Winnet, Philadelphia, Pa. (Fox, Rothschild, O'Brien & Frankel, Donald Brown, Daniel Lowenthal, Philadelphia, Pa., on the brief), for appellees.
Before McLAUGHLIN, HASTIE and FORMAN, Circuit Judges.
PER CURIAM.
1
In this private treble damage action under the federal anti-trust laws, among other things, the defendants pleaded the statute of limitations as an affirmative defense. On October 5, 1959, in its pretrial order, the district court held that the Pennsylvania six year statute of limitations, 12 P.S. 31, for actions on the case applied to all defendants except Fox Philadelphia Building, Inc. The court further said that: 'This order involves a controlling question of law as to which there is substantial ground for a difference of opinion and an immediate appeal from the order may materially advance the ultimate termination of the litigation.' We allowed an interlocutory appeal by the defendants from said order November 4, 1959.
2
It is properly conceded that, except as to defendant Fox Philadelphia Building, Inc., the applicable Pennsylvania statute of limitations governs. It is further properly conceded that if the Act of March 26, 1785, 2 Sm.L. 6 (12 P.S. 44), does not apply, the six year Pennsylvania statute of limitations for actions trespass on the case controls, subject to the question below raised regarding defendant Twentieth Century-Fox Film Corporation, and excluding Fox Philadelphia Building, Inc., as above stated.
3
In Gordon v. Loew's, Inc., 3 Cir., 1957, 247 F.2d 451 dealing with a similar situation, where there was no federal statute of limitations applicable to suits under the federal anti-trust laws, we held that the statute of limitations of the state in which the district court was sitting was to be applied by that court to federal anti-trust litigation. Chattanooga Foundry & Pipe Works v. City of Atlanta, 1906, 203 U.S, 390, 27 S.Ct. 65, 51 L.Ed. 241; Bluefields S.S. Co. v. United Fruit Co., 3 Cir., 1917, 243 F. 1, 20, error dismissed, 1919, 248 U.S. 595, 39 S.Ct. 136, 63 L.Ed. 438.
4
Following the rule of Gordon our task is to ascertain whether the Pennsylvania statute of 1785 is to be enforced against these plaintiffs in the suit before us. And as was said in Gordon, 247 F.2d at page 455, 'In determining that question we must, we believe, take that statute to have the meaning and scope which the New Jersey (here, Pennsylvania) courts have given it in relation to state suits analogous to federal antitrust actions.'
5
As it happens the 1785 statute actually needs no interpretation by analogy, it is that clear on its face. It reads:
6
'All actions, suits, bills, indictments or informations, which shall be brought for any forfeiture, upon any penal act of assembly made or to be made, whereby the forfeiture is or shall be limited to the commonwealth only, shall hereafter be brought within two years after the offense was committed, and at no time afterwards; and that all actions, suits, bills or informations, which shall be brought for any forfeiture, upon any penal act of assembly made or to be made, the benefit and suit whereof is or shall be by the said act limited to the commonwealth, and to any person or persons that shall prosecute in that behalf, shall be brought by any person or persons that may lawfully sue for the same, within one year next after the offense was committed; and in default of such pursuit, that then the same shall be brought for the commonwealth, any time within one year after that year ended; and if any action, suit, bill, indictment or information, shall be brought after the time so limited, the same shall be void, and where a shorter time is limited by any act of assembly, the prosecution shall be within that time.'
7
By its precise terms this law of Pennsylvania deals exclusively with rights created by the Assembly of that state. That statement is borne out by its title which reads: 'An Act for the limitations of actions to be brought for the inheritance or possession of real property, or upon penal acts of Assembly.' It presents a far more rigid limitation than the, comparatively speaking, all inclusive limitations applied in New Jersey, Illinois or Wisconsin. And it, in circumstances which make the mandate controlling here, has been held by the Pennsylvania Supreme Court to call for strict construction. As Justice Coulter, speaking for that Court, said: '* * * instead of enlarging the construction, I would incline to the most rigid adherence of the words of the act.' Allegheny City v. McClurkan & Co., 1850,14 Pa. 81, 87.
8
It is noteworthy that when enlargement of the act was desired, the statute was carefully amended in 1842 and again in 1845 to embrace recoveries by county commissioners and county treasurers and all recoveries of fines and forfeitures for the 'use of the respective counties'. But it was never enlarged or interpreted to provide for the problem before us. And the one case in Pennsylvania construing the statute and controlling this appeal, Allegheny City v. McClurkan & Co., supra, 14 Pa. at page 86, leaves no doubt as to its correct interpretation. There the Court was distinguishing the facts before it from the tight area covered by the 1785 law. Emphasizing this it said: 'Here is no forfeiture to the Commonwealth alone, nor limited to the Commonwealth and any person who shall prosecute for the forfeiture' as, of course, in the 1785 Act. It was because this was true, that the Court continued, saying, 'The category of the statute of 1785 does not occur.' Nor does it occur in this appeal. To much the same effect see Commonwealth v. Musser Forests, Inc., 1958, 394 Pa. 205, 146 A.2d 714.
9
Re: Defendant Twentieth Century-Fox Film Corporation
10
This defendant was named as above set out in the original title of this cause. The corporation served with process in the action was of that same name, and a corporation of Delaware. The employee served was not at that time employed by any New York corporation. No New York corporation of the same or similar name had ever been served with process or done business where the above mentioned process had been served.
11
In the original complaint paragraph 21, Twentieth Century-Fox Film Corporation was described as a New York corporation. The complaint was filed January 4, 1956. Service on all defendants seems to have been had by January 16, 1956. On April 11, 1956 plaintiffs moved to file an amended complaint because, with respect to defendant Twentieth Century-Fox Film Corporation, 'In the original Complaint defendant, Twentieth Century-Fox Film Corporation, was inadvertently referred to as a New York corporation, whereas in fact it is a Delaware corporation and the Amended Complaint corrects that.' Over objection the amendment was allowed.
12
The defendant corporation urges that the amended complaint adds a new party and asserts a new claim against it. The point is very carefully argued but it is impossible to find merit in it.
13
The Delaware corporation was properly named as a defendant in the original suit. It was legally served with process. It is in the record that this Delaware corporation on September 27, 1952 assumed the liabilities of T.C.F. Film Corporation, a New York corporation which latter, prior to September 27, 1952, had been named Twentieth Century-Fox Film Corporation. T.C.F. Film Corporation before its dissolution on December 1, 1952 had made application for a certificate of withdrawal from doing business in Pennsylvania. That certificate was issued September 16, 1954.
14
In the circumstances Judge Van Dusen in the district court allowed the inadvertent mistaken description of this defendant's place of origin to be corrected. We do not see that he could have fairly acted otherwise. County Theatre Co. v. Paramount Film Distributing Corporation, D.C.E.D.Pa.1958, 166 F.Supp. 221, 223.
15
The order of the district court of October 5, 1959 will be affirmed. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/840250/ | 744 N.W.2d 139 (2008)
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Kevin Scott YOUNG, Defendant-Appellant.
Docket No. 134786. COA No. 278889.
Supreme Court of Michigan.
February 19, 2008.
On order of the Court, the motion for reconsideration of this Court's November 29, 2007 order is considered, and it is *140 DENIED, because it does not appear that the order was entered erroneously. | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1302871/ | 270 P.2d 1101 (1954)
GARRETT
v.
STATE.
No. A-11945.
Criminal Court of Appeals of Oklahoma.
May 19, 1954.
*1102 Shelton Skinner, Shawnee, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., for defendant in error.
BRETT, Judge.
The plaintiff in error C.D. (Curley) Garrett, defendant below, was charged by information in the county court of Pottawatomie county, Oklahoma, with the unlawful possession of 46 pints of tax paid intoxicating liquors in said county and state, on or about December 5, 1952. The defendant was tried by a jury, found guilty, and his punishment assessed at 90 days in jail, and a fine of $250; judgment and sentence was entered accordingly, from which this appeal has been perfected.
Before trial the defendant filed a motion to suppress the evidence on the grounds that it was a blanket search warrant. The ground for the motion was that it directed not only the search of the filling station and beer tavern premises described therein as the D.X. Station and operated by the defendant's wife J.A. Garrett, but in addition thereto directed the search of "each and every person, * * * and vehicle * * *" in said building or on said premises. The defendant claimed control of the filling station facilities where the whiskey was found. The evidence on the motion to suppress discloses that Deputy B.F. Crews, observing a Mr. Foster leaving the premises carrying a sack, waited until the warrant was served on Orville Kimery, an employee of Mrs. Garrett who operated the beer tavern, and thereupon proceeded under the blanket warrant to search the automobile of Foster, said automobile being on the premises jointly operated by J.A. Garrett and defendant C.D. (Curley) Garrett. The trial on the merits of the case brought out in addition to the foregoing, that several other persons were on the premises drinking beer when the warrant was executed, none of them were searched but under the terms of the warrant all of them were subject to its directives. The Attorney General filed no brief though he did not confess error, stated he was unable to overcome the principles announced in Crossland v. State, Okl. Cr., 266 P.2d 649, 651, wherein an identical warrant as to authorization of persons to be searched was condemned as a blanket warrant. Therein this court said:
"It is contended that the command to search `each and every person' without naming the persons or describing them constituted a general warrant. * * *
"There is no clear statutory nor constitutional provision authorizing the issuance of a warrant for the search of a person, but this court, in construing Title 22 Ohio St. 1951 § 1223, is committed to the rule that a search warrant may issue for the search of the person of an individual. Bowman v. State, 73 Okl. Cr. 248, 120 P.2d 373; Chronister v. State, 73 Okla. Crim. 367, 121 P.2d 616; Keith v. State, 30 Okla. Crim. 168, 235 P. 631; Cook v. State, 75 Okla. Crim. 402, 132 P.2d 349; Williams v. State, Okl. Cr.App., 240 P.2d 1132, 31 A.L.R. 2d 851.
"Although there have been many decisions from this court discussing a general warrant as applicable to the search of the premises of two or more individuals, the question here presented as to the validity of a single warrant for the search of two or more persons without naming or describing them is one of first impression.
"It has been held that a general warrant, or `blanket' warrant, which the law condemns and which the cited constitutional and statutory provisions were intended to prevent, is a warrant to search all places without describing them, or to search a number of properly described places which are shown, on the face of the warrant or by the evidence on a motion to suppress, to be occupied by different owners or lessees. Williams v. State, Okl.Cr.App., 240 P.2d 1132, supra.
"In Bowman v. State, supra, this court held:
*1103 "`Where a search warrant is issued for the purpose of searching a person, such person should be particularly described, and if his name is known it should be stated in the warrant.'
"In Keith v. State, supra, it was stated:
"`No search of the person or seizure of any article found thereon can be made on mere suspicion that the person is violating the prohibitory liquor laws in having intoxicating liquor in his possession, or without a search warrant, unless and until the alleged offender is in custody under a warrant of arrest, or shall be lawfully arrested without a warrant as authorized by law.'
"In Miller v. State, 74 Okla. Crim. 104, 123 P.2d 699, this court reversed a conviction where the evidence was obtained by a search of the person of the defendant and the officer making the search did not have a warrant for the arrest of the accused nor a search warrant directing a search of his person and no offense was committed in the presence of the officer justifying the arrest and search of the accused.
"Applying the above established principles of law to the affidavit and search warrant in question, the conclusion is inescapable that the warrant is a general or `blanket' search warrant, which would authorize the indiscriminate search of a large number of people without naming or describing any of them. We think the issuance of a search warrant to search a large number of persons without naming them is subject to the same objections that are made to a general warrant which authorizes the search of premises occupied by two or more families. If the warrant had been directed to search `John Doe and any and all persons found in his company,' it would have been considered a general warrant for the reason that the persons in his company were not particularly described in the warrant. The same defect would be apparent in a warrant directing a search `of any and all persons' without naming or describing them.
"Our Constitution, Art. 2, § 30, provides: `the right of the people to be secure in their persons * * * against unreasonable searches or seizures shall not be violated; * * *.'
"In Keith v. State, supra, in construing said constitutional provision, it was held:
"`It is unlawful under section 30, art. 2, of the Constitution of this state, forbidding unreasonable searches and seizures for an officer, without a warrant authorizing it, to search a person * * *.'"
Under the foregoing authority the trial court erred in not sustaining the defendant's motion to suppress, and the judgment and sentence of the county court of Pottawatomie county is accordingly reversed and the defendant discharged.
POWELL, P.J., and JONES, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1555058/ | 46 F.Supp. 77 (1941)
In re LOS ANGELES LUMBER PRODUCTS CO., Ltd.
No. 31352.
District Court, S. D. California, Central Division.
September 29, 1941.
*78 *79 *80 Gibson, Dunn & Crutcher, of Los Angeles, Cal., for debtor.
Warren E. Libby, of Los Angeles, Cal., for bondholders' committee.
George R. Larwill and Frank S. Balthis, Jr., both of Los Angeles, Cal., for intervening bondholders.
Faries & McDowell, of Los Angeles, Cal., for David R. Faries.
Dryer, Richards & Page, of Los Angeles, Cal., for District Bond Co. and Deposited Bonds & Shares Corporation.
Chas. F. Johnson, of Los Angeles, Cal., for SEC.
Thomas K. Case, of Los Angeles, Cal., in pro. per.
William Schoenau, Jr., of Los Angeles, Cal., in pro. per.
JENNEY, District Judge.
This matter is before the court, primarily, upon the petition of a Bondholders' Committee filed February 19, 1940, now joined in by debtor, praying for the cancellation or reduction of certain claims on debtor's bonds, filed by David R. Faries. The bonds of debtor herein referred to are in most instances represented by Trust Certificates or Certificates of Deposit for Trust Certificates, which, for convenience, will be herein referred to as "bonds of debtor", without attempting to distinguish such certificates from actual bonds.
On February 23, 1940, the court issued an order restraining the disposition of any bonds acquired by Mr. Faries subsequent to June 30, 1936, until hearings could be held and a decision reached upon this petition. At the request of all counsel this decision has been delayed from time to time in order that additional briefs might be filed. On October 12, 1940, Mr. Faries filed a petition praying for an order approving the purchase of these bonds. Another petition by Mr. Faries filed November 7, 1940, asks approval by the court of the proposed sale to Annie K. Borbridge of one certificate of deposit representing a one-thousand-dollar bond and two shares of the class "B" stock. On February 3, 1941, District Bond Company, a corporation, filed a petition requesting that the restraining order of February 23, 1940, be dissolved as to $67,500 principal amount of bonds which it alleged was its share of bonds purchased by it in joint account with Mr. Faries. This petition was denied. All of the bonds in question are now in possession of the court by virtue of an order issued March 6, 1941, impounding the same.
The court, by appropriate orders, has heretofore confirmed debtor's plan of reorganization dated February 1, 1940. At the request of all counsel, confirmation of the plan did not await the outcome of legal questions arising in connection with these claims on bonds owned by Mr. Faries or held by him in joint account. The plan of reorganization has been made sufficiently elastic to provide for any disposition of these claims which the court may desire to make. The reorganization has been proceeded with, a new company has been organized and is now actively engaged in carrying on the business of debtor under a new Board of Directors approved by the court. As a matter of fact, the company has made tremendous strides under present management and is engaged in filling government orders for navy ships and facilities in an amount of approximately $81,839,700.
*81 Hearings in connection with the bond claims of Mr. Faries were held before Special Master Reuben G. Hunt. District Bond Company did not actively participate in these hearings, except that certain of its officers and employees appeared as witnesses. At the conclusion of these hearings all parties, except District Bond Company, entered into a Stipulation of Facts dated August 27, 1940. This stipulation was approved by the Special Master and it was agreed that the court might consider the same in arriving at its decision herein.
Hearings were held before United States District Judge James Alger Fee of Portland, Oregon, in connection with the bonds of debtor held by Mr. Faries and District Bond Company in joint account. Following that hearing Judge Fee signed findings of fact, conclusions of law and a decree under date of March 6, 1941, all of which were approved by counsel for the bondholders' committee, the debtor, Mr. Faries, District Bond Company and Securities and Exchange Commission. Paragraph IV of the decree specifically reserves for decision by this court all questions as to the legal effect upon Mr. Faries or District Bond Company or its subsidiary of or growing out of any of the acts and things so found and set forth in said findings. The Commission is participating in this proceeding with the approval of this Court, pursuant to the provisions of Section 208 of the Bankruptcy Act of 1898, as amended by the Chandler Act of 1938, 11 U.S.C.A. § 608.
This court has heretofore rendered its opinion in connection with the application of Messrs. Faries and McDowell for attorneys' fees in connection with this proceeding: In re Los Angeles Lumber Products Co., 37 F.Supp. 708. At the request of Messrs. Faries and McDowell this decision was temporarily vacated by order of this court dated March 31, 1941, pending the filing of further briefs. This matter is likewise now before this court for decision.
The court room is pretty well filled with bondholders, all of the officers and directors of debtor corporation, lawyers, brokers, bankers, trust officers and others who are directly or indirectly interested in these proceedings or in this decision of the court. We shall therefore discuss the problems presented somewhat informally and more fully than would ordinarily be necessary. We believe also that a full statement of the facts, upon which the court's decision is predicated, should be made. Many of those present are either not entirely familiar with what has transpired or have perhaps overlooked the legal significance thereof. In making the following statement of facts, we shall try, in so far as is possible, to follow the wording of the stipulation of facts dated August 27, 1940 and the Findings of Fact of Judge Fee under date of March 6, 1941.
Prior to assuming any official position with debtor, or its predecessors in interest, David R. Faries had represented certain holders of debtor's bonds and was a member, secretary and counsel of an informal bondholders' committee. An immediate reorganization of debtor company was then contemplated. Because of his familiarity with debtor's problems and because he had theretofore so represented bondholders, Mr. Faries was, on June 29, 1936, elected a director and vice-president. Through appointment of his law firm of Faries and McDowell as counsel for debtor, Mr. Faries became its chief counsel. These three relationships continued from June 29, 1936 to April 15, 1940. Thereafter, except in matters in which he or his firm were interested, Mr. Faries and his firm continued to act as counsel for debtor until December 31, 1940. Mr. Faries has personally appeared in this case, as one of the attorneys for debtor, at many hearings and proceedings before the court and before the special master.
Subsequent to his election as director and vice-president and his appointment as attorney, but prior to the actual commencement of these proceedings, Mr. Faries purchased for his own account $14,500 principal amount of debtor's bonds, paying therefor the sum of $1,521.10. These purchases were all made between July 10 and December 23, 1937. Each of the purchases was made at going market prices by J. Clifford Argue, one of Mr. Faries' associates in the law firm of Faries and McDowell. Mr. Argue told brokers to deliver bonds so purchased to T. M. Wurts for payment. Mr. Wurts was at that time employed as an auditor in the offices of Faries and McDowell. Said Wurts, upon instructions from Mr. Argue, but without having consulted Mr. Faries, registered the same in his own name and deposited the bonds with the duly appointed depositary in favor of the plan of reorganization of May 24, 1937, then pending.
*82 Prior to the purchase of these bonds, Mr. Faries had been purchasing bonds for the account of debtor from funds derived from the sale of some of the properties of Masset Timber Company, a subsidiary. These said funds were exhausted on or about July 6, 1937, and no other funds of debtor were available for the purchase of bonds, except possibly a fund in the possession of Security-First National Bank of Los Angeles, as trustee, of approximately $2,900, which had likewise been derived from the sale of properties of Masset Timber Company. Debtor's board of directors had under contemplation the release of these funds for use in the purchase of additional bonds and had instructed its attorneys, Messrs. Faries and McDowell, to attempt to obtain the release thereof for that purpose.
Mr. Faries purchased the $14,500 principal amount of bonds with the intention of delivering them to debtor, if said fund was released, or keeping them himself if said fund could not be so released. Mr. Argue had instructed Mr. Wurts to register them in his own name until that question was determined. It does not appear however that this fund was ever so released. The purchase of these bonds, or any of them, by Mr. Faries personally was not taken up as a matter of business at any directors' meeting or with the court, nor were they subsequently approved by the board or by the court. However, immediately following a regular meeting Mr. Faries informed Directors Powell, Spicer, Bagley and Watson, and also Secretary Ingoldsby, that he intended to buy some bonds for his own account if the debtor could not buy them. Three directors and the secretary testified at the hearing before the special master that they had heard from time to time that Mr. Faries was buying bonds.
The filing of the petition for cancellation or reduction of Mr. Faries' claim now before the court was the first intimation that reached the court of these or subsequent purchases on the market.
At a meeting of the board of directors of debtor held on December 23, 1936, a resolution was adopted authorizing a reorganization, either by a private reorganization with the consent of interested parties or by a proceeding under Section 77B of the National Bankruptcy Act as amended. The exact method of procedure was to be determined by the board. A permit was secured from the Department of Corporations of the State of California in June, 1937, authorizing the solicitation of debtor's security holders for consents to the plan of reorganization called the "Plan of May 24, 1937". At all times herein mentioned debtor was hopelessly insolvent.
During the period from June, 1937, to April 13, 1938, consents were solicited by debtor through Allen C. Stelle, now appearing in this proceeding as Chairman of the Bondholders' Protective Committee. Mr. Stelle worked out of the law office of Faries and McDowell and under the supervision of Mr. Faries and his associate, Mr. Argue. On December 16, 1937, the board of directors concluded that sufficient consents could not be obtained for voluntary reorganization. The board then passed a resolution directing the company's attorneys to file a petition for reorganization under said Section 77B, 11 U.S.C.A. § 207. The petition, filed January 28, 1938, was prepared and signed by Faries and McDowell, by Mr. Argue. The plan of reorganization of May 24, 1937, was made a part of that petition and was attached thereto. On that day the late Judge William P. James of this court made an order continuing debtor in possession and this order has remained in effect throughout these entire proceedings, debtor being in continued possession of its assets and business, the directors, being, however, changed from time to time.
Subsequent to the commencement of the proceedings, and during the pendency thereof, and while the debtor was so continued in possession, and while he was acting as attorney for such debtor (being also a director and vice-president), Mr. Faries purchased in his own name $116,000 principal amount of bonds, paying therefor $24,389.60. Each of the purchases was made on the open market from brokers at going market prices, except $12,500 principal amount of bonds, which were acquired from the secretary of C. C. Spicer, the then president of the corporation. Mr. Faries stated that one of his objectives in so buying bonds was to further the proposed plan of reorganization and he caused each of the bonds so purchased, which had not already been so voted and deposited, to be voted in favor of the pending plan of May 24, 1937, and to be deposited with the depositary in accordance therewith. Mr. Faries further states in his brief of September 14, 1940, that a large majority of the bonds were purchased from persons who had refused to consent to the plan of reorganization of May 24, 1937. (It is significant to note here that the *83 Supreme Court of the United States ultimately declared that as a matter of law this plan was not fair and equitable, and therefore rejected it. Case v. Los Angeles Lumber Products Co., 308 U.S. 106, 60 S.Ct. 1, 84 L.Ed. 110.) Some of the holders of the bonds so purchased had assented to a prior plan of reorganization of 1930 and had deposited in accordance therewith, agreeing to a reduction in their interest rate. Others had not.
Shortly prior to January 18, 1940, Mr. Faries was considering the purchase of $4,000 principal amount of bonds owned by Mr. Spicer, then president of debtor, and $106,000 principal amount owned or held by friends or associates of Mr. Spicer. Mr. Faries felt that these purchases were necessary to his re-election because he had learned that Mr. Warren Libby, attorney for the bondholders' committee, and Mr. Stelle, the chairman, were trying to keep him off the board. To that end, Mr. Faries negotiated with District Bond Company, a licensed broker and dealer in securities, for financial assistance, and opened a joint account with that company. The purchases were then made in joint account. During the period of these purchases Mr. Faries was a stockholder of District Bond Company, owning less than 2% of the capital stock, and was a director thereof. He was, however, apparently not acting as its attorney in these transactions. Subsequent to the purchase from the Spicer interests, of $110,000 principal amount of bonds, additional bonds were purchased from others for the joint account. A total of $136,500 principal amount of bonds, inclusive of the Borbridge bond, were thus purchased under this joint account at a cost of $45,505. Mr. Faries states that his objects in purchasing these additional bonds were to secure harmony in the board, to assure his election to that board and to make a profit out of the purchases.
Neither these joint account purchases nor any other purchases were ever taken up as a matter of business at any directors' meeting or with the court, nor were they subsequently approved by the board of directors or by the court.
Judge Fee's findings and conclusions show:
"That at the time of the creation of this joint account and at all times subsequent thereto, the District Bond Company and its President, Mr. Nels Gross, and Deposited Bonds & Shares Corporation, a subsidiary, and its president, Mr. Nels Gross, knew that David R. Faries was one of the attorneys for and a member of the Board of Directors of the Debtor; that Mr. Gross had read the Debtor's Plan of Reorganization dated May 24, 1937, and knew of some dissatisfaction with the services of the then President of Debtor and entered into the arrangement for the purchase of bonds in said joint account for the purpose of obtaining the removal of the then President and procuring the selection of a new President and for the purpose of retaining David R. Faries as a director of Debtor corporation; that he knew of the pendency of the above entitled reorganization proceedings; that District Bond Company and Deposited Bonds & Shares Corporation are charged with and bound by the knowledge of all of the facts concerning which their President, Mr. Nels Gross, and their other officers, servants and employees possessed and by the acts of all their agents within the scope of their authority. * * *
"That with full knowledge of all of the matters set out in Paragraph 3 (the paragraph just quoted) of these findings District Bond Company made an agreement with David R. Faries for a joint account under terms of which District Bond Company was to furnish moneys to the amount of the total purchase price of bonds purchased therein and that all bonds therein were to be held by the District Bond Company as collateral security for the funds advanced by District Bond Company in said joint account; that each of the parties to the joint account was to be charged with and liable for one half of the losses and was to be entitled to one half of any profits therefrom; that irrespective of the name or names in which the trust certificates or certificates of deposit for trust certificates evidencing bonds are registered that said David R. Faries and said District Bond Company own jointly each and all bonds acquired in said joint account; that the term `joint account' as used in the said agreement and arrangement between said parties, David R. Faries and District Bond Company, meant and as between the parties created in said parties a joint title and joint ownership in the bonds acquired in said joint account and each party thereto thus acquired and now has an undivided interest in each and all of the bonds of Debtor purchased in said joint account; that said *84 Trust Certificate No. 83 in favor of Annie K. Borbridge was originally purchased in said joint account and was delivered to said David R. Faries on April 12, 1940 under a receipt stating `The above certificate to be held by you subject to release on payment to us of $320.00.' and is now in the possession of said David R. Faries."
Apparently from the beginning of his bond purchases, Mr. Faries advised all bondholders of debtor, who inquired of him, not to sell their bonds unless they had to. However, while some or all of the information received by Mr. Faries might have been obtained by bondholders if they had inquired of the proper sources, no definite attempt was made by Mr. Faries or by other members of the board to keep security holders advised from time to time of developments. During the entire period of these purchases Mr. Faries has had complete information concerning all appraisals made of the property and the assets of debtor and its subsidiaries and of all financial statements which were furnished monthly to the directors. In letters sent to all security holders under dates of June 12, 1937, and July 9, 1937, respectively, security holders were advised that if further information was desired, they should contact David R. Faries, at a given address or over a given telephone number.
On or about January 20, 1940, Mr. Faries participated in the preparation of a letter upon the letterhead of District Bond Company signed by that company. The letter stated: "We have clients who are interested in acquiring some Los Angeles Lumber Products bonds". It further stated that since January 1, 1940, bonds were selling in the Los Angeles market at prices ranging from 28 to 34 cents on the dollar. A card with blanks to be filled in by the bondholders accompanied the letter. When completed the cards constituted offers by bondholders to sell their bonds to District Bond Company. The letters with the return postcards enclosed were mailed from the offices of Faries and McDowell to many bondholders of the debtor between January 20, 1940, and February 19, 1940. For whose account the purchases were to be made, or were made, was not revealed. At least two bonds of debtor were purchased by Mr. Faries at prices quoted on return postcards, and as a result of such solicitation. Mrs. Annie K. Borbridge signed a card quoting a price of thirty-two cents on the dollar. She testified that she did not wish to deliver her bond to the salesman for District Bond Company, but that the salesman insisted upon delivery, and that she did deliver and sell her bond to District Bond Company on or about February 2, 1940. She further testified that she did not know at that time that the bond was bought for Mr. Faries. The bond was placed in the joint account. Mr. Faries offered, in open court, to return the bond to Mrs. Borbridge at his cost if the court would permit it.
On February 27, 1940, eight days after the filing of the petition of bondholders' committee for cancellation or reduction of his bond claim now before us, Mr. Faries addressed a letter to debtor, offering to sell his bonds to the debtor. The offer provided that if the court was of the opinion that debtor could legally purchase the bonds and that it was good business so to do, Mr. Faries would sell the bonds at cost, plus interest at the rate of 6% per annum on his expenditures and plus such other sum, if any, as this court might deem a proper allowance for the time and effort expended in gathering them together. A similar offer was made in Mr. Faries' answer to the petition of the bondholders' committee.
The debtor's board of directors, by resolution, decided that even if they could legally do so it would not be for the best interest of the debtor to purchase the bonds, and that debtor had no funds available for that purpose. This action was informally reported to the court in connection with hearings on the plan of reorganization, and the court approved the action of the board in so declining to purchase the bonds. The court then stated that, regardless of any legal question as to the corporation's right to buy these bonds, he felt that there was an element of speculation in the transaction in which the debtor should not indulge. He called attention, also, to the fact that with its expanding program the corporation would be vitally in need of ready cash. In giving such approval, however, the court made it clear that such approval was without prejudice, and was not to preclude any right or remedy which the corporation or its creditors might have in connection with the Faries bond claims.
Mr. Faries was present in court but made no objection to the court's reservation *85 of rights, nor did he indicate that he considered the same improper. The court, in making this reservation, stated that the facts remained to be determined, that there must still be decided the question of the liability of a director, as a trustee, to account for any profits or for a breach of trust. He then called attention to the fact that such trustee might ultimately be limited in his claim to the cost of the bonds either with or without interest on the cost, but stated that he was at that time deciding just one matter, namely, the rejection of the offer by Mr. Faries to sell his bonds.
The court proceeded to arrange for hearings upon the entire matter in order to determine the facts and ordered the filing of briefs by all interested parties. Complete hearings were held, and from March 25, 1940, to September 9, 1941, twenty-one separate briefs, totaling several hundred pages, were filed. Final decision has been postponed, from time to time, until this date, at the request of all counsel. The last brief on behalf of Mr. Faries was filed August 21, 1941, and the last reply thereto was filed September 8, 1941.
Mr. Faries has consistently adopted the position that in purchasing bonds he had acted openly and well within his rights; that the fact that he had so purchased bonds was a matter of record in the office of the trustee under the bond indenture, that he had violated no fiduciary obligation in so doing and had in fact done no wrong. The court declined to remove Mr. Faries or his firm as one to the attorneys for debtor until an investigation of the matter could be made to determine all the facts and full hearings thereon had been completed. In that connection the court stated: "I think this and I say so very frankly regardless of any propriety or impropriety in the actions of Mr. Faries I think that pending a determination of the matter, since Mr. Faries requests to be relieved of any responsibility as an attorney in the hearing (the hearing on his bond claims), that request should be granted, and it has been granted. I am inclined to the view that he should resign from the board of directors as one of the trusteesuntil this matter has been finally disposed of. I do not make this as an order of the Court. I feel that it is probably a position which he will prefer to take."
After the Supreme Court of the United States had rejected the plan of May 24, 1937, as previously herein indicated, debtor, through its attorneys, Faries and McDowell, filed an amended plan under the terms of which all of the stock in the new corporation to which the assets and business of debtor were to be transferred was to be owned by bondholders, and the old shareholders were given no participation. When this amended petition was presented to the court for approval no distinction whatsoever was made between the holdings of bondholders who had originally assented to the 1930 plan and the holdings of bondholders who had refused to assent to the plan. The court called attention of counsel for the debtor to the fact that those bondholders who had originally assented had voluntarily agreed to a reduction from 7½% per annum to 6% per annum in the interest rate from date of default, but that nonassenters had not agreed to this reduction. Therefore, by order of court, the plan was amended to give an additional interest in the new corporation to nonassenters in proportion to their additional interest claims. This matter will be more fully discussed later. All claims filed on bonds have been allowed with the exception of the claims now before the court.
Proceedings on the Faries bond claims and on the petition of Faries and McDowell for compensation have been continued from time to time at the request of counsel. As previously stated, this court on February 8, 1941, rendered its opinion declining to allow Mr. Faries or Messrs. Faries and McDowell any compensation as attorneys. (In re Los Angeles Lumber Products Co., 37 F.Supp. 708.)
With these facts in mind, let us consider Mr. Faries' own analysis of his legal position.
Mr. Faries concedes that, within certain limitations, an attorney, officer and director, for a debtor in possession under Section 77B of the National Bankruptcy Act, stands in a fiduciary relationship with the creditors of the debtor. The mere fact that he was a fiduciary for some purposes, he contends, is not in itself sufficient cause for the establishment of a constructive trust with respect to the bonds purchased by him. He urges that many other elements must be present:
First: "It must clearly appear that the purchase of the bonds was in violation of his trust as a fiduciary." He insists that an attorney, officer and director of a corporation "is a fiduciary only with respect *86 to those matters for which he is bound to act on behalf of the corporation"; that the debtor was not in the market for the bonds, having no available funds, that it was not his duty to buy them for the corporation; and that he breached no duty when he bought them for himself. Further, he maintains "that debtor and its attorney owe no duty to the bondholders other than to safely keep and conserve the property and to properly and efficiently operate the business"; therefore, the purchase of the bonds was not in violation of any duty owing either to debtor or its creditors.
Second: It must be shown that the purchases were to the disadvantage, detriment, damage or injury of his cestui que trust. He states that the debtor was not damaged in any way by his purchases; that the only change which occurred was that the corporation owed him instead of other persons, its total obligations remaining exactly the same as theretofore; and that, as a matter of fact, the debtor was actually benefited because the bonds came into "friendly hands"hands favorable to the plan of reorganization.
Third: It must be shown that the bonds were purchased at a discount and that he made a profit for himself out of the transaction. He insists that the bonds were not purchased at a discount; that they were bought at current prices in the open market; that they were not due and there was no plan to liquidate them; that they were not to be paid under the proposed plan but were to be exchanged for stock in a new company, each bondholder receiving his pro rata number of shares; that the value which these shares would have was problematical and that no one knew whether or not the plan would be approved by the District Court, by the Circuit Court of Appeals or by the Supreme Court, or would be successful if so approved, and that he could not at any time determine whether or not he had made a profit as there was not sufficient market to absorb all of his bonds, or any considerable number of them.
Mr. Faries further contends that, even assuming that his purchases of bonds could be considered as a violation of his duty as trustee, his acts in that regard were not void, but merely voidable, at the option of debtor; and that debtor's refusal to take steps toward voiding those acts constituted a waiver and ratification thereof. In other words, by refusing to accept his offer to sell these bonds, the directors of debtor elected not to consider his acts as those performed for the benefit of the corporation, but as acts performed for his own account. Therefore, having exercised its election, debtor is now estopped from declaring a constructive trust.
In this connection, Mr. Faries insists that, even assuming, just by way of argument, (1) that a constructive trust could be declared, (2) that the right has not been waived, and (3) that the trustees are entitled to enforce it, Mr. Faries is still entitled to be paid, in cash, the actual cost of said bonds, plus interest and plus, also, the reasonable cost of acquiring the same; and that debtor has no legal right to pay him in stock of the new corporation, or to otherwise limit his claim.
Mr. Faries' concluding argument by way of summary is that, through the application of fundamental principles of equity jurisprudence, his claim under these bonds should be recognized in exactly the same way as claims on all other bonds. He says that his purchases were made in the best of faith, openly and at current market prices; that, while no formal presentation of the matter was made to the board of directors as such, most of the officers and directors knew of these purchases; that debtor has not been harmed in any way by the change of ownership in fact, it has benefited by having him take over bonds from recalcitrant bondholders that he has been at all times trying to help the debtor corporation perfect and accomplish its proposed reorganization; that the fight against him has been instigated and conducted by Mr. Stelle, who was angry at being discharged as secretary of the corporation, and by a small group led by Mr. Stelle who have been trying to harass him, and to get control of the corporation; that under these circumstances it would be most inequitable and unjust to treat him in any different way than other bondholders are treated.
Many of the cases cited in support of claimant's position are cases involving the relationship between an attorney, director or officer on the one hand and a solvent corporation on the other. The principles of law governing these cases are manifestly quite different from the principles of law involved when the corporation is insolvent. Some of the cases also cited by claimant involve the question of the responsibility of a trustee of an ordinary bankrupt estate in which the interests of *87 unsecured creditors are primarily involved. Let us then attempt to determine the principles of law applicable to the case at bar and apply them to the established facts.
Section 77B was added to the National Bankruptcy Act to facilitate the reorganization of a corporation during the time it is functioning as a going concern. As the reported cases clearly show, many abuses have occurred in corporate reorganizations some due to avarice but most due to a lack of understanding by trustees of their legal and moral responsibilities. It took some time for these cases to be presented for decision and for the courts to speak. When they did speak they made it clear that Congress intended by the provisions of said Section 77B to hold trustees to a high degree of both moral and legal responsibility.
Generally speaking, the directors of a debtor in possession under Section 77B have the same powers and have imposed upon them the same duties as trustees in bankruptcy. In re Wil-Low Cafeterias, 2 Cir., 111 F.2d 83; In re James Butler Grocery Co., D.C., 12 F.Supp. 851; In re Cheney Bros., D.C., 12 F.Supp. 605.
The business of one who has become bankrupt is ordinarily operated by a trustee only to preserve value and to facilitate a favorable sale. No reorganization of the business is contemplated in these ordinary bankruptcy proceedings and there is seldom any surplus to be ultimately returned to the debtor. The objectives of the trustees in these ordinary bankruptcies are, therefore, those of liquidation and sale; and their chief responsibility is to unsecured creditors. Even so, they are held to a high degree of responsibility.
By virtue of Section 2 of the Bankruptcy Act, 11 U.S.C.A. § 11, a bankruptcy court is a court of equity, at least in the sense that, in the exercise of the jurisdiction conferred upon it by the Act, it applies the principles and rules of equity jurisprudence. Larson v. First State Bank, 8 Cir., 21 F.2d 936, 938.
As aptly stated by Mr. Justice Douglas, speaking for the Supreme Court of the United States in the recent case of Pepper v. Litton, 308 U.S. 295, 304, 60 S. Ct. 238, 244, 84 L.Ed. 281:
"The bankruptcy courts have exercised these equitable powers in passing on a wide range of problems arising out of the administration of bankrupt estates. They have been invoked to the end that fraud will not prevail, that substance will not give way to form, that technical considerations will not prevent substantial justice from being done. By reason of the express provisions of § 2 these equitable powers are to be exercised on the allowance of claims, a conclusion which is fortified by § 57, sub. k, 11 U.S.C.A. § 93, sub. k. For certainly if, as provided in the latter section, a claim which has been allowed may be later `rejected in whole or in part, according to the equities of the case', disallowance or subordination in light of equitable considerations may originally be made. * * *
"That equitable power also exists in passing on claims presented by an officer, director, or stockholder in the bankruptcy proceedings of his corporation. The mere fact that an officer, director, or stockholder has a claim against his bankrupt corporation or that he has reduced that claim to judgment does not mean that the bankruptcy court must accord it pari passu treatment with the claims of other creditors. Its disallowance or subordination may be necessitated by certain cardinal principles of equity jurisprudence. A director is a fiduciary. Twin-Lick Oil Co. v. Marbury, 91 U.S. 587, 588, 23 L.Ed. 328. So is a dominant or controlling stockholder or group of stockholders. Southern Pacific Co. v. Bogert, 250 U.S. 483, 492, 39 S.Ct. 533, 537, 63 L.Ed. 1099. Their powers are powers in trust. See Jackson v. Ludeling [88 U.S. 616], 21 Wall. 616, 624, 22 L.Ed. 492. * * * While normally that fiduciary obligation is enforceable directly by the corporation, or through a stockholder's derivative action, it is, in the event of bankruptcy of the corporation, enforceable by the trustee. For that standard of fiduciary obligation is designed for the protection of the entire community of interests in the corporation creditors as well as stockholders.
"As we have said, the bankruptcy court in passing on allowance of claims sits as a court of equity. Hence these rules governing the fiduciary responsibilities of directors and stockholders come into play on allowance of their claims in bankruptcy."
These principles have been enunciated in connection with ordinary bankruptcy proceedings, but they are likewise applicable to Section 77B proceedings. However, the objectives of trustees of a debtor in possession under Section 77B *88 like the directors of debtor here are not those of liquidation and sale. Their objectives are usually to rehabilitate the business and to operate it as a going concern, until the proposed reorganization can be completed. The trustees' responsibilities are, therefore, broad and strict. They must zealously guard any property rights of the entire community interest in the corporation common shareholders, preferred shareholders, secured creditors and unsecured creditors whomsoever may have an interest either during the reorganization or after it is completed. The directors, as trustees, are officers of the court appointed to act for the court, ordinarily under broad powers necessarily so in order that they may function efficiently. Until the reorganization is completed, the trustees have no way of knowing exactly what security holders are their cestuis que trustent. Under such circumstances these trustees must keep themselves at all times free from entanglements. They must be able to act, without embarrassment, for whomsoever may ultimately be determined to be a beneficiary. They must not only not have an adverse interest but also they should scrupulously avoid placing themselves in such a position that an adverse interest may be possible. Wilson v. Continental Building & Loan Association, 9 Cir., 1916, 232 F. 824. They are arms of the court and should govern themselves accordingly.
Judge Learned Hand, speaking for the Circuit Court of Appeals for the Second Circuit in the case of In re National Public Service Corporation, 2 Cir., 68 F.2d 859, 862, states the matter succinctly as follows: "It is not enough that a creditor has means of information; he may insist that his interests shall be in the hands of a trustee who can act without embarrassing cross currents of motive; that he (the creditor) shall not be required to prove that the trustee has failed to press his interests; that the trustee's impartiality must be free from all question."
As expressed by then Chief Justice Cardozo of New York in Meinhard v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545, 62 A.L.R. 1, and quoted in the decision of the Circuit Court of Appeals for the Sixth Circuit in Re Van Sweringen Co., 119 F.2d 231, 234:
"Many forms of conduct permissible in a workaday world for those acting at arm's length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the `disintegrating erosion' of particular exceptions. * * * Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this court."
From these references it will be seen that the rules laid down by the courts are designed "to provide against any possible selfish interest exercising an influence which can interfere with the faithful discharge of duty which is owing in a fiduciary capacity" (Magruder v. Drury, 235 U.S. 106, 119, 35 S.Ct. 77, 82, 59 L.Ed. 151) and these rules have long been strictly enforced (Michoud v. Girod, 45 U.S. 503, 4 How. 503, 557, 11 L.Ed. 1076), and they are required "because of the demonstrated fallibility of mankind". (Loring, A Trustee's Handbook, Shattuck Revision, p. 66.)
It has, of course, long been established that officers, directors and attorneys of a corporation are fiduciaries and that they should be held responsible for any breach of duties as such. They may not, while the corporation is insolvent, purchase claims against it at a discount and then enforce such claims at their full face value. Bonney v. Tilley, 1895, 109 Cal. 346, 42 P. 439; Davis v. Rock Creek Lumber, etc., Co., 1880, 55 Cal. 359, 36 Am.Rep. 40. When the corporation is not only insolvent but has filed its petition under Section 77B or Chapter X of the National Bankruptcy Act as amended, 11 U.S.C.A. § 501 et seq., and the directors have become trustees of the debtor in possession, the directors' obligations as trustees become even more rigorous. In re Norcor Mfg. Co., 7 Cir., 109 F.2d 407; Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281.
The good faith or innocent motives of the fiduciary, or his well-intentioned purpose to effectuate a plan of reorganization, constitute no defense to liabilities founded upon breaches of fiduciary obligations. In re McCrory Stores Corp., D.C.S.D.N.Y., 1935, 12 F.Supp. 267, 269, 30 Am.Bankr.Rep.,N.S., 670. In that case the court, discussing the question of the motive behind the purchase of claims, said:
*89 "It is true that if some one with money had not appeared on the scene and reduced the scattered claims * * * to a single control, reorganization of the debtor would have been a most difficult task. It is also true that the present plan of reorganization is vastly more favorable to creditors and stockholders than the plan to which the debtor was then committed under its contract * * *. It may well be that the creditors and stockholders are better off because of the United's activities in the situation. These matters, however, have no legal significance."
And it is likewise no defense to say that fraud was not intended and that unfairness did not result from the trustee's actions. Magruder v. Drury, 235 U.S. 106, 120, 35 S. Ct. 77, 59 L.Ed. 151; Jackson v. Smith, 254 U.S. 586, 589, 41 S.Ct. 200, 65 L.Ed. 418; Tomblin v. Hill, 206 Cal. 689, 275 P. 941. Actual fraud in such cases is not necessary to give the client redress. A breach of duty is constructive fraud. Baker v. Humphrey, 101 U.S. 494, 25 L.Ed. 1065. There are many situations, in which a constructive trust is imposed even in the absence of fraud. 3 Scott on Trusts, § 462.
Mr. Justice Douglas, speaking for the Supreme Court of the United States, has recently said in a case dealing with compensation under Chapter IX of the Bankruptcy Act, 11 U.S.C.A. § 401 et seq. (American United Mutual Life Ins. Co. v. Avon Park, 311 U.S. 138, 61 S.Ct. 157, 162, 85 L.Ed. 91, 136 A.L.R. 860), but which statement of principles is equally applicable here:
"Where such investigation discloses the existence of unfair dealing, a breach of fiduciary obligations, profiting from a trust, special benefits for the reorganizers, or the need for protection of investors against an inside few or of one class of investors from the encroachments of another, the court has ample power to adjust the remedy to meet the need. The requirement of full, unequivocal disclosure; the limitation of the vote to the amount paid for the securities (In re McEwen's Laundry, Inc., 6 Cir., 90 F. 2d 872); the separate classification of claimants (see First National Bank v. Poland Union, 2 Cir., 109 F.2d 54, 55); the complete subordination of some claims (Taylor v. Standard Gas & Electric Co., 306 U.S. 307, 59 S.Ct. 543, 83 L.Ed. 669; Pepper v. Litton, supra), indicate the range and type of the power which a court of bankruptcy may exercise in these proceedings. That power is ample for the exigencies of varying situations. It is not dependent on express statutory provisions. It inheres in the jurisdiction of a court of bankruptcy."
This court frankly feels that one in a fiduciary position whether he be a director, an officer, or an attorney who purchases the bonds of a corporation undergoing reorganization under Section 77B or Chapter X should be held to strict account, regardless of his good intentions and regardless of the legal or financial ability of the debtor corporation to buy those bonds. How otherwise can the purposes of the Congress in passing these amendments to the Bankruptcy Act be made effective? How otherwise may the court and those interested in the assets or business of the corporation have that confidence which is necessary for a successful outcome of reorganization proceedings?
Let us refresh our memory as to what has happened in connection with the attempt to reorganize the corporation now before us: In 1930, a plan of reorganization, without court proceedings, was proposed and many bondholders agreed in writing to the plan, deposited their bonds with a depositary and, among other things, agreed to a reduction in their interest rate from 7½% to 6% per annum. The reduction was a definite one and is still in effect. Nonassenters and nondepositors did not agree to this reduction. The proposed plan of reorganization of 1930 failed. Then, the original plan of reorganization under Section 77B was filed in this court January 28, 1938. The petition for that purpose contained a plan of reorganization which was substantially that previously proposed in 1930. After extensive hearings on the plan, it was subjected to certain amendments at the suggestion of or with the approval of this court and was finally confirmed. This approval was then confirmed by the Circuit Court of Appeals for the Ninth Circuit on appeal (In re Los Angeles Lumber Products Co., 100 F.2d 963), but the plan was rejected by the Supreme Court of the United States as hereinbefore indicated, particularly upon the ground that the plan, as a matter of law, was not fair and equitable. This plan, so rejected, provided for a small participation in the reorganization by preferred shareholders of debtor. Assets of the old corporation were to be transferred to a new corporation, the stock of which was to be held in part by old preferred shareholders, and the balance by bondholders of the old corporation. During all of this time the directors of the *90 debtor in possession believed that they were acting as trustees for cestuis que trustent who were a group composed of both old stockholders and bondholders. After the rejection of this plan by the Supreme Court, the plan was amended so that all of the stock of the new corporation, to which these assets were to be transferred, was to be owned by bondholders. There were, in effect, no unsecured creditors because these were to be paid off in cash. The bondholders were then to own the corporation and it was they whom the directors in possession, as trustees, were to represent. When the plan was presented to the court, as amended, it recognized no distinction among bondholders. The court required the plan to be further amended so that bondholders who had not consented to the reduced interest rate under the 1930 plan would receive a larger interest allowance on their bonds than those who had so consented to the reduction and therefore would get pro rata more stock interest in the new corporation.
Is it proper for a trustee to place himself in a position in which it may be said that it is not humanly possible for him to see to it that both types of bondholders are fully protected in the plan? Should a trustee engage in any contest for voting control of the very corporation for which he is acting as such trustee, or attempt to influence the selection of the corporation's officers and directors by acquiring voting control alone or in association with a particular group? We think not. The court is looking to him as one of its court officers, and the ultimate stockholders even though their identity and exact interest may not be disclosed until the final plan of reorganization is confirmed are looking to him, as a trustee, to deal impartially, without the slightest taint of self-interest. They properly expect him to see to it that the assets and business of the corporation are honestly and efficiently held and operated and that they are justly and legally distributed, uninfluenced by personal interest.
Mr. Faries, in his latest brief filed August 21, last, urges that each of three cases "amply support our contention that an attorney, officer and director of an insolvent corporation, may, within certain limits, i. e., certainly within the facts of this case, purchase bonds and enforce them without preference, in the same manner as other bondholders." The three cases referred to are: Donnelly v. Consolidated Investment Trust, 1 Cir., 1938, 99 F.2d 185; In re New York Railways Corporation, 2 Cir., 1936, 82 F.2d 739, certiorari denied Brukenfeld v. New York Rys. Corp., 298 U.S. 687, 56 S.Ct. 959, 80 L.Ed. 1406; Seymour v. Spring Forest Cemetery, 144 N.Y. 333, 39 N.E. 365, 26 L.R. A. 859. Let us analyze these cases as briefly as possible:
The Donnelly case involves the purchase of shares (certificates of beneficial interest) in a Massachusetts business trust, a holding company owning all the shares (certificates of beneficial interest) in a like trust, a manufacturing company which petitioned for reorganization under Section 77B. The holding company was not in bankruptcy. Nor does it appear that either the holding company or the manufacturing company were insolvent. The opinion shows that just prior to the purchase of the shares of the holding company there had been an offer to buy the assets of that company "at a price which would realize for the common shares $90.00 each." The opinion further shows that the owner of each share of the holding company was offered $42 in cash, a bond of the manufacturing company worth $40 and a share of the manufacturing company's stock. The assets of the holding company, therefore, greatly exceeded its liabilities, exclusive of capital stock liability; thus it was in a solvent condition. The court pointed out in connection with the manufacturing company that after reorganization and "after all direct claims had been paid a surplus remained distributable to its shareholders." [99 F.2d 187.] Thus, the manufacturing company was likewise solvent. The purchases in question in this case were not purchases of claims as in the case at bar, but were purchases of shares or certificates of beneficial interest in a Massachusetts trust. All purchases were made before any petition was filed under Section 77B, and with nothing in the record to indicate that such a petition was contemplated when they were made; nor does it appear that the manufacturing company was a debtor in possession.
The next case cited, the New York Railways Corporation case, was a case in which the court expressly found that the purchaser of the securities there involved was not a fiduciary. The purchaser was not a director, a vice-president or counsel for the debtor.
The other case cited, the Seymour case, merely holds that it is not a breach of duty for a director to purchase the bonds of his corporation while it is a going concern and solvent. So far as appears from the record *91 this corporation was, both at the time of the acquisition of the bonds and at the date of their enforcement, a solvent concern. No question of bankruptcy or insolvency is involved.
These three cases are, therefore, easily distinguishable from the case at bar. It should be noted also that they were decided prior to the recent decisions of the Supreme Court of the United States in Taylor v. Standard Gas & Electric Co., 1939, supra; Pepper v. Litton, 1939, supra; American United Mutual Life Ins. Co. v. Avon Park, 1940, supra; Woods v. City National Bank & Trust Co., 1941, 312 U.S. 262, 61 S.Ct. 493, 85 L.Ed. 820. All of these Supreme Court cases hold fiduciaries to strict standards of conduct, including officers, directors, controlling stockholders of corporations, bondholders' committees, etc., and make it clear that the equitable powers of a bankruptcy court are sufficient to provide an appropriate remedy for violation of these standards.
As to Mr. Faries' contention that debtor's refusal to accept his offer to sell his bonds constituted a ratification of the purchases and a waiver of debtor's right to assert that he held the bonds as a constructive trustee for their benefit:
The action of debtor's board of directors was merely a rejection of a business proposition. Mr. Faries offered to sell their corporation certain bonds at a certain price. They declined the offer. That offer was made by Mr. Faries with assurances that he had done no legal or moral wrong, that he was under no legal obligation to sell the bonds to the corporation and was making the offer voluntarily. The situation had just recently been brought officially to the attention of the Board of Directors and the Court and the facts connected therewith had not yet been disclosed. This action of the Directors in rejecting the offer surely does not prevent them later, when the full facts are revealed, from asserting any legal right which may then be indicated. Nor was the board's action effective until approved by the court. This court gave only a conditional approval. It had only a limited knowledge of the facts and refused to prejudge the matter. The court, when it approved the directors' business judgment in not making a commitment of purchase, did not pass upon the debtor's legal right to make such purchase. It stated, expressly, that even its limited approval was without prejudice and was not to preclude any right or remedy which the corporation or its creditors might have. Mr. Faries made no objection to the reservation. Manifestly there can be no waiver here of any right other than the right to compel Mr. Faries to keep the business proposition open. Of course, that offer to sell as a business proposition had to be accepted or rejected, promptly and finally. Nor can there be said to be a ratification of these purchases when debtor's directors were not yet in possession of the facts.
As to Mr. Faries' contention that it mattered nothing to debtor who owned its bonds, whether he owned them or someone else owned them, the total obligations of debtor remained the same: we are impressed by a statement from the decision of the court in Bramblet v. Commonwealth Land and Lumber Company, 1904, 83 S.W. 599, 602, 26 Ky.Law.Rep. 1176, 1179; Id., 84 S.W. 545, 27 Ky.Law.Rep. 156, where the president of a corporation had induced a third person to purchase at a discount certain judgments against the corporation, which judgments were then used in purchasing the property of the corporation at a foreclosure sale. Under the arrangement the president and the third party were to divide any resulting profits. The court there held that neither the president nor the third person were entitled to derive any profit from the transaction. In this case the facts are, of course, easily distinguishable from the case at bar. However, the language of the court is well chosen and pertinent in the instant case:
"We have no hesitancy in declaring the law to be that a president of an insolvent and failing corporation cannot traffic in its property to his advantage and to its disadvantage, or buy in debts against it at heavy discount and then assert them for full value. To the argument that it does not matter to the corporation who owns its debts, so it honestly owes them, and that it is immaterial to it whether its president gets them for nothing, as it does not have to pay any more than it actually owes in any event, the answer is, it does matter, for human nature is not so constituted that the same person can fairly represent opposing sides of the same question cannot be both creditor and debtor. * * * The policy of the law is to insure fidelity of trustees to their trusts by making it impossible for them to profitably neglect or abuse them."
And so it is said by the Supreme Court of Illinois in Ravlin v. Chicago, A. & De K. R. *92 Co., 297 Ill. 130, 129 N.E. 730, 736: "When a person accepts an appointment as receiver he must not permit his personal interests to in anywise conflict with his duty in that respect. It is well settled that a receiver can make no profit out of his trust other than the compensation which the court may allow him under the law. He cannot deal with the property involved for himself while he is receiver, and if he does, the benefit must inure to the trust estate. It makes no difference if the company for which he is receiver was not a loser in the transaction, nor however free from fraud the transaction may be."
Naturally, most of the cases which come before the courts are those in which the fiduciary has both breached his trust and made a profit. The important thing is not the profit but the principle of equity behind the liability.
To the argument that Mr. Faries did not breach his trust because the debtor corporation was not in the market to purchase bonds, we feel that no such narrow interpretation may be given to the obligations of a director of a debtor in possession under Section 77B. In Irving Trust Co. v. Deutsch, 2 Cir., 1934, 73 F.2d 121, 124, certiorari denied Bell v. Irving Trust Co., 294 U.S. 709, 55 S.Ct. 406, 79 L.Ed. 1243, the court said:
"The defendants' argument * * * that the equitable rule that fiduciaries should not be permitted to assume a position in which their individual interests might be in conflict with those of the corporation can have no application where the corporation is unable to undertake the venture, is not convincing. If directors are permitted to justify their conduct on such a theory, there will be a temptation to refrain from exerting their strongest efforts on behalf of the corporation since, if it does not meet the obligations, an opportunity of profit will be open to them personally."
Mr. Faries seems to think that the only remedy which debtor may have if indeed it has any remedy is to impose a constructive trust, declare that he acted for the corporation in purchasing the bonds, and take over his bargain, i. e., pay Mr. Faries his cost, and possibly interest on that cost and such expenses incident thereto as the court may determine. We do not believe that our powers as a bankruptcy court are so limited. To so hold would be to defeat the very purposes of the rule of law giving redress. The fact of insolvency and the pendency of reorganization proceedings would ordinarily make such cash expenditure inadvisable and, under most circumstances, impossible. In the instant case it would have required the tying up of a large sum of money which was vitally necessary for working capital. To have so used that money would have practically stopped any thought of expansion, would have made impossible large and profitable government shipbuilding contracts, and might, temporarily at least, have restricted debtor's activities to small contracts for repair of ships.
Whatever may be the rule of law in cases involving solvent corporations, the court of bankruptcy cannot permit itself to be so limited in the case of insolvent corporations. As said by the Supreme Court of the United States in Pepper v. Litton, supra: the bankruptcy court has the power, in the exercise of its equitable jurisdiction, to sift the circumstances surrounding any claim and to see to it that injustice or unfairness is not done in the administration of bankrupt assets. And the Congress in Section 77B, sub. b and in Section 212 of Chapter X of the Bankruptcy Act, 11 U.S.C.A. § 612, has made specific provision for the limitation of claims acquired by certain fiduciaries to the consideration paid therefor. Whether or not the specific language used in these sections is sufficiently broad to include the acts of Mr. Faries in the instant case, is beside the point. The very remedy provided in those sections has long been recognized and applied in the exercise of the general equitable power of the bankruptcy court. See Bonney v. Tilley, supra; In re Norcor Mfg. Co., supra. Cf. In re McEwen's Laundry, Inc., 6 Cir., 1937, 90 F.2d 872.
In the light of these broad equitable principles, the court may then adopt that remedy which it deems most appropriate under the circumstances. The court deems this to be the most appropriate remedy, namely, the limitation of the claim of Mr. Faries to his cost, plus interest on each item at the rate of six per cent. per annum from the date of acquisition to date of the decree of this court to be hereafter entered after there has been a compliance with Rule 8 of this court. In all fairness, I am disposed to allow Mr. Faries interest on his cost to this date because, due to the desire of all counsel to make a full presentation of the matter, final settlement has been delayed *93 and Mr. Faries has been enjoined, in the meantime, from disposing of his bonds.
In applying this remedy, we must not be considered to hold that debtor corporation could not have declared a constructive trust in connection with Mr. Faries' dealings. We merely hold that the remedy by way of limitation of claim seems to us more just and more appropriate.
It seems to the court that Mr. Faries was, upon principle, under the same disability as to the bonds purchased before as he was with regard to those purchased after the institution of these proceedings. Reorganization was really in process at the time Mr. Faries made his first purchases in July, 1937, and the evidence shows that debtor was then insolvent. The Board of Directors had authorized it on December 23, 1936. All that was required was the choice of the method and the filing of the formal papers. See In re Van Sweringen Co., supra; Bonney v. Tilley, supra; Davis v. Rock Creek Lumber, etc., Co., supra.
We must now consider the petition of District Bond Company and of Deposited Bonds & Shares Corporation, a subsidiary, whom we shall hereafter describe as "District Bond", under the joint account arrangement which they entered into with Mr. Faries for the purchase of bonds. Permission was never sought from the court or the board of directors of debtor, either by Mr. Faries or any representative of District Bond, to purchase these shares so held in joint account, either from Mr. Spicer or from any other bondholder. Nor was any petition filed asking for ratification of such action. Mr. Spicer and his counsel came into court during a hearing on the confirmation of the plan and asked that Mr. Spicer's resignation as president be confirmed. At this time also, the court was requested to confirm the election, respectively, of Mr. Powell as president and Mr. Harrold English as a director in place of Mr. Spicer. The statement was made in open court that Mr. Faries had bought Mr. Spicer's bonds. No details were given as to the number of bonds owned and sold by Mr. Spicer nor as to the price paid. The information regarding the sale was merely supplied incidentally as a reason for the resignation of Mr. Spicer and the election of Messrs. Powell and English, confirmation of which was sought.
The other facts have been rather fully set forth herein, particularly in the quotations from the findings of Judge Fee. These findings made it clear to the court that District Bond knew that Mr. Faries was a fiduciary. Having this knowledge, it joined in an enterprise in which Mr. Faries' personal interest might conflict with the interests of those for whom he was a fiduciary and which, therefore, might involve a breach of trust. The law seems clear that under these circumstances District Bond may not be treated in any way differently than Mr. Faries is treated. The Supreme Court of the United States, in the leading case of Jackson v. Smith, 254 U.S. 586, 41 S.Ct. 200, 65 L.Ed. 418, decided this question. In that case the receiver for a building association agreed with the defendants, one of whom was his attorney and one of whom was an outsider, that the outsider should purchase the property of the association at a foreclosure sale for the joint account of all three. The property was so purchased and was later sold at a profit. In a suit instituted by the receiver's successor, defendants were required to account for their profits in the transaction, even though the defendant had been the highest bidder at a public sale which was found to have been fairly conducted. The court, in enforcing this rigorous rule, made the following statement:
"When he [the receiver] agreed with Smith and Wilson to join in the purchase if Wilson should become the successful bidder, he placed himself in a position in which his personal interests were, or might be, antagonistic to those of his trust. Michoud v. Girod [45 U.S. 503], 4 How. 503, 552, 11 L.Ed. 1076. It became to his personal interest that the purchase should be made by Wilson for the lowest possible price. The course taken was one which a fiduciary could not legally pursue. Magruder v. Drury, 235 U.S. 106, 119, 120, 35 S.Ct. 77, 59 L.Ed. 151. Since he did pursue it and profits resulted the law made him accountable to the trust estate for all the profits obtained by him and those who were associated with him in the matter, although the estate may not have been injured thereby. Magruder v. Drury, 235 U.S. 106, 35 S.Ct. 77, 59 L.Ed. 151. And others who knowingly join a fiduciary in such an enterprise likewise become jointly and severally liable with him for such profits. Emery v. Parrott, 107 Mass. 95, 103; Zinc Carbonate Co. v. First National Bank, 103 Wis. 125, 134, 79 N.W. 229, 74 Am.St.Rep. 845; Lomita Land & Water Co. v. Robinson, 154 *94 Cal. 36, 97 P. 10, 18 L.R.A.(N.S.) 1106. Wilson and Smith are therefore jointly and severally liable for all profits resulting from the purchase; the former although he had no other relation to the estate; the latter, without regard to the fact that he was also counsel for the receiver." (Pages 588, 589 of 254 U.S., page 201 of 41 S.Ct., 65 L.Ed. 418)
In Irving Trust Co. v. Deutsch, 2 Cir., 1934, 73 F.2d 121, certiorari denied Bell v. Irving Trust Co., 294 U.S. 709, 55 S.Ct. 406, 79 L.Ed. 1243, there was a suit brought by the trustee in bankruptcy of a corporation against certain of its directors and an outsider for an accounting of profits from a transaction in the stock of the corporation which involved a violation of the fiduciary duties of the directors. The court held that the outsider was also liable to account, although he owed no fiduciary duty to the bankrupt, saying: "* * * we think there is an applicable principle which requires him to account, namely, that one who knowingly joins a fiduciary in an enterprise where the personal interest of the latter is or may be antagonistic to his trust becomes jointly and severally liable with him for the profits of the enterprise." (Page 125 of 73 F.2d)
In Ripperger v. Allyn, D.C.S.D.N.Y., 1938, 25 F.Supp. 554, the court said: "One who knowingly joins a fiduciary in an enterprise where the personal interest of the latter is or may be antagonistic to his trust becomes jointly and severally liable with him for the profits of the enterprise. Irving Trust Co. v. Deutsch, 2 Cir., 73 F.2d 121." (Page 555 of 25 F.Supp.)
See, also: In re Standard Commercial Tobacco Co., D.C.S.D.N.Y., 1940, 34 F. Supp. 304; Smith v. Blodget, 187 Cal. 235, 201 P. 584; Lomita Land & Water Co. v. Robinson, 154 Cal. 36, 97 P. 10, 18 L.R.A., N.S., 1106; Chappel v. First Trust Co. of Appleton, Wisconsin, D.C.E.D.Wis., 1940, 30 F.Supp. 765.
In the last cited cases, the third party, or outsider, participating in the breach of trust, was held liable to account for any profits acquired and to restore the property acquired upon a constructive trust theory. In many cases the participant in a breach of fiduciary obligation has been made to respond in damages. 3 Scott on Trusts, § 321 et seq. As we have said, we might have applied the same remedy here but felt that the limitation of claim was the more appropriate remedy.
While the enforcement of the rule may seem harsh in the instant case, we feel that, under the controlling decisions, it must be applied here. In re McCrory Stores Corp., supra; In re Van Sweringen Co., supra. Any claim which District Bond may have as a joint owner of bonds will then be treated by debtor corporation in exactly the same manner in which the Faries claim has been ordered to be treated.
The court has reconsidered its decision of February 8, 1941 (In re Los Angeles Lumber Products Co., 37 F.Supp. 708) in connection with the compensation of Messrs. Faries and McDowell as counsel for the debtor and believes that its conclusions therein were sound. The motion for new trial in that regard is denied and the order of this court filed March 31, 1941, vacating the decision of this court of February 8, 1941, is itself vacated, and the decision of February 8, 1941, will be reinstated.
The petition of Mr. Faries under date of October 26, 1940, asking for the approval of sale to Annie K. Borbridge of one certificate of deposit representing a one-thousand-dollar bond of debtor and two shares of Class "B" stock thereof, will be granted.
Counsel for debtor will prepare and submit within ten days, as required by Rule 8 of this court, findings of fact, conclusions of law and form of decree in accordance with the foregoing. Any counsel desiring to file objections thereto may do so within five days thereafter.
It is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2063037/ | 338 Mass. 313 (1959)
155 N.E.2d 441
LOUIS KARCZ
vs.
LUTHER MANUFACTURING COMPANY (and a companion case[1]).
Supreme Judicial Court of Massachusetts, Bristol.
November 3, 1958.
January 13, 1959.
Present: WILKINS, C.J., SPALDING, WILLIAMS, WHITTEMORE, & CUTTER, JJ.
Philip Goltz, for the plaintiffs.
Abner Kravitz, for the defendant.
CUTTER, J.
These are two actions of contract, each by a former employee of the defendant, to recover retirement separation pay alleged to be payable under a labor agreement between the defendant and the union of which each plaintiff was a member. A judge of the Superior Court sitting without a jury found for the defendant in each case. The plaintiffs' consolidated bill of exceptions presents the issue of the propriety of the denial of various rulings requested by the plaintiffs, respectively, and the granting of various rulings requested by the defendant.
The following facts appear from the bill of exceptions and a stipulation.[2] The union in 1953 renewed in somewhat changed form an agreement with the Fall River Textile Manufacturers Association of which the defendant was a member. This 1953 agreement in turn was renewed on April 14, 1956. The agreement provided, under a heading "Retirement Separation Pay," in art. XV (A), in part,[3]*315 "Each member mill will pay retirement separation pay to each of its employees who, having attained the age of sixty-five (65), voluntarily retires from active employment by said member mill and has, at the time of his retirement, completed fifteen (15) years or more of service for the member mill with an average employment of one thousand (1000) hours or more for each year of such service. The amount of the retirement separation pay shall be one (1) week's pay for each service year with a maximum of twenty (20) weeks' pay." Article XV (C), (E), and (H), which also affect the issues, are set out in part in the margin.[4]
The judge found that at the time of the 1956 renewal of the agreement the defendant's treasurer and an agent of the union discussed "conditions ... in the textile industry." It was pointed out by the defendant's treasurer that a wage increase, then to be undertaken by the defendant, would make competition with the southern mills more difficult and that he could not "guarantee how long we will be able to operate."
The defendant's management decided to liquidate the defendant *316 "because ... Japanese ... imports had made it impossible to compete and operate at a profit" and gave notice of its intention on May 8, 1956. Beginning in April, as fast as a department used up material on hand, it closed. The defendant "ceased operations completely July 31, 1956." The plaintiff Karcz terminated his employment the first week of June, 1956. The plaintiff Williamson's work ended July 30, 1956. Neither plaintiff made any signed request or application for retirement provisions. The judge specifically found "that at the time of the contract it was not within the contemplation of the parties, nor foreseeable by them, that the importation of Japanese textiles would destroy ... [the defendant's] business" and "that at the time that ... [the defendant] terminated its business neither Karcz nor Williamson had attained the age of sixty-five years." This latter finding was plainly warranted as to Williamson and by the conflicting evidence about Karcz's birth date.
The judge denied various requests for rulings presented by the plaintiffs and granted various requests for rulings presented by the defendant. In effect, the plaintiffs' requests (which need not be quoted in full) sought rulings that upon the evidence the defendant voluntarily ceased the operation of its mill[5] and thereby prevented[6] each plaintiff from continuing to work long enough to become entitled under the agreement to retirement separation pay and thus excused the plaintiffs from (a) further work until age sixty-five *317 and (b) performing various formal conditions precedent, requisite under the agreement, to their becoming entitled to retirement separation pay. The plaintiffs contend in substance that the defendant by its decision and act in ceasing production operations permanently could not deprive of retirement separation pay such of its employees as would have fulfilled, prior to the expiration of the agreement on April 15, 1958, the requirements of the agreement for such retirement separation pay.
1. In view of the result which we reach, we need not decide whether the plaintiffs should have proceeded by bill in equity as in Askinas v. Westinghouse Elec. Corp. 330 Mass. 103. See Leonard v. Eastern Mass. St. Ry. 335 Mass. 308, 313-315, and cases cited. We also proceed on the assumption (see Judge Traynor's careful opinion in McCarroll v. Los Angeles County Dist. Council of Carpenters, 49 Cal.2d 45, 57-60, cert. den. sub nom. Los Angeles County Dist. Council of Carpenters v. McCarroll, 355 U.S. 932) that this litigation, dealing with rights of individual labor union members under their contracts of employment and the labor agreement between the union and their employer, may be passed upon by a State court, notwithstanding § 301 of the labor management relations act of 1947, 29 U.S.C. (1952) § 185, as interpreted in Textile Wkrs. Union of America v. Lincoln Mills, 353 U.S. 448, 456-457, if, indeed, § 301 is applicable here at all. We have been guided in the decision of the present cases by general principles of contract law which appear to be applied with uniformity in this and other jurisdictions and would presumably form a part of any body of Federal law which may be developed under any view of what was said in the Lincoln Mills case at pp. 456-457. No issue under that case was raised in the Superior Court or in this court and there is no occasion for extended discussion of it. See for academic speculation about the meaning of the Lincoln Mills case, Bickel and Wellington, Legislative Purpose and The Judicial Process: The Lincoln Mills Case, 71 Harv. L. Rev. 1, 9, 19-25. See also Woodward Iron Co. v. Ware, 261 F.2d 138, 141 (5th Cir.).
*318 2. The problem before us is simply one of construing the 1953 agreement as applied to the facts of the present cases. The plaintiffs must establish that, under a proper construction of the agreement, they, respectively, have a valid claim to retirement separation pay. Article XV (A) gives such pay to each employee who having "attained the age of sixty-five ... voluntarily retires." See also art. XV (C). The findings of the trial judge establish that neither plaintiff satisfied either of these basic requirements, for (a) each plaintiff was found not to have reached age sixty-five while an employee, and (b) his employment was terminated involuntarily as a consequence of the closing of the mill.
3. The only question remaining is whether the defendant wrongfully, by a breach of the agreement, prevented these plaintiffs, who would have reached age sixty-five during the life of the agreement, from satisfying the terms of art. XV (A).
(a) The language of art. XV (H), quoted in footnote 4, supra, seems the clearest indication that the defendant committed no breach of contract and did not act in any manner improper under the agreement. That language expressly provides that art. XV does not "give any employee the right to be retained in ... service... or to interfere with the right ... to discharge any employee." In the absence of proof that the action was otherwise wrongful, art. XV (A) and (H) should be applied in accordance with their plain meaning.
(b) We need not consider what the situation would be if the plaintiffs' employment had been deliberately terminated to prevent the accrual of rights under art. XV. Here there is not the slightest indication or finding of any fraud or discrimination exercised against either plaintiff. None is alleged. The termination of their employment was clearly the consequence of the general decision to close the mill caused by the economic misfortunes of the defendant. The defendant's action was not aimed at either plaintiff.
*319 (c) Termination of employment because of permanent closing of the mill was not in violation of the contract. No provision of the agreement bound the plaintiffs to work, or the defendant to employ either plaintiff, for any particular term or for any particular service or amount of service. The plaintiffs "could at any time leave ... and the defendant at any time could discharge" them for just cause. See Askinas v. Westinghouse Elec. Corp. 330 Mass. 103, 106; Smith v. Graham Refrigeration Prod. Co. Inc. 333 Mass. 181, 186. A labor agreement, in the absence of provisions indicating that the parties so intended, does not imply an undertaking of the employer to stay in business and to continue operations, or to furnish any minimum amount of employment, or indeed any employment at all. We see no basis for implying any such undertaking here. See National Overall Dry Cleaning Co. v. Yavner, 321 Mass. 434, 438; United States Steel Corp. v. Nichols, 229 F.2d 396, 399 (6th Cir.); Local 586, Intl. U.A.W., C.I.O. v. Federal Pac. Elec. Co. 28 C.C.H. Labor Cases, par. 69,274, pp. 89, 187, 89, 188 (D. Conn.); Wallace v. Southern Pac. Co. 106 F. Supp. 742, 744 (N.D. Cal.); Local Union No. 600, U.A.W., C.I.O. v. Ford Motor Co. 113 F. Supp. 834, 843-845 (E.D. Mich.); Cross Mountain Coal Co. v. Ault, 157 Tenn. 461, 469-470. See also J.I. Case Co. v. National Labor Relations Bd. 321 U.S. 332, 334-336; Rothenberg, Labor Relations, pp. 398 et seq., 417; Teller, Labor Disputes and Collective Bargaining, § 169. Cf. Carnig v. Carr, 167 Mass. 544, 547; Proctor v. Union Coal Co. 243 Mass. 428, 432; Eastern Mass. St. Ry. v. Union St. Ry. 269 Mass. 329, 332; Simons v. American Dry Ginger Ale Co. Inc. 335 Mass. 521, 524. The parties seem to have intended their agreement to apply only to whatever employment the defendant had available, operating or stopping operations either temporarily or permanently as it thought wise, and to whatever work in fact was performed.
(d) If the terminations of the plaintiffs' employment because of closing the mill were discharges at all, in the sense in which the term was used in the provisions of the agreement *320 with respect to grievances,[7] those discharges were not shown to be wrongful. Discharges because of economic conditions on a nondiscriminatory basis must be regarded as for "just cause." See Dooling v. Fire Commr. of Malden, 309 Mass. 156, 161; Industrial Trades Union of America v. Woonsocket Dyeing Co. Inc. 122 F. Supp. 872, 875-876 (D.R.I.). See also United States Steel Corp. v. Nichols, 229 F.2d 396, 400, 402 (6th Cir.). Cf. Mayor of Somerville v. District Court of Somerville, 317 Mass. 106, 120; United Protective Wkrs. of America, Local No. 2 v. Ford Motor Co. 223 F.2d 49, 51 (7th Cir.). Indeed, if there had been any question whether the discharges of the plaintiffs were wrongful or discriminatory it may be that the question should have been taken up seasonably under the grievance procedure (see footnote 7, supra). This was not done. See Buberl v. Southern Pac. Co. 94 F. Supp. 11, 12 (N.D. Cal.); Wallace v. Southern Pac. Co. 106 F. Supp. 742, 745 (N.D. Cal.). It is not necessary, however, to consider whether the reasons for not requiring resort to the grievance procedure discussed by Wisdom, J., in Woodward Iron Co. v. Ware, 261 F.2d 138, 141-142 (5th Cir.) have application here.
(e) Article XV (C), quoted in footnote 4, supra, governs in part the rights under art. XV of employees who have satisfied the eligibility requirements of art. XV (A) but have not applied for retirement separation pay. This provision (which presumably would apply principally to employees remaining in service after age sixty-five) tends to reinforce the plain meaning of art. XV (A) and (H) by its emphasis on the fact that rights under art. XV are to "accrue only upon ... voluntary retirement."
(f) Article XV (E), quoted in footnote 4, supra, is a specific provision which governs the rights to retirement separation *321 pay of employees, who, by reaching age sixty-five before "a permanent closing down of operations," have become eligible for such pay. The existence of art. XV (E) gives strong support to the conclusion that there was no intention, in the event of such "a permanent closing down," to give such rights to any employee who had not then satisfied the requirement. If such a benefit had been intended for those under sixty-five, prevented by complete liquidation from achieving retirement status, it would have been natural for the parties to have said so. See Hamlen v. Rednalloh Co. 291 Mass. 119, 122-124; Horvitz v. Zalkind, 332 Mass. 125, 128; Corbin, Contracts, § 552, p. 113. They did not say so, and weight must be given to the omission to do so.
(g) Other courts faced with similar questions, under circumstances generally comparable (although under somewhat differently phrased agreements), have reached the conclusion that to receive the benefits of a retirement scheme an employee must satisfy the eligibility requirements prior to the permanent closing of the establishment, department, or operation in which he was employed. See e.g. Schneider v. McKesson & Robbins, Inc. 254 F.2d 827, 828-830 (2d Cir.), where the court discussed the analogous question of the interest, if any, of employees, discharged because of a plant closing, in a pension fund under a trust agreement; Bailey v. Rockwell Spring & Axle Co. 175 N.Y.S.2d 104, 107-108 (N.Y. Supr. Ct., Sp. Term). See also George v. Haber, 343 Mich. 218, 222-226; Gorr v. Consolidated Foods Corp. 253 Minn. 375, 382 et seq., where the relevant decisions are collected; Wallace v. Northern Ohio Traction & Lt. Co. 57 Ohio App. 203, 210-212.
In the light of the authorities which have been cited and of the considerations which have been discussed, it is plain that no breach of the 1953 agreement was involved in closing the defendant's mill, thereby causing the discharge of each plaintiff before he could qualify for retirement separation pay. There thus is no basis here for applying any principle that, because action of the defendant prevented satisfaction *322 of conditions precedent to the defendant's liability, the plaintiffs can recover despite their failure to satisfy those conditions. This is not a case like Ravage v. Johnson, 316 Mass. 558, 562, where a party by its own action has caused a breach of a contract for which that party seeks to recover. Here the defendant has taken action which art. XV (H) of the agreement permits it to take. Restatement: Contracts, § 295 (b). See Brand v. Sterling Motor Car Co. 243 Mass. 303, 315-317; Godburn v. Meserve, 130 Conn. 723, 725-728. See also LiVolsi Constr. Co. Inc. v. Shepard, 133 Conn. 133, 136-137. The principle relied upon in Ravage v. Johnson, supra, "has no application where the hindrance [or prevention of the satisfaction of a condition precedent to liability of the defendant] is due to some action of the promisor which he was permitted to take under either the express or implied terms of the contract." Godburn v. Meserve, supra, at p. 726. See Williston, Contracts (Rev. ed.) § 677, p. 1956. Cf. Patton v. Babson's Statistical Organization, Inc. 259 Mass. 424, 427, where the contract there involved was apparently treated as giving rise to gradually accruing rights. Here the defendant did not wrongfully prevent qualification for benefits under art. XV and neither plaintiff has any claim against the defendant for such separation pay.
Cases, somewhat relied upon by the plaintiffs, involving severance pay are distinguishable from the situation presented here. See e.g. In re Public Ledger, Inc. 161 F.2d 762, 771-774 (bankruptcy, 3d Cir.); Matthews v. Minnesota Tribune Co. 215 Minn. 369, 372-375; Adams v. Jersey Cent. Power & Lt. Co. 36 N.J. Super. 53, 64-69, affd. 2] N.J. 8. Cf. Talberth v. Guy Gannett Publishing Co. 149 Maine, 286; note, 40 A.L.R.2d 1044. In the case of severance pay, the action which gives rise to the employer's liability is discharge of the employee (frequently limited to discharges without the latter's fault). In determining whether there is liability in such cases, the cause of severance, whether it be lack of work, plant closing, production changes, or other reason involving no employee culpability, is immaterial in the *323 absence of some governing contractual provision to the contrary.
4. The exceptions to the denial and granting of requests for rulings which the plaintiffs have argued (see Rule 13 of the Rules for the Regulation of Practice before the Full Court [1952], 328 Mass. 698) cannot be sustained.
Exceptions overruled.
NOTES
[1] Joseph Williamson vs. Luther Manufacturing Company.
[2] The parties, by stipulation, approved by the trial judge, have agreed that the agreement here relevant is that dated April 15, 1953, which was extended on April 14, 1956, effective for two years from that date. No provision of the extension agreement (other than the period of extension) is here pertinent.
[3] All quotations are from the agreement dated April 15, 1953.
[4] "(C) The rights under the provisions hereof of an employee otherwise eligible for retirement separation pay shall accrue only upon his voluntary retirement and only after receipt by the employing mill of a duly executed application and acknowledgement thereof substantially in the forms of Exhibits D and E appended to this Agreement (together with satisfactory evidence of age if requested by the employing mill). To become entitled hereunder to retirement separation pay, an employee must apply for the same prior to his death, discharge or the like."
"(E) If the employment of an employee, who is otherwise eligible for retirement separation pay but has not applied therefor, is terminated because of a permanent closing down of operations, either of the entire mill or of any department, he shall be notified of such termination by the employing mill by letter addressed to his last home address as shown on said mill's records. In order to become entitled to retirement separation pay, such employee must make application substantially in the form of Exhibit D ... within thirty (30) days of such notice. In the absence of the required notice, the employee's rights to retirement separation pay shall remain unimpaired."
"(H) Nothing contained herein shall be deemed to give any employee the right to be retained in the service of the employing mill or to interfere with the right of the mill to discharge any employee according to the provisions of this Agreement."
The form, exhibit D mentioned in pars. (C) and (E), was a notice to the employer reading in part, "Having been in the active employment of your mill ____ years, I hereby tender my voluntary resignation to be effective ____ 19____, and apply for retirement separation pay under Article XV of the Agreement dated April 15, 1953.... I understand that, by my acceptance of retirement separation pay, I will terminate my employment with you...."
[5] The plaintiff's request numbered 5, that the evidence warranted a finding that the "defendant voluntarily or by its own acts and decisions ceased ... operation ... after July 31," was sufficiently given by the precise finding to this effect stating the cause of stopping operations.
[6] The plaintiffs' contentions seem to be directed primarily to the denial of their requests numbered 19, 20, 21 and 22 which, in various forms of words, raise the plaintiffs' contentions summarized above in the body of this opinion, and to the granting of the defendant's request numbered 5 which reads, "To recover in this action the plaintiff must prove, by a fair preponderance of the evidence, all of the following elements: (a) He voluntarily retired from employment. (b) At the time of his voluntary retirement he was in the active employment of the defendant. (c) At the time of his voluntary retirement he had attained his sixty-fifth birthday. (d) At the time of his voluntary retirement he had completed fifteen continuous service years in the defendant's employment. (e) At the time of his voluntary retirement he had worked an average of one thousand hours for each year of such service for the defendant. (f) He filed a proper application for retirement separation pay before his employment was terminated."
[7] Article VII, Discharge and Discipline, reads: "It is understood ... that the [e]mployer has the right to discharge ... any employee for just cause. Grievances arising out of such discharge ... if brought to the attention of the [e]mployer within one (1) week of such discharge ... shall be subject to the grievance and arbitration procedure of this agreement. In the event it should be decided ... that an injustice has been dealt an employee with regard to the discharge, the [e]mployer shall reinstate such employee without loss of any pay." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2756981/ | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
(Filed: November 7, 2014)
* * * * * * * * * * * * * * *
STEPHANIE VINO FIGUEROA, * UNPUBLISHED
as personal representative of the estate of *
MANNY FIGUEROA, deceased, *
* No. 10-750V
Petitioner, *
* Special Master Hamilton-Fieldman
v. *
* Fact Ruling; Sufficiency of Evidence;
SECRETARY OF HEALTH * Receipt of Vaccination; Influenza (“flu”)
AND HUMAN SERVICES, * Vaccine; Guillain-Barré Syndrome (“GBS”)
*
Respondent. *
* * * * * * * * * * * * * * *
Michael Benjamin Feiler, Feiler & Leach, PL, Coral Gables, FL, for Petitioner.
Lisa Ann Watts, U.S. Department of Justice, Washington, DC, for Respondent.
RULING REGARDING FINDING OF FACT 1
I. Introduction
On November 1, 2010, Stephanie Vino Figueroa (“Petitioner”) filed a petition for
compensation under the National Vaccine Injury Compensation Program 2 (“the Program”) on
1
Because this ruling contains a reasoned explanation for the special master’s action in
this case, the special master intends to post it on the website of the United States Court of
Federal Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116
Stat. 2899, 2913 (Dec. 17, 2002). All decisions and substantive rulings of the special masters
will be made available to the public unless they contain trade secret or commercial or financial
information that is privileged and confidential, or medical or similar information whose
disclosure would clearly be an unwarranted invasion of privacy. When such a decision or
designated substantive order is filed, a party has 14 days to identify and to move to redact such
information before the document’s disclosure. Absent a timely motion, the decision shall be
made available to the public in its entirety. Upon the filing of a timely motion to redact, along
with a proposed redacted version of the decision, if the special master, upon review, agrees that
the identified material fits within the categories listed above, the special master shall redact such
material from the ruling made available to the public. 42 U.S.C. § 300aa-12(d)(4); Vaccine Rule
18(b).
2
The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986,
42 U.S.C. §§ 300aa-10 et seq. (hereinafter “Vaccine Act” or “the Act”). Hereafter, individual
section references will be to 42 U.S.C. § 300aa of the Act.
behalf of her deceased husband, Manny Figueroa. Petitioner alleges that a trivalent influenza
(“flu”) vaccination that Mr. Figueroa received on October 21, 2008 caused him to develop
Guillain-Barré syndrome (“GBS”). See Petition (“Pet.”) at 1. In her report filed pursuant to
Vaccine Rule 4(c), Respondent argued that “petitioner has failed to demonstrate with reliable
evidence that Mr. Figueroa received a flu vaccine on or about October 21, 2008.” Respondent’s
Rule 4 Report (“Resp’t’s Rep’t”), filed July 9, 2014, at 14.
Because nothing in the record directly documents the administration of a flu vaccine to
Mr. Figueroa in October of 2008, Petitioner filed a motion for a finding that he received the
vaccine. Petitioner’s Motion for Finding of Fact Re: Vaccine (“Motion”), filed Sept. 8, 2014.
Petitioner acknowledges that there is no contemporaneous record of vaccination, but argues that
there is sufficient circumstantial evidence in the record to support a finding that the vaccination
took place during the time frame alleged. Id. at 1. In support of this argument, Petitioner has
filed proposed Findings of Fact as well as declarations from Petitioner and from Ray George
Bailey, a witness to the alleged vaccination. See id.
In her Response to Petitioner’s Motion, Respondent defers to the undersigned regarding
“whether preponderant evidence exists to support a finding that Mr. Figueroa received a flu
vaccine in late October 2008,” but argues that “there is no evidence to support a vaccination date
of October 21, 2008.” Response to Petitioner’s Motion for Ruling that Mr. Figueroa Received a
Covered Vaccine (“Response”), filed September 11, 2014, at 2.
The matter is now ripe for adjudication. Upon consideration of the record as a whole, the
undersigned finds that a preponderance of the evidence supports a finding that Mr. Figueroa
received an influenza vaccination between October 22nd and November 1st, 2008. 3
II. Summary of the Evidence
The undersigned has considered the entirety of the record. § 300aa-13(a)(1). See Paterek
v. Sec’y of Health & Human Servs., 527 Fed. App’x 875, 884 (Fed. Cir. 2013) (stating that
“[f]inding certain information not relevant does not lead to—and likely undermines—the
conclusion that it was not considered”); see also Veryzer v. Sec’y of Health & Human Servs., 98
Fed. Cl. 214, 223 (2011) (noting that special masters are bound by both § 300aa-13(b)(1) and
Vaccine Rule 8(b)(1) to consider only evidence that is both “relevant” and “reliable”). The
evidence includes (1) Mr. Figueroa’s medical records; (2) Petitioner’s declaration; and (3) Ray
George Bailey’s declaration. These sources of evidence are discussed in turn.
A. Mr. Figueroa’s medical records
As is explained in the declarations filed on behalf of Petitioner and of Dr. Bailey, Mr.
Figueroa’s flu vaccine was allegedly administered during an exercise class, outside the context of
a medical setting. Accordingly, no existing medical records document administration of the
3
The undersigned will not identify an exact vaccination date at this time. If the date of
vaccination becomes a pivotal issue as the case proceeds, the undersigned will made additional
findings.
2
vaccine. The first documented medical appointment after the alleged vaccination was on
November 10, 2008, when Mr. Figueroa presented to Dr. Jorge Fleites, his primary care
physician, complaining of difficulty swallowing and facial paralysis. Petitioner’s Exhibit (“Pet.
Ex.”) 2 at 244. However, there is no mention of the vaccination during this visit.
On the same day as his appointment with Dr. Fleites, November 10, 2008, Mr. Figueroa
presented to the Baptist Hospital emergency room with complaints of facial weakness and was
admitted. Pet. Ex. 1 at 44-45. The first clear reference to vaccination is documented in a
handwritten neurology progress report, dated November 11, 2008, while he was hospitalized. Id.
at 77. According to the progress report, Mr. Figueroa received a flu shot “2 weeks ago.” Id. A
similar note appears the next day, on November 12, 2008, following Mr. Figueroa’s infectious
disease consult with Dr. H. Barry Baker. Id. at 65. During the consult, Mr. Figueroa was noted
to have had a flu shot “about two weeks ago.” Id. Upon discharge from Baptist Hospital on
November 12, 2008, Mr. Figueroa was again noted to have had a flu shot “2 weeks ago.” Id. at
49.
Following his release from Baptist Hospital, Mr. Figueroa was treated by neurologist
Ashok Verma, who, on November 17, 2008, noted that Mr. Figueroa received a flu shot “[t]hree
weeks ago.” Pet. Ex. 3 at 337. Immediately after his first appointment with Dr. Verma, on
November 17, 2008, Mr. Figueroa was admitted to Jackson Memorial Hospital (“JMH”) to
undergo IVIG therapy. Pet. Ex. 9 at 430. According to the November 18, 2008 and November
19, 2008 progress notes from JMH, Mr. Figueroa was noted to have “had flu vaccination
approximately 3 weeks ago, and he began bifacial weakness 10 days ago.” Id. at 436, 525. The
November 22, 2008 JMH discharge summary also noted that Mr. Figueroa “received flu
vaccination approximately 3 weeks ago.” Id. at 428.
At a follow-up visit with Dr. Verma on December 10, 2008, Dr. Verma again noted that
Mr. Figueroa had “received a flu shot about 7 weeks ago.” Pet. Ex. 3 at 335. At a subsequent
follow-up on January 21, 2009, Dr. Verma appears to have erroneously noted that Mr. Figueroa’s
“acute neuropathic deficit,” which occurred in November 2008, was preceeded by “cold and flu
–like symptoms” a few weeks prior. Pet. Ex. 3 at 334. Dr. Verma appears to have crossed out
the “cold and flu-like symptoms” language and replaced it with the term “flu shot,” as noted in a
copy of the actual record, below:
Id.
3
The last documented visit with Dr. Verma occurred on May 22, 2009. Pet. Ex. 3 at 333.
Dr. Verma again noted that Mr. Figueroa “had had a flu shot 2 weeks before the onset of his
neuropathic deficit.” Id.
B. Declaration of Ray George Bailey, M.D.
In his declaration, Dr. Bailey states that Mr. Figueroa’s physician, Dr. Jose Delgado, was
a close friend of his and of Mr. Figueroa’s, and that Dr. Delgado and Mr. Figueroa attended
spinning classes together. Dr. Bailey’s Declaration (“Decl.”) at 1. “In approximately late
October of 2008, Dr. Delgado, at Mr. Figueroa’s request, brought a flu shot with him to spinning
class and gave him the flu shot before class.” Id. “It was shortly thereafter that Mr. Figueroa fell
ill, exhibiting odd neurological symptoms, which as I understand turned out to be Miller Fisher
syndrome.” Id.
C. Petitioner’s Declaration, dated September 23, 2014 4
Petitioner’s affidavit looks almost identical to Dr. Bailey’s affidavit. Petitioner states
that, “[i]n approximately late October of 2008,” she recalls Mr. Figueroa telling her that “Dr.
Delgado, at Mr. Figueroa’s request, brought a flu shot with him to spinning class and gave him
the flu shot before class.” Petitioner’s Decl. at 1. “It was shortly thereafter that Mr. Figueroa fell
ill, exhibiting odd neurological symptoms, which as I understand turned out to be Miller Fisher
syndrome.” Id. at 1-2.
III. Applicable Legal Standards
Under the Vaccine Act, Petitioner must first prove by a preponderance of the evidence
that Mr. Figueroa “received a vaccine set forth in the Vaccine Injury Table.” § 300aa-
11(c)(1)(A). The preponderance of the evidence standard means a fact is more likely than not.
Moberly v. Sec’y of Health & Human Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010).
Vaccine Rule 2(c)(2)(A) requires petitioners to file “all available medical records
supporting the allegations in the petition, including physician and hospital records relating to …
the vaccination itself.” “If the required medical records are not submitted, the petitioner must
include an affidavit detailing the efforts made to obtain such records and the reasons for their
unavailability.” Vaccine Rule 2(c)(2)(B)(i). Furthermore, if a petitioner’s claim “does not rely
on medical records alone but is also based in any part on the observations or testimony of any
person, the petitioner should include the substance of each person’s proposed testimony in a
detailed affidavit(s) supporting all elements of the allegations made in the petition.” Vaccine
Rule 2(c)(2)(B)(ii).
Thus, although contemporaneous documentation of vaccination from a health care
provider is the best evidence of vaccine administration, its production is not an absolute
4
In fact, no date appears next to Ms. Figueroa’s signature. The undersigned will assume,
for the purposes of this ruling, that the declaration was signed on the day that it was filed.
4
requirement. See Centmehaiey v. Sec’y of Health & Human Servs., 32 Fed. Cl. 612, 621 (1995)
(“The lack of contemporaneous, documentary proof of a vaccination . . . does not necessarily bar
recovery.”). Indeed, special masters have found in favor of vaccine administration where
contemporaneous documentation of vaccination is unavailable as long as other forms of evidence
have provided preponderant evidence of vaccination administration. For example, corroborative,
though retrospective, medical notations have been found to provide preponderant evidence of
vaccine administration. See Wonish v. Sec’y of Health & Human Servs., No. 90-667V, 1991
WL 83959, at *4 (Fed. Cl. Spec. Mstr. May 6, 1991); Groht v. Sec’y of Health & Human Servs.,
No. 00-287V, 2006 WL 3342222, at *2 (Fed. Cl. Spec. Mstr. Oct. 30, 2006) (finding a treating
physician’s note “4/30/97-Hep B. inj. # 1 (not given here) ([patient] wanted this to be charted)”
to be sufficient proof of vaccination); Lamberti v. Sec’y of Health & Human Servs., No. 99-
507V, 2007 WL 1772058, at *7 (Fed. Cl. Spec. Mstr. May 31, 2007) (finding multiple medical
record references to vaccine receipt to constitute preponderant evidence of administration).
IV. Evaluation of the Evidence
The undersigned has considered the entire record. § 300aa-13(a)(1). Although there is
no contemporaneous documentation of a flu vaccination, subsequent medical records
consistently report that a flu vaccination was administered to Mr. Figueroa between October 22,
2008 and Saturday, November 1, 2008.
The first clear reference to a vaccination date was recorded on November 11, 2008, two
to three weeks after the alleged vaccination date, as part of a handwritten neurology progress
report at Baptist Hospital. Pet. Ex. 1 at 77 (reporting vaccination “2 weeks ago”). According to
this report, the vaccination date was approximately October 28, 2008. The undersigned finds
that this record constitutes trustworthy evidence, as it documents a report Mr. Figueroa made to a
health care professional for the purpose of facilitating diagnosis and treatment of his condition.
See Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993) (holding
that contemporaneous records “warrant consideration as trustworthy evidence” because the
information from the patient is related to the treaters to facilitate diagnosis and treatment, and
with proper treatment hanging in the balance, accuracy has an extra premium.”); Beckner v.
Sec’y of Health & Human Servs., No. 11-668V, 2013 WL 3353993, at *7 (Fed. Cl. Spec. Mstr.
April 25, 2013) (making a finding regarding a date of vaccination based on a similar
assessment). The undersigned also finds that this report was made close enough to the alleged
date of vaccination that misremembering is unlikely. See id.
None of the other medical records filed by Petitioner contradict the vaccination date
referenced in the November 11, 2008 report, and they all place the date of vaccination within a
week of October 28, 2008. The declarations filed on behalf of Petitioner and Dr. Bailey are
similarly corroborative.
V. Conclusion
In accordance with the foregoing, the undersigned finds that Petitioner has provided
preponderant evidence that Mr. Figueroa received a flu vaccine between October 22nd and
November 1st, 2008. A status conference will be scheduled to discuss further proceedings.
5
IT IS SO ORDERED.
s/ Lisa Hamilton-Fieldman
Lisa Hamilton-Fieldman
Special Master
6 | 01-03-2023 | 12-03-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/3102234/ | Fourth Court of Appeals
San Antonio, Texas
May 29, 2014
No. 04-14-00028-CV
Carmelita RILEY and Anthony Pena,
Appellants
v.
Lizette TORRES, Paula Pueblitz, San Juanita Valdez and Puig Management and Rentals, LLC,
Appellees
From the 341st Judicial District Court, Webb County, Texas
Trial Court No. 2012CVF001192-D3
Rebecca Ramirez Palomo, Judge Presiding
ORDER
On April 10, 2014, we issued an order explaining that the court reporter had filed a
notification of late reporter’s record, which stated the appellants had failed to pay or make
arrangements to pay the fee for preparing the reporter’s record. We therefore ordered appellants
to provide written proof to this court by April 21, 2014 that either (1) the reporter’s fee had been
paid or arrangements had been made to pay the reporter’s fee; or (2) they were entitled to appeal
without paying the reporter’s fee. We further explained that if appellants failed to respond within
the time provided, appellants’ brief would be due on or before May 12, 2014, and we would
consider only those issues or points raised in appellants’ brief that do not require a reporter’s
record for a decision. See TEX. R. APP. P. 37.3(c).
Appellants did not respond to our order. Therefore, appellants’ brief was due to filed on
May 12, 2014. No brief was filed. We ORDER Appellants Carmelita Riley and Anthony Pena to
file, on or before June 9, 2014 their appellants’ brief and a written response reasonably
explaining (1) their failure to timely file the brief and (2) why appellees are not significantly
injured by their failure to timely file a brief. If appellants fail to file a brief and the written
response by the date ordered, we will dismiss the appeal for want of prosecution. See TEX. R.
APP. P. 38.8(a); see also TEX. R. APP. P. 42.3(c) (allowing involuntary dismissal if appellant has
failed to comply with a court order).
_________________________________
Karen Angelini, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 29th day of May, 2014.
___________________________________
Keith E. Hottle
Clerk of Court | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2898459/ | NO. 07-08-0175-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
NOVEMBER 23, 2009
______________________________
EDWIN DEGRAFF,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 64
TH
DISTRICT COURT OF HALE COUNTY;
NO. B16020-0505; HON. ROBERT W. KINKAID, JR., PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
In one issue, appellant Edwin DeGraff appeals his conviction for aggravated sexual assault of a child by challenging the factual sufficiency of the evidence. We find the evidence sufficient and affirm the judgment.
The pertinent standard of review is explained in
Watson v. State,
204 S.W.3d 404 (Tex. Crim. App. 2006) and its progeny. We refer the parties to them.
Next, appellant was convicted of aggravated sexual assault by intentionally and knowingly causing the penetration of the female sexual organ of his nine-year-old daughter by his finger.
See
Tex. Penal Code Ann. 22.021
(a)(2)(B) (Vernon Supp. 2009). Appellant attacks the sufficiency of the evidence illustrating that he penetrated the complainant with his finger. Furthermore, though he admitted that he touched the child’s vagina with his hand and acknowledged the impropriety of that act, he denied having committed a criminal offense. Yet, in that statement he also said that the tips of two fingers “touch[ed] the interior part of the outside lips but didn’t go inside of them.” So too did he draw a picture illustrating the relationship between those two fingers and the interior part of the labia touched.
We have held that the slightest penetration is sufficient to sustain a conviction.
Green v. State,
209 S.W.3d 831, 832 (Tex. App.–Amarillo 2006, pet. ref’d). Furthermore, penetration includes pushing aside and reaching beneath a natural fold of skin into an area of the body not usually exposed even when one is naked.
Vernon v. State,
841 S.W.2d 407, 409 (Tex. Crim. App. 1992). Appellant’s statement and his drawing are sufficient for a rational trier of fact to determine beyond a reasonable doubt that penetration occurred. That finding is neither against the great weight of the evidence or otherwise manifestly unjust.
Accordingly, the judgment of the trial court is affirmed.
Brian Quinn
Chief Justice
Do not publish. | 01-03-2023 | 09-08-2015 |
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