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https://www.courtlistener.com/api/rest/v3/opinions/2610039/ | 12 Ariz. App. 114 (1970)
467 P.2d 954
William T. MEADOWS, Petitioner,
v.
The INDUSTRIAL COMMISSION of Arizona, Respondent, Arizona Public Service Company, Respondent Employer, Arizona Public Service Company, Respondent Carrier.
No. 1 CA-IC 277.
Court of Appeals of Arizona, Division 1, Department A.
April 16, 1970.
Rehearing Denied May 12, 1970.
Review Denied June 2, 1970.
*115 Gorey & Ely, by Jeffrey D. Bonn, Phoenix, for petitioner.
Donald L. Cross, Chief Counsel, Phoenix, for respondent, The Industrial Commission of Arizona.
John S. Schaper, Phoenix, for respondent, Arizona Public Service Co.
STEVENS, Judge.
The petitioner sought to reopen his industrial claim to secure an increase in the amount of the award relative to his loss of earning capacity. The Industrial Commission denied the petition to reopen. This matter is before this Court for review. This case is decided under the law as it existed prior to 1 January 1969.
In our opinion, the petitioner's discharge for cause from his post-injury employment and the effect thereof upon his request for an increase in compensation are the vital features of this case. Had he lost his post-injury employment without fault on his part and then been unable to secure employment as the result of his industrial injury, the right to reopen for an increase, without showing a change in his physical condition, would have been clear under the case of Adkins v. The Industrial Commission of Arizona, 95 Ariz. 239, 389 P.2d 118 (1964). The corollary question is, granting for the sake of argument that there should be some penalty involving a loss of the increase in compensation where the post-injury employment is lost due to the workman's fault, for what period of time should that penalty be imposed? We are not faced with a refusal to accept employment as in Bierman v. Magma Copper Company, 88 Ariz. 21, 352 P.2d 356 (1960), followed by the employee's change of heart and his willingness to attempt post-injury employment which resulted in our opinion in Bierman v. The Industrial Commission of Arizona, 2 Ariz. App. 548, 410 P.2d 666 (1966), review denied.
The facts in this case present a real challenge to both the injured workman and to his employer.
For some time prior to 17 August 1956, the petitioner was a journeyman lineman in the employ of Arizona Public Service. On that day he was seriously burned. As a direct result of this industrial injury, his right forearm was amputated and his right knee was seriously and permanently damaged. He returned to work for his pre-injury employer on 24 May 1957 as a "results clerk." On 6 June 1958, an award was entered fixing his general physical functional impairment at 45% and his average monthly wage at the time of his injury at $469.16. The petitioner's work as a results clerk brought him an average monthly wage of $395. On 14 October 1959, a further award was entered finding a 15.61% loss of earning capacity and awarding to the petitioner the sum of $40.79 a month as and for compensation for his unscheduled permanent partial disability. The petitioner's responsibilities as a results clerk entailed the keeping of numerous records at his employer's Saguaro *116 Power Plant. This was an indoor type of employment.
On 14 March 1962, the petitioner wrote to his employer, in part, as follows:
"May I bring to your eyes a composite picture of myself? * * *
"All of my life, I have worked outdoors. My last outdoor work was as a lineman. Then, the accident made it necessary to go to work in a position of results clerk at Saguaro Steam Plant. I have tried to console myself and tried not to let confinement make me discontented; but as you know only too well, that if a wild bird or animal is caged in, no amount of love or tempting food can make it forget its longing for the open spaces. As a lineman, I could see the results of my work. As a clerk, it shows nothing but repetition and futility of purpose.
* * * * * *
"Truthfully, I can say that I have not had a breakfast in three years. * * * It is the thought of facing these green walls with the grey stripe curtains that gives me the feeling of uneasiness. If I try to drink a cup of coffee in the morning, I get out to my car and bingo I lose it.
"My hand, that was supposed to be removed, gives me a great deal of trouble. Me [sic] knee aches all the time. While falling from the pole, the hammer that hurt my back when I had the accident, still gives me trouble. To put it mildly, I am a mess.
"My druggist bill for Milltown's [sic], Aspirin, Pepto Bismol, Milk of Magnesia, etc. is too large. It keeps me jumping and running.
"I talked to you once, and you told me that my retirement could be effective in 1963. I hope so because if retirement does not get me, I know the undertaker will. Would you let me know as to the possibilities of a retirement and all that will benefit me?"
At a later hearing [18 January 1966] after the petitioner's discharge and in connection with his request to reopen, the plant superintendent testified:
"A. Bill had real good abilities. By that I mean that he could do his work very efficiently and very thorough when he so desired.
"Q. Was his physical incapacity a detriment at all in the work he was doing?
"A. No. I don't believe so * * *."
In response to a later question the witness stated:
"A. Bill was rather moody at times. Like I stated before he has the ability to do very excellent work. If he was in a bad mood, we might say, then he was rather slipshod. But all in all he was a good employee as far as ability is concerned."
Prior to the petitioner's discharge by his employer, his record for absenteeism worsened. Other than his letter of 14 March 1962 and testimony of greatly increased nervousness on the part of the petitioner, the record does not affirmatively disclose the cause for the absenteeism. In any event on 7 May 1962, the petitioner's employer wrote a letter to him which was entitled "Unsatisfactory Absentee Record." We will summarize portions of the letter. The letter stated that it was a final warning and that if he would not or could not conform to company rules with reference to absenteeism and continued to be untruthful as to the reason for his absences, his employment would be terminated. The letter recited that for a short time after he reported to his new job as a results clerk he did the job very well and that it was considered that he had a considerable potential. After a year or two the petitioner seemed to slow down and lose interest. The company gave him pay increases hoping that that would stimulate an interest in his work. It was recognized that part of the absenteeism was probably due to actual personal illness, although much of the absenteeism appeared to be unjustified. The letter advised that the possibility of early retirement did not appear very promising. The letter further emphasized the necessity *117 of complete truthfulness on the part of the petitioner.
On 22 April 1965, the company terminated his employment making reference to the 7 May 1962 letter. The letter of termination concluded as follows:
"You will be given the usual two (2) weeks notice with pay, starting April 23, 1965, plus vacation pay earned in 1964."
Shortly after the termination of his employment, he presented himself at the Saguaro Plant and confronted key personnel in a threatening manner. This was hardly conducive to reemployment.
After the petitioner's employment had been terminated, he drew a small monthly unemployment compensation check for a brief period of time. He then filed a petition for readjustment or reopening and a hearing was held on 18 January 1966 before Referee Schreiber. The petitioner testified:
"Q. What was your reason for wanting early retirement, Mr. Meadows?
"A. Because I didn't like that job I was doing. If they couldn't find something else for me to do that I was more capable at I just didn't care about it. It was repetitious; every day was the same thing over and over again.
"Q. What else did you feel that you were capable of doing or wanted to do?
"A. Well, there is lots of things I could have done. Check transformers; check lines. I could have done a lot of things.
"Q. Can you tell us some of the other things that you could have done other than checking transformers?
"A. Take voltage checks. Going to different towns and find out how the voltage is. Why it dropped down. Why it didn't stay up. If they need capacitors in it, why they need them.
"Q. Would those jobs you indicated involve electricity?
"A. It would."
The petitioner had been presented a prosthesis which he was no longer using. In relation thereto he testified:
"Q. How long has it been since you used your prosthesis?
"A. I imagine about six years.
"Q. Six years?
"A. Seven years.
"Q. Do you still have one?
"A. I have one, but I can't wear it. It's too tight. When I come out of the hospital I was only 90 pounds; and come up to 165. My arm got bigger and I can't put the darn thing on. It just tightens up on me."
The petitioner further testified as to his efforts to secure employment after he was discharged by Arizona Public Service.
Following the hearing, Referee Schreiber rendered his report [Industrial Commission Rule 41.3]. The report bears an "Approved" endorsement signed by C.E. Singer, Jr. as Chief Referee. The Commission issued its award on 23 May 1966 and reaffirmed its earlier 14 October 1959 award. The findings contained in this award are significant.
"FINDINGS
"1. That the applicant has not sustained an increased reduction in earning capacity and therefore is not entitled to an increase in compensation.
"2. That the aforementioned determination that the applicant has not sustained an increased reduction in earning capacity is based upon the following facts:
a. Applicant was employed as Results Clerk for the Arizona Public Service Company prior to the date on which he was discharged, April 22, 1965.
b. Applicant subsequent to the date of his termination, attempted to obtain employment, without success.
c. Applicant was very efficient, had good ability, and his physical incapacity was not at all a detriment in the work he was doing. Furthermore, this handicap had no bearing upon his ability to do the job.
*118 d. Applicant was dismissed because of his absenteeism record, and for no other reason.
e. Applicant's physical condition has not deteriorated or worsened since the last award entered herein.
f. Applicant has the physical and mental capacity to perform the duties of the job he was performing at the time of his discharge.
"3. That the Amended Findings and Award for Unscheduled Permanent Partial Disability heretofore entered on October 14, 1959 should be affirmed.
AWARD
"IT IS ORDERED that the Amended Findings and Award for Unscheduled Permanent Partial Disability heretofore entered on October 14, 1959, be, and the same is hereby affirmed. * * *."
After appropriate procedural steps Referee Schreiber conducted a further hearing on 15 December 1966. There was a further report by the Referee approved by Mr. Singer in his capacity as Chief Referee. Thereafter an award dated 31 January 1967 was entered which award affirmed the 23 May 1966 award. The January 1967 award became final.
In mid 1967, the petitioner employed his present counsel and again sought to reopen, seeking an increase in his compensation. An amendment to the petition to reopen recognized that he had "* * * [l]ost no earning capacity based strictly on experience with defendant employer but facts show value of applicant's services on open labor market have been substantially decreased and he is entitled to award based on his decrease." Thereafter a hearing was held on 30 August 1968 which was conducted by Referee von Blum. There was further testimony as to his job seeking efforts, similar to that presented at the January 1966 hearing. The prior testimony resulted in Finding No. 2(b) of the 23 May 1966 award. The August 1968 hearing disclosed further testimony as to the petitioner's irritability and nervousness. There was no medical testimony to relate these problems to his industrial injury.
In place of a report by Referee von Blum, the report of the hearing was made on 30 January 1969 by Mr. Singer in his capacity as a "Special Hearing Examiner." [Prior to January 1969, hearings were conducted by referees and since that date, hearings have been conducted by hearing officers.] No explanation was made as to why Mr. von Blum had not rendered the report. The petitioner lodged strenuous objections to the report being prepared by Mr. Singer rather than by Mr. von Blum. We have had before us the review of an Industrial Commission matter wherein the file was reviewed by a referee who did not hear the evidence. Kuchinski v. Industrial Commission of Arizona, 11 Ariz. App. 26, 461 P.2d 505 (1969). It is true that the circumstances in Kuchinski were different from the circumstances in the case now before us. It would have been better practice to have Mr. von Blum report on the hearing which he conducted or at least to have the file reflect the circumstances under which he did not make the report. In our opinion this does not constitute a sufficient ground for setting aside the award.
On 5 March 1969, The Industrial Commission entered its award affirming the 16 October 1967 award. This action was taken prior to the opinion in Russell v. The Industrial Commission of Arizona, 104 Ariz. 548, 456 P.2d 918 (1969). In Russell this procedure was not approved. Portions of the March 1969 award are as follows:
"FINDINGS
"1. That the applicant does not have new, additional or previously undiscovered disability.
"2. That the applicant has not sustained an increased reduction in earning capacity and therefore is not entitled to an increase in compensation.
"3. That the aforementioned determination that the applicant has not sustained *119 an increased reduction in earning capacity is based upon the following facts:
(a) Applicant's physical condition has, not deteriorated or worsened since the entry of the Decision Upon Rehearing of January 31, 1967.
(b) That applicant still has the physical and mental ability to perform the duties of the job classified as Results Clerk for the Arizona Public Service Company.
(c) Applicant was discharged from his job as Results Clerk for reasons other than his physical limitations.
(d) Applicant performed the duties of said position while he was so employed in an efficient manner and without any limitation by reason of his general disability.
ORDER
"IT IS ORDERED that applicant's Petition and Application for Readjustment or Reopening of Claim filed herein on September 25, 1967, be, and the same is hereby denied; and that applicant take nothing by virtue of said Petition.
"IT IS FURTHER ORDERED that the Findings and Award Denying Reopening of Claim dated October 16, 1967, be, and the same is hereby affirmed."
There is no evidence that employment similar to the post-injury employment is available to the petitioner in the area of his residence. There is no evidence that employment of any substance is available to the petitioner in the area of his residence. The evidence as to the petitioner's efforts to seek employment was similar to the evidence which was presented at an earlier date and resulted in Finding No. 2(b) quoted above in relation to the May 1966 award. In our opinion, where the testimony discloses a satisfactory effort on the part of an injured workman to secure employment in the area of his residence, the burden of going forward with the evidence to show the fact of available suitable employment shifts to the party resisting the petition. There was no such showing made by the respondents. In our opinion, it is unrealistic to hold that an injured workman, who has the physical and mental capacity to hold a particular kind of job but whose emotional and nervous makeup is such that he cannot do the work in a continuous and satisfactory manner, should be charged with the earning capacity of such a job resulting in a diminution of his loss of earning capacity. Just as the employer must take his employee "as he is" prior to an industrial injury; so must the Commission evaluate the injured workman's actual capacity, physical, mental and emotional, in the light of the employment available in the area of his residence, an employment opportunity which it can be reasonably expected that the injured workman can perform. Under these circumstances:
The award is set aside.
DONOFRIO, P.J., and CAMERON, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2898564/ | Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â NO. 07-08-0434-CR
NO. 07-08-0435-CR
NO. 07-08-0436-CR
NO. 07-08-0437-CR
NO. 07-08-0438-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
OCTOBER 29, 2009
______________________________
JOE MARVIN SLUTZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NOS. 58,571-E, 58,572-E, 58,573-E, 58,574-E, & 58,575-E;
HONORABLE DAVID GLEASON, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
          Following pleas of not guilty, Appellant, Joe Marvin Slutz, was convicted by a jury
of six separate offenses and assessed the corresponding punishments: (1) Cause No.
58,571-E, sexual assault of a childâtwenty years confinement; (2) Cause No. 58,572-E,
Count Iâaggravated sexual assault of a childâconfinement for life; Count IIâaggravated
sexual assault of a childâconfinement for life; (3) Cause No. 58,573-E, aggravated sexual
assault of a childâconfinement for life; (4) Cause No. 58,574-E, aggravated sexual assault
of a childâconfinement for life; and (5) Cause No. 58,575-E, aggravated sexual assault of
a childâconfinement for life. The trial court ordered the life sentences in Count I and Count
II of Cause No. 58,572-E to run concurrently; the twenty year sentence in Cause No.
58,571-E to run consecutive to the sentence in 58,572-E; the life sentence in Cause No.
58,573-E to run consecutive to the sentence in 58,571-E; the life sentence in Cause No.
58,574-E to run consecutive to the sentence in 58,573-E; and the life sentence in Cause
No. 58,575-E to run consecutive to the sentence in 58,574-E.
Factual Background
          In 2005, Appellant became acquainted with the victim, Jonathan, and his mother,
Tara, when Jonathan was 12 years old. Jonathan had lived most of his life without a
father-figure and Appellant sought to fill that role. He helped Jonathanâs mother by giving
Jonathan rides to school and doing other favors. He was added as an emergency contact
at Jonathanâs school and he allowed Jonathan to use a spare bedroom in his house from
time to time. Jonathan also did odd jobs for Appellant in exchange for gifts.
          During the Christmas season in 2006, Appellant and Jonathan went to a Christmas
tree lot operated by Troop 80 of the Boy Scouts of America. Jonathan expressed to
Appellant an interest in joining the scouts program and, in January 2007, they pursued the
idea with Douglas Walker, the Troop 80 committee chairperson. Jonathan immediately
joined and Appellant joined the next month as an assistant scoutmaster. According to
Walker, Appellant gave the impression that he was Jonathanâs stepfather and never
indicated otherwise.
          One of the first scouting events Appellant and Jonathan attended was swim night
at an indoor pool. Appellant changed clothes in the boys locker room. After Appellant was
informed that there was a separate locker room for adults, he nevertheless disrobed,
walked around naked, and showered in the boys locker room. According to the testimony
of several witnesses, the boys felt that Appellant was observing them as they showered.
          Over the course of the next few months, some of the scouts and adult volunteers
observed behavior by Appellant toward other scouts, which although not illegal, did violate
troop policy.
Although the evidence showed that Appellant did not receive a policy or
procedure manual, the application he signed to join as an assistant scout master contained
information regarding the Boy Scouts of America youth protection policy. Walker also
spoke to Appellant about the youth protection policy after Appellant would not leave the
boysâ tent during a camping trip. At a scouting event in the summer of 2007, a teenage
scout patrol leader observed Appellant pull another teenage scout onto his lap and rub his
chest. The patrol leader reported the conduct to a scoutmaster. Other adult volunteers
also observed the incident and became alarmed. Thereafter, steps were immediately
taken to remove Appellant as an assistant scoutmaster, and he was instructed not to
contact any scouts. According to scoutmaster James Spencer, Appellant reacted to his
expulsion lightly, laughed, and informed Spencer that a scout named Christian would have
to come by his house and âpick up his stuff.â
          Jonathan eventually left the scout program. He was not a model student and he
suffered from behavioral problems in middle school. According to Glenda Utsey, the
liaison officer for Jonathanâs school cluster, he engaged in fighting, had poor attendance,
and frequent office referrals. He was not, however, a major offender.
          In early September of 2007, after Appellant had been expelled from Troop 80,
Jonathanâs mother called Spencer to report that Jonathan was upset, crying, and would not
talk to her. She asked him to speak with Jonathan. Accompanied by another
representative of Troop 80, Spencer went to Jonathanâs house one evening to speak with
him. Jonathan had invited a close friend of his, Robert, to be there that evening.
According to Spencer, Jonathan was nervous, anxious, upset, and very embarrassed, but
eventually confided in him that Appellant had sexually abused him. They talked until 1:30
the next morning.
          Jonathan revealed to Spencer that he and Appellant had engaged in oral sex,
Appellant had anally raped him, and Appellant had watched him while he showered.
Jonathan also claimed that Appellant threatened to hurt him if he told anyone about the
abuse.
Spencer recommended to Jonathanâs mother that she get him some professional
help in the form of counseling. According to Spencer, Jonathanâs mother sought financial
assistance from the State for counseling but was unsuccessful due to âpolitical stuff.â He
then recommended an attorney she should consult who might be able to help.
          After speaking with Jonathan, Spencer contacted Detective Jeff Higley of the
Amarillo Police Department. He was assigned to investigate the case on September 5,
2007. To gather evidence, Detective Higley arranged for a single party consent call to be
made by Jonathan to Appellant.
Guided by Detective Higley, Jonathan had the following
telephone conversation with Appellant:
[Jonathan]:Iâm kind of scared.
Â
[Appellant]: Why?
Â
[Jonathan]: I told Robert about you touching and sucking my dick, and he
told my mom. She wants me to go take . . . talk to . . take me up to talk to
the cops.
          [Appellant]: Figures.
Â
[Jonathan]:What should I tell them.
* * *
Â
[Jonathan]:What will happen to you if I tell them what you did?
* * *
[Jonathan]: I donât know . . . . Did you do that to Robert, too?
Â
[Appellant]: I think so . . . once. But, thatâs between Robert and me. Course,
now itâs between you and me. I donât know. Maybe I should go to prison and
die. That would be a good thing.
Â
[Jonathan]: Whyâd you do that to me?
Â
[Appellant]: Why did you do it to me?
Â
[Jonathan]: I never did it to you.
Â
[Appellant]: laughs OK . . . alright. I donât know. Suppose I . . . I suppose
you could, uh, change the time frame, that it happened while I was, uh, you
know, having back surgery and under. Cause a lot of people came to visit
me, and I donât remember anybody. I remember you and [A]. I donât
remember any of the rest . . . . You could just deny it, itâs up to you. . . .
* * *
Â
[Jonathan]: What would happen to you if I told them?
Â
[Appellant]: I donât know. Lose my business, go to prison. . . .
Â
[Jonathan]:Have you done it to anybody else?
Â
[Appellant]: No.
          [Jonathan]: Just me and Robert.
Â
[Appellant]: Yeah. And I donât know why I did that since then either. Maybe
cause itâs been so long since I had [my wife]. Been two years now.
The transcript was read to the jury during Detective Higleyâs testimony.
          On September 10, 2007, Appellant was asked to come to the police station for an
interview. When Detective Higley confronted him with the recorded phone call, he laughed.
He gave a written statement in which he claimed to be nothing more than a âfill-in Dad,â
and denied having any sexual contact with Jonathan.
          On September 21, 2007, Jonathanâs mother filed a civil lawsuit against Appellant
on Jonathanâs behalf. She alleged that Appellant coerced Jonathan into an âinappropriate
homosexual relationshipâ and sought actual and punitive damages for various complaints
including, but not limited to, sexual offenses and intentional infliction of emotional distress.
          A year after the civil suit was filed, Appellant gave his deposition on September 17,
2008.
During the criminal trial, the State sought to have Exhibits 2 and 3, both excerpts
from Appellantâs civil deposition, introduced into evidence. Based on an extraneous
offense contained in the deposition, defense counsel strenuously lodged relevance
objections and objections pursuant to Rule 404(b) of the Texas Rules of Evidence.
The
trial court admitted both exhibits and the excerpts were read to the jury.
          As the excerpts were read, the jury heard denials from Appellant regarding any
inappropriate conduct with Jonathan. In fact, Appellant accused Jonathan of
inappropriately touching him. When questioned whether he had ever had sexual contact
with other males, Appellant answered, âI would say yes, but thatâs really none of anybodyâs
business but mine.â Appellant then alluded to sexual experimentation being something all
males do. The deposition continued:
Q.Have you ever had homosexual sex with another male?
Â
A. No, sir.
Â
Q.Okay. And by that, I would include oral sex, anal sex â
Â
A.Oh, well, oral â oral, yes.
Â
          Q.       Okay, Have you ever had oral sex with â as an adult with a child?
Â
A.No, sir. Oh, well, other than with [Robert], and thatâs none of your
business either, but â
Â
Q.Whoâs [Robert]?
Â
          A.       Thatâs a friend of [Jonathanâs].
Â
          Q.       Okay. So you had oral sex with [Robert]?
Â
          A.       Uh-huh.
* * *
Â
          Q.       When was this that you had oral sex with Robert?
Â
          A.       Right after I had back surgery.
Â
          Q.       And when was that?
Â
          A.       I think it was in May of 2007.
Â
          Q.       How old was [Robert] at the time?
Â
          A.       Fourteen.Â
Appellant again denied any inappropriate sexual conduct with Jonathan.
          Before Jonathan was called to testify during the criminal trial, the State called Robert
to the stand. Defense counsel reurged his motion in limine objections (Rule 404(b) and
Rule 403), and the trial court instructed the parties to approach before violating the motion
in limine. The State expressed its intent to question Robert about what he told Spencer
the night Spencer visited Jonathanâs house.
          During his testimony, Robert claimed he did not disclose specifics to Spencer about
Appellantâs conduct and just told him that âstuff that had gone onâ because he did not know
Spencer and felt uncomfortable telling him things. He did, however, testify that he told
Spencer Appellant would make him take his clothes off and shower while he washed his
clothes. Oftentimes, the laundry was not done until the next day and he would sit around
Appellantâs house naked. Some times Appellant was also naked.
          Jonathan testified after Robert. According to Jonathan, his relationship with
Appellant became âweirdâ in 2006. Appellant began âtouching, feeling, taking off his shirt
and sitting me on his lap.â The two began engaging in oral sex and according to Jonathan,
about a month later, Appellantâs conduct escalated to anal rape. Jonathan testified that
the threats made by Appellant began after the anal assaults started. Jonathan also
described an incident while he was in the shower in which Appellant got in with him and
washed him and touched his private parts.
          The final witness to testify for the State was Becky OâNeal, the SANE examiner.
According to her testimony, Jonathan was extremely uncomfortable with the exam and had
poor eye contact throughout. Jonathan reported that the abuse began in sixth grade and
continued through eighth grade. He claimed to have been anally raped 75 times. OâNeal
did not find any evidence of trauma to Jonathanâs body; however, the exam showed that
Jonathan had suffered multiple penetration of the anus which wore down the area and
healed in the form of a scar. She concluded that Jonathanâs story was consistent with the
results of her exam.
          After the State rested, the defense offered its only exhibit in the form of Plaintiffâs
Original Petition in the civil suit filed by Jonathanâs mother. No other evidence was offered
and the defense rested.Analysis
          By a sole issue, Appellant contends the trial court abused its discretion in admitting
extraneous evidence of him assaulting another child. Specifically, Appellantâs complaints
are directed at the trial courtâs admission of Appellantâs deposition excerpts (Stateâs
Exhibits 2 and 3) and the testimony of Robert. These errors, he maintains, caused him
harm due to the severity of his cumulative sentences. We disagree.
          I.        Standard of ReviewâAdmissibility of Evidence
          We review a trial courtâs ruling admitting evidence for abuse of discretion. Casey
v. State, 215 S.W.3d 870, 879 (Tex. 2007) (citing Montgomery v. State, 810 S.W.2d 372,
391 (Tex.Crim.App. 1990) (op. on rehâg)). A trial court abuses its discretion when its
decision is outside the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92,
102 (Tex.Crim.App. 1996). Otherwise we are required to uphold a trial courtâs admissibility
decision. Montgomery, 810 S.W.2d at 391.
Â
          II.       Extraneous Offense Evidence
          Rule 404(b) of the Texas Rules of Evidence provides that extraneous offense
evidence is not admissible to prove the character of a person in order to show action in
conformity therewith. Tex. R. Evid. 404(b). However, it is not rendered inadmissible if the
extraneous offense evidence is relevant to a fact of consequence apart from its tendency
to show conduct in conformity with character. Johnston v. State, 145 S.W.3d 215, 221-22
(Tex.Crim.App. 2004).
          Rule 403 provides in part that relevant evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403.
Relevant evidence is generally admissible. Tex. R. Evid. 402. In keeping with the
presumption of admissibility of relevant evidence, trial courts should favor admission in
close cases. Casey, 215 S.W.3d at 879.
          For extraneous offense evidence to be admissible under both Rule 404(b) and Rule
403, that evidence must satisfy the following two-prong test:
âIs the extraneous offense evidence relevant to a fact of consequence
in the case apart from its tendency to prove conduct in conformity with
character?
âIs the probative value of the evidence sufficiently strong so that it is
not substantially outweighed by unfair prejudice?
Â
See Johnston, 145 S.W.3d at 220.
          âProbative valueâ refers to the inherent probative force of an item of evidenceâthat
is, how strongly it serves to make more or less probable the existence of a fact of
consequence to the litigationâcoupled with the proponentâs need for that evidence.
Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex.Crim.App. 2006). âUnfair prejudiceâ refers
to a tendency to suggest decision on an improper basis, commonly, though not
necessarily, an emotional one. Id. Only unfair prejudice provides the basis for exclusion
of relevant evidence. Montgomery, 810 S.W.2d at 389.
          In our review, we presume that probative value substantially outweighs the danger
of unfair prejudice. Id. Thus, the defendant bears the burden to demonstrate that the
danger of unfair prejudice substantially outweighs the probative value of evidence. Poole
v. State, 974 S.W.2d 892, 897 (Tex.App.âAustin 1998, pet. refâd). In reviewing a trial
courtâs Rule 403 ruling, we are to reverse the judgment ârarely and only after a clear abuse
of discretion.â Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1999).
                     A.       Rule 404(b)
          In support of offering excerpts of Appellantâs deposition and the testimony of Robert,
the State relied on Powell v. State, 63 S.W.3d 435 (Tex.Crim.App. 2001). In Powell, the
Court reversed the appellate courtâs decision reversing the trial court for abusing its
discretion in admitting extraneous offense evidence. Id. at 436. At trial, the defense
presented its theory during its opening statement that the defendant could not have
molested the child victim because of the presence of his daughters and others who slept
in the living room. Id. at 436-37. This theory was also advanced during cross-examination
of the victim. The victim testified that she was never alone with the defendant. During its
case-in-chief, the State contravened the defensive theory with four witnesses who testified
that the defendant had molested them under almost identical circumstances as the
charged offense. Id. at 437.
          The defense presented testimony from dozens of girls who spent the night at the
defendantâs house without anyone being molested. Id. The State then rebutted that
evidence with two additional witnesses who testified similar to the four who had already
testified during the Stateâs case-in-chief. Id. On appeal, the defendant argued the trial
court erroneously admitted the testimony of the Stateâs six witnesses because their
testimony was admitted solely for the purpose of character conformity, to-wit: the
defendant is a child molester. Id.
          The relevant inquiry under the facts of Powell was whether the evidence was
admissible for its non-character conformity purpose. Id. at 439. Such evidence was
admissible to rebut a defensive theory which gave the evidence relevance apart from
character conformity. Id. The Powell Court added that the trial courtâs limiting instruction
clearly showed the evidence was admitted for its non-character conformity purpose. Id.
          Some years after Powell, the Court decided in Bass v. State, 270 S.W.3d 557, 563
(Tex.Crim.App. 2008), that case law supports a decision that a defense opening statement
may open the door to the admission of extraneous offense evidence to rebut the defensive
theory presented in the defense opening statement.
In Bass, defense counsel alleged
in his opening statement that the victimâs allegations of molestation were âpure fantasyâ
and âpure fabrication.â Id. at 557. Defense counsel continued that the allegations were
contrary to the defendantâs character because he was a pastor and minister; âhe is the real
deal and the genuine article.â Id. at 558. During its case-in-chief, the State was permitted
to present extraneous offense evidence of other girls who had been molested in the
defendantâs church office. Id. at 558-59.
          Bass complained on direct appeal that the extraneous offense evidence was
inadmissible under Rule 404(b) because it was offered solely for the purpose of character
conformity. Id. at 562. The appellate court held the trial court abused its discretion in
admitting the evidence to rebut a âfabricationâ defense even though the evidence would
have been admissible to rebut a âframe-upâ or âretaliationâ defense. Bass v. State, 222
S.W.3d 571, 575-78 (Tex.App.âHouston [14th Dist.] 2007). Finding no categorical
distinctions between âfabricationâ defenses and âframe-upâ or âretaliationâ defenses, the
Court of Criminal Appeals concluded the trial court did not abuse its discretion in admitting
the extraneous offense evidence to rebut the defensive theory of fabrication and reversed
the appellate court. Bass, 270 S.W.3d at 563.
          In the instant case, the defense made its opening statement immediately after the
Stateâs opening statement. Defense counsel recalled the movie âWall Streetâ and quoted
the main character saying, âgreed is good, greed is the American way.â Counsel continued
with his defensive theory that Jonathanâs allegations against Appellant were motivated by
money. Counsel then mentioned the civil lawsuit for monetary damages to which the State
objected as being improper opening argument. The trial court overruled the Stateâs
objection and defense counsel continued to talk about the civil lawsuit. âThe evidence is
going to show in this case that shortly after the Boy Scouts said [Appellant] get out, that an
opening was seen, a chance to get money was seen.â Counsel then suggested that
Jonathanâs allegations worsened as the civil lawsuit progressed. In his closing argument,
defense counsel reiterated the theory that the civil lawsuit for damages was the motive
behind the allegations Jonathan made against Appellant.
          The defense waved the lawsuit in the face of the jury during opening argument, yet
vehemently objected during trial when the State offered excerpts from Appellantâs civil
deposition. Under Bass, the defense opening statement opened the door to admission of
extraneous offense evidence. 270 S.W.3d at 558. The defense was theorizing that
Jonathan fabricated the allegations against Appellant. By offering the excerpts from
Appellantâs deposition in which he admitted to performing sexual acts with Robert, and by
offering Robertâs testimony that âstuff had gone onâ with Appellant, the State was
attempting to show that Appellantâs claim of fabrication-for-money defense was less
probable. By showing that the allegations were less likely to be fabricated, the extraneous
offense evidence directly rebutted Appellantâs defensive theory and had logical relevance
apart from character conformity. Id. at 562-63.
          Additionally, the trial court gave the jury the following limiting instruction in all five
charges:
[Appellant] is on trial solely on the charge contained in the indictment. In
reference to evidence, if any, that [Appellant] has previously participated in
recent transactions or acts, other than that which is charged in the indictment
in this case, you are instructed that you can not consider such other
transactions or acts, if any, for any purpose unless you find and believe
beyond a reasonable doubt that [Appellant] participated in such transactions
or committed such acts, if any; and even then you may only consider the
same for the purpose of determining intent or knowledge or motive or
opportunity or preparation or plan or identity or absence of mistake or
accident, if it does, and for no other purpose.
Â
          Appellant relies on Daggett v. State, 187 S.W.3d 444 (Tex.Crim.App. 2005), in
which the Court found error in the admission of extraneous offense evidence which was
similar to the charged offense and reversed the case and remanded it for a harm analysis.
Daggett, however, involved the âplanâ exception to the admission of extraneous offense
evidence and not evidence to rebut a defensive theory. Additionally, the courtâs limiting
instruction in Daggett, when considered with the Stateâs closing argument, improperly
permitted the jury to consider the challenged evidence for its substantive value. We
choose to apply Bass, a more recent pronouncement from the Court of Criminal Appeals,
which permits the admission of extraneous offense evidence to rebut the defensive theory
of fabrication. 270 S.W.3d at 562-63.
          We conclude that the extraneous offense evidence had relevance apart from
character conformity. Thus, we must now evaluate the evidence under Rule 403 to see
if its probative value outweighed its prejudicial effect.
          B.       Rule 403
          While evidence may be admissible under Rule 404(b), the trial court may exercise
its discretion to exclude the evidence if its probative value is substantially outweighed by
the danger of unfair prejudice. Moses v. State, 105 S.W.3d 622, 626 (Tex.Crim.App.
2003). The trial court must balance (1) the inherent probative force of the proffered item
of evidence along with (2) the proponentâs need for that evidence against (3) any tendency
of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence
to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be
given undue weight by a jury that has not been equipped to evaluate the probative force
of the evidence, and (6) the likelihood that presentation of the evidence will consume an
inordinate amount of time or repeat evidence already admitted. See Casey, 215 S.W.3d
at 879.
          Based on a review of the entire record, we find the deposition excerpts and Robertâs
testimony were strongly probative to rebut the defensive theory that Jonathan fabricated
the allegations. Thus, as proponent of the evidence, the State established a need for the
evidence. Although the evidence could have had a tendency to suggest conviction on an
improper basis, the trial court properly instructed the jury on the limited purpose for which
the extraneous offense evidence was admitted. The evidence was not the sort that would
have caused confusion or distraction of the main issue. Finally, Robertâs testimony was
very brief compared to that of eight other witnesses, and the reading of the two deposition
excerpts which amounted to approximately sixteen pages of text from a record containing
multiple volumes and hundreds of pages did not consume an inordinate amount of time.
Viewing the totality of the factors, we conclude the trial court did not abuse its discretion
in admitting the challenged extraneous offense evidence. Appellantâs sole issue is
overruled.
                                                            Conclusion
          The trial court did not abuse its discretion in admitting Stateâs Exhibits 2 and 3 and
the testimony of Robert to rebut Appellantâs defensive theory that Jonathan had fabricated
the allegations against him for financial gain from a civil lawsuit.
          Consequently, the trial courtâs judgments are affirmed.Â
                                                                           Patrick A. Pirtle
                                                                                 Justice
Do not publish.
Â
Symbols"'>=s wife during the
punishment phase of the hearing.
Appellant=s community
supervision officer testified that under the terms of appellant=s community
supervision, he was required to: (1) work at least eight hours per week toward
his required 160 hours of community service until the completion date of August
15, 2007; and (2) to remain within the confines of Deaf Smith and Oldham
Counties and not to leave without written permission of the court. The supervision officer testified appellant
completed only seven hours of his community service requirement from the time
he was placed on probation in January 2007 and that he completed these hours at
the Alcoholics Anonymous building. The
officer testified that he repeatedly explained the requirements, assured
himself of appellant=s understanding of the requirements, and
attempted to place appellant in a community service project that was convenient
for him. The officer testified that
according to his records for the months of February, March, April, and May
2007, appellant had not completed any community service hours and completed
only seven in the month of June 2007. Appellant did not complete any hours in
July or August 2007.
Appellant=s community
supervision officer also testified appellant never requested that he be given a
travel permit to go to El Paso, Texas.Â
The officer also indicated he spoke with appellant about that issue on
August 2, 2007. A Deaf Smith County
police officer identified appellant in the courtroom and testified that on or
about July 25, 2007, he left Deaf Smith County and traveled to El Paso County
to transport appellant back to Deaf Smith County. On cross-examination, the
officer indicated the actual date was July 30, 2007. Appellant was in custody in El Paso at the
time the officer retrieved him.
The court heard
this evidence, considered the arguments of counsel, and found the State=s allegations to
be true. The court then heard punishment
evidence and sentenced appellant to five years of imprisonment. This appeal followed.
Analysis
Failure to Provide
Written Statement Concerning Grounds for Revocation
In his first
issue, appellant argues the trial court erred in failing to provide a written
statement as to the evidence relied on and the reasons for revoking community
supervision, thereby violating appellant=s due process
rights. We disagree.[3]
Due process in the
revocation context requires: (1) a hearing; (2) written notice of the claimed
violations; (3) disclosure of the evidence against the defendant; (4) an
opportunity to be heard and to present witnesses and documentary evidence; (5)
a neutral hearing body; and (6) Aa written statement
by the fact finder as to the evidence relied on and the reasons for revoking
probation.@Â Carmona
v. State, 185 S.W.3d 492, 495 (Tex.Crim.App. 2006), citing Gagnon v.
Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). When a defendant timely requests the entry of
specific findings of fact on which revocation is based, the trial court errs in
failing to enter such findings of fact. Whisenant v. State, 557 S.W.2d 102, 105 (Tex.Crim.App.
1977); Joseph v. State, 3 S.W.3d 627, 639 (Tex.App.BHouston
[14th Dist.] 1999, no pet.).Â
The failure to make the requested findings may require reversal if their
omission impedes appellate review of the revocation. Joseph, 3 S.W.3d at
639, citing Ford v. State, 488 S.W.2d 793, 795 (Tex.Crim.App. 1972). However, the trial court is not required to
issue separate findings if the judgment or revocation order discloses the
grounds for revocation found by the court.Â
See Joseph, 3 S.W.3d at 640 (concluding that handwritten
notations on the revocation order sufficed).
Here, the record
reflects appellant did not request the entry of specific findings of fact. The judgment listed the conditions violated
by paragraph number and description of the condition. The record also reflects the
trial court orally specified the particular conditions violated and their
factual bases at the end of the revocation hearing, finding each of the two
violations Atrue.@Â The court=s written judgment
recites, A[t]he Court, after hearing all of the
evidence for the State and the Defendant and arguments of counsel, was of the
opinion and found that the Defendant violated the conditions of community
supervision as stated above.@Â Thus, the record shows appellant was afforded
adequate notice of the grounds underlying the court=s revocation, and
his ability to prosecute an appeal was not diminished by the absence of further
findings. See Reasor v. State, 281 S.W.3d 129 (Tex.App.BSan
Antonio 2008, no pet.) We overrule appellant=s first issue.
Notice in State=s First Amended
Motion to Revoke
In appellant=s last issue, he
contends his due process rights were violated because the State=s amended motion
stated that A[t]he defendant probationer [appellant]
failed to remain within the confines of Deaf Smith County, Texas in violation
of Article 13 of his probated sentence.Â
He was in El Paso, Texas on or about July 25, 2007.@Â However, testimony at trial indicated
appellant was transported on July 30, 2007. Â
Appellant never claimed surprise or requested a continuance of the
hearing based on the different dates.Â
Nevertheless, appellant now argues the difference in the dates
constitutes a material variance that violated appellant=s due process
rights because the motion did not provide notice of the charges against
appellant.
           We find the State=s motion provided
adequate notice of the charges against appellant. Due process entitles probationers facing a
revocation proceeding to written notice of their alleged violations. Ruedas v. State, 586
S.W.2d 520, 523 (Tex.Crim.App. 1979), citing Gagnon, 411 U.S. at 778; Weed
v. State, 891 S.W.2d 22, 24 n.4 (Tex.App.BFort
Worth 1995, no writ). An application
to revoke need not meet the specificity requirements of an indictment or
information; it is sufficient that the State allege a violation of the law and give
the probationer fair notice. Pierce
v. State, 113 S.W.3d 431, 436 (Tex.App.ÂTexarkana 2003), citing Chacon
v. State, 558 S.W.2d 874, 876 (Tex.Crim.App. 1977). See also Poteet v. State, No.
07-06-0238-CR, 2008 WL 2579675, *2 (Tex.App.BAmarillo
June 27, 2008, no pet.) (mem. op., not designated
for publication).
It is well
established that the State may allege the commission of an offense Aon or about@ a certain date,
and this allegation allows the State to prove any date that is anterior to
presentment and within the statutory limitations period. See Garcia v. State, 981 S.W.2d 683,
685-86 (Tex.Crim.App. 1998); Sledge v. State, 953 S.W.2d 253, 256
(Tex.Crim.App. 1997); Ferrell v. State, 968 S.W.2d 471, 473 (Tex.App.BFort
Worth 1998, pet. ref=d). An indictment that alleges an Aon or about@ date puts a
defendant on notice that he must be prepared to defend against the alleged act
of criminal misconduct within the applicable statute of limitations. See Garcia, 981
S.W.2d at 686; Ferrell, 968 S.W.2d at 473; Kosick v. State, No.
02-06-056-CR, 2007 WL 2460351 (Tex.App.BFort Worth Aug. 31, 2007, no pet.) (mem. op.,
not designated for publication). Given
the less restrictive requirements that apply in a
revocation hearing, we find the same principle applies to motions to revoke. See Pierce, 113 S.W.3d
at 436. See also Mauney v. State, 107
S.W.3d 693, 695 (Tex.App.ÂAustin 2003, no pet.), citing Labelle v. State, 720 S.W.2d 101, 104 (Tex.Crim.App. 1986)
(the State is free to prove a violation occurred any time before the filing of
the motion to revoke and during the probation period so long as the State
pleads the violation occurred Âon or about a specified date and that it
occurred while the defendant was on probation).Â
Therefore,
the State=s allegation of Aon or about July
25, 2007" encompasses the date of July 30, 2007, on which the police
officer retrieved appellant from El Paso, Texas. We find no due process violation as the
motion provided adequate notice of the term appellant was alleged to have
violated. We overrule appellant=s last issue.
Reformation of
Judgment
           In our
review of the record, it came to our attention that the judgment nunc pro tunc
includes a clerical error. The judgment
indicates appellant plead Âtrue to the StateÂs allegations. The reporterÂs record indicates appellant
plead Ânot true to the StateÂs allegations.Â
           This court has the power
to modify the judgment of the court below to make the record speak the truth
when we have the necessary information to do so. Tex. R. App. P.
43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App.
1993); Asberry v. State, 813 S.W.2d 526, 529-30
(Tex.App.--Dallas 1991, pet. ref'd).
"The authority of an appellate court to reform an incorrect judgment is
not dependent upon the request of any party, nor does it turn on the question
of whether a party has or has not objected in the trial court." Asberry, 813 S.W.2d at
529-30.
Because the record unambiguously indicates
appellant plead Ânot true to the StateÂs allegations, we modify the judgment
nunc pro tunc to correct the error. As
modified, we affirm the judgment of the trial court.                                                                                                                                         Â
James T.
Campbell
                                                                                   Justice
Do not
publish.
[1]Â
See Tex. Penal Code Ann. ' 49.09 (Vernon
2007).
[2]Â
The
record indicates the State waived this allegation because there was a pending
case on that offense at the time of this hearing.Â
[3]
We address
issues one and three raised by appellant but we do not address issue two. In his second issue, appellant complains of
the sufficiency of the evidence only with regard to the allegation concerning
his failure to complete his community swevice.Â
Even if we were to agree with appellant on his second point, proof of
one violation is sufficient to revoke community supervision. See Moore v.
State, 605 S.W.2d 924, 926 (Tex.Crim.App. 1980) (panel op.); Trevino v.
State, 218 S.W.3d 234, 240 (Tex.App.BHouston [14th
Dist.] 2007, no pet.) citing Greer v.
State, 999 S.W.2d 484, 486 (Tex.App.BHouston [14th
Dist.] 1999, pet.
ref=d). With regard to the StateÂs allegation
concerning appellantÂs failure to remain within the confines of Deaf Smith and
Oldham Counties, appellant complains only of the lack of notice in the StateÂs
motion. | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2898772/ | NO. 07-08-0335-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
SEPTEMBER 10, 2009
______________________________
TAWIN SPENCE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 140
TH
DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2006-414,629; HON. JIM BOB DARNELL, PRESIDING
_______________________________
Opinion
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Tawin Spence (appellant) appeals his conviction for possession of a controlled substance. In a single issue, he contends that the trial court erred by failing to instruct the jury that if it found the police did not have reasonable suspicion to stop him, then it could disregard the evidence discovered during the stop. We affirm.
Background
Lubbock police officer Shane Bledsoe was watching a known “crack house” around midnight when he observed a Chevy Impala parked in the driveway of the residence. Eventually, the car left and drove past him. When it did, the officer saw no front license plate on the vehicle. This induced him to initiate a traffic stop.
According to Bledsoe, appellant allegedly stated that he knew the reason for the stop because he had already been cited for lacking a front plate. Thereafter, Bledsoe discovered that appellant had no driver’s license either. This led to the officer frisking appellant and discovering drugs and $1,400.00 on his person.
The officer further detained appellant by escorting him to the squad car. As he did so, he saw a passenger in appellant’s vehicle discard a baggie containing what was eventually identified as crack cocaine. Eventually, appellant was arrested and charged with the crime mentioned above.
At trial, the officer testified that he pulled appellant over for the license plate violation and for illegally blocking the sidewalk at the residence. On cross-examination, Bledsoe agreed that he did not issue appellant a ticket for blocking the sidewalk and that he saw a license plate laying on appellant’s dashboard as he approached the vehicle.
In turn, appellant testified at trial that he did not block the sidewalk. And, while he acknowledged that the license plate was on his dash, he asserted that it was “all the way up in front of the front windshield” and quite visible. So too did he request, at the close of evidence, that the trial court “instruct the jury as to the law of the license plate” and that once the police officer observed the license plate in the front windshield, the officer could no longer detain him without other legitimate reason. That the jury be given an article 38.23 instruction encompassing the purported sidewalk violation also was solicited.
(footnote: 1) Both instructions, however, were denied.
Law and Analysis
Simply put, the issue before us involves whether questions of fact existed warranting the instructions sought. Both parties agreed that without the presence of such factual questions, neither instruction would be appropriate. Appellant also conceded that if a factual dispute existed with regard to only one of the two bases mentioned by the officer for stopping the car, then the instructions sought were unnecessary. With that said, we first consider the allegation implicating the front license plate.
Admittedly, the record contains conflicting evidence on whether the license plate could readily be seen. Yet, all agree on the plate’s location,
on the dashboard of the vehicle behind the windshield. A question arises, however, as to whether that was a permissible location; if it was, then it could not be used to prolong the stop. To answer that, we look to the Texas Transportation Code.
Section 502.404(a) of the Transportation Code states that license plates must be displayed on the “front” and “rear” of a vehicle.
Tex. Transp. Code Ann.
§502.404(a) (Vernon Supp. 2008). If locating the plate behind the windshield, like appellant did here, comports with that mandate, then the officer could not further detain appellant without other legitimate reason once he saw the plate. And, to sway us to that conclusion, appellant cites us to the opinion of
State v. Losoya
,128 S.W.3d 413 (Tex. App.–Austin 2004, pet. ref’d). In
Losoya,
the court held that displaying a license plate on a car’s dashboard comported with §502.404 if the plate could otherwise be seen from the front of the car.
Id.
at 416. It so held because the panel deemed the word “front” ambiguous, sought to discover the legislative purpose underlying the statute, and, upon discovering that, applied the alleged purpose to the circumstances before it. Furthermore, according to the
Losoya
panel, that purpose was simply to make sure that one could see the plate.
Id.
We find that analysis and conclusion problematic for several reasons.
First, the
Losoya
court failed to explain why it deemed “front” ambiguous. It cited no contradictory definitions of the word. Nor did it discuss any factual scenarios in which the word could be accorded two reasonable yet conflicting interpretations.
See
Kelley-Coppedge, Inc. v. Highlands Ins. Co.
, 980 S.W.2d 462, 465 (Tex. 1998) (holding that a term is ambiguous if it is susceptible to two reasonable but conflicting interpretations).
Second, we cannot but help recall various phrases encountered in everyday life that incorporate the word “front” and help illustrate what it means in common parlance. For instance, the terms “front line” or “battle front,” “go to the front of the line,” “front and back,” “front and center,” “storm front,” “front page,” “front seat,” and “front door” are of such a nature. Each connotes the idea of something preceding something else, or of the beginning of an object. Indeed, if told to turn to the front page of a newspaper and read article X, a reasonable person would undoubtedly go to the first page or beginning of the paper to find it. Similarly, a reasonable person hearing a knock at the “front door” of his house would most likely go to the front door, as opposed to the back or side, in response. So too can it be said that a reasonable person who paid to have the “front seat” of his car recovered would most likely not be satisfied if the upholsterer covered the rear seat instead. And, who can forget those scenes from “Hogan’s Heroes” where Colonel Klink was repeatedly threatened with and fearful of being sent to the “Russian front”; that threat would not have had the same impact if “front” actually meant something other than the beginning of the battlefield whereat the two sides are actually engaging in war. It is these common usages of the word that help define what it means.
Admittedly, there may be situations where a common word may develop alternate meanings in specific professions or fields. Or, it could be that those using such words could assign new meanings to words as part of some fad or blossoming dialect. But, we neither have nor are given by the
Losoya
panel any reason to believe that the legislature sought to use any specialized meaning or adopt some slang when including “front” in § 502.404(a). And, from the aforementioned examples of how the word is used in common parlance coupled with the area where millions of people actually locate their license plate on their vehicle, we cannot but construe “front” to mean the area where the car begins or the foremost part of the vehicle.
(footnote: 2)
See
Blacks Law Dictionary
668 (6
th
ed. 1990) (defining “front” as “[f]orepart, as opposed to the back or rear”); Dictionary.com,
http://
dictionary.reference.com (last visited Aug. 3, 2009) (defining “front” as the “foremost part or surface of anything” and “a place or position directly before anything”);
Merriam-Webster,
http://
meriam-webster.com/dictionary (last visited Aug. 3, 2009) (defining “front” as “the forward part or surface” and as “the foremost part of a thing”). So, given our obligation to generally accord words their ordinary meaning,
see
Fitzgerald v. Advanced Spine Fixation Systems, Inc.
, 996 S.W.2d 864, 865 (Tex. 1999)
quoting Liberty Mut. Ins. Co. v. Garrison Contractors
, 966 S.W.2d 482, 484 (Tex. 1998), we hold that one complies with §502.404 of the Transportation Code when the license is affixed somewhere in the foremost or beginning area of the car.
Third, as recognized by the
Losoya
panel, the “apparent purpose of Section 502.404(a) [was] to facilitate the identification of a motor vehicle . . . .”
State v. Losoya,
128 S.W.3d at 416. That purpose, the court continued, was satisfied if the officer could see the plate.
Id.
(stating that Losoya complied with the statute because the “officers testified that they could see the license plate in the windshield”). Yet, if the test is whether the officers can see the plate, then that frees the vehicle’s owner to place it most anywhere so long as it can somehow be seen. Not only could it be attached to the front bumper but also a door, hood, rear spoiler, window, fender, or any other location of the car as long as the police could see it. And, should the owner pursue such options, then law enforcement officials attempting to identify the car would no longer be able to simply focus upon the front of the car. Instead, they would have to spend more time looking at all possible places at which the plate could be. This, in turn, would most likely result in more stops for it is much harder to focus on several areas (as opposed to one) when a car drives past at traveling speeds, as exemplified here.
(footnote: 3) So, the
Losoya
interpretation of “front” actually impedes what it considered to be the purpose underlying the statute.
Finally, we also note that by appending the preposition “at” before the phrase “front and rear,” the legislature effectively described a location as opposed to a direction or ability to sense. “At the front” differs from “facing the front.” So too does it differ from merely being able to see it from the front or from outside the car. The latter two concepts involve one’s ability to perceive in general while “at the front” denotes a specific area. What this means is that
Losoya
implicitly modified the obligation imposed by §502.404(a) from one encompassing location to one of involving perception. If the latter was all that the legislature cared about, it could have written the statute to clearly indicate that the plate had “only to be seen” by passersby; because the legislature did not so write the statute, we will heed the way it did write it.
Having found deficiencies in
Losoya
and having concluded that one satisfies § 502.404(a) by affixing the license in an area where the car begins,
i.e.
the foremost area of the vehicle, we conclude that placing it behind a windshield is not enough, if the windshield is located somewhere other than the front of the car. And, because the windshield on appellant’s vehicle was not so located, he did not comply with the statute. Consequently, the officer was not required to find some other reason to detain him after discovering the plate’s location. Nor was the trial court obligated to instruct the jury otherwise.
Accordingly, we affirm the judgment of the trial court.
Brian Quinn
Chief Justice
Campbell, J., concurs in result.
Publish.
FOOTNOTES
1:Article 38.23 of the Texas Code of Criminal Procedure states that “[n]o evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case” and that
in “any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.”
Tex. Code Crim. Proc. Ann.
art.
38.23(a) (Vernon 2005).
2:This is not to say that the plate may only be located on the bumper. Nothing in the statute requires that; again, it need only be on the “front” of the car. Nor do we care to read into the statute what the legislature left out.
3:Indeed, as evinced from the video of appellant’s vehicle received in evidence here, the lights of the car obstructed one’s ability to see anything on the dashboard; yet, the area around the front bumper remained readily visible even at night. | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2609870/ | 866 P.2d 466 (1993)
125 Or. App. 359
William Lloyd GOODWIN, Respondent,
v.
STATE of Oregon, Appellant.
90-05-162 CV; CA A66807.
Court of Appeals of Oregon, In Banc.[*]
Motion for Reconsideration October 7, 1993.
Decided December 22, 1993.
*467 Theodore R. Kulongoski, Atty. Gen., Virginia L. Linder, Sol. Gen., and Timothy A. Sylwester, Asst. Atty. Gen., for motion.
Nancy Nickel contra.
On Appellant's Motion for Reconsideration October 7, 1993.
WARREN, Judge.
The state moves for reconsideration of our opinion in this case, 116 Or.App. 279, 840 P.2d 1372 (1992), in which we affirmed the trial court's judgment granting petitioner post-conviction relief. We allow the motion, withdraw our opinion and reverse the judgment.
Petitioner was convicted in 1989 of criminal nonsupport. He did not appeal. In May, 1990, he filed this petition for post-conviction relief, alleging that the indictment that resulted in his conviction was obtained in violation of Oregon Constitution, Article VII (amended), section 5(2), because the grand jury that indicted him consisted of only six, rather than seven, grand jurors. The trial court granted relief and, on appeal, we affirmed.
After we issued our opinion, the Supreme Court decided State v. Pratt, 316 Or. 561, 853 P.2d 827 (1993). Relying on our opinion in this case, the defendant there argued on direct appeal that he was entitled to dismissal of the indictment, because the grand jury that had issued the indictment against him was made up of fewer than seven members. The Supreme Court held that it would not consider the defendant's challenge to the constitutionality of the indictment, because he did not make a timely motion at trial to set aside the indictment, and therefore the error was not preserved. It said, "Any right that defendant may have had to have the indictment set asideand we express no opinion on that questionhad to be exercised in a timely manner under [ORS 135.510(1)(a) and ORS 135.520]." 316 Or at 567. Because the defendant did not timely raise the issue below, the court declined to consider whether the indictment was unconstitutionally issued and reviewed his appeal on the merits.
Based on Pratt, the state now argues that we should reconsider our opinion in this case and reverse, because petitioner also did not timely raise the grand jury issue. We agree with the result suggested by the state but not with its reasoning. The preservation issue in Pratt arose on direct appeal of a conviction. Unlike Pratt, this case is before us on appeal from a post-conviction judgment. In Palmer v. State of Oregon, 121 Or.App. 377, 854 P.2d 955 (1993), we held that the petitioner could pursue post-conviction relief despite his failure to challenge at trial the constitutionality of the statute under which he was convicted. The petitioner there filed a petition for post-conviction relief after a direct appeal. He alleged that the statute under which he had been convicted was unconstitutionally vague. Unconstitutionality of the statute making criminal the acts for which a person is convicted is a ground for post-conviction relief under ORS 138.530(1)(d). However, the petitioner had not made that challenge at his criminal trial. *468 We held that, under ORS 138.550(2),[1] his failure to raise the issue at trial did not preclude him from asserting that ground as a basis for post conviction relief, because an unpreserved error could not reasonably have been raised on direct appeal.
Here, unlike in Palmer, petitioner did not take a direct appeal from the conviction. However, that fact does not affect his ability to raise the unpreserved error in this post-conviction proceeding. ORS 138.550(1) provides, in part, that
"[t]he failure of petitioner to have sought appellate review of the conviction, or to have raised matters alleged in the petition at the trial of the petitioner, shall not affect the availability of relief under ORS 138.510 to 138.680."
That statute allows a petitioner to assert a basis for post-conviction relief that was not raised in the criminal trial.[2] Thus, under Pratt, Palmer and ORS 138.550(1), we conclude that an issue is ordinarily reviewable on direct appeal only if it was preserved at trial, but an issue that could have been raised at trial is raisable on post-conviction only if it was not preserved at trial. Accordingly, unlike in Pratt, here petitioner's failure to have made at trial a timely challenge to the indictment does not preclude him from raising the issue in his petition for post-conviction relief, and we can consider it.
The holding in Pratt regarding preservation of error on direct appeal does not directly affect this post-conviction case, but it does affect it indirectly. Although petitioner's failure to preserve the grand jury issue does not preclude him from raising it as a basis for post-conviction relief, we read Pratt as leading logically to the conclusion that, even if the issuance of an indictment by a grand jury of fewer than seven members is a constitutional violation, that violation does not make the conviction void. Post-conviction relief shall be granted when, inter alia, a petitioner was denied a substantial constitutional right that rendered the conviction void, or the court lacked jurisdiction to impose the judgment. ORS 138.530(1)(a), (b). We agree with the state that the Supreme Court's refusal in Pratt to consider the unpreserved argument regarding the constitutionality of the indictment is, by necessary implication, a holding that the constitutional error, if any, did not render the judgment void or deprive the trial court of jurisdiction. That is, we read Pratt as holding implicitly that the conviction based on the defective indictment, even assuming that the defect was one of constitutional dimensions, was at most voidable, but was not void ab initio. Were it otherwise, it can be expected that the Supreme Court would have considered the constitutional question rather than dismissing it on preservation grounds. Accordingly, even assuming that petitioner here is correct that the indictment by which he was charged violates Article VII (amended), section 5(2), that violation does not result in a void conviction, and does not constitute a basis for post-conviction relief. ORS 138.530(1)(a), (b); see State v. Pratt, supra; State v. Gortmaker, 60 Or.App. 723, 655 P.2d 575 (1982), aff'd on other grounds 295 Or. 505, 668 P.2d 354 (1983), cert. den. 465 U.S. 1066, 104 S. Ct. 1416, 79 L. Ed. 2d 742 (1984).
Reconsideration allowed; opinion withdrawn; reversed.
EDMONDS, Judge, concurring.
I concur in the majority's result, but would hold that the defendant's conviction is not "voidable" for the reasons stated in my *469 dissent in Goodwin v. State of Oregon, 116 Or.App. 279, 284, 840 P.2d 1372 (1992).
ROSSMAN and RIGGS, JJ., join in this concurring opinion.
NOTES
[*] Landau, J., not participating.
[1] ORS 138.550(2) provides, in part:
"When the petitioner sought and obtained direct appellate review of the conviction and sentence of the petitioner, no ground for relief may be asserted by petitioner in a petition for relief under ORS 138.510 to 138.680 unless such ground was not asserted and could not reasonably have been asserted in the direct appellate review proceeding."
[2] We have held that post-conviction relief is not available based on an error that was preserved but no appeal was taken from the judgment. E.g. Schantz v. Maass, 114 Or.App. 167, 834 P.2d 508 (1992); Hunter v. Maass, 106 Or.App. 438, 808 P.2d 723, rev. den. 312 Or. 80, 816 P.2d 610 (1991). Here, however, the issue was not preserved at the criminal trial, and those cases do not apply. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609874/ | 866 P.2d 484 (1994)
125 Or. App. 591
Carolyn L. ATTERBURY, Appellant,
v.
Rulon WELLS, Respondent.
92CV1575CC; CA A78184.
Court of Appeals of Oregon.
Argued and Submitted October 8, 1993.
Decided January 5, 1994.
Mike Stebbins argued the cause for appellant. With him on the briefs was Stebbins & Coffey.
George A. Burgott argued the cause for respondent. With him on the brief was Atherly, Butler & Burgott.
Before ROSSMAN, P.J., and De MUNIZ and LEESON, JJ.
ROSSMAN, Presiding Judge.
Plaintiff appeals a judgment for defendant, based on the trial court's holding that defendant was not adequately served with summons and complaint. We affirm.
*485 On July 5, 1990, plaintiff was injured in an automobile accident. On June 30, 1992, plaintiff filed a complaint alleging that her injuries were the result of defendant's negligence. The facts relating to service of summons are undisputed. On June 30, 1992, plaintiff's attorney sent a copy of the complaint to defendant's insurance carrier by regular mail. On that same date, plaintiff's attorney requested the Curry County Sheriff to serve summons and complaint on defendant at his residence in Brookings. Defendant was attending a family reunion in Washington. A deputy sheriff tried unsuccessfully on two occasions to serve defendant at his residence.
Pamela Mitchell, defendant's adult daughter, lives in Crescent City, California. On July 9, 1992, she happened to be visiting a friend in Brookings and stopped at defendant's house to check on his mail. There she learned that a sheriff's deputy had been to defendant's house looking for him. She went to the Curry County Sheriff's branch office in Brookings to inquire. After learning that Mitchell was defendant's daughter, but without making any further inquiry, a deputy sheriff handed her a copy of the summons and complaint. She told the deputy that defendant was out of state, but that she would see that he received the papers. On August 31, 1992, plaintiff's attorney sent by regular mail a true copy of the summons and complaint to defendant at his Brookings address.
Defendant moved for summary judgment on the ground that he had not been adequately served with summons and complaint. The court ruled:
"Well, my feeling about it is this: That unless there is some evidence to show that the daughter was authorized to accept service on behalf of the father, that is, by the father or authorized to make a service on the father by the plaintiff, or additional information was obtained from her by the sheriff, such as what was her relationship to her father, how close were they, how often did she see him, since she was returning to California that night when would she be returning to Oregon and when would she actually physically see her father or when would she be talking to him by telephone, was she aware of what the papers were that were served on her and the importance of those being given to her father promptly, when did she intend to actually physically deliver the papers if at all to her father? None of this information was obtained by the sheriff. Apparently he just handed the daughter the papers and that was the end of it. I don't think that that is service reasonably calculated to give a person that is being sued notice of the lawsuit and therefore I will grant the defendant's motion."
The first issue in determining whether service is adequate under ORCP 7 is whether the method of service was one of the methods described in ORCP 7D(2). If so, service is presumed to be reasonable and no further inquiry need be made unless there is something in the record to overcome the presumption of reasonableness. If service was not made by one of the methods described in ORCP 7D(2), then the inquiry is whether the manner of service employed by the plaintiff satisfies the "reasonable notice" standard of adequate service set forth in ORCP 7D(1). Baker v. Foy, 310 Or. 221, 228, 797 P.2d 349 (1990). On appeal, plaintiff does not claim that service was made pursuant to any of the methods described in ORCP 7D(2). She contends only that the methods chosen together constitute service reasonably calculated to give defendant notice of the action, pursuant to ORCP 7D(1).
We conclude that each of the methods chosen fails separately to meet the standard set forth in ORCP 7D(1). In mailing a copy of the complaint to defendant's insurance company, plaintiff did not purport to accomplish service. The document was not accompanied by a summons and did not contain notice of service on defendant. See Campos v. Chisholm, 110 Or.App. 158, 161, 821 P.2d 1121 (1991). It could not constitute service.
The delivery of the complaint and summons to Mitchell at the courthouse was also insufficient. As plaintiff correctly notes, what the process server knew at the time of delivery is relevant for the purpose of evaluating whether service was reasonably calculated *486 to give notice of the lawsuit. See Duber v. Zeitler, 118 Or.App. 597, 601, 848 P.2d 642, rev. den. 316 Or. 527, 854 P.2d 939 (1993). We agree with the trial court that here, in contrast with Duber, aside from Mitchell's expressed intention to deliver the documents to defendant, the deputy sheriff knew so little about Mitchell's contacts with defendant that it was not reasonable for plaintiff to expect that the handing of papers to Mitchell would result in defendant receiving notice of the action. The deputy did not even inquire as to defendant's whereabouts, the frequency or regularity of Mitchell's contact with him, or when Mitchell might deliver the papers to him. We conclude that the delivery of the papers to Mitchell was not reasonably calculated to apprise defendant of the lawsuit.
Finally, we conclude that plaintiff's subsequent mailing of the summons and complaint to defendant's last known address is insufficient to constitute service reasonably calculated to give notice. The Supreme Court has said that service on an individual by mail, although not presumed adequate under ORCP 7D(2), may be considered as a factor under the "reasonable notice" standard of ORCP 7D(1), if the requirements for service by mail contained in ORCP 7D(2)(d) are satisfied, including certified, return receipt. Edwards v. Edwards, 310 Or. 672, 679, 801 P.2d 782 (1990). Delivery by regular mail is not sufficient.
Plaintiff contends that, although each of the three wrongly chosen methods of service was inadequate in and of itself, together they accomplished service reasonably calculated to give defendant notice of the action. We reject the contention.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609879/ | 254 Kan. 534 (1994)
866 P.2d 1060
IN THE MATTER OF THE APPEAL OF ANR PIPELINE COMPANY; COLORADO INTERSTATE GAS COMPANY; NORTHERN NATURAL GAS COMPANY; MAPCO FRACTIONATOR, INC.; MAPCO AMMONIA PIPELINE, INC.; MID-AMERICA PIPELINE COMPANY; and ENRON LIQUIDS PIPELINE COMPANY from a Decision of THE DIRECTOR OF PROPERTY VALUATION of THE STATE OF KANSAS.
No. 69,116
Supreme Court of Kansas.
Opinion filed January 21, 1994.
Richard D. Greene, of Morris, Laing, Evans, Brock & Kennedy, Chartered, of Wichita, argued the cause, and Robert W. Coykendall, of the same firm; Karen Pauley, Virginia Amend, and Nancy Morgan, of ANR Pipeline Company and Colorado Interstate Gas Company, of Colorado Springs, Colorado; E. Chris Kaitson, of Northern Natural Gas Company and Enron Liquids Pipeline Company, of Houston, Texas; and Charlene Sinclair, of MAPCO Fractionator, Inc., MAPCO Ammonia Pipeline, Inc., and Mid-America Pipeline Company, of Tulsa, Oklahoma, were with him on the briefs for appellants.
William E. Waters, of Kansas Department of Revenue, of Topeka, argued the cause, and Laura E. Johnson, of the same department, was with him on the brief for appellee.
Benjamin J. Neill and Thomas H. Bornholdt, of Neill, Bornholdt & Terrill, of Overland Park, were on the brief for amicus curiae Kansas Association of Counties.
*535 Lisa Ross Wetzler, assistant county counselor, Johnson County, was on the brief for amici curiae Board of County Commissioners of Johnson County, Kansas, and County Appraiser of Johnson County, Kansas.
The opinion of the court was delivered by
McFARLAND, J.:
The appellants herein, with one exception, are open access common carriers that transport fuels in interstate commerce. The one exception, Mapco Fractionator, Inc., provides fractionating services to shippers of natural gas. Each is classified as a public utility for real and personal property tax purposes. Each was unsuccessful in its effort before the Director of Property Valuation (DPV) to have its property assessed on the same bases as is railroad property. Appeals were taken to the Board of Tax Appeals (BOTA), which upheld the decisions of the DPV. The appellants appeal from said BOTA order. The appellants contend the BOTA order is in violation of the uniform and equal requirement of art. 11, § 1 of the Kansas Constitution, the Equal Protection Clauses of the Kansas and United States Constitutions, and the Commerce Clause of the United States Constitution.
The appeals were presented to BOTA on stipulated facts. Here, as there, only questions of law are presented for determination. The circumstances giving rise to the controversies herein may be stated as follows. The tax years 1990 and 1991 are involved. At all pertinent times, art. 11, § 1(b) of the Kansas Constitution provided:
"(1) The provisions of this subsection (b) shall govern the assessment and taxation of property on and after January 1, 1989, and each year thereafter. Except as otherwise hereinafter specifically provided, the legislature shall provide for a uniform and equal basis of valuation and rate of taxation of all property subject to taxation. The provisions of this subsection (b) shall not be applicable to the taxation of motor vehicles, except as otherwise hereinafter specifically provided, mineral products, money, mortgages, notes and other evidence of debt and grain. Property shall be classified into the following classes for the purpose of assessment and assessed at the percentage of value prescribed therefor:
"Class 1 shall consist of real property. Real property shall be further classified into four subclasses. Such property shall be defined by law for the purpose of subclassification and assessed uniformly as to subclass at the following percentages of value:
*536 (A) Real property used for residential purposes including multifamily residential real property ....................................... 12%
(B) Land devoted to agricultural use which shall be valued upon the basis of its agricultural income or agricultural productivity pursuant to section 12 of article 11 of the constitution ........ 30%
(C) Vacant lots ..................................................... 12%
(D) All other urban and rural real property not otherwise specifically sub-classified .................................................. 30%
"Class 2 shall consist of tangible personal property. Such tangible personal property shall be further classified into six subclasses, shall be defined by law for the purpose of subclassification and assessed uniformly as to subclass at the following percentages of value:
(A) Mobile homes used for residential purposes ...................... 12%
(B) Mineral leasehold interests ..................................... 30%
(C) Public utility tangible personal property ....................... 30%
(D) All categories of motor vehicles not defined and specifically valued and taxed pursuant to law enacted prior to January 1, 1985 ............................................................ 30%
(E) Commercial and industrial machinery and equipment which, if its economic life is seven years or more, shall be valued at its retail cost when new less seven-year straight-line depreciation, or which, if its economic life is less than seven years, shall be valued at its retail cost when new less straight-line depreciation over its economic life, except that, the value so obtained for such property, notwithstanding its economic life and as long as such property is being used, shall not be less than 20% of the retail cost when new of such property ........... 20%
(F) All other tangible personal property not otherwise specifically classified ...................................................... 30%
"(2) All property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes, farm machinery and equipment, merchant's and manufacturer's inventories and livestock and all household goods and personal effects not used for the production of income, shall be exempted from property taxation."
This article was substantially amended in 1992, effective January 1, 1993, but said amendments are not at issue herein.
Under the provisions applicable herein, real and personal property owned by public utilities was to be assessed at 30 percent. The appellants and railroads are public utilities. K.S.A. 79-5a01.
In 1976, Congress enacted the Railroad Revitalization & Regulatory Reform Act of 1976 (Pub. L. 94-210, 90 Stat. 31, 54-5 [codified at 49 U.S.C. § 11503 (1988)]). The Act, commonly referred to as the 4-R Act, provides, in pertinent part:
*537 "(a) In this section
(1) `assessment' means valuation for a property tax levied by a taxing district.
(2) `assessment jurisdiction' means a geographical area in a State used in determining the assessed value of property for ad valorem taxation.
(3) `rail transportation property' means property, as defined by the Interstate Commerce Commission, owned or used by a rail carrier providing transportation subject to the jurisdiction of the Commission under subchapter I of chapter 105 of this title [49 U.S.C. §§ 10501 et seq.].
(4) `commercial and industrial property' means property, other than transportation property and land used primarily for agricultural purposes or timber growing, devoted to a commercial or industrial use and subject to a property tax levy.
"(b) The following acts unreasonably burden and discriminate against interstate commerce, and a State, subdivision of a State, or authority acting for a State or subdivision of a State may not do any of them:
(1) assess rail transportation property at a value that has a higher ratio to the true market value of the rail transportation property than the ratio that the assessed value of other commercial and industrial property in the same assessment jurisdiction has to the true market value of the other commercial and industrial property.
(2) levy or collect a tax on an assessment that may not be made under clause (1) of this subsection.
(3) levy or collect an ad valorem property tax on rail transportation property at a tax rate that exceeds the tax rate applicable to commercial and industrial property in the same assessment jurisdiction.
(4) impose another tax that discriminates against a rail carrier providing transportation subject to the jurisdiction of the Commission under subchapter I of chapter 105 of this title [49 U.S.C. §§ 10501 et seq.].
"(c) Notwithstanding section 1341 of title 28 [28 U.S.C. § 1341] and without regard to the amount in controversy or citizenship of the parties, a district court of the United States has jurisdiction, concurrent with other jurisdiction of courts of the United States and the States, to prevent a violation of subsection (b) of this section. Relief may be granted under this subsection only if the ratio of assessed value to true market value of rail transportation property exceeds by at least 5 percent, the ratio of assessed value to true market value of other commercial and industrial property in the same assessment jurisdiction. The burden of proof in determining assessed value and true market value is governed by State law. If the ratio of the assessed value of other commercial and industrial property in the assessment jurisdiction to the true market value of all other commercial and industrial property cannot be determined to the satisfaction of the district court through the random-sampling method known as a sales assessment ratio study (to be carried out under statistical principles applicable to such a study), the court shall find, as a violation of this section
*538 (1) an assessment of the rail transportation property at a value that has a higher ratio to the true market value of the rail transportation property than the assessed value of all other property subject to a property tax levy in the assessment jurisdiction has to the true market value of all other commercial and industrial property; and
(2) the collection of an ad valorem property tax on the rail transportation property at a tax rate that exceeds the tax ratio rate applicable to taxable property in the taxing district."
The purpose of the 4-R Act was to prohibit discriminatory taxation of railroad real and personal property by state and local property tax laws and to promote the revitalization of the railway system nationwide. See Clinchfield R. Co. v. Lynch, 784 F.2d 545, 551 (4th Cir.1986); State of Ariz. v. Atchison, T. & S.F.R. Co., 656 F.2d 398, 400 (9th Cir.1981).
The 4-R Act spawned years of federal litigation wherein railroads sought to utilize it to reduce their real and personal property taxes in Kansas. See, e.g., Atchison, Topeka & S.F. Ry. Co. v. Lennen, 640 F.2d 255 (10th Cir.1981); Atchison, Topeka and Santa Fe Ry. Co. v. Lennen, 552 F. Supp. 1031 (D. Kan. 1982), aff'd in part, rev'd in part 732 F.2d 1495 (10th Cir.1984); Atchison, T. & S.F. Ry. Co. v. Lennen, 531 F. Supp. 220 (D. Kan. 1981).
That litigation ended in 1989 with the entry of consent decrees. The parties rely on the decree entered on August 11, 1989, in Burlington Northern Railroad Company v. Rolfs, D. Kan., No. 89-4124-R, filed August 11, 1989. The effect of this decree was to fix the railroads' assessment rate for real property at 25 percent for 1990 and 22.3 percent for 1991. The parties have stipulated that 80 percent of the railroads' personal property was exempted from taxation with the balance of 20 percent to be assessed at 30 percent of the value. Like BOTA, we are at a loss from the record to see the basis for this exemption, but accept the parties' stipulation for the purposes of this appeal.
The appellants' basic position is quite simple and direct. They believe they are entitled to the same deal the railroads received for the tax years 1990 and 1991 as a result of the consent decree. There is no challenge herein to any portion of the decree. The appellants are seeking only to be taxed on the same basis as to their real and personal property for the years in dispute in the respective cases.
*539 UNIFORM AND EQUAL
For their first issue, appellants contend that the disparate treatment between pipelines and railroads violates the Kansas constitutional mandate of uniform and equal treatment among members of the same subclass. Under art. 11, § 1(b), pipeline and railroad real estate are in subclass (D) to be assessed on the basis of 30 percent of value, and their tangible personal property is in subclass (C), also to be assessed at 30 percent of value.
For many years art. 11, § 1 provided that all property was to be assessed on a uniform basis with exceptions thereto being limited to particular types of property, regardless of ownership.
Under this system, for example, typewriters of the same make and model, purchased the same day, should be assessed at the general rate regardless of the nature of the usage thereof by the respective owner. It would matter not whether a particular typewriter was owned by a public utility, a manufacturer of goods, or a grocery store. The philosophy underlying this concept was set forth in Wheeler v. Weightman, 96 Kan. 50, 58, 149 P. 977 (1915), as follows:
"The essentials [of the Uniform and Equal Clause] are that each man in city, county, and state is interested in maintaining the state and local governments. The protection which they afford and the duty to maintain them are reciprocal. The burden of supporting them should be borne equally by all, and this equality consists in each one contributing in proportion to the amount of his property. To this end all property in the state must be listed and valued for the purpose of taxation, the rate of assessment and taxation to be uniform and equal throughout the jurisdiction levying the tax."
Under the 1985 amendments to art. 11, § 1, real estate was essentially classified by usage, and personal property was essentially classified by ownership. This basic alteration in the scheme of taxation must be borne in mind when reading our earlier cases.
The appellants contend that one of these cases, Voran v. Wright, 129 Kan. 601, 284 P. 807 (1930), is dispositive of this issue. We do not agree. The DPV and the amici herein contend Voran is inapplicable. Their reasons vary. The pertinent portion of art. 11, § 1 involved in Voran was as follows:
"The legislature shall provide for a uniform and equal rate of assessment and taxation, except that mineral products, money, mortgages, notes and other evidence of debt may be classified and taxed uniformly as to class as *540 the legislature shall provide. All property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes, and personal property to the amount of at least two hundred dollars for each family, shall be exempted from taxation." (Emphasis in original.) 129 Kan. at 606.
Of this provision the Voran court stated:
"Whatever may have been proper as to classification of owners under this section before the amendment, there can no longer be any question in that regard. A classification as to owners is not now permissible. The only classification authorized or tolerated by this constitutional provision is that of property, and it makes no difference by whom it may be owned, whether by individual, merchant, manufacturer, banking institution or other corporation. Every classification is now limited to property, and only four kinds of property, viz., mineral products, money, mortgages, notes and other evidence of debt." 129 Kan. at 606-07.
The underlying problem in Voran was the taxation of the property of national banks. Of this the Voran court stated:
"National banks, being governmental agencies, would not be subject to a tax imposed by the state, and the only way to reach the property of national banks was by an indirect method sanctioned by this act of congress. It is argued that the state could have taxed the shares of stock in national banks without the permission thus granted by congress, but it has been granted with requirements and restrictions, and this state and all others have attempted to comply with the restrictions and terms imposed rather than try to accomplish the same in disregard of such consent, even if it could have been so done.
"Instead of taxing the national bank on the valuation of its property, the act authorizes the state to tax its shares of stock against the holders thereof, but the act expressly prescribes that such tax shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of the state coming into competition with the business of national banks. This act is known as section 5219 of the Revised Statutes of the United States, which was amended in 1923 and again in 1926, and is in part as follows:
`Sec. 5219. The legislature of each state may determine and direct, subject to the provisions of this section, the manner and place of taxing all the shares of national banking associations located within its limits. The several states may (1) tax said shares, or (2) include dividends derived therefrom in the taxable income of an owner or holder thereof, or (3) tax such associations on their net income, or (4) according to or measured by their net income, provided the following conditions are complied with:
`1. (a) The imposition by any state of any one of the above four forms of taxation shall be in lieu of the others, except as hereinafter provided in subdivision (c) of this clause.
*541 `(b) In the case of a tax on said shares the tax imposed shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such state coming into competition with the business of national banks: Provided, That bonds, notes or other evidences of indebtedness in the hands of individual citizens not employed or engaged in the banking or investment business and representing merely personal investments not made in competition with such business, shall not be deemed moneyed capital within the meaning of this section.'" 129 Kan. 605-06.
In the effort to comply with the federal law and thus reach national bank property for taxation purposes, the Kansas Legislature enacted certain statutes. A federal court held that shareowners of national banks could not be subjected to the general ad valorem tax rate under section 5219. This left state bank shareowners being assessed at the general rate and national bank shareowners being assessed on the lower intangible tax rate. The Voran court, applying the constitutional provisions in effect at the time, held certain portions of one of the statutes unconstitutional and thereby permitted the plaintiff owners of state bank shares to be taxed at the intangibles tax rate, as were their counterparts owning national bank shares.
Voran is distinguishable in a number of respects from the situation before us. National bank property at the time in Voran was not taxable except by compliance with the federal act. Art. 11, § 1, in the form in effect in Voran, did not contain a classification system. There were no exceptions to the general rate other than for mineral products, money, mortgages, notes, and other evidence of debt which the legislature could classify and take uniformly throughout the particular class. Shares of stock were in none of these exceptions. The present form of art. 11, § 1 classifies real and personal property based in part upon usage or ownership.
The 4-R Act, as it applies to Kansas and as reflected in the consent decree, simply required that railroad property be assessed at no higher rate than commercial or industrial property. Railroad property was thereby made an exception to subclasses to which public utility property was assigned. This exception was amended into art. 11, § 1 in 1992, where the public utility real property subclass and the commercial and industrial subclasses provide:
*542
"(5) Public utility real property, except railroad real property which
shall be assessed at the average rate that all other commercial
and industrial property is assessed ............................. 33%
"(6) Real property used for commercial and industrial purposes and
buildings and other improvements located upon land devoted
to agricultural use ............................................. 25%
Likewise in the 1992 amendment, personal property subclasses for public utility and commercial and industrial property provide:
"(3) Public utility tangible personal property included inventories
thereof, except railroad personal property including inventories
thereof, which shall be assessed at the average rate all other
commercial and industrial property is assessed .................. 33%
. . . .
"(5) Commercial and industrial machinery and equipment which,
if its economic life is seven years or more, shall be valued at
its retail cost when new less seven-year straight-line depreciation,
or which, if its economic life is less than seven years,
shall be valued at its retail cost when new less straight-line
depreciation over its economic life, except that, the value so
obtained for such property, notwithstanding its economic life
and as long as such property is being used, shall not be less
than 20% of the retail cost when new of such property .......... 25%"
We agree with appellants that a "uniform and equal" requirement has been constant in art. 11, § 1, but there has been a pertinent shift in the application of the requirement. In Voran, art. 11, § 1 essentially had all property in one grouping with certain specific types of property being excepted therefrom for classification, if the legislature desired. The legislature was charged with providing a uniform and equal rate of assessment and taxation for the general group and to tax the excepted types of property uniformly within their respective class. In contrast, the form of art. 11, § 1 before us classifies all real and personal property and fixes the assessment rate for each subclass. The legislature is charged with providing only a uniform and equal basis for valuation and rate of taxation. Thus, rate of assessment for particular property is now contained within the article and is not a matter for the legislature to determine on a uniform and equal basis. Under the article, public utility property is assessed at 30 percent.
This distinction has much to do with the result reached in Voran. Bank shares, not being in an exception, would ordinarily *543 be in the general group. To bring national bank shares into the tax base, the legislature enacted legislation which ran afoul of federal law and resulted, as a result of a federal court decision, in state bank shares being taxed on a different basis than federal bank shares. Portions of the statutes which had led to this result were held violative of the legislature's duty to provide a uniform and equal rate of assessment and taxation.
In the case before us, the 4-R Act placed limitations on state taxation of railroad property. Railroad property had to be treated the same as "other commercial and industrial property." There can be little doubt that this is a preemption. If it is not a preemption, the 4-R Act is just a piece of paper suggesting railroads should be treated like other commercial and industrial property and the enforcement section thereof is surplusage. Clearly, that was not the Congressional intent in enacting the 4-R Act.
In Goben v. Barry, 237 Kan. 822, Syl. ¶ 3, 703 P.2d 1378 (1985), a preemption case, we held:
"In making a determination of federal preemption, a court should examine those concerns emphasized by Congress in enacting the legislation. State law should be preempted only to the extent necessary to protect achievement of the purposes of the federal act in question."
The purpose of the 4-R Act was to benefit and revitalize railroads. The brief of the Department of Revenue states pipeline companies attempted unsuccessfully to obtain like federal legislation in their favor. The statement is not disputed. In any event, there is absolutely no indication in the record that Congress intended, by the enactment of 4-R, to preempt or affect how pipeline property was assessed or taxed by the states. Limiting the presumption of the 4-R Act to its purposes and application results in minimal interference with the classification system provided by art. 11, § 1.
The appellants argue that we should adopt the rationale of the Nebraska Supreme Court in Northern Natural Gas Co. v. State Bd. of Equal., 232 Neb. 806, 443 N.W.2d 249 (1989). Nebraska held in favor of the pipelines in their quest to be afforded the same favorable treatment as railroads under the 4-R Act. We decline to do so. The Nebraska Constitution does not have property classifications and is more akin to art. 11, § 1 in the form *544 applicable in Voran. We do not find the Nebraska rationale persuasive on this issue.
In Federal Exp. Corp. v. Tenn. State Bd., 717 S.W.2d 873 (Tenn. 1986), the Tennessee Supreme Court rejected a similar challenge on "uniform and equal" grounds. This case will be discussed in more detail in the next issue.
We conclude that the BOTA order refusing to afford the appellants their requested relief of having their property assessed on the same basis as railroads is not violative of the uniform and equal provision of art. 11, § 1 of the Kansas Constitution.
EQUAL PROTECTION
For their second issue, appellants contend the BOTA order is violative of the Kansas and United States Constitutions' Equal Protection Clauses.
The 14th Amendment of the United States Constitution provides that no state can make or enforce a law which shall deny to any person within its jurisdiction the equal protection of the laws. Section 1 of the Bill of Rights of the Kansas Constitution provides: "All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness." Appellants do not argue the Kansas Constitution grants them any greater rights herein than does the United States Constitution. In the following discussion, we will refer only to the United States Constitution, but such discussion should be considered as being equally applicable to the Kansas Constitution argument.
Similar arguments were raised in two cases in other jurisdictions and rejected.
In State v. Colonial Pipeline Co., 471 So. 2d 408 (Ala. Civ. App. 1984), the Alabama Court of Civil Appeals considered an oil pipeline's challenge to the assessment of its property at the public utility rate, which was the highest rate under Alabama's classification system. Colonial contended, inter alia, that assessment of railroad property which was in the same classification as the pipeline at a lesser rate by virtue of the 4-R Act was violative of the Equal Protection Clause of the United States Constitution. The Alabama court stated:
*545 "If there may be some discrimination against Colonial, it is not arbitrary or unreasonable. Until the state was specifically forbidden to tax the property of railroads at a higher assessment ratio than other commercial and industrial property by Congress in 49 U.S.C.A. § 11503, it classified the property of railroads as Class I property. Moreover, until forbidden to do so by the Circuit Court of Montgomery County in Delta Airlines v. Department of Revenue, Civil Action No. CV-80-116-G, the Department classified the property of airlines as utilities and taxed them as Class I property. The Tax Equity & Fiscal Responsibility Act of 1982, § 532 amending 49 U.S.C. § 1513(b) and (d), now has the effect of forbidding the state from assessing property of air carriers at a higher rate than other commercial and industrial property.
"Currently, the state is specifically forbidden to classify the property of motor carriers as Class I property by 49 U.S.C. § 11503a, which gives the motor carriers the same protection from high assessment rates that is afforded railroads and air carriers. Were it not for the supremacy of federal statutes over state law, airlines, trucklines and railroads, which are included in § 4021-1, would be subject to the same Class I classification as is assigned Colonial's property. The preemption for tax purposes of those other entities does not destroy the classification by state law from which they were exempted and to which Colonial continues to belong." 471 So. 2d at 412-13.
In Federal Exp. Corp. v. Tenn. State Bd., 717 S.W.2d 873, a taxpayer challenged its property assessment as a public utility rather than as commercial and industrial property. While ruling that the plaintiff taxpayer was a "public utility" for ad valorem taxation, the Tennessee Supreme Court turned aside the taxpayer's equal protection argument, stating:
"Federal Express also argues that to assess its property for ad valorem tax purposes at 55% of its value, while assessing the property of railroads at the industrial and commercial rate of 30% of value, violates the Equal Protection Clause of the United States Constitution and Article II, Section 28 of the Tennessee Constitution, which requires `the ratio of assessment to value of property in each class or subclass shall be equal and uniform throughout the state.' The legislature classified railroads as public utilities and assessed them for ad valorem tax purposes at 55% of the value of their properties. However, the Congress of the United States, by Section 306 of the Railroad Revitalization and Regulatory Reform Act of 1976, 49 U.S.C. § 11503 (`4-R Act'), preempted the state classification of railroads and provided that they should be taxed as industrial and commercial property are taxed. The Act, having as its purpose the revitalization of railroads, affected only that business. Thus leaving in effect the state classification of other businesses as public utilities. The assessment of each of the businesses classed as public utilities is at the same ratio to value as the assessment of Federal Express property; consequently, we find no violation of either Article *546 II, Section 28 of the Tennessee Constitution or the Equal Protection Clause of the Federal Constitution." 717 S.W.2d at 875-76.
To buy the appellants' argument, we would have to conclude the 4-R Act, in essence, eliminated the public utility subclass of personal property and transferred the same to the commercial and industrial subclass and made a major alteration to the "all other" subclass relative to real property. Again, appellants rely on the Nebraska case of Northern Natural Gas Co. v. State Bd. of Equal., 232 Neb. 806, which held that taxing pipeline property on a different basis than railroad property was violative of the Equal Protection Clause as well as the uniform and equal state constitutional requirement. Again, we find the Nebraska opinion unpersuasive.
Art. 11, § 1 treats all public utility property alike. The 4-R Act affects only railroad property and preempts the classification only as to such property.
Appellants complain that BOTA did not address its equal protection arguments in the order entered. It is true the BOTA order does not specifically refer to the equal protection argument as such, but, from the language employed therein and the cases cited, it is clear such was considered.
We conclude that the BOTA order is not violative of the Equal Protection Clauses of the United States or Kansas Constitutions.
COMMERCE CLAUSE
For their third issue, appellants contend the BOTA order is violative of the Commerce Clause of the United States Constitution.
The Commerce Clause provides that the "Congress shall have Power ... [t]o regulate Commerce ... among the several States." U.S. Const. art. I, § 8, cl. 3. State regulation that is contrary to the constitutional principle of insuring that the conduct of individual states does not work to the detriment of the nation as a whole is invalid under the dormant Commerce Clause. Wardair Canada v. Florida Dept. of Revenue, 477 U.S. 1, 7-8, 91 L. Ed. 2d 1, 106 S. Ct. 2369 (1986).
Appellants assert that the property tax imposed by the State of Kansas upon pipeline property violates the Commerce Clause of the United States Constitution because the tax is discriminatory *547 and unduly burdensome upon interstate commerce and violative of the third and fourth prongs of the four-prong test enumerated in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279, 51 L. Ed. 2d 326, 97 S. Ct. 1076 (1977). The four-prong test enumerated in Complete Auto is: (1) The tax must be applied to an activity with a substantial nexus with the taxing state; (2) the tax must be fairly apportioned; (3) the tax must not discriminate against interstate commerce; and (4) the tax must be fairly related to the services provided by the state. 430 U.S. at 279.
Appellants' argument on this issue lacks focus. Much of it seems to be a broad criticism of the classification system itself without any reference to railroads or the 4-R Act. This argument is difficult to understand. Public utility real estate is in the "all other" subclass which includes everything but residential property, agricultural land, and vacant lots. Public utility personal property has its own subclass. Pipeline operations crossing only county lines are assessed at the same rate as are those crossing state lines. Kansas Const., art. 11, § 1; K.S.A. 79-5a01. Pipeline property is valued by the unit valuation method and that valuation is apportioned to Kansas based on the percentage the pipeline company's original cost in Kansas bears to the total original cost of the company. See K.S.A. 79-5a04. Thus, as required by Commonwealth Edison Co. v. Montana, 453 U.S. 609, 69 L. Ed. 2d 884, 101 S. Ct. 2946 (1981), a pipeline company's property is assessed in Kansas in proportion to the pipeline's presence in the state.
The facts herein do not support a serious challenge based upon the Commerce Clause. The appellants contend the DPV and BOTA violated the Commerce Clause by not giving them the tax advantage that the 4-R Act mandated for the railroads. The appellants and the railroads are all engaged in interstate commerce. Kansas treated them alike in its constitution and in its statutory definition of public utilities. Congress chose to favor the railroads by enactment of the 4-R Act. Congress is the source of the alleged discrimination underlying this appeal. Appellants do not challenge the 4-R Act or the consent decree thereunder. Rather, they want to ride piggyback to gain the same tax treatment in Kansas.
We find no violation of the Commerce Clause in BOTA's refusal to extend the 4-R Act and the federal court order to appellants *548 and to order appellants' property be assessed on the same basis as railroad property.
We conclude that the BOTA order is not violative of the Commerce Clause of the United States Constitution.
The order of the Board of Tax Appeals is affirmed.
ABBOTT, J., not participating.
PRAGER, C.J. Retired, assigned.[1]
NOTES
[1] REPORTER'S NOTE: Chief Justice Prager, Retired, was appointed to hear case No. 69,116 vice Justice Abbott pursuant to the authority vested in the Supreme Court by article 3, § 60(f) of the Kansas Constitution. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876014/ | 260 S.W.3d 461 (2008)
In the Interest of D.F., a Child.
No. 08-0378.
Supreme Court of Texas.
July 25, 2008.
Tim Curry, Tarrant County Criminal District Attorney, Charles M. Mallin, Anne E. Swenson, David M. Curl, Assistant Criminal District Attorneys, Fort Worth TX, Kim Leah Burkley, Dallas County District Attorney's Office, Dallas TX, for Texas Department of Family and Protective Services.
Richard Charles Kline II, Fort Worth TX, Cordelia Jane Anakwue, Dallas, TX, for David Franklin, respondent pro se.
Sylvia R. Andrews, Fort Worth TX, Attorney ad litem.
Kee Alice Ables, Arlington TX, for Dorlyn Yvonne B.
Marvina Nichelle Robinson, Marvina N. Robinson, P.C., Attorney at Law, Mansfield TX, for Michael J.
PER CURIAM.
The petition for review is denied. In denying the petition, we neither approve nor disapprove the holding of the court of appeals regarding the constitutionality of Texas Family Code section 263.405(i). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/250078/ | 274 F.2d 809
EMPLOYERS' LIABILITY ASSURANCE CORPORATION, LTD., Appellant,v.Ruby Nell Martin WEEDEN, Appellee.
No. 17796.
United States Court of Appeals Fifth Circuit.
February 18, 1960.
Marian Mayer, Deutsch, Kerrigan & Stiles, New Orleans, La., for appellant.
Falvey J. Fox, New Orleans, La., for appellee.
Before TUTTLE, CAMERON and WISDOM, Circuit Judges.
CAMERON, Circuit Judge.
1
This appeal is from a judgment for substantially $6,000 rendered in favor of appellee Weeden for permanent and total benefits under the Louisiana Workmen's Compensation Act, LSA-R.S. 23:1021 et seq., against appellant Employer's Liability Assurance Corporation, Ltd., insurance carrier of Johnny-Lee Cleaners, appellee's employer. After motion for reargument and for new trial had been denied appellant appealed, assigning five errors alleged to have been committed by the trial court, which heard and decided the case without a jury.1 We are unable to pass upon the errors specified, because we do not know the bases upon which the court below rested its verdict and judgment.
2
The court heard oral testimony from seven witnesses, including two doctors, and the deposition of one doctor, but failed entirely to "find the facts specially and state separately its conclusions of law thereon," as required by Rule 52(a) F.R.Civ.P., 28 U.S.C.A. Of such a situation Professor Moore2 states: "Where the trial court fails to make findings, or to find on a material issue, and an appeal is taken, the appellate court will normally vacate the judgment and remand the action for appropriate findings to be made."
3
Concerning a like situation this Court recently3 stated:
4
"We find ourselves in full agreement with the views thus expressed: that it is the duty of the trial court to deal adequately with and to distinguish with clarity what it finds as fact and what it holds as conclusions of law; and not the duty or the right of this court to make independent determinations; that the district judge has completely failed to make fact findings upon the issues and to adequately state the grounds upon which his decision rests; and that a decision by us on this record, affirming or reversing this judgment, would not be a review by us of the findings of the district court, but in effect an initial determination of them by us."
5
And in a damage suit where the district court simply entered judgment for the injured person in a certain sum,4 we reached a like conclusion and quoted at length from a Supreme Court case as one of the bases therefor.
6
While the award made by the court was for the highest permissible amount based upon a finding of total and permanent disability occasioned by injury to appellee's left thumb, the only remarks made by the court, when the evidence was concluded, were unfavorable to appellee's case.5 This case, therefore, makes an extraordinary call for full and explicit findings by the trial court, so that we may pass intelligently upon the question whether its conclusions and award were justified under the evidence.
7
The judgment of the court below is vacated and the cause is remanded for further action of the district court, including the making of appropriate findings and conclusions as required by the Rules of Procedure.
8
Vacated and remanded.
Notes:
1
"1 — The trial court erred in failing to determine whether the appellee was a common or skilled laborer
"2 — The trial court erred if its decision be interpreted as a holding that the appellee's work as a presser is skilled, not common labor.
"3 — The trial court erred if its decision be interpreted as a holding that appellee could not work as a presser.
"4 — The trial court erred in awarding benefits under the general disability clauses for an injury which does not interfere with the performance of appellee's employment.
"5 — The trial court erred in overlooking the defense that the appellee's residual loss was due to her own lack of cooperation."
2
5 Moore's Federal Practice, 2d Ed., p. 2662
3
Johnson v. United States, and reverse title, 5 Cir., 1958, 256 F.2d 849, 850
4
Victory Towing Company, Inc. v. Bordelon, 5 Cir., 1955, 219 F.2d 540
5
"I might say at this point that this plaintiff has not helped her case or cause very much. You may say she has hurt it, I think. I'll say I don't think she has been a frank and honest witness here. She had certainly not helped her case by her attitude on the witness stand * * * It makes it difficult to appraise her testimony * * * | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2609989/ | 2 Wn. App. 183 (1970)
467 P.2d 319
DOUGLAS KIRK, Respondent,
v.
RUDOLPH ALLEMANN et al., Appellants.
No. 124-40820-3.
The Court of Appeals of Washington, Division Three.
March 26, 1970.
George C. Butler (of Butler & Heye), for appellants.
Hugh B. Horton (of Horton, Wilkins & Horton), for respondent.
GREEN, J.
Plaintiff, Douglas Kirk, a building contractor, brought this action to foreclose a labor and materialmen's lien and recover $7,189.65, the balance owing on a contract entered into with defendants, Rudolph and Mary Ann Allemann, for construction of a home. Defendants denied the claim and alleged as a seperate defense that the construction was defective in many particulars and the work not completed in accordance with the contract. Defendants made a tender of $6,000 on the condition the liens be released and this action be dismissed without costs. The trial *184 court, sitting without a jury, found in favor of plaintiff. Defendants appeal.
At the close of the evidence, both parties requested the trial judge to visit the premises. He viewed the premises in the presence of all the parties and their attorneys. Thereafter, he rendered a memorandum opinion ordering a reduction of the contract balance by the amount of $500 on defendants' separate defense. Judgment was entered for plaintiff in the sum of $6,689.65, together with interest from June 1, 1967, sales tax differential, attorneys' fees and statutory costs and disbursements.
[1] This case involves a factual dispute. On this appeal defendants reargue the facts. We have carefully reviewed all of the record and conclude that the findings of the trial court are amply sustained by the evidence. Even if we were of the opinion that the trial court should have resolved the factual issues the other way, the constitution does not authorize this court to substitute its findings for those of the trial court. Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 343 P.2d 183 (1959).
[2] Defendants contend the trial court made its own investigation at the time of the view and improperly used the view as new and independent evidence. Our Supreme Court has said:
The trial judge may view the premises for the purpose of clarifying and harmonizing testimony. In other words, his view of the premises is to aid him in his understanding of the evidence introduced in the case. In re Schmitz, 44 Wn. (2d) 429, 433, 268 P. (2d) 436 (1954); Booten v. Peterson, 47 Wn. (2d) 565, 569, 288 P. (2d) 1084 (1955); In re Seattle, 49 Wn. (2d) 247, 253, 299 P. (2d) 843 (1956).
In this jurisdiction, the trial judge cannot view the premises for the purpose of proving some res gestae fact not in evidence, nor may he view the premises for the purpose of searching for extrinsic evidence to be applied in corroborating or discrediting the testimony of a witness. If he does so, and his judgment is based thereon, it is reversible error. Elston v. McGlauflin, 79 Wash. 355, 140 Pac. 396 (1914).
*185 Christensen v. Gensman, 53 Wn.2d 313, 318, 333 P.2d 658 (1958). It is evident from an examination of the trial judge's entire memorandum opinion that during the view of the premises the alleged defects were pointed out to him. In light of what he saw, he evaluated the testimony presented by both parties. We are unable to conclude that the trial judge did anything other than to properly employ the view to clarify and harmonize the evidence.
[3] Next, defendants claim the trial court erred in allowing attorneys' fees, interest, costs and sales tax differential. We disagree. Defendants' tender was never for the full balance of the contract price plus sales tax, the amount claimed due, or the amount adjudged due. Further, the tender was conditioned upon a complete release of all claims and dismissal of this action. For these reasons, the tender was conditional. As a result, defendants failed to make such tender as would foreclose allowance of attorneys' fees, interest, costs, or sales tax differential. American Sheet Metal Works, Inc. v. Haynes, 67 Wn.2d 153, 407 P.2d 429 (1965).
At the time the contract in question was executed, the Washington State sales tax was 4.2 per cent. On July 1, 1967, the tax was increased to 4.5 per cent. RCW 82.08.020. Defendant raises a question as to the interpretation of the court's judgment with respect to the increased sales tax. It seems clear under the facts of this case that the defendants should be required to pay sales tax at the rate of 4.2 per cent on the payments made prior to July 1, 1967, totaling $24,000; defendants should pay sales tax at the rate of 4.5 per cent on the sum of $5,448.05, being the adjusted contract principal balance. (Initial contract price: $29,562 plus charges and extras of $386.05, for a total contract price of $29,948.05 less payments of $24,000 and the $500 credit allowed by the court for a net adjusted principal balance of $5,448.05.) To the extent the parties construe the judgment to the contrary, the judgment is modified in accordance with this opinion.
Judgment affirmed except as herein provided.
EVANS, C.J., and MUNSON, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1873470/ | 141 B.R. 826 (1992)
MIDLANTIC NATIONAL BANK, Appellant,
v.
Theodore G. SOURLIS and Elaine Sourlis, Respondent.
Civ. A. Nos. 91-1527 (JCL), 91-1528 (JCL).
United States District Court, D. New Jersey.
June 25, 1992.
*827 Nola R. Bencze, Jamieson, Moore, Peskin & Spicer, Princeton, N.J., for Midlantic Nat. Bank.
*828 Bunce D. Atkinson, Atkinson & Debartolo, P.C., Tinton Falls, N.J., for Theodore G. and Elaine Sourlis.
OPINION
LIFLAND, District Judge.
Midlantic National Bank ("Midlantic") appeals from three orders of the United States Bankruptcy Court for the District of New Jersey. This Court has jurisdiction pursuant to 28 U.S.C. § 158(a). For the reasons that follow, the court holds that Midlantic has a perfected security interest in rents which it may enforce in bankruptcy.
FACTS AND PROCEDURAL HISTORY
The facts are undisputed. On June 14, 1988 Theodore and Elaine Sourlis ("the debtors") executed a note in favor of Midlantic in the sum of $1,800,000. The note was secured by a mortgage encumbering thirteen residential properties. The mortgage contained an assignment of rents as further security. In addition, a separate assignment of rents was given to Midlantic as additional security, and was recorded apart from the mortgage. Both the assignment and the mortgage were recorded in the appropriate county on June 20, 1988.
The debtors failed to pay the note when it became due on June 14, 1989. Midlantic instituted a foreclosure proceeding in the Superior Court of New Jersey on March 23, 1990. Midlantic did not seek to take possession of or manage the properties or seek the appointment of a receiver prior to the debtors' filing a voluntary petition in bankruptcy under Chapter 11 on July 2, 1990.
Midlantic's motion to restrain the debtors' use of the rents as cash collateral was denied by the Bankruptcy Court on October 22, 1990. Midlantic sought reconsideration, which was denied on December 6, 1990. Midlantic thereafter filed a motion for relief from the automatic stay and to sequester rents, which was denied on February 5, 1991. Midlantic appeals from those three orders.
DISCUSSION
This court's review of the Bankruptcy Court's application of law is plenary. In re Sharon Steel Corp., 871 F.2d 1217 (3d Cir.1989).
1. Cash Collateral
The agreed issue before the court is whether under New Jersey and federal bankruptcy law a mortgagee with a recorded assignment of rents must secure the appointment of a rent receiver or take possession or control of the rents pre-petition in order to authorize treatment of post-petition rents as cash collateral under § 363 of the Bankruptcy Code. In practical terms, this requires the court to determine how or whether a secured creditor can effectuate its interest in assigned rents where the defaulting party has filed a petition in bankruptcy.
Section 363 of the Bankruptcy Code provides:
(a) ... "cash collateral" means cash ... in which the estate and an entity other than the estate have an interest and includes the proceeds, products, offspring, rents, or profits of property subject to a security interest as provided in section 552(b) of this title, whether existing before or after the commencement of a case under this title.
(c)(1) ... the trustee may enter into transactions, including the sale or lease of property of the estate, in the ordinary course of business, without notice or a hearing, and may use property of the estate in the ordinary course of business without notice or a hearing.
(c)(2) The trustee may not use, sell, or lease cash collateral under paragraph (1) of this subsection unless
(A) each entity that has an interest in such cash collateral consents; or
(B) the court, after notice and a hearing, authorizes such use, sale or lease in accordance with the provisions of this section.
(e) Notwithstanding any other provision of this section, at any time, on request of an entity that has an interest in property used, sold or leased, or proposed to be used, sold, or leased, by the trustee, the court, with or without a hearing, shall prohibit or condition such use, sale, or *829 lease as is necessary to provide adequate protection of such interest.
Pursuant to 11 U.S.C. § 552(a), property acquired by the estate (here the rents from the properties) after the commencement of the case is not subject to any lien arising from a security interest entered into prior to the commencement of the case. An exception exists under § 552(b), which provides:
... if the debtor and an entity entered into a security agreement before the commencement of the case and if the security interest created by such security agreement extends to property of the debtor acquired before the commencement of the case and to ... rents ... of such property, then such security interest extends to such ... rents ... acquired by the estate after the commencement of the case to the extent provided by such security agreement and by applicable nonbankruptcy law, except to any extent that the court after notice and a hearing and based on the equities of the case, orders otherwise.
Thus, under § 552(b) a pre-petition lien on rents continues in bankruptcy to the extent that the security interest expressly provides for an interest in the rents and the interest has been perfected under "applicable nonbankruptcy law". See United Sav. Association v. Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365, 374, 108 S. Ct. 626, 632, 98 L. Ed. 2d 740 (1988).
Under Butner v. United States, 440 U.S. 48, 99 S. Ct. 914, 59 L. Ed. 2d 136 (1979), state law determines the existence of a security interest in property, such as rents.[1] Therefore, New Jersey law applies to determine whether Midlantic had a perfected security interest in the rents from the properties as a result of the assignment in its recorded mortgage and its separately recorded assignment of rents. The parties agree that there is no case directly on point, since the New Jersey courts have not had occasion to address the question of whether a mortgagee with an assignment of rents must secure the appointment of a rent receiver or take possession or control of the rents in order to enforce its security interest in the rents.
At the initial hearing, the Bankruptcy Court determined that New Jersey law required a mortgagee to take affirmative action (in addition to filing a foreclosure action) to perfect an assignment of rents. The court based its decision on New Jersey law to the effect that a mortgagee is not entitled to collect rents until he takes possession of the property or has a receiver appointed. Eisen v. Kostakos, 116 N.J.Super. 358, 368, 282 A.2d 421 (App.Div.1971); Scult v. Bergen Valley Builders, Inc., 82 N.J.Super. 378, 197 A.2d 704 (App.Div. 1964).[2] At the hearing on the motion for reconsideration, the Bankruptcy Court further noted that the language of the assignment which permitted Midlantic to, at its option, take possession, manage the properties and collect rents upon default read more like a conditional assignment or pledge than an absolute assignment of rents.
In Eisen the court referred to the well-established rule that a mortgagee is not entitled to rents or profits until he takes possession of the property or has a receiver appointed. Eisen, 116 N.J.Super. at 368, 282 A.2d 421.
In Scult the court also stated the rule that a mortgagee has no right to rents or profits until he takes possession of the *830 property or has a receiver appointed. Scult, 82 N.J.Super. at 380, 197 A.2d 704. The court noted that a foreclosing mortgagee must timely exercise his rights with respect to his security or forego the right to sums arising out of it. Id. at 381, 197 A.2d 704.[3]
Midlantic disputes the applicability of Eisen and Scult to this case, since they did not involve a mortgage with an assignment of rents clause. In support of its position that a mortgagee with an assignment of rents has (upon recording) perfected its security interest in rents without further action, Midlantic relies on Paramount Bldg. & Loan Ass'n v. Sacks, 107 N.J.Eq. 328, 152 A. 457 (Ch.Div.1930); New Jersey National Bank & Trust Co. v. Morris, 9 N.J.Misc. 444, 155 A. 782 (Ch.Div.1931); New Jersey National Bank & Trust Co. v. Wolf, 108 N.J.Eq. 412, 155 A. 372 (Ch.Div. 1931); and Stanton v. Metropolitan Lumber Co., 107 N.J.Eq. 345, 152 A. 653 (Ch. Div.1930).
In Paramount, the issue was the entitlement of three mortgagees to rents collected by a receiver in a foreclosure action. The mortgagees each held a mortgage which provided for assignment of rents upon default. The mortgagee in possession argued that the first and second mortgagee were not entitled to the rents not-withstanding their assignment clauses, since he was in possession of the property at the time that the foreclosure action was filed and the other mortgagees had taken no affirmative action (such as taking possession of the property or seeking the appointment of a receiver) entitling them to the rents. Paramount, 152 A. at 458. The court rejected this argument, holding that "as between several mortgagees, each of whose mortgage contains an assignment of rents", the first mortgagee was entitled to the rents upon default (and the filing of the foreclosure action, which was an explicit condition of the assignment to the first mortgagee). Id. at 459. The Paramount court distinguished between an assignment and a pledge, noting that the mortgage language determines when the mortgagee is entitled to rents. The court distinguished Freedman's Sav. Trust Co. v. Shepherd, 127 U.S. 494, 8 S. Ct. 1250, 32 L. Ed. 163 (1888), which had held that a mortgagees is not entitled to rents or profits unless he takes possession or moves to have a receiver appointed, since Freedman's did not involve an assignment of rents. Id. at 458.
Morris concerned the mortgagee's right to the appointment of a receiver under the mortgage based upon its assignment of rents. The court noted that the mortgagee, by virtue of the assignment of rents clause in the mortgage, was entitled to the rents accruing after default. 155 A. at 783. However, the court held that an assignment of rents clause in a mortgage did not alter the traditional principles which guide the court in determining whether to appoint a rent receiver. Id. Since the security in the case was not inadequate, and the mortgagor was not insolvent, a receiver was not necessary to protect the mortgagee's interest. Id.
In Wolf, the court held that an assignment of rents entitled the assignee to maintain an action for rents against the tenant. The court relied on Stanton v. Metropolitan Lumber Co., 107 N.J.Eq. 345, 152 A. 653 (N.J.Ch.1930). In Stanton, the court determined that the mortgagee was not entitled to rents simply because it was a mortgagee, since a mortgagee is not entitled to rents accruing after default "unless and until he takes possession, personally or by a receiver duly appointed for that purpose." Stanton, 152 A. at 654. However, the court held that the mortgagee was entitled to the rents under its assignment of rents clause, which provided that the rents were assigned to the mortgagee in the event of a default. The court also held that the assignment of rents was additional *831 security independent of the mortgage security, which became absolute upon default in payment of the mortgage debt. The court noted that an assignment passes title whereas a pledge requires foreclosure to be effective.
Midlantic also relies on In re Pine Lake Village Apartment Co., 17 B.R. 829 (Bankr.S.D.N.Y.1982) and In re Winslow Center Assoc., 50 B.R. 679 (Bankr.E.D.Pa. 1985). In Pine Lake, the Bankruptcy Court, interpreting New Jersey law, held that an assignment of rents clause in a mortgage may be self-executing upon default. The mortgagee and the debtor had entered into a management agreement whereby the managing agent collected the rents and applied them to the principal and interest of the debt. The debtor directed the managing agent to cease payment to the mortgagee and instead pay the rents to the debtor. The mortgagee commenced an action in the Superior Court of New Jersey to foreclose on the mortgage and to recover the rents received by the debtor. Shortly thereafter, the debtor filed a Chapter 11 petition. As in this case, the mortgagee sought to restrict the debtor's use of post-petition rents as cash collateral, which was denied. The debtor then commenced a proceeding to compel the turnover of pre-petition rents collected by the managing agent, arguing that the rents were property of the estate. The mortgagee objected, claiming that it had title to the funds. The court determined that under New Jersey law an assignment of rents clause in a mortgage may be self-executing upon default, citing Stanton and Paramount. 17 B.R. at 833. The Pine Lake court noted that in both of those cases the New Jersey courts distinguished between an absolute assignment, which passes title to the assignee, and a pledge, which requires possession. The court determined that the mortgage clause at issue contained language that indicated both an assignment and a pledge, but did not decide the issue since there had been no default in payment of the mortgage debt. Pine Lake, 17 B.R. at 835.
In In re Winslow, the mortgagee asserted that it had an absolute assignment of rents entitling it to the turnover of accrued rents. The District Court for the Eastern District of Pennsylvania noted that New Jersey law distinguishes between an assignment and a pledge, depending upon the language of the mortgage clause at issue. The court stated that under New Jersey law, a provision is considered to be a pledge "if the mortgagee's interest in the rents does not vest until the occurrence of some precipitating event such as default under the mortgage". Winslow, 50 B.R. at 681. The court further noted that, even if a clause grants the mortgagee an assignment, i.e. title, it constitutes only a security interest. Id. at n. 2. The court determined that the following language created a "vested interest in all rents as they accrued":
Mortgagors hereby assign to Mortgagee any and all rents, issues and profits on the premises covered hereby, but Mortgagors shall be entitled to collect and retain the said rents, issues and profits until default hereunder, unless otherwise specifically provided.
Winslow, 50 B.R. at 681-82.
The Bankruptcy Court herein was thus confronted with two lines of New Jersey cases, i.e. cases relating to the actions that a mortgagee must take to entitle it to collect rents, and cases relating to whether an assignment of rents is, by its language, an absolute assignment or a pledge. The Bankruptcy Court was required to resolve the issue of the extent to which, under New Jersey law, Midlantic had a perfected security interest in the rents at the time that the bankruptcy petition was filed. These cases provided the court with little guidance, since neither line of cases addresses how a mortgagee perfects its security interest in rents; the cases address entitlement to the rents, i.e. enforcement of the mortgagee's interest. Under New Jersey law, a mortgagee must take affirmative steps, such as taking possession of the property or securing the appointment of a receiver, to entitle the mortgagee to collect rents arising from the mortgaged property. Eisen, Scult. However, also under New Jersey law, a mortgagee with an assignment of rents is entitled to enforce its *832 assignment and collect the rents upon default without taking possession of the property or seeking the appointment of a receiver. Stanton, Winslow.
The court finds these cases of limited value in resolving the present issue before the court, i.e. whether a mortgagee with a recorded assignment of rents must seek appointment of a receiver, or take possession or control of the rents pre-petition, in order to seek treatment of post-petition rents as cash collateral under the Bankruptcy Code. The aforementioned cases do not address the issue of what action, if any, is required for a mortgagee to perfect its security interest arising from an assignment of rents.
Further, the court believes that not only are the aforementioned cases unhelpful, but that they also blur the essential distinction between the concept of the existence and perfection of a security interest in rents and the concept of enforcement of that security interest. The concept of perfection involves the interests of a secured party vis-a-vis third parties, and recording serves to place such third-parties on notice of the existence of a secured party's interest. The concept of enforcement involves the relationship between the debtor, secured creditor and the collateral, and the steps that the secured creditor must take to enforce its rights in the collateral. In bankruptcy it is essential to observe this distinction, because the mortgagee's right to enforce its interest in rents outside of bankruptcy is no longer available to it because of the automatic stay, and because § 552(b) does not refer to enforcement, but rather looks to the extent to which the secured creditor has rights in the rents under state law.
The question before the court is whether a mortgagee with an assignment of rents should be forced to take possession, or seek the appointment of a receiver immediately upon default, at the risk of losing its right to rents (often the significant measure of the value of real estate in a commercial setting) upon the filing of a petition in bankruptcy. The Bankruptcy Court's interpretation of New Jersey law and § 552(b) requires a mortgagee in New Jersey to race to the property and "take possession" (an uncertain obligation in the context of a large commercial or residential development such as we have in this case) or race to the state courthouse to file appropriate proceedings seeking foreclosure and/or appointment of a receiver, in the hope that it will accomplish its mission at the state courthouse before a bankruptcy petition is filed. This encourages a race to the courthouse, which in turn discourages workouts between the debtor and creditor.
Had Midlantic been granted relief from the automatic stay and then pursued its state court foreclosure action, the court sees no reason why the state court would not have enforced Midlantic's assignments and granted Midlantic rights in the rents assigned to it. Here, the mortgagor has twice assigned the rents to the mortgagee, there is no suggestion that there is a competing assignee, recordation is complete and default is undisputed. There can be no question that a state court would enforce the mortgagee's contractual rights to the rents. Butner, 440 U.S. at 56, 99 S.Ct. at 918, indicates that the same result should prevail in the Bankruptcy Court.
The court concludes that under § 552(b) such a state of facts clearly authorizes the Bankruptcy Court to treat the rents as cash collateral. Whether the Bankruptcy Court feels that the mortgagee is otherwise adequately protected, without restricting the debtor's access to rents as cash collateral, is an issue to be addressed by the Bankruptcy Court under § 363(e) and is not before me.
The foregoing analysis is consistent with the perfection/enforcement dichotomy referred to above and is consistent with the clear intent of § 363(c)(2) and § 552(b) to protect a secured creditor's rights in soft collateral such as rents.
The many courts that have addressed the scope of a mortgagee's interest in rents in bankruptcy have produced a varying body of law, due to the blending of the concepts of enforcement of an interest in rents and a security interest in rents that is perfected *833 as of the date of recordation.[4]See In re Park at Dash Point L.P., 121 B.R. 850, 855 (Bankr.W.D.Wash.1990); In re Vienna Park Properties, 136 B.R. 43, 52 (S.D.N.Y. 1992); Sally A. Conti, Assignment of Rents: There's Hope for Secured Creditors, Vol. 3 No. 21 Bank. Counsellor ¶ 933 (October 1990). State law governs both perfection of a security interest in rents and enforcement of that interest in state courts, but distinction between the concepts is necessary in bankruptcy:
If a security interest is unenforced as of the date of the bankruptcy petition, then the secured creditor may not have an immediate right to possession of the collateral [under state law], but that does not render the security interest ineffective as against the trustee, whether the collateral be accounts, real property, rents, or otherwise.
In re Park at Dash Point, 121 B.R. at 858.
In a recent case, a Bankruptcy Appellate Panel described the three lines of cases relating to a secured creditor's interest in rents in bankruptcy. In re Tucson Industrial Partners, 129 B.R. 614, 620 (9th Cir. BAP 1991). The first line of cases holds that an assignment does not pass title to rents until enforced, and absent pre-petition enforcement, assigned rents are not cash collateral under § 552(b). Id. at 620-621 (citations omitted).
The second line of cases recognizes that a secured creditor's right to collect rents may not exist without pre-bankruptcy enforcement, but nonetheless entitles a secured creditor (such as an assignee of rents) to post-bankruptcy rents from the date that the creditor takes affirmative steps to terminate the debtor's use of the rents (i.e., through a motion for the sequestration of rents or a motion to restrain the debtor's use of the rents as cash collateral). See e.g. In re Village Properties, Ltd., 723 F.2d 441 (5th Cir.), cert. denied sub nom Wolters Village, Ltd. v. Village Properties, Ltd., 466 U.S. 974, 104 S. Ct. 2350, 80 L. Ed. 2d 823 (1984) and In re Casbeer, 793 F.2d 1436 (5th Cir.1986). Under this line of cases the secured creditor's right to rents post-petition is premised upon § 546(b) of the Bankruptcy Code, which recognizes post-petition acts to perfect security interests based upon state law. As noted infra, § 546(b) only permits post-bankruptcy perfection to the extent that state law provides a period in which perfection can be accomplished and relates back. New Jersey law provides no such relation-back relevant to this case.
The third line of cases holds that § 363 of the Bankruptcy Code reflects Congress' intent to protect a creditor's rights in rents as an "interest" in property under that section and as a security interest within the meaning of § 552(b), thereby providing the creditor with rights to the rents as cash collateral. The In re Tucson court found this reasoning achieved the correct result and rejected the notion that creditors lack any right to rents simply because they failed to enforce their rights to collect rents prior to the filing of the bankruptcy petition. In re Tucson, 129 B.R. at 623. Thus, the Bankruptcy Appellate Panel held that under Arizona law, a properly recorded security interest in rents survives bankruptcy under § 552(b), thereby discouraging a race to the courthouse upon the first hint of default. Id. at 624. The court noted that in those instances in which a creditor has not enforced a perfected security interest in rents prior to bankruptcy, this rule avoids a debtor's frustration of a creditor's interest in rents by filing a bankruptcy petition. Finally, the court stated that its conclusion is supported by the legislative history of §§ 363 and 552(b), discussed infra.
The court agrees. That to require a creditor to take pre-petition affirmative action *834 in order to seek to enforce its interest in rents in bankruptcy proceedings blurs the distinction between a security interest in rents (i.e. the existence of a lien) and the right of a secured creditor to collect the rents upon default (i.e. enforcement). To equate enforcement or entitlement with perfection, thus requiring pre-petition affirmative action on the part of the creditor to "perfect" its interest in rents, ignores the commercial reality of the transaction. "[T]o postpone perfection of a security interest in rents until a creditor takes affirmative action defeats the purpose of obtaining the security interest in the first place." Conti, Assignment of Rents, supra, at 2. Thus, an assignment of rents as security for a mortgage loan provides a mortgagee with a perfected security interest in the rents as of the date of proper state-law recordation.
The fact that a creditor did not enforce that perfected interest prior to bankruptcy does not invalidate the interest, it merely stays the enforcement of that interest pending the bankruptcy court's determination of the party's entitlement to it.
New York Life Insurance Co. v. Bremer Towers, 714 F. Supp. 414, 418 (D.Minn. 1989). See also In re Vienna Park, 136 B.R. at 53; In re Carley Capital Group, 128 B.R. 652 (Bankr.W.D.Wis.1991) (interpreting North Carolina law). Thus, the fact that a creditor/mortgagee has not enforced its interest in rents prior to bankruptcy "`does not preclude the lienholder's having rights under state law which ... rise to the level of a security interest in the rents sufficient to render the rents cash collateral.'" In re Vienna Park, 136 B.R. at 54, quoting In re Park at Dash Point, 121 B.R. at 859. The mortgagee's interest in rents may also be enforced in state courts. But since any action to enforce or perfect a lien is stayed by § 362(a)(4), the creditor must obtain relief from the automatic stay before it can act pursuant to state law to request a receiver or sequester the rents. See In re Johnson, 62 B.R. 24, 29 (9th Cir. BAP 1986).
Distinguishing between perfection and enforcement permits a creditor to enforce its security interest post-petition to prevent the unjust result of the debtor enjoying unencumbered rents throughout the pendency of the bankruptcy case. The Supreme Court noted this problem in Butner, and observed that this loss may be avoided by sequestering the rents or permitting immediate foreclosure. 440 U.S. at 56-57, 99 S.Ct. at 918-19.
In a case with similar facts, In re Somero, 122 B.R. 634 (Bankr.D.Maine 1991), the mortgagee moved to prohibit the debtors' use of rents and profits as cash collateral. The mortgagee had a recorded security interest in rents and profits arising from the mortgaged property, and also held a recorded assignment of rents which became effective upon default. The debtors were in default when they filed a petition in bankruptcy under Chapter 11. The mortgagee argued that it had a perfected security interest in the rents, and sought to restrict the debtors' use of the rents as cash collateral without providing the mortgagee with adequate protection. The debtors asserted that the rents could not be cash collateral because the mortgagee had failed, pre-petition, to take possession of the property or secure the appointment of a receiver. Id. at 637. The debtors referred to Maine cases which held that a mortgagee's right to rents depended upon taking actual possession or seeking the appointment of a receiver. Id. at 638. However, the court distinguished the debtors' cases, since they did not involve a mortgage containing an assignment of rents or a separate assignment of rents. Id. The court noted that Maine law was clear that where the mortgage document is silent, the right to rents must be derived from those rights that a mortgagee has incidental to foreclosure upon default. However, Maine law did not address the issue of whether a mortgagor and a mortgagee could, by agreement, modify the right to rents to entitle the mortgagee to enforce its right to rents without affirmative action. Id. The court also noted that under Maine law, so long as a mortgage is negotiated at arms length, courts are required to give effect to the agreement as written, and that under *835 Maine law an assignment of rents creates a valid interest in the mortgagee.
The court held that the mortgagee had perfected its interest in rents by recording the agreements in the proper county registry. The court then proceeded to determine whether the mortgagee's perfected security interest in the rents continued after the filing of the bankruptcy petition. Id. at 639. The court cited to the Legislative History of § 552(b):
As a general rule, if a security agreement is entered into before the case, then property that the estate acquires is not subject to the security interest created by the security agreement. Subsection (b) provides the only exception. If the security agreement extends to proceeds, product, offspring, rents, or profits of property that the debtor had before the commencement of the case, then the proceeds, etc., continue to be subject to the security interest, except to the extent that the estate acquired the proceeds to the prejudice of other creditors holding unsecured claims.
H.R.Rep. No. 595, 95th Cong. 1st Sess. 376-377 (1977), U.S.Code Cong. & Admin.News 1978, pp. 6332, 6333. The court concluded that § 552(b) was intended to protect a secured creditor's interest in rents. 122 B.R. at 640. Moreover, the legislative history of § 363(a) established that "cash collateral" was intended to include "rents received from real property before or after the commencement of the case ... to the extent that they are subject to a lien." S.Rep. No. 989, 95th Cong. 1st Sess. 55 (1978), U.S.Code Cong. & Admin.News 1978, p. 5841. Thus, the court rejected the debtors' claim that the lien created by recording the security interest in rents was inchoate without pre-petition action to take possession or secure the appointment of a receiver, stating that the debtors misconstrued the intent of the Bankruptcy Code. 122 B.R. at 641. Noting that the Bankruptcy Code's definition of lien is broad, the court concluded that even if the mortgagee's lien on the rents were considered inchoate, that lien was included in the meaning of "lien" used in §§ 363 and 552, thereby entitling the mortgagee to adequate protection of its interest in the rents. Id. The court was satisfied that the mortgagee possessed a perfected security interest in the rents which continued post-filing within the meaning of § 552(b). Id. Thus, the court concluded that the rents were cash collateral under § 363, though it made no determination of the debtors' right to seek leave to use the rents as cash collateral. Id.
More recently, the United States District Court for the Southern District of New York in In re Vienna Park, supra, espoused forcefully the distinction between perfection and enforcement which this court has referred to supra as the key to proper analysis. It then referred to the "enforcement hurdle" posed by Virginia law (which required the assignees to gain possession of the property before they could realize their rights to the rental proceeds) as not precluding rights under state law which rise to the level of a security interest sufficient to render the rents cash collateral. The court relied upon In re Park at Dash Point, 121 B.R. at 859, as I have.
It remains to apply the perfection/enforcement distinction to the facts of this case. As noted supra, the validity of a security interest in rents is determined by state law. Butner, 440 U.S. 48, 99 S. Ct. 914, 59 L. Ed. 2d 136 (1979). Thus, the court must determine what New Jersey law requires in order to perfect a security interest in rents.
New Jersey law recognizes perfection of an interest in realty, i.e. a mortgage or deed, by recording the document evidencing the interest with the office of the county recording officer in which the real estate is located. N.J.S.A. § 46:22-1. The creditor is then protected against claims of subsequent judgment creditors, bona fide purchasers and mortgagees. Id. Thus, upon recordation the creditor possesses a perfected security interest in the interest in realty. When a mortgagee records a mortgage with an assignment of rents clause, the mortgagee has a perfected security interest in the rents as of the date of recordation, *836 and is protected against claims of subsequent assignees. State law may require affirmative action to enforce that right. See In re Park at Dash Point, 121 B.R. at 856 and 859. Nonetheless, the mortgagee/secured creditor possesses a perfected security interest in the rents. Id. at 859. Therefore, the court concludes that Midlantic acquired a perfected security interest in the rents on June 20, 1988 when its assignments were recorded.
Section 362 of the Bankruptcy Code enjoins the perfection or enforcement of a lien against the debtor or property of the estate. The secured creditor must move before the Bankruptcy Court for leave to enforce its rights.
Midlantic moved before the Bankruptcy Court for an order declaring the rents cash collateral subject to special protection, which the court denied. As noted supra, cash collateral includes:
... cash, negotiable instruments, documents of title, securities, deposit accounts, or other cash equivalents whenever acquired in which the estate and an entity other than the estate have an interest and includes the proceeds, products, offspring, rents, or profits of property subject to a security interest as provided in section 552(b) of this title whether existing before or after the commencement of a case under this title.
11 U.S.C. § 363(a). Thus, rents subject to a security interest as provided in § 552(b) are deemed to be cash collateral. Section 552(b) protects a pre-existing lien on rents in bankruptcy to the extent provided by the security agreement and state law. If a secured creditor holds a perfected lien on rents under state law, the rents are cash collateral under § 363 and protected under § 552(b). The fact that the secured creditor has not acted to enforce the lien under state law does not alter the conclusion that the creditor has rights "ris[ing] to the level of a `security interest' in the rents sufficient to render the rents cash collateral". In re Park at Dash Point, 121 B.R. at 859; In re Vienna Park, 136 B.R. at 54; In re Rancourt, 123 B.R. 143, 148 (Bankr.D.N.H. 1991).
This result is in accord with the language of § 552(b), which refers to the scope of a security interest under the security agreement and the validity of the interest under state law. § 552(b) does not refer to the enforcement of the security interest under state law.
As the court noted in In re Park at Dash Point, a security interest in rents is analogous to a security interest in accounts. While a secured creditor may not collect payments on the accounts until enforcement, the creditor has a security interest in the accounts which is perfected by filing a financing statement. 121 B.R. at 859-860. In the event that bankruptcy intervenes, the secured creditor does not have the right to collect on the accounts without leave of the Bankruptcy Court; the automatic stay prevents enforcement action to collect such payments. Id. Nonetheless, the secured creditor has a perfected security interest in the accounts receivable, which constitute cash collateral. Id. at 860. "It follows that an unenforced assignment of rents constitutes an interest in rents sufficient to render the rents cash collateral when paid." Id.
Therefore, Midlantic has a right to adequate protection from the debtors' use of the rents in bankruptcy under § 363(c)(2) and (e). See In re Vienna Park, 136 B.R. at 55; In re Tucson, 129 B.R. at 624-625. As the court said in In re Park at Dash Point, the Bankruptcy Court has the authority under § 362(c)(2) to protect a mortgagee's security interest in rents as cash collateral, or by automatic sequestration of rents. 121 B.R. at 860.
As noted in In re Vienna Park, this conclusion is supported by the legislative history of §§ 363 and 552(b):
Under present law, there is no similar limit on the debtor's ability to use, sell or lease soft collateral in the early stages of a reorganization. The protection of the secured creditor is left entirely to the judge. The debtor is usually able to obtain an ex parte order authorizing use, sale or lease of property quickly, the secured creditor then has an uphill battle to have it overturned. The result has *837 often been a serious erosion in secured creditor's rights because soft collateral is often easily dissipated or perishable. The provisions governing the right of the trustee or debtor in possession to use, sell or lease soft collateral also require that the secured creditor's interest be adequately protected. This is protection that secured creditors do not have today. The bill as written is a significant boon to secured lenders.
H.R.Rep. No. 598, 95th Cong. 1st Sess. 182-183 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News, 5787, 6142-6143.
The foregoing analysis moots the distinction in older New Jersey cases between an assignment of rents and a pledge. New Jersey would have enforced Midlantic's rights under its mortgage, which provides:
As further security for payment of the indebtedness and performance of the obligations, covenants, and agreements secured hereby, Mortgagor hereby transfers, sets over and assigns to the Mortgagee:
a) All rents, issues and profits of the premises from time to time accruing, whether under Lease or tenancies now existing or hereafter created, reserving to Mortgagor, however, so long as Mortgagor is not in default hereunder, the right to receive and retain such rents, issues and profits ...
or under its assignment, which provides:
This assignment is made as additional security for the payment of a certain term note of even date herewith (the "Note") made by Assignor to Assignee in the sum of ONE MILLION EIGHT HUNDRED THOUSAND AND NO 00/100 ($1,800,000) DOLLARS with interest ...
and would have allowed it to collect rents immediately upon default. Thus, without regard to the Bankruptcy Court's assignment/pledge analysis, the court concludes that Midlantic had a perfected security interest in the rents at the time that the bankruptcy petition was filed, entitling it to protection of that interest in bankruptcy.
II. Post-Petition Perfection
In the alternative, Midlantic argues that in the event that the court determines that it has not perfected its interest in rents it should be permitted to perfect its interest post-petition pursuant to 11 U.S.C. § 546(b) and to sequester the rents.
Section 362(b)(3) of the Bankruptcy Code provides that the automatic stay does not stay any act to perfect an interest in property subject to § 546 of the code. § 546(b) provides:
[t]he rights and powers of a trustee ... are subject to any generally applicable law that permits perfection of an interest in property to be effective against an entity that acquires rights in such property before the date of such perfection.
"Generally applicable law" refers to nonbankruptcy law, including state law. The Third Circuit has held that § 546(b) should be narrowly construed. Equibank, N.A. v. Wheeling-Pittsburgh Steel Corp., 884 F.2d 80, 85 (3d Cir.1989).
The court concludes that § 546(b) should not apply at all to a security interest in rents.
Because an assignment of rents is perfected when recorded, and recording perfects the interest as of the date of such recording (and not retroactively), § 546(b) has no application to the perfection of an assignment of rents. The enforcement actions of obtaining possession or seeking the appointment of a receiver are not acts required to accomplish perfection, and therefore those enforcement acts are not subject to § 546(b).
In re Vienna Park, 136 B.R. at 56, quoting In re Park at Dash Point, 121 B.R. at 861.
Moreover, § 546(b) is a time statute which applies only where the state law permits relation-back. In re Association Center, 87 B.R. at 146. See also Johnson, 62 B.R. at 29. There is no relevant New Jersey law which permits relation-back for *838 the perfection of a security interest in rents.
NOTES
[1] While Butner was decided under the former Bankruptcy Act, courts agree that its holding that state law applies to determine a mortgagee's interest in rents applies to the present Bankruptcy Code. See e.g. In re Village Properties, Ltd., 723 F.2d 441, 445-446 (5th Cir.), cert. denied sub nom Wolters Village, Ltd. v. Village Properties, Ltd., 466 U.S. 974, 104 S. Ct. 2350, 80 L. Ed. 2d 823 (1984) (citations omitted).
[2] Other jurisdictions have treated an assignment of rents clause in a mortgage and a separate assignment of rents as further security as "inchoate liens" which require additional action to perfect the interest in rents, i.e. make the lien "choate". See e.g. In re American Continental Corp., 105 B.R. 564 (Bankr.D.Ariz.1989); In re Multi-Group III, Ltd. Partnership, 99 B.R. 5 (Bankr.D.Ariz.1989) (not followed by In re Tuscon Industrial Partners, 129 B.R. 614 (9th Cir. BAP 1991); In re Johnson, 62 B.R. 24 (BAP 9th Cir.1986); In re Association Center Ltd. Partnership, 87 B.R. 142 (Bankr.W.D.Wash.1988).
[3] The Scult court relied on Stewart v. Fairchild-Baldwin Co., 91 N.J.Eq. 86, 89, 108 A. 301 (E. & A.1919), which held that upon default, the mortgagee must take possession of the property to entitle him to collect rents. Accord Stanton v. Metropolitan Lumber Co., 107 N.J.Eq. 345, 347, 152 A. 653 (Ch.Div.1930); Kirkeby Corp. v. Cross Bridge Towers, Inc., 91 N.J.Super. 126, 131, 219 A.2d 343 (Ch.Div.1966).
[4] Thus, as noted supra, to determine the validity of a security interest in rents courts have referred to common law to the effect that a mortgagee's interest in rents (i.e. entitlement to rents) arises as an incident of the right to possession of real property. Upon default a mortgagee is entitled to take possession of the property, and collect rents arising thereunder. Thus the mortgagee's interest in rents is "inchoate" and cannot be enforced without affirmative action, such as foreclosure, obtaining possession or requesting the appointment of a receiver, which makes the interest "choate". See supra note 2; In re Park at Dash Point, 121 B.R. at 855. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2898931/ | NO. 07-08-0363-CR
NO. 07-08-0364-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
AUGUST 5, 2009
______________________________
DONALD ELIJAH MATTHEWS, JR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 47th DISTRICT COURT OF POTTER COUNTY;
NOS. 57,858-A and 57,859-A; HON. HAL MINER, PRESIDING
_______________________________
ON ABATEMENT AND REMAND
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant appeals from his conviction for violation of a protective order and arson of a habitation. The clerk’s record in each case was filed on February 20, 2009,
and the reporter’s record on April 30, 2009.
Appellant’s brief in each case was due on June 1, 2009. On June 2, 2009, appellant filed motions for extension of time to file the briefs. It was granted, and the deadline was extended to July 1, 2009. On July 2, 2009, appellant filed second motions to extend the time to file appellant’s briefs, which were granted to July 22, 2009, with the admonition that “[n]o further extensions will be granted” and “[f]ailure to comply with this deadline will result in the appeals being abated and the causes remanded to the trial court for further proceedings.” To date, no brief has been filed.
Consequently, we abate the appeals and remand the causes to the 47th District Court (trial court) for further proceedings. Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the following:
whether appellant is indigent;
whether appellant desires to prosecute the appeals;
3. whether appellant has been denied the effective assistance of counsel due to appellate counsel’s failure to timely file appellate briefs.
See
Evitts v. Lucey
, 469 U.S. 387, 394, 105 S. Ct. 830, 834-35, 83 L. Ed. 2d 821, 828 (1985) (holding that an indigent defendant is entitled to the effective assistance of counsel on the first appeal as of right and that counsel must be available to assist in preparing and submitting an appellate brief).
We further direct the trial court to issue findings of fact and conclusions of law addressing the foregoing subjects. Should the trial court find that appellant desires to pursue the appeals, is indigent, and has been denied effective assistance of counsel, we further direct it to appoint new counsel to assist in the prosecution of the appeals. The name, address, phone number, telefax number, and state bar number of the new counsel, if any, who will represent appellant on appeal must also be included in the court’s findings of fact and conclusions of law. Furthermore, the trial court shall also cause to be developed 1) a supplemental clerk’s record in each case containing the findings of fact and conclusions of law and 2) a reporter’s record in each case transcribing the evidence and argument presented at the aforementioned hearing. Additionally, the trial court shall cause the supplemental clerk’s records to be filed with the clerk of this court on or before September 4, 2009. Should additional time be needed to perform these tasks, the trial court may request same on or before September 4, 2009.
It is so ordered.
Per Curiam
Do not publish. | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1876248/ | 247 S.W.3d 92 (2008)
STATE of Missouri, Respondent,
v.
Ronderrick BRIGGS, Appellant.
No. WD 67605.
Missouri Court of Appeals, Western District.
March 11, 2008.
Frederick Joseph Ernst, Kansas City, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun Mackelprang and Richard A Starnes, Office of Attorney General, Jefferson City for respondent.
*93 Before PAUL M. SPINDEN, Presiding Judge, JAMES M. SMART, JR., Judge, and JOSEPH M. ELLIS, Judge.
ORDER
PER CURIAM.
Ronderrick Briggs appeals the circuit court's judgment to convict him, after a jury trial, of two counts of robbery in the first degree. We affirm in this per curiam order entered pursuant to Rule 30.25(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609980/ | 12 Ariz. App. 105 (1970)
467 P.2d 945
Eugene OLSON and Thelma Olson, husband and wife, Appellants,
v.
STATE of Arizona and City of Tucson, a municipal corporation, Appellees.
No. 2 CA-CIV 763.
Court of Appeals of Arizona, Division 2.
April 17, 1970.
Rehearing Denied June 3, 1970.
Review Denied June 30, 1970.
*106 Dunseath & Stubbs, by Robert C. Stubbs, Tucson, for appellants.
Lewis C. Murphy, City Atty., City of Tucson, Miller, Pitt & Feldman, by Stanley G. Feldman, Tucson, Special Attys., for appellee City.
Gary K. Nelson, Atty. Gen., by Stanley Z. Goodfarb, Asst. Atty. Gen., Phoenix, for appellee State.
HOWARD, Chief Judge.
This appeal is taken from a judgment in favor of the State of Arizona and the City of Tucson in inverse eminent domain proceedings instituted by the appellants, owners of certain property located in the City of Tucson.[1]
The Olsons claimed their property had been damaged because there had been a "change in plans" in a highway construction project. This "change of plans" theory was predicated on the following facts. In 1961 the Olsons' property fronted on West Grant Road and the State of Arizona *107 commenced a condemnation action for the purpose of taking certain property rights. This taking included an underground easement and impairment of access rights resulting from a contemplated change of grade. At the condemnation trial, the construction plans were admitted in evidence, showing the grade change and resulting access control and the construction to be made. They also indicated that a median divider would be constructed on West Grant Road, extending in front of only the west sixty feet of the Olsons' frontage on Grant Road. The Olsons were awarded $12,000.00 for this "taking."
Subsequently in 1967, the City of Tucson (the State of Arizona acted as agent for the City because the highway was a federal-aid highway project) commenced and completed a project for improving and widening Grant Road. As a result of this project, the median divider previously adverted to was extended an additional 300 feet to the east. The Olson property had the same access to Grant Road after the completion of this project as after the completion of the first project. The effect of the extension of the median divider, however, was to transform Grant Road into a one-way street. In other words, west-bound traffic on Grant Road could not turn left into or out of the Olson Property, and traffic leaving the Olson Property could not turn left and proceed west on Grant Road.
The Olsons' claim for damages was predicated on the fact that the $12,000.00 jury verdict in the condemnation proceedings was based upon the construction of Grant Road pursuant to the plans which were admitted in evidence and that the subsequent failure to actually complete Grant Road in accordance with these plans caused damage to their property. It is their position that once the condemning authority had represented to the jury in the condemnation proceeding that it proposed to construct Grant Road in accordance with certain plans and specifications, and the jury acted thereon, the condemning authority was bound by its representation and any change in plans constituted a further taking for which they were entitled to just compensation.
In support of their position, they cite State ex rel. Herman v. Schaffer, 105 Ariz. 478, 467 P.2d 66. (Filed March 26, 1970); State ex rel. Herman v. Tucson Title Insurance Company, 101 Ariz. 415, 420 P.2d 286 (1966); State ex rel. Herman v. Wilson, 103 Ariz. 194, 438 P.2d 760 (1968); State v. McDonald, 88 Ariz. 1, 352 P.2d 343 (1960; Feuerborn v. State of Washington, 59 Wash.2d 142, 367 P.2d 143 (1961); People ex rel. Department of Public Works v. Schultz Co., 123 Cal. App. 2d 925, 268 P.2d 117 (1954); Hassler v. Overton County, 203 Tenn. 288, 311 S.W.2d 206 (1958); Fleming v. Noble, 111 Ohio App. 289, 171 N.E.2d 739 (1959). We have no quarrel with the principles enunciated in these cited cases. They are, however, inapposite since the road was in fact completed in the exact manner set forth in the plans. Such was the finding made by the trial court and the appellants have not in any manner, shown the finding to be in error.
However, assuming arguendo that there had been a change in the original plans, the "change of plans" doctrine is inapplicable to the case at bench. It is well settled in this jurisdiction that the construction of a median divider is a valid exercise of the police power and is merely damnum absque injuria. Rayburn v. State, ex rel. Willey, 93 Ariz. 54, 378 P.2d 496 (1963); Rutledge v. State, 100 Ariz. 174, 412 P.2d 467 (1966); City of Phoenix v. Wade, 5 Ariz. App. 505, 428 P.2d 450 (1967). As this court stated in Wade, supra:
"In the proper exercise of its police power * * * a city, state or county may do to an abutting property owner many things which are noncompensable, such as constructing a traffic island, placing permanent dividing strips which deprive an abutting owner of direct access to the opposite side of the highway, *108 painting double lines on the highway, increasing or decreasing the flow of traffic on the street, and installing `No Parking' signs." 5 Ariz. App. at 508, 428 P.2d at 453 (Emphasis added.)
A change of plans may give rise to a cause of action (1) where the circumstances are such that the change results in construction of some feature that would have caused some compensable damage not included in the original award, or (2) where the change results in elimination of some feature which, although itself noncompensable, was considered in mitigation of some compensable element of damage. Here, even if the original plans had indicated the construction of a median divider as it was ultimately constructed, the jury could not have been permitted to consider it as a compensable item. City of Phoenix v. Wade, supra.
The Olsons, however, contend that notwithstanding the original non-compensability, they are entitled to recover because the divider feature was used at the condemnation trial to offset compensable damages. It is true that recovery may be had in a subsequent action where the construction plans admitted into evidence in the condemnation suit provided mitigating features as against an item of compensable damage. Feuerborn v. State of Washington, supra. In State ex rel. Herman v. Schaffer, supra; State ex rel. Herman v. Tucson Title Insurance Company, supra, and State ex rel. Herman v. Wilson, supra, we find a like principle enunciated in situations where the property owner accepted as partial compensation for the "taking" a promise to have the road constructed in a particular manner. The condemning authority may contract away its right to exercise its police powers. A subsequent change of plans, therefore, becomes compensable as a breach of contract.
If we were to follow appellants' contention to its logical conclusion the police power in relation to streets and highways would be rendered nugatory. Once property is taken as the result of a widening if the condemning authority at a later date decided to build median strips or convert the street into a one-way street it could not do so, under appellants' theory, without subjecting itself to liability. This is an unacceptable result. The landowner has no right to have the street remain in its present condition in perpetuity. When his property has been taken in condemnation proceedings and he has been compensated he is presumed to have been made whole and theoretically is in the same condition as before the condemnation. He is then in no different position than any other landowner who holds his land subject to the police power of the State.
The trial court made an express finding that neither the design of nor the specification for the median divider, as shown in the plans admitted in evidence in the condemnation trial, were used either as a basis for the award of damages or as a feature mitigating or reducing any compensable element of damage. As a reviewing court, we are bound to accept the trial court's findings unless they are demonstrated to be clearly erroneous. Rule 52(a), Rules of Civil Procedure, 16 A.R.S.
The Olsons argue that since (1) the construction plans were admitted into evidence, (2) the jury was instructed to presume that the highway improvements would conform to the plans and they should not speculate as to whether the condemning authority might make subsequent changes or take additional parts of the property, and (3) there was specific reference made to these construction plans in the condemnation judgment, "it is inconceivable that the trial court could have found that these plans could not have been used in mitigation of damages." In essence, they contend that since the jury in the condemnation proceedings returned a verdict substantially less than the amount of severance damages testified to by their expert witnesses, it must have offset the location of the median divider against the damages awarded for change of grade and limitation of access.
*109 The judgment in the condemnation proceedings was affirmed by the Arizona Supreme Court. State ex rel. Herman v. Olson, 95 Ariz. 149, 388 P.2d 151 (1963). The Olsons did not at that time see fit to challenge the sufficiency of the award and its affirmance on appeal precludes them from now attacking it. 5 Am.Jur.2d Appeal and Error § 934; 5B C.J.S. Appeal and Error § 1857.
Having concluded that the Olsons were not entitled to compensation for the extension of the median divider, we need not consider the additional questions directed to damages.
Judgment affirmed.
HATHAWAY, J., and LLOYD C. HELM, Superior Court Judge, concur.
NOTE: Judge HERBERT F. KRUCKER having requested that he be relieved from consideration of this matter, Judge LLOYD C. HELM was called to sit in his stead and participate in the determination of this decision.
NOTES
[1] Other parties intervened in the action below, but are not parties to this appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876030/ | 260 S.W.3d 441 (2008)
Tami LARAMORE, Plaintiff/Appellant,
v.
Guy ROBERTS, Defendant/Respondent.
No. ED 90664.
Missouri Court of Appeals, Eastern District, Division Three.
August 19, 2008.
Stuart A. Cofman, Saint Louis, MO, for Plaintiff/Appellant.
Debbie S. Champion, Sarah Kay Taylor, St. Louis, MO, for Defendant/Respondent.
Before ROBERT G. DOWD, JR., P.J., CLIFFORD H. AHRENS, J. and SHERRI B. SULLIVAN, J.
ORDER
PER CURIAM.
Tami Laramore (Appellant) appeals from the trial court's December 20, 2007 Judgment and Order (Judgment) granting the Motion of Guy Roberts (Respondent) for Summary Judgment.
We have reviewed the briefs of the parties and the record on appeal and conclude that there are no genuine issues of material fact in this case and Respondent is entitled to judgment as a matter of law on the claims asserted in Appellant's petition. ITT Comm. Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371 (Mo. banc 1993). 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 Missouri Rule of Civil Procedure 84.16(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/250066/ | 274 F.2d 764
STATE OF MINNESOTA ex rel. Miles LORD, Attorney General, Appellant,v.Ezra T. BENSON, Secretary of Agriculture, Appellee.
No. 15246.
United States Court of Appeals District of Columbia Circuit.
Argued December 18, 1959.
Decided January 21, 1960.
Mr. Sydney Berde, St. Paul, Minn., of the bar of the Supreme Court of Minnesota, pro hac vice, by special leave of court, with whom Mr. Max M. Kampelman, Washington, D. C., was on the brief, for appellant. Messrs. Eugene Gressman and Daniel M. Singer, Washington, D. C., also entered appearances for appellant.
Mr. Seymour Farber, Atty., Dept. of Justice, with whom Asst. Atty. Gen. George C. Doub, Messrs. Oliver Gasch, U. S. Atty., and Samuel D. Slade, Atty., Dept. of Justice, were on the brief, for appellee.
Mr. William E. Torkelson, Madison, Wis., filed a brief on behalf of the State of Wisconsin, as amicus curiae, urging reversal.
Before EDGERTON, WILBUR K. MILLER and FAHY, Circuit Judges.
FAHY, Circuit Judge.
1
In the District Court the State of Minnesota, on relation of her Attorney General, sued the Secretary of Agriculture of the United States for a declaratory judgment that a milk marketing order of the Secretary, issued November 26, 1958, regulating the marketing of milk in the Mississippi Gulf Coast Marketing Area, was unlawful. The order is found in 7 C.F.R. § 1014.1-.101 (Supp. 1959) and was made by the Secretary under the authority of the Agricultural Marketing Agreement Act of 1937, as amended, 7 U.S.C. § 601 et seq., 7 U.S. C.A. § 601 et seq. The essence of the State's attack upon the order is that it prohibits or limits the marketing in the regulated marketing area of milk or milk products produced in other production areas, including Minnesota, contrary to 50 Stat. 246 (1937), 7 U.S.C. § 608c (5) (G), 7 U.S.C.A. § 608c (5) (G). This provision reads as set forth in the margin.1
2
Minnesota claimed standing to maintain the action as a party aggrieved or adversely affected, and seeks to support this claim by contending that she is entitled to sue as parens patriae on behalf of her citizens and as representative of her dairy industry, said to be adversely affected by the order, which we assume arguendo to be true. Minnesota ranks second among the states in total milk production and a large part of this milk seeks its market beyond Minnesota. The result is said to be that economic barriers to the free interstate flow of this milk into the regulated marketing area, barriers attributed to the order challenged, adversely affect the economy of the State.2 Minnesota asserts no proprietary interest which is adversely affected, or any impact of the order upon her apart from her position as parens patriae. The District Court granted the Secretary's motion to dismiss the complaint on the ground that Minnesota lacked standing to sue as parens patriae.
3
Under the decisions of the Supreme Court in Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078, and State of Florida v. Mellon, 273 U.S. 12, 47 S.Ct. 265, 71 L.Ed. 511, and notwithstanding the reliance by Minnesota for a contrary view upon State of New York v. United States, D.C., 65 F.Supp. 856, 872, affirmed 331 U.S. 284, 67 S.Ct. 1207, 91 L.Ed. 1492, we are of the view that the United States rather than Minnesota occupies the relationship of parens patriae to those who are said here to be adversely affected or aggrieved by this order issued by the Secretary in his capacity as an official of the United States acting under the authority of federal legislation. See also Jones ex rel. State of Louisiana v. Bowles, 322 U.S. 707, 64 S.Ct. 1043, 88 L.Ed. 1551. While the actions of the States in Massachusetts and Florida challenged, respectively, the constitutionality of federal statutes and not their administration,3 we think the principles of the decisions apply to the present case; for in his order here challenged the Secretary purports to effectuate through the Agricultural Marketing Agreement Act of 1937 an exercise by Congress of its plenary constitutional power to regulate interstate commerce. United States v. Wrightwood Dairy Co., 315 U.S. 110, 119, 62 S.Ct. 523, 86 L.Ed. 726. The case is quite different from State of Georgia v. Pennsylvania R. Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051. And in State of New York v. United States, supra, while the action challenged the validity of rate orders of the Interstate Commerce Commission, which also must ultimately rest upon the Commerce Clause, U.S.Const. art. 1, § 8, cl. 3, those orders appear to have regulated the area of the State of New York as a locality subject as such to the orders, and they applied to the State as a shipper as well.
4
Affirmed.
Notes:
1
"No marketing agreement or order applicable to milk and its products in any marketing area shall prohibit or in any manner limit, in the case of the products of milk, the marketing in that area of any milk or product thereof produced in any production area in the United States." 50 Stat. 246 (1937), 7 U.S.C. § 608c(5) (G), 7 U.S.C.A. § 608c(5) (G)
2
The Attorney General is charged by State statute with the responsibility and duty of seeking judicial relief from unlawful regulatory action which burdens interstate trade. Minn.Stat.Ann. § 8.13 (Supp.1958)
3
An examination of the complaint in Bowles, however, shows not only that it attacked the Price Control Act as violative of the Due Process Clause of the Fifth Amendment, but also that it attacked certain orders of the Administrator, Bowles, as violative of the Act itself. See file of the case in the office of the Clerk of the Supreme Court | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2025720/ | 66 Ill. App. 3d 338 (1978)
384 N.E.2d 19
LEE A. SCOTT, Plaintiff-Appellant,
v.
JAMES M. ROCHFORD et al., Defendants-Appellees.
No. 77-1480.
Illinois Appellate Court First District (3rd Division).
Opinion filed September 20, 1978.
Rehearing denied December 15, 1978.
Ackerman, Durkin & Egan, of Chicago, for appellant.
William R. Quinlan, Corporation Counsel, of Chicago, for appellees.
Reversed and remanded.
Mr. PRESIDING JUSTICE JIGANTI delivered the opinion of the court:
The plaintiff, Lee Scott, filed a complaint in the circuit court alleging that he was wrongfully discharged by the Chicago Police Department without a hearing. The defendants filed a motion to dismiss the complaint *339 on the grounds that the plaintiff was a probationary policeman and, therefore, not entitled to a hearing prior to discharge. The trial court dismissed the action.
On appeal the plaintiff contends that the State statute which limits probationary periods for police officers to a maximum of nine months is applicable to him thus making his discharge without a hearing a violation of due process. The plaintiff further contends that the defendants failed to demonstrate the nine-month maximum had been validly extended.
The plaintiff was appointed to the Chicago Police Department on April 26, 1976. On February 10, 1977, he was involved in an off-duty incident in a tavern. The plaintiff was informed by letter on March 31, 1977, that he had been placed on the medical roll pending formal discharge by the police department. On April 5, 1977, the plaintiff received a letter informing him that he was discharged effective that same day.
On May 4, 1977, the plaintiff filed a complaint in the circuit court seeking an injunction, full back pay and other relief. The trial court based its subsequent dismissal of the complaint on its finding that the probationary period applicable to the plaintiff was one year as provided in rule IV, paragraph 5, of the Rules of the Department of Personnel:
"Probation. Any person appointed from a career service original entrance eligible list will serve a probationary period determined by the Director. Such probationary period shall in no case exceed one year from the date of original appointment. Such probationary period shall be based upon time of compensated employment. In no case shall a probationer be discharged until after the appointing officer has received from the Director of Personnel a notice in writing that the Director of Personnel has approved such discharge. Any employee whose probationary period began prior to January 1, 1976 shall continue to serve the probationary period in effect at the time of the employee's appointment."
At the defendant's request we have taken judicial notice of two memoranda issued by the director of personnel of the City of Chicago. The memorandum dated January 30, 1976, contained notification that the probationary period for all persons appointed to the department after January 1, 1976, would be for a period of one year. The second memorandum was dated April 22 1976, and was directed to all department heads. It concerned the ration of probationary employees and set out procedures for recommending continued employment or discharge. The memorandum also recited that employees appointed after January 1, 1976, would be subject to a probationary period of one year.
At the plaintiff's request we take judicial notice of the city ordinance creating the Department of Personnel which provides in pertinent part:
"25.1-5 The Director of Personnel shall issue personnel rules with the approval of the Personnel Board. Prior to the effective date of *340 such rules, the Director of Personnel shall give public notice in one or more newspapers of general circulation, and in no case shall such publication be less than ten (10) days before the effective date of the proposed rule or amendment to the rule. Such public notice shall include information concerning where the rules can be reviewed and where comments may be directed. Nothing contained herein shall prohibit the Director of Personnel from giving any additional public notice that he may deem appropriate.
The rules shall provide:
* * *
7) For probationary periods after original appointment not to exceed one year." (Chicago Municipal Code 1976, ch. 25.1, par. 5(7).)
We also take judicial notice of a letter written by the director of personnel to plaintiff's attorney in which the director stated that public notice of the personnel rules for the City of Chicago was published on November 21, 1977, in seven Chicago daily newspapers.
Turning to the issues raised on appeal, it is undisputed that the plaintiff was a police officer for a period longer than nine months but less than one year. The plaintiff relies on a portion of State statute to support his contention that he was entitled to a hearing prior to discharge. The statutes provide in pertinent part:
"Original appointment shall be on probation for a period not to exceed 6 months to be fixed by the rules; provided that in municipalities with a population of more than 500,000 inhabitants, original appointment to the police department shall be on probation for a period not to exceed nine (9) months to be fixed by the rules of the department. The commission may strike off names of candidates from the register after they have remained thereon more than 2 years. At or before the expiration of the period of probation, the head of the department or office in which a candidate is employed may, by and with the consent of the commission, discharge him upon assigning in writing his reason therefor to the commission. If he is not then discharged, his appointment shall be deemed complete." Ill. Rev. Stat. 1975, ch. 24, par. 10-1-14.
"In any municipality of more than 500,000 population, no officer or employee of the police department in the classified civil service of the municipality whose appointment has become complete may be removed or discharged, or suspended for more than 30 days except for cause upon written charges and after an opportunity to be heard in his own defense by the Police Board.
* * *
Upon the filing of charges for which removal or discharge, or suspension of more than 30 days is recommended a hearing before *341 the Police Board shall be held." Ill. Rev. Stat. 1975, ch. 24, par. 10-1-18.1.
Subsequent to the enactment of the above statutes, the City of Chicago amended its Municipal Code creating the Department of Personnel. (Chicago Municipal Code 1976, ch. 25, par. 1-1 et seq.) Paragraph 1-5(7) of the ordinance authorizes the director to extend the length of the probationary period to one year. The director is also required to give public notice in one or more newspapers of general circulation not less than ten days prior to the effective date of the proposed rule.
1, 2 Under the home rule provisions of the 1970 constitution the City possesses great autonomy in the determination of its government and affairs. (Kanellos v. County of Cook (1972), 53 Ill. 2d 161, 290 N.E.2d 240.) An ordinance enacted pursuant to this grant of power can supersede a previously enacted conflicting State statute. (Paglini v. Police Board (1975), 61 Ill. 2d 233, 335 N.E.2d 480.) Therefore, the ordinance enacted by the City of Chicago was a valid exercise of its home rule powers and properly could grant authority to extend the probationary period in excess of the nine-month period provided by State law.
3 We agree with plaintiff, however, that a valid extension of the probationary period was never effectuated. On January 30, 1976, the director of personnel issued a memorandum announcing that as of January 1, 1976, the probationary period had been extended to one year. This communication constituted the first notice of the purported extension. The memorandum did not give any opportunity to anyone opposed to the extension to be heard. The first public notification of the purported extension took place on November 21, 1977, more than 10 months after the effective date and more than seven months after plaintiff was discharged by the police department. The rules governing the department of personnel specifically require that public notice of any rule promulgated by the director shall be published not less than 10 days prior to the effective date of the rule. Because the rule was not adopted in accordance with the procedures set forth in the regulations, it cannot be applied to the plaintiff in the present case.
For the foreging reasons, the judgment of the circuit court of Cook County dismissing the plaintiff's complaint is reversed, and the cause is remanded for further proceedings consistent with the holding of this opinion.
Judgment reversed and remanded.
SIMON and McGILLICUDDY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2025731/ | 593 N.E.2d 968 (1992)
228 Ill. App. 3d 981
171 Ill. Dec. 148
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Angelo WILLIAMS and Oscar Clay, Defendants-Appellants.
Nos. 1-88-1048, 1-88-1049.
Appellate Court of Illinois, First District, Fifth Division.
May 15, 1992.
Rehearing Denied June 12, 1992.
*971 Jack O'Malley, State's Atty. (Renee Goldfarb, James E. Fitzgerald, Janet C. Mahoney, of counsel), Chicago, for the People.
Randolph N. Stone, Public Defender of Cook County (Mary C. Arundel, of counsel), Chicago, for defendant-appellant Angelo Williams.
Michael J. Pelletier, Deputy Defender, Office of State Appellate Defender (Debra R. Salinger, of counsel), Chicago, for defendant-appellant Oscar Clay.
*972 Justice GORDON delivered the opinion of the court:
A jury found defendants Angelo Williams and Oscar Clay guilty of murder, and concealment of homicidal death. The court then merged the convictions and sentenced each defendant to a term of 40 years' imprisonment.
On appeal, both defendants contend that gang-related testimony and argument was prejudicial error; that the State failed to prove them guilty beyond a reasonable doubt; that it was error to permit a blood-stained rug to go to the jury room; that they were denied effective assistance of counsel; that the trial court failed to adequately question the venire regarding the principle that a defendant need not testify; that numerous prosecutorial comments in closing argument were prejudicial; that the cumulative effect of the errors denied them their right to a fair trial; and that their sentences are excessive.
Defendant Clay alone also contends that the mittimus showing two counts of murder must be corrected and a new sentencing hearing held; that it was error to permit certain testimony at his sentencing hearing; and that the State improperly elicited and argued the prior consistent statements of an eyewitness.
At trial, Arthur Cole, a postman, testified for the State that while on his postal route on June 19, 1987, at 9 a.m., he discovered the body of the victim, Aaron Buckles, in an industrial area in Chicago.
David Betz, a Chicago police officer, responded to Cole's call and observed the victim's body, clothed in a blue baseball t-shirt, blue pants and white gym shoes.
The parties stipulated that Dr. Robert J. Stein, a forensic pathologist, would testify that on June 20, 1987, he examined the victim's body. The cause of death was a gunshot wound to the face. Deposits of gunpowder around the wound indicated the gun was fired at close range to the victim's face.
Mary Siwak, a Chicago police officer, testified for the State that she was a member of the department's gang crimes unit. Siwak stated that the Black Gangster Disciples were active in the Cabrini Green area. Buckles, a member of that gang, had been providing Siwak with information about gang activity for approximately six months prior to his murder.
Monica Moore testified for the State that on the afternoon of June 18, 1987, she visited a friend, Bridgette McCall, at Cabrini Green. After playing cards for awhile, they went downstairs to another apartment in that building, where McCall planned to buy marijuana. A woman answered the door. In the apartment living room, Moore saw Buckles, whom she knew casually. Buckles wore a blue shirt, blue pants and white gym shoes. Moore also saw both defendants. Moore had known Williams for four years, and she went to grammar school with Clay. A fourth man, whom Moore did not know, was also in the apartment.
Moore testified further that defendants, Buckles and the fourth man went into the back bedroom. At one point, Moore walked toward the bathroom, which was located across from the back bedroom. Moore heard defendant Clay twice call Buckles a "stool pigeon." Buckles denied the accusation. As Moore left the bathroom and passed the bedroom, she looked in and saw defendant Clay holding a shotgun, and defendant Williams pointing a handgun at Buckles. Moore watched as Clay said that "Aaron's ass was out," held the gun up to Buckles' face, and fired the shotgun. Moore ran to the front of the apartment. As she and McCall tried to leave, Clay and the fourth man came into the room and said the women could not leave.
Moore testified further that shortly thereafter, defendants carried the victim's body out of the bedroom, wrapped in a blanket. Clay told Moore and McCall that if they did not cooperate, he would do the same thing to them that he had done to Buckles. With the women accompanying them, defendants carried the victim's body to a black 4-door car parked outside the building. Moore had previously seen defendant Williams' brother, James Williams, *973 driving the car. Defendants put the body in the trunk. The fourth man drove defendants and the women to an industrial area where defendants removed the victim's body from the trunk and left it on the ground. They drove back to Cabrini Green, where Clay threatened to kill Moore and her child if she said anything. Moore reported nothing to the police until October 1987, when they came to her apartment and asked her what had happened to Buckles. She had not previously reported the crime to the police because she was "afraid they was [sic] going to do me like they did Aaron Buckles."
Thaddeus Melko, a Chicago police department evidence technician, testified that on October 15, 1987, he searched a 1975 black 4-door car. He removed pieces of carpeting from the trunk and gave them to the serology unit.
Christine Braun, a serologist with the police department testified that she tested the pieces of carpet and found traces of human blood. Due to the condition of the carpet it was not possible to determine the blood type.
Thomas Ward, a Chicago police officer, testified that he knew both defendants were members of the Black Gangster Disciples gang. He was also aware that Buckles had been a police informant. Ward had been assigned to Cabrini Green for four years and his unit was particularly concerned with gang activities in the area. Ward had made over 300 gang-related arrests in the Cabrini Green area. He was familiar with the Black Gangster Disciples street gang.
Ward testified further that in the hierarchical structure of the Black Gangster Disciples, defendant Clay had the position of "enforcer." Defendant Clay had tattoos of symbols commonly used by that street gang. Within the gang, defendant Williams had the position of a "general." Defendant Williams also had a tattoo of a common Disciples symbol, and a tattoo of the letters "BGD." Ward testified that he knew defendants were currently members of the gang because of the tattoos, defendants' own admissions made to Ward, and information given to Ward by informants.
Ward testified further that the police department kept "gang cards" on all known gang members, and had cards on defendants. Williams' card was made out by Ward on August 7, 1987. Clay's car was made out by Ward on November 28, 1984. The cards included the information regarding defendants' gang tattoos.
Defendants offered no witnesses.
The jury found defendants guilty of murder and concealment of a homicidal death.
OPINION
I. Gang-related Evidence
Both defendants contend that the trial court erred in admitting evidence of gang membership and gang activity.
Evidence of gang membership and activity is admissible where there is sufficient proof that such evidence is related to the crime charged. (People v. Hairston (1970), 46 Ill. 2d 348, 372, 263 N.E.2d 840; People v. Anderson (1987), 153 Ill. App. 3d 542, 549, 106 Ill. Dec. 512, 505 N.E.2d 1303.) Evidence of gang membership may be used to show motive for the commission of the offense, thus tending to identify a particular person as the offender. People v. Rivera (1986), 145 Ill.App.3d 609, 99 Ill. Dec. 353, 495 N.E.2d 1088; People v. Orr (1986), 149 Ill.App.3d 348, 102 Ill. Dec. 772, 500 N.E.2d 665.
Initially, defense counsel made a pretrial motion in limine to exclude gang-related testimony. The court first permitted an examination of defendants' bodies for gang insignia. The court later denied the motion in limine, noting the significance of Officer Siwak's testimony that the victim was a police informant on gang activity. "[T]hat is the tie-in, that he was in fact what * * * the defendant Williams accused him of being * * *."
Recently, our supreme court addressed the issue of admitting gang-related evidence in People v. Gonzalez (1991), 142 Ill. 2d 481, 154 Ill. Dec. 643, 568 N.E.2d 864. The court recited the general rule that gang-related evidence is admissible if it is relevant to an issue in dispute and its probative *974 value is not substantially outweighed by its prejudicial effect. (People v. Gonzalez, 142 Ill.2d at 487, 154 Ill. Dec. 643, 568 N.E.2d 864.) "Relevant evidence is defined as evidence having any tendency to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." People v. Gonzalez, 142 Ill.2d at 487-88, 154 Ill. Dec. 643, 568 N.E.2d 864.
In Gonzalez, the court found the trial court did not err in weighing the probative value and prejudicial effect of the gang-related evidence. That evidence was relevant to the extent that it strengthened the victim's identification, since the victim told the police he believed his assailant was a member of a certain gang. The evidence was also relevant to the investigative steps taken by the police prior to defendant's arrest, since the police gave the victim a book containing photographs of Spanish Cobra gang members. People v. Gonzalez, 142 Ill.2d at 487-88, 154 Ill. Dec. 643, 568 N.E.2d 864.
In the present case the gang-related evidence was relevant to the extent that it explained defendants' motive for committing the murder. Moore testified that she heard defendant Clay call Buckles a "stool pigeon," and heard Clay say that "Aaron's ass was out." The accusation of "stool pigeon" reported by Moore corroboratively interfaced with the testimony of Officer Siwak, who stated that Buckles, the victim, was a member of the Black Gangster Disciples, and had been providing Siwak with information about gang activity for approximately six months prior to his murder. Siwak also testified that the Black Gangster Disciples were active in the Cabrini Green area, which is where Moore testified the murder occurred. Furthermore, Officer Ward testified that he knew defendants were members of the gang because of the tattoos, defendants' own admissions, and information given to Ward by informants. See People v. Buchanan (1991), 211 Ill. App. 3d 305, 311, 155 Ill. Dec. 831, 570 N.E.2d 344 (court held that gang-related evidence was properly admitted; police officer who was gang crime specialist testified that he knew defendant and that defendant had admitted membership in a certain gang numerous times).
Thus, defendants' contention that the State overstepped the limits of admissible gang-related evidence by testifying to defendants' gang membership must fail. The evidence of defendants' gang membership provided the motive for shooting Buckles after informing the victim that he was a "stool pigeon."
Defendant Williams also argues that Ward improperly testified that the police department kept "gang cards" on all known gang members, and had cards on defendants. There should not have been a reference to gang cards since at best these cards would constitute hearsay because no foundation was laid to establish that they constituted a business record or fell within any other exception to the hearsay rule. Nevertheless, no hearsay objection was made to these gang card references. The contention is made by Williams, however, that references to these gang cards indirectly provided evidence of other crimes. Nothing in the record indicates that the gang cards were kept for the purpose of showing arrests or convictions. In fact, Ward specifically testified that the cards were never updated to include arrest information. The cards would be removed from the file if an individual were deceased or left the gang. Ward would receive information from his street informants regarding changes in gang membership immediately or soon after the change occurred. Thus, there was no testimony that the cards in any way indicated that the gang member had committed crimes. See People v. Gonzalez, 142 Ill.2d at 489, 154 Ill. Dec. 643, 568 N.E.2d 864 (trial court properly permitted testimony that victim identified defendant from a police photograph book of gang members; to delete the reference to gangs would improperly "lead the jury to believe that the victim identified the defendant from a police book containing photographs of individuals with prior arrests"); People v. Buchanan (finding defendant was not prejudiced by admission of *975 police photograph book containing his picture among those of other gang members; relevant to identification of defendant); People v. Harrison (1982), 106 Ill.App.3d 341, 62 Ill. Dec. 239, 435 N.E.2d 1211 (finding it was not error to admit photographic evidence which was imprinted with neither the name of the police department nor prior dates).
Defendants rely on People v. Cruz (1987), 164 Ill.App.3d 802, 115 Ill. Dec. 795, 518 N.E.2d 320, where the court reversed a conviction because of the State's failure to establish that defendant was a member of the gang at the time of the shooting. At trial, the State showed a film entitled "Street Wars" in an attempt to impeach defendant's testimony that at the time of the shooting he was not a member of a street gang. The film, taken several months before the murder of which defendant was accused, showed defendant and other men being searched by police while a commentator described, in a voice-over, gang activity and the use of guns. The film was taken three months prior to the shooting, and thus the court found it was not relevant and was highly prejudicial. In contrast, here the police officer testified that defendants were members of the gang at the time of the murders. Nothing in the present case was even remotely comparable to the film shown in Cruz, which simultaneously depicted defendant being searched by police, a victim being taken away on a stretcher in the background, and a commentator reporting that "[w]ar between rival street-gangs of [sic] torture and revenge adds up to an escalating body count of gang members and people who get caught up in their cross-fire." (People v. Cruz, 164 Ill.App.3d at 811, 115 Ill. Dec. 795, 518 N.E.2d 320. See People v. Buchanan, 211 Ill.App.3d at 322, 155 Ill. Dec. 831, 570 N.E.2d 344 (distinguishing Cruz).) Here, the reference to defendants' gang card inclusion was at best casual and bland. It would have been harmless error even if objected to on hearsay grounds. However, to the extent it was not objected to, there was no error in its admission.
We conclude that the gang-related evidence here was sufficiently reliable and was sufficiently related to the crimes charged to show motive. The trial court did not err in permitting this testimony.
II. Sufficiency of Evidence
Both defendants next contend that the State failed to prove them guilty beyond a reasonable doubt, arguing that there was weak corroborating evidence, and that Moore's eyewitness testimony was undermined because she was an accomplice and a narcotic user.
On review, a conviction will not be reversed where, after viewing the evidence in the light most favorable to the State, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 87 Ill. Dec. 910, 478 N.E.2d 267.) The credibility of a witness is a question for the jury, because it is in the best position to observe the witness's demeanor. People v. Jointer (1989), 180 Ill.App.3d 364, 370, 129 Ill. Dec. 274, 535 N.E.2d 1039.
In the present case, the evidence established that defendants were guilty beyond a reasonable doubt.
Moore offered credible eyewitness testimony of the murder, which the jury was entitled to believe. Her testimony was detailed and corroborated in many respects. Moore testified that defendants accused the victim of being a stool pigeon. This was corroborated by Officer Siwak, who testified that the victim was a police informant for six months prior to his murder. Moore testified that Clay held the shotgun to the victim's face and fired. This was corroborated by Dr. Stein's stipulated testimony that deposits of gunpowder around the wound and the lips indicated the gun was held close to the face when it was fired.
Moore also testified that the victim was wearing a blue shirt, blue pants and white gym shoes. This was corroborated by Officer Betz' testimony as to what the victim was wearing when the body was discovered. Moore also testified that the body was *976 transported in a black 4-door car. This was corroborated by the testimony of Officers Melko and Braun regarding the traces of human blood found on the car's trunk carpeting. Finally, Moore testified that defendants took the body to an industrial area, which is where the body was later discovered by Cole.
Defendants argue that Moore's testimony was insufficient to prove them guilty where she was an accomplice and a narcotic user. There is nothing in the record to indicate that Moore was an accomplice. She did not speak to defendants prior to the shooting; did not have a weapon; did not belong to the Disciples, and had no motive to kill Buckles. Moreover, the jury could reasonably believe Moore's testimony that she did not accompany defendants voluntarily when they disposed of the body.
In addition, there is no evidence that Moore was a narcotics user. The only evidence in the record concerning drugs was that McCall wanted to buy marijuana. Moore testified that she had never used marijuana.
We conclude that the State proved defendants guilty beyond a reasonable doubt.
III. Physical Exhibit Sent to Jury Room
Defendants next contend that it was error to submit the blood-stained trunk carpeting to the jury. Defendants failed to raise this issue in their motions for a new trial, and thus have waived the question for purposes of review. (See People v. Enoch (1988), 122 Ill. 2d 176, 186, 119 Ill. Dec. 265, 522 N.E.2d 1124; People v. Allen (1959), 17 Ill. 2d 55, 160 N.E.2d 818; People v. Somerville (1966), 71 Ill.App.2d 381, 219 N.E.2d 116.) Notwithstanding this waiver, we will address the merits of the issue.
It is within the discretion of the trial court whether to allow evidence to be taken into the jury room, and we will not disturb that ruling absent a prejudicial abuse of discretion. (People v. Shum (1987), 117 Ill. 2d 317, 111 Ill. Dec. 546, 512 N.E.2d 1183; People v. Allen; People v. Ciucci (1956), 8 Ill. 2d 619, 137 N.E.2d 40, aff'd. sub nom., Ciucci v. Illinois (1958), 356 U.S. 571, 78 S. Ct. 839, 2 L. Ed. 2d 983.) The trial court must balance the probative value against the possible prejudicial effect such evidence might have on the jury. People v. Shum.
Here, the blood-stained rug was relevant in that it was physical evidence tending to corroborate Moore's testimony regarding the transportation of the body in the trunk of the car. This supported the murder charge and the concealment charge. See People v. Ciucci (holding that trial court did not abuse its discretion in permitting portions of blood-stained sheet, pillowcase and pillow to go to jury room; exhibits were part of the res gestae in murder case); People v. McKinnie (1928), 328 Ill. 631, 160 N.E. 121 (not error to permit blood-stained sweater of defendant to go to jury room; no objection); People v. Cimino (1947), 330 Ill.App. 461, 71 N.E.2d 541 (abstract) (no abuse of discretion to permit torn and blood-stained clothing to be taken into jury room in assault with a deadly weapon case; no objection).
However, the rug alone was of little help to the jury. It only became meaningful when the police officers testified regarding the chain of custody and the chemical testing of the rug. While the rug itself was not of high probative value, any inflammatory effect of the sight of these blood stains would have been substantially diluted by the fact that, according to the forensic specialist, these blood stains were hardly visible. The rug was brown, and was very dirty and soiled. In fact, because "[t]here were no large visible stains," she had to use a "stereo microscope [to] * * * greatly enlarge the fibers in the carpeting." Defense counsel emphasized this fact in his closing argument to the jury: "And you heard the very nice lady who was a chemical analyst's expert testimony that the stains were so minute that she had to get a microscope to find the blood stains." We find that defendants were not prejudiced by permitting the rug to go to the jury room. See People v. McKinnie, (finding that defendant suffered no prejudice from trial court's decision to permit blood-stained sweater of defendant to go to jury *977 room because it was neither helpful to jury nor prejudicial to defendant, and no objection was made).
Defendants rely on People v. Davis (1983), 97 Ill. 2d 1, 72 Ill. Dec. 272, 452 N.E.2d 525, where the court held it was prejudicial error to send the murder victim's blood-stained shirt into the jury room during a death penalty hearing. The court stated that the fact that defendant had participated in two or more murders, a pre-requisite for his eligibility for the death penalty, was adequately established by other evidence. The admission of certified copies of defendant's convictions for, and his written statement describing, the earlier murders, was sufficient proof of those murders without the introduction of the blood-stained shirt. In addition, the shirt did not prove the disputed issue, i.e., whether defendant shot the victim intentionally. (People v. Davis, 97 Ill.2d at 29, 72 Ill. Dec. 272, 452 N.E.2d 525.) In contrast, here the blood-stained rug was the only physical evidence tending to prove that defendants transported the body in the car and concealed the homicide.
Defendants also rely on People v. Elwell (1977), 48 Ill.App.3d 628, 6 Ill. Dec. 195, 362 N.E.2d 830, where a conviction was reversed because the trial court erred in admitting blood-stained clothing into evidence and sending that clothing to jury room. The present case differs from People v. Elwell. In Elwell, the court held that medical testimony provided objective, absolute proof of the fact that the victim died from a stab wound in the heart. The blood-stained clothing did not advance the proof in any meaningful way since it did not establish how the murder was committed or by whom. In contrast, here the blood-stained carpet from the car trunk offered strong corroboration of Moore's testimony that she witnessed defendants' placing the victim's body in the car trunk and transporting it. The blood-stained carpet from the trunk, therefore, had probative value as corroboration of Moore's testimony.
Moreover, the evidence in Elwell, where the jury deliberated for several days, was far more closely balanced than in the present case. (See People v. Green (1991), 209 Ill.App.3d 233, 154 Ill. Dec. 92, 568 N.E.2d 92 (distinguishing Elwell).) Here, if any error would have occurred, it would have been harmless in light of the overwhelming evidence from which the jury could reasonably conclude that defendants were guilty beyond a reasonable doubt. See People v. Burrell (Ill.App., 1st Dist., 3d Div., 1992), 228 Ill.App.3d 133, 170 Ill. Dec. 17, 592 N.E.2d 453 (error to send blood-stained uniform of police officer into jury room since the prejudicial effect outweighed the probative value of showing intent to kill; but error was harmless due to overwhelming evidence of defendant's guilt); People v. Lee (1990), 194 Ill.App.3d 595, 141 Ill. Dec. 307, 551 N.E.2d 300 (error to send vials of defendant's and the victim's blood to the jury room where jury could not discern the differences in the blood types, and the blood was not admitted to show that a crime occurred, or to identify defendant; however, error was harmless given the overwhelming evidence of guilt). See also People v. Mays (1988), 176 Ill.App.3d 1027, 1040-41, 127 Ill. Dec. 14, 532 N.E.2d 843 (harmless error to permit guns to go into jury room where the evidence was overwhelming, and the guns "did not suggest evidence of prior crimes of defendant or have any significant prejudicial effect since the guns were not found in defendant's possession, in his immediate vicinity, or even in his home").
IV. Ineffective Assistance of Counsel
Defendants next argue that they were denied effective assistance of counsel where defense counsel failed to ask for an accomplice instruction on the basis of Moore's participation in the concealment of a homicidal death.
In order to establish ineffective assistance of counsel, defendant must show that counsel's conduct fell below an objective standard of competence; and that there is a reasonable probability that but for counsel's incompetence, the outcome of the trial would have been different. Strickland v. Washington (1984), 466 U.S. *978 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674; People v. Albanese (1984), 104 Ill. 2d 504, 85 Ill. Dec. 441, 473 N.E.2d 1246.
Generally, the decision not to submit a specific jury instruction may be considered an exercise of discretion or a tactical decision which will not be considered evidence of incompetence merely because appellate counsel or the reviewing court would have acted differently. (People v. Mitchell (1984), 105 Ill. 2d 1, 85 Ill. Dec. 465, 473 N.E.2d 1270; People v. Jackson (1990), 195 Ill.App.3d 104, 119, 141 Ill. Dec. 682, 551 N.E.2d 1025.) Here, there was no evidence which might support a theory that Moore was an accomplice in the concealment of the victim's homicide.
In order to establish the offense of the concealment of a homicidal death, the evidence must show that defendant took affirmative steps to conceal the homicide with the specific purpose of preventing or delaying its discovery. (People v. Kirkman (1988), 170 Ill.App.3d 106, 110, 118 Ill. Dec. 918, 522 N.E.2d 588.) Nothing in the record indicates Moore took such affirmative steps. On the contrary, the evidence is clear and undisputed that she accidentally witnessed the murder, then was forced to accompany defendants when they disposed of the body, and was threatened with her own death or the death of her infant if she did not cooperate.
We find, therefore, that defense counsel's decision not to request an accomplice instruction was a well-reasoned tactical decision.
Moreover, under the second prong of the Strickland test, an accomplice jury instruction would not have changed the outcome where the evidence of defendant's direct participation was overwhelming.
V. Voir Dire
Defendants next contend that the trial court failed to sufficiently question the venire about the principle that defendants need not testify. In People v. Zehr (1984), 103 Ill. 2d 472, 477, 83 Ill. Dec. 128, 469 N.E.2d 1062, the court held that prior to jury selection the trial court must establish through voir dire of the jurors that (1) defendant is presumed innocent; (2) defendant has no burden to produce any evidence; (3) defendant does not have to testify; and (4) defendant must be proved guilty beyond a reasonable doubt.
Defendants failed to raise this issue during the voir dire or in their post-trial motions, and thus have waived the issue for purposes of review. (People v. Williams (1991), 221 Ill.App.3d 1061, 164 Ill. Dec. 411, 582 N.E.2d 1355 (and cases cited therein).) Defendants urge that we consider the issue under the plain error rule. However, that rule applies only where the evidence is closely balanced or the error is of such a magnitude that defendant was denied a fair trial. See People v. Lucas (1981), 88 Ill. 2d 245, 251, 58 Ill. Dec. 840, 430 N.E.2d 1091.
Here, the corroborated eyewitness testimony was overwhelming against defendants, and as shall be further discussed below, there is no indication that defendants were denied a fair trial. Moreover, the trial court did address the venire regarding the State's burden of proving defendant guilty beyond a reasonable doubt; the principle that the defendant is presumed innocent; and the principle that the defense does not have to prove innocence, has no evidentiary burden, and need not do anything if it so chooses. Thus, there was substantial compliance with the Zehr requirements. See People v. Wilbur (1992), 226 Ill.App.3d 733, 168 Ill. Dec. 743, 589 N.E.2d 1143.
VI. Closing Arguments
Defendants next contend that they were denied a fair trial because of nine areas of prejudicial comments made by the prosecutor in closing arguments.
Defendants failed to object to most of the comments they now raise on appeal. (People v. Enoch.) Nevertheless, we will address the prejudicial effect of those comments here. See People v. Fort (1958), 14 Ill. 2d 491, 153 N.E.2d 26.
The scope of closing argument is left largely to the trial court's discretion. *979 (People v. Shum, 117 Ill.2d at 341, 111 Ill. Dec. 546, 512 N.E.2d 1183.) The prosecutor is allowed wide latitude in closing arguments. (People v. Sheppard (1990), 193 Ill.App.3d 401, 140 Ill. Dec. 320, 549 N.E.2d 971.) The trial court's determination that closing arguments were proper will be upheld absent an abuse of that discretion. (People v. Trask (1988), 167 Ill.App.3d 694, 712, 118 Ill. Dec. 529, 521 N.E.2d 1222.) Even improper remarks will not result in reversal unless they represent a material factor in the conviction. People v. Sheppard.
The first group of comments defendants point to related to Moore's credibility:
"[W]hat she told you was the God's truth, the absolute truth and she told you what happened on the evening hours of June 18, 1987.
* * * * * *
Her evidence, her testimony is uncontradicted and unrebutted. It is nothing but the truth.
* * * * * *
You people can choose to do now what you want with the evidence that you have heard. What I suggest, Ladies and Gentlemen, the evidence that you heard was uncontradicted and unrebutted."
Defendants argue that these statements constituted an improper comment on defendants' failure to testify. More specifically, defendant Williams maintains that the "purpose of the foregoing arguments was to inform the jury that Mr. Williams did not take the stand in his defense and Mr. Williams, in not taking the stand, failed to present any evidence." Such an interpretation is too far-fetched a reading of these arguments. Moreover, the prosecutor may characterize the State's evidence as being uncontradicted even if defendant is the only person who could have offered contradictory testimony. See People v. Bryant (1983), 94 Ill. 2d 514, 523-24, 69 Ill. Dec. 84, 447 N.E.2d 301; People v. Jones (1965), 33 Ill. 2d 357, 211 N.E.2d 261; People v. Norman (1963), 28 Ill. 2d 77, 190 N.E.2d 819; People v. Smith (1988), 165 Ill.App.3d 905, 913, 117 Ill. Dec. 490, 520 N.E.2d 841.
The second area of argument defendants point to involves the argument that Moore and her family had to move out of Cabrini Green. For example:
"It meant leaving her neighborhood of 16 years. It meant her family leaving the neighborhood. It meant losing her friends, just to tell the truth."
Defendants argue that this statement was not supported by the evidence. At trial, Moore testified that she had been living in the Cabrini Green area for 16 years. She did not report the murder to the police due to fear that she and her son would be killed. When they police approached her several months later, in October 1987, she told them about the murder. Within two weeks, she moved from the Cabrini Green area. Moore testified on cross-examination:
"Q. Do you live in the Cabrini Green area now?
A. No.
Q. When did you move?
A. After I had to give them the statement.
Q. When did you move, what date?
A. Aboutabout in theabout the end of October [1987].
Q. You have four brothers, don't you?
A. Yes.
Q. Do they still live in the Cabrini Green Area?
A. No.
Q. Does your mother live in that area?
A. No."
We find the prosecutor's closing arguments was based on reasonable inferences flowing from the evidence. (See People v. Collins (1985), 106 Ill. 2d 237, 277, 87 Ill. Dec. 910, 478 N.E.2d 267.) There is enough in the evidence from which one can infer that Moore's motive for leaving was due to fear of reprisal for having identified defendants as the murderers. Moore testified that, within two weeks after informing the police of defendants' identification, she moved from the area where she had lived for 16 years. Moreover, the argument was *980 based upon the evidence brought out by defendant on cross-examination of Moore. (See People v. Hampton (1962), 24 Ill. 2d 558, 182 N.E.2d 698 (not error to argue that witness held in protective custody to protect his life where defendant injected that fact into trial).) Furthermore, even if there was some impropriety, we find it would be harmless in view of the total record here.
The third area of closing argument which defendants complain of involve repeated references to gang membership and gang activity. We have already held that the gang-related evidence was properly admitted. Thus, the prosecutor could properly argue that the murder was motivated by gang retaliation for the victim's having been a police informant.
The fourth area of argument which defendants allege was prejudicial involved Moore's credibility, also:
"Ladies and Gentlemen, the testimony of Monica Moore is sufficient, standing by itself, to convict. The Illinois Supreme Court has said it time and time again.
* * * * * *
We have shown them, Ladies and Gentlemen, to be guilty beyond a reasonable doubt. It is not a quantitative factor. One witness and one witness alone is all the State needs to present."
Defendants argue this is a misstatement of the law since Moore's testimony would not be sufficient to convict "unless and until the jurors find her to be credible. A person is not automatically found guilty beyond a reasonable doubt simply because the State puts one witness on the stand." We find no error, since it is entirely proper to argue the credibility of a witness (People v. Wallace (1981), 100 Ill. App. 3d 424, 55 Ill. Dec. 692, 426 N.E.2d 1017), and it is untenable to suggest that a jury would construe the prosecutor's comment to require it to find defendants guilty based upon the testimony of a witness whom it disbelieved.
The fifth comment concerned the statement made in rebuttal that defense counsel could have called Bridgette McCall as a defense witness. The prosecution also argued:
"If he wanted to call the owner of this vehicle, the defendant's brother, he had as much right to call him as I do."
Defendants argue that the State's comments on the failure of a defendant to call witnesses on his behalf is prejudicial because it impermissibly shifts the burden of proof. (See People v. Weinstein (1966), 35 Ill. 2d 467, 469-70, 220 N.E.2d 432 (prosecutor impermissibly shifted burden of proof by repeatedly stating that it was defendant's burden to present evidence creating reasonable doubt of guilt); People v. Lopez (1987), 152 Ill.App.3d 667, 678, 105 Ill. Dec. 577, 504 N.E.2d 862 (prosecutor improperly shifted burden of proof by arguing, "Where are those people that can clear the defendant?"); People v. Giangrande (1981), 101 Ill.App.3d 397, 402, 56 Ill. Dec. 911, 428 N.E.2d 503 (prosecutor improperly shifted burden of proof by arguing, "Now where's the evidence that the defendant didn't do it?").) However, the prosecutor may comment on the defendant's failure to call a witness where it is in reply to defense counsel's argument that the State failed to call a witness equally available to the defense. People v. Wheeler (1955), 5 Ill. 2d 474, 126 N.E.2d 228; People v. Buchanan; People v. Johnson (1968), 102 Ill.App.2d 443, 243 N.E.2d 310.
For example, in People v. Albanese, 104 Ill.2d at 522, 85 Ill. Dec. 441, 473 N.E.2d 1246, the prosecutor argued that "every defendant in a criminal case, through his counsel has subpoena power and don't for a minute think that if there's one piece of evidence the defendant didn't think would be helpful to him, you wouldn't get to see it. He can subpoena that pathologist if he likes. * * * If those tracings helped him, he can subpoena anybody or any documents that he wishes to testify here before you." (People v. Albanese, 104 Ill.2d at 522, 85 Ill. Dec. 441, 473 N.E.2d 1246.) The court held that these arguments were proper because the prosecutor "did not state that defendant must provide the evidence that would create a reasonable doubt *981 as to his guilt; rather, he pointed to defendant's failure to submit any evidence that would tend to refute the case against him. Such a comment is within the bounds of proper argument." People v. Albanese, 104 Ill.2d at 522-23, 85 Ill. Dec. 441, 473 N.E.2d 1246, citing People v. Kubat (1983), 94 Ill. 2d 437, 497, 69 Ill. Dec. 30, 447 N.E.2d 247, People v. Blakes (1976), 63 Ill. 2d 354, 359-60, 348 N.E.2d 170.
Here, defense counsel argued:
"But when you heard a list of witnesses that the State may call or might call, whichever, James Williams's name was on that list, but he didn't testify. Bridgette McCall's name was on that list and she didn't testify."
Thus, the prosecutor's rebuttal argument was invited by defense counsel's argument that McCall did not testify and James Williams did not testify. People v. Albanese, 104 Ill.2d at 522, 85 Ill. Dec. 441, 473 N.E.2d 1246.
In regard to the sixth area of argument, defendants maintain that the State argued that Moore was telling the truth without "tell[ing] the jury that his assertions were based on the evidence. As a result, the overall viewpoint expressed to the jury, based upon the cumulative comments, was that, in the prosecutor's personal opinion, Monica Moore was telling the truth." Defendants give several examples, the most serious of which is:
"I believe the witness when she says that is the car, that is the trunk, that is where the body was in. He [defense counsel] doesn't believe her. He has a right to call the defendant's brother, just like I do."
This statement is somewhat troublesome, as it is not proper for a prosecutor to express a personal opinion on the issues. (People v. Williams (1962), 26 Ill. 2d 190, 186 N.E.2d 353.) Nevertheless, we must view such a comment in context of the entire argument. Ultimately, we believe the prosecutor left the issue of the witnesses' credibility to the jury. See People v. Williams; People v. Patterson (1986), 140 Ill.App.3d 421, 429, 94 Ill. Dec. 890, 488 N.E.2d 1283.
In regard to a seventh area of argument, defendants contend that the prosecutor was improperly attempting to appeal to the passions of the jury when he argued as follows:
"You are going to have a unique opportunity also. You are going to have an opportunity to send a message back out of this court room, back out to Cabrini Green, back out to the Monica Moores of the world, that their testimony isn't lost. That yes, there is justice in this world; that those men will not be permitted to take our streets from us; to decide who lives and dies by their guns; to decide they can kill; to say the Black Gangster Disciples rule Cabrini Green.
You can send a message, a message by signing guilty verdicts, this is our streets, [sic] this is our city, this is how the law is and we won't tolerate this behavior. That is what I am asking you to do, Ladies and Gentlemen, sign verdicts consistent with the evidence, consistent with common sense and most of all consistent with justice, guilty verdicts."
Defendant Williams argues that these arguments were "designed to distract the jury from the trial issues and to appeal to the emotions of the jury by evoking the juror's feelings about fear of crime and the duty of citizens to fight against crime. None of these emotional appeals had anything to do with the case at bar."
As a general rule, the prosecutor may comment on the evils of crime. (People v. Albanese, 104 Ill.2d at 521, 85 Ill. Dec. 441, 473 N.E.2d 1246; People v. Williams; People v. Taylor (1974), 18 Ill. App. 3d 367, 309 N.E.2d 642.) A prosecutor may urge the fearless administration of the law. (People v. Bryant (1983), 94 Ill. 2d 514, 523-24, 69 Ill. Dec. 84, 447 N.E.2d 301; People v. McNeal (1987), 160 Ill.App.3d 796, 803, 112 Ill. Dec. 288, 513 N.E.2d 897.) We find no error up to this point of the argument, where counsel urged the jury to uphold the law. See, e.g., People v. Owens (1984), 102 Ill. 2d 88, 105-06, 79 Ill. Dec. 663, 464 N.E.2d 261 (prosecutor could properly comment on evil results of crime and argue *982 that in "modern America" people were "all too often * * * prisoners in their homes at night" and were "afraid to walk the streets because they fear exactly what happened to" the victim); People v. Wallace, 100 Ill.App.3d 424, 55 Ill. Dec. 692, 426 N.E.2d 1017 (prosecutor's argument that finding defendant not guilty would be rejecting the courage of State's witnesses since it "takes courage to come into court and testify against someone who you know will brutally attack someone on the street" while knowing that "jurors like yourselves can let that person go" was proper argument about evils of crime and fearless administration of the law); People v. Taylor (1974), 18 Ill.App.3d 367, 309 N.E.2d 642 (proper to argue that jury should not release defendant unless they want an unsafe community).
However, defendants also cite a related comment further in the prosecutor's argument, which we do find to be error:
"PROSECUTOR: He can do whatever he wants and he talks, and he left a little something out when he told you that these defendants are entitled to all of the justice that we had. Well, so is Aaron Buckles. So is his mother that cried from the witness stand. So is Officer Ward, who wants to be told by you people whether he should continue to risk his life on a daily basis in that project or not.
DEFENSE COUNSEL: Objection; objection.
THE COURT: Well, overruled. Counsel may argue.
PROSECUTOR: Whether he should walk back in around that project; bother to do his work or not; what he does is doing any good; whether people accept him; whether people believe in what he does. Is he waiting for some justice himself?" (Emphasis added.)
In People v. Threadgill (1988), 166 Ill. App. 3d 643, 649, 117 Ill. Dec. 96, 520 N.E.2d 86, the court found it was reversible error to repeatedly and at length argue that jury should convict defendant because "you can either back [the police] up when they're out there at night risking their lives for you and your family or you can turn your back on them." The court found that this was "clearly intended to imply that a not guilty verdict was tantamount to not supporting law enforcement in the community. This line of argument was calculated to inflame the jurors' fears that if they found the defendant not guilty, they were turning their backs on the * * * police department, who were risking their lives for the jurors." People v. Threadgill, 166 Ill.App.3d at 651, 117 Ill. Dec. 96, 520 N.E.2d 86.
The argument used in the present case was similarly improper in that it implied that a not guilty verdict would be a message to Officer Ward that he should not "bother to do his work," that his efforts at law enforcement were not "doing any good," that the people did not "accept him," and that the people do not "believe in what he does."
Unlike Threadgill, however, these were not repeated and lengthy arguments made throughout the State's closing argument. In addition, in Threadgill, the court found the arguments especially prejudicial because the case against defendant consisted entirely of testimonial evidence by police officers. Here, the crucial credibility issues concerned the eyewitness Moore's testimony.
Thus, after viewing the comment in the context of the entire record, we conclude that it was harmless. (See People v. Tedder (1980), 83 Ill.App.3d 874, 39 Ill. Dec. 53, 404 N.E.2d 437 (harmless error to argue jurors should find defendant guilty after they remember to "think of what's going on in your home now and * * * [about] the people that you've left alone").) While such comments cannot be condoned by this court, we conclude that their effect was not so prejudicial as to merit reversal. See People v. Parker (1979), 72 Ill.App.3d 679, 681, 28 Ill. Dec. 890, 391 N.E.2d 89.
In regard to the eighth area of comments defendants object to, defendant argue that the prosecutor improperly attacked defense counsel. It is improper for the prosecutor to attack defense counsel in an attempt to arouse the antagonism of the *983 jury, as "the permissible limits of argument cannot be determined solely on the basis of attack and counterattack." (People v. Monroe (1977), 66 Ill. 2d 317, 324, 5 Ill. Dec. 824, 362 N.E.2d 295.) Defendants here cite several examples, including:
"PROSECUTOR: * * * I hope you listened very carefully to what [defense counsel] said about Monica Moore in his opening statement, because there was an aura painted about that girl in your minds before she even took the witness stand to tell you what she saw.
He dragged [Moore] through the mud. He made her a whore, a junkie, a heroin addict, a cocaine addict.
DEFENSE COUNSEL: I never mentioned the word, whore. I never said that. I am not on trial here.
PROSECUTOR: Out in taverns all night, cocaine, heroin, drugs; abandoned her baby; out in taverns all night. That is what was in you folks' mind when that girl got on the witness stand. * * * Where is the evidence of that. That girl wasn't a heroin addict. She wasn't a cocaine addict. That girl wasn't out in taverns all night. She wasn't out in taverns all night.
* * * * * *
* * * It shows how meaningless this lawyer's words are.
* * * * * *
You can throw mud on all the people in the world you want.
* * * * * *
* * * And that crumbles all of those 35 reasons, 135 reasons, 1035 reasons, why he thinks his client should go home.
He can't make that girl a liar * * *.
* * * * * *
* * * But he doesn't have anything else to argue; doesn't attack her on anything else. * * * It is the same argument. It is a bunch of nonsense."
To a substantial degree, these targeted prosecutorial remarks can be condoned either as proper comments regarding the discrepancy between defense counsel's statement to the jury and the evidence presented, or as comments invited by defense counsel in his summation. For example, in his opening statement defense counsel told the jury:
"Determine * * * whether or not she has been going and buying drugs from an apartment where she doesn't even know the name of the drug seller, * * * whether she is still hanging around taverns getting drunk instead of being at home taking care of her baby who she loves so much, whether or not she is in the early evening hours when she should be taking care of her baby still going to have a few beers and then going to buy some cocaine or heroin. Determine what type of person she is if she is * * * going out buying beer and then topping it off with a few snorts of cocaine or a few injections of heroin."
Since defense counsel did not introduce any evidence to support these charges, comment on defense counsel's failure to prove them up would have at least a limited propriety.
In addition, during his summation, defense counsel invited retort when he pointed to the assistant State's Attorney by stating:
"The key to this case can be summed up in one sentence. Monica Moore, the courageous young witness, according to the State's Attorney * * *.
* * * * * *
It appears that she was scared of the police, maybe scared of the State's Attorney and especially after she had given a statement. * * *
* * * * * *
[W]hy was Monica scared, so she was crying? Who knows? It was either the defendants or the State's Attorney and the police officers. The defendants [are] the only ones who are in custody, so they couldn't harm her."
Nevertheless, we find some degree of overkill in these comments of the defense counsel. Invitation does not license excess. However, although we do not encourage such arguments by the State and closely scrutinize their impact, we do not *984 believe they deprived defendants of a fair trial in this case. (See People v. Tedder.) We conclude that the prosecutor's remarks did not substantially prejudice defendant and were not reversible error where, in light of the overwhelming evidence against defendant, the verdict would not have been different absent those remarks. See People v. Salazar (1991), 211 Ill.App.3d 899, 156 Ill. Dec. 326, 570 N.E.2d 802 (prosecutor's argument to jury that defense counsel was trying to "pull the wool over your eyes" was not reversible error); People v. Bravos (1969), 114 Ill.App.2d 298, 252 N.E.2d 776 (prosecutor's arguments to jury that defense counsel was acting "tricky" and using unethical tactics were not so far out of line that defendants were denied a fair trial, and did not prejudicially influence jury such that verdict would have been different). Cf. People v. Monroe, 66 Ill.2d at 323-24, 5 Ill. Dec. 824, 362 N.E.2d 295 (cumulative errors, including the reversible error where prosecutor accused defense counsel of "character assassination" of State's witnesses, argued that even defense counsel didn't believe in the "weak[] defense," and that defense counsel's argument was "fraudulent"; trial court correctly found that throughout the case "we have been trying the lawyers rather than the issues").
Finally, the ninth area of closing argument defendants point to involves bolstering testimony of witnesses simply because they were police officers.
"The way you prove people are gang members in the city is by trusting the police, who know their business, a gang officer, public housing officer, special enforcement officerhe knows his job."
Defendant Williams argues that the "implication was that defendant was a gang member and the State's witnesses were police officers and obviously more credible."
This court has recited the general principle that a police officer's testimony is to be evaluated in the same manner as that of any witness. (People v. Ford (1983), 113 Ill.App.3d 659, 69 Ill. Dec. 347, 447 N.E.2d 564.) There is no presumption that an officer's testimony is more credible than that of any other witness. People v. Defyn (1991), 222 Ill.App.3d 504, 165 Ill. Dec. 41, 584 N.E.2d 220.
The argument at issue here was improper if it was an attempt to sway the jurors by appealing to their emotions and hoping they would blindly "trust" Officer Ward simply because he was a police officer (instead of believing him because the facts he recited supported his opinion that defendants were gang members). It does not appear to us that the prosecutor was making such an argument, but rather was attempting to focus on the reliability of police investigatory procedures in collecting evidence of gang membership. The prosecutor's argument could be viewed as an attempt to focus the jury upon Officer Ward's experience, credentials and the factual support for his belief that defendants were gang members. Ward testified that he had been assigned to Cabrini Green for four years, his unit was particularly concerned with gang activities, and he had made over 300 gang-related arrests in that area. He relied on admissions made by defendants, information given to him by informants, defendants' tattoos, and Ward's own knowledge of gang structure and activity.
The general principle that no presumption exists that a police officer's testimony is more credible than that of other witnesses is particularly significant in cases, unlike the present case, where the question is whether the officer is lying, e.g., when he testifies that he observed defendant in a criminal act, such as completing an illicit drug transaction; and defendant testifies to the contrary. For example, in the case cited by defendant Williams, People v. Ford, the court found that it was plain error, where the evidence was closely balanced, for the prosecution to repeatedly argue that the jury could choose between defendant, who was a "drug addict" and the State's witness, who was a "sworn police officer" who would not "pull a charade * * * and perjure herself for a lousy 15 gram purchase of marijuana." (People v. Ford, 113 Ill.App.3d at 662, 69 Ill. Dec. 347, 447 N.E.2d 564.) The court in Ford *985 traced the general principle regarding a police officer's credibility to a divorce case. People v. Ford, 113 Ill.App.3d at 662, 69 Ill. Dec. 347, 447 N.E.2d 564, citing Crook v. Crook (1946), 329 Ill.App. 588, 70 N.E.2d 209 (officers' testimony as to wife's whereabouts at critical time in question in opposition to that of wife's witnesses; court held it was improper to attribute greater credibility to police officers' version simply because of their vocation).
This type of credibility question is not present in the case before us. Officer Ward never testified to observing defendants in the act of committing a crime. As stated earlier, the State merely purported to argue the reliability of police investigatory procedures in gathering gang membership information.
We also note that the prosecutor's comments were largely invited, and were fair comment made during rebuttal on Ward's credibility, where defense counsel had argued that Ward's testimony was insufficient to establish that defendants were gang members. Defense counsel also attacked the informants who had told Officer Ward that defendants were gang members, arguing that Ward "gathered information from people he rewarded with food, money, [and] reduced charges." We conclude that there was no error. See People v. Hunter (1984), 124 Ill.App.3d 516, 79 Ill. Dec. 755, 464 N.E.2d 659 (argument that police officers would not jeopardize their careers by perjuring themselves was invited by defense counsel's arguments that the officers had not found drugs in defendant's car and were merely playing the "game" of meeting an arrest quota: "Being a police officer is like being any professional. The name of the game is productivity").
Moreover, if there was any error, we find it was harmless. See People v. Defyn, 222 Ill.App.3d 504, 165 Ill. Dec. 41, 584 N.E.2d 220, (argument that police officers "took an oath" and thus would not lie; court holds that even if it was improper, defendant did not demonstrate that the statement constituted a material factor in his conviction or that the verdict would have been different if the remarks had not been made); People v. Richardson (1985), 139 Ill.App.3d 598, 601-02, 93 Ill. Dec. 891, 487 N.E.2d 716 (harmless error to argue that police officer was not lying about statements defendant made after his arrest, and that the jury "was in serious trouble" if "our police" officers were liars).
VII. Prior Consistent Statement
Defendant Clay next contends that he was denied a fair trial due to the State's eliciting and later arguing prior consistent statements by Moore. A prior consistent statement cannot be used to corroborate a witness's testimony on direction examination. (People v. Shum (1987), 117 Ill. 2d 317, 111 Ill. Dec. 546, 512 N.E.2d 1183.) Such evidence can only be used to rebut charges of recent fabrication. (People v. Powell (1973), 53 Ill. 2d 465, 292 N.E.2d 409.) Moore testified on direct examination, without objection, as follows:
"Q. Did you tell those police the same thing you are telling this jury?
A. Yes."
The State argued this point in its closing argument: "And I asked her, what did you tell the police then, Monica? Same thing that I told the jury. I went with the police. I told them the same thing I told the jury."
Since no question of recent fabrication was injected by the defense, the introduction of her earlier consistent statement to the police was unwarranted. See People v. Crayton (1988), 175 Ill.App.3d 932, 125 Ill. Dec. 493, 530 N.E.2d 651.
Defendant failed to object or include this issue in his post-trial motion, and thus the issue has been waived. (People v. Enoch.) However, defendant maintains that the plain error rule applies.
The plain error rule (134 Ill.2d R. 615(a)) provides a limited exception to the waiver rule. It permits a reviewing court to consider an alleged error not properly preserved for review in two situations. (People v. Herrett (1990), 137 Ill. 2d 195, 209-10, 148 Ill. Dec. 695, 561 N.E.2d 1.) First, a reviewing court may consider a claimed error not properly preserved where the evidence is closely balanced. (People v. *986 Williams (1991), 147 Ill. 2d 173, 167 Ill. Dec. 853, 588 N.E.2d 983 (court takes cognizance of admission of prior consistent statement because evidence is closely balanced).) Application of the plain error rule, which mitigates the harshness of the strict application of waiver, is "especially [likely] where the evidence is closely balanced." (People v. McCullum (1977), 66 Ill. 2d 306, 315-16, 5 Ill. Dec. 836, 362 N.E.2d 307.) "There are * * * certain factors which clearly have a positive influence on the application of the doctrine. The more closely balanced the evidence, for example, the greater the likelihood that an error otherwise not viewed as sufficiently patent or fundamental will meet the standard." W.R. LaFave, J.H. Israel, 3 Criminal Procedure, sec. 26.5, at 256 (1984), quoting People v. McCullum.
The evidence here was not closely balanced. As discussed above, the eyewitness's testimony was substantially corroborated by the evidence of the police officers and by the physical evidence. Thus, the first prong of the plain error rule is not satisfied in this case.
Under the second prong of the plain error rule, a reviewing court may consider the claimed error where "the error is so fundamental and of such magnitude that the accused was denied a fair trial. The rule is invoked where it is necessary to preserve the integrity of the judicial process and provide a fair trial." People v. Herrett, 137 Ill.2d at 210, 148 Ill. Dec. 695, 561 N.E.2d 1.
In People v. Crayton (1988), 175 Ill. App. 3d 932, 125 Ill. Dec. 493, 530 N.E.2d 651, the court held that although prior consistent statements were improperly introduced, no plain error occurred. The court first found that the evidence was not close factually. The court went on to hold that "defendant failed to demonstrate any plain error sufficient to overcome the waiver doctrine" because the "entire contents of the statements were never read to the jury or introduced into evidence." (Crayton, 175 Ill.App.3d at 949, 125 Ill. Dec. 493, 530 N.E.2d 651.) Instead, three of the four witnesses only referred to the fact that prior written statements had been made, and the fourth witness merely referred to a limited portion of one of the prior statements. (Crayton, 175 Ill.App.3d at 949, 125 Ill. Dec. 493, 530 N.E.2d 651.) Similarly, in the present case, Moore only referred to the fact that a prior consistent statement had been made.
In People v. Robinson (1978), 73 Ill. 2d 192, 22 Ill. Dec. 688, 383 N.E.2d 164, the court found that the admission of a prior consistent statement was not plain error where the victim testified that she had told her sister, sister's husband and a police officer about the crime. The court held that it did not amount to plain error where the victim had testified and was subject to cross-examination. The court reasoned that "because everything of significance in the statements was corroborated by the victim's testimony, no plain error occurred." (People v. Woith (1984), 126 Ill. App. 3d 817, 823, 81 Ill. Dec. 743, 467 N.E.2d 614.) Similarly, most of Moore's testimony was corroborated here.
In the present case, we have nothing more than a single "yes" given in reply to the question, "Did you tell those police the same thing you are telling this jury?" We cannot say the error was of such a magnitude as to deprive defendant of a fair trial. Thus, the second prong of the plain error test has also not been met.
This error here was not of the magnitude found, for example, People v. Davis (1984), 130 Ill.App.3d 41, 85 Ill. Dec. 19, 473 N.E.2d 387, where there were nine separate instances in the victim's testimony, and that of other State's witnesses, of prior consistent statements. For example, the victim testified that after the crime, she told a friend she had been robbed and beaten; then told her mother; then told another friend; and also told the investigating police officer, "recount[ing] again how she was robbed" by defendants; and finally told one defendant's mother, again recounting to the jury "all the details of the crime." (People v. Davis, 130 Ill.App.3d at 53, 85 Ill. Dec. 19, 473 N.E.2d 387.) The court held that despite defense counsel's failure to object to some of the prior consistent *987 statements, the plain error rule would be invoked. "Because the sheer volume of prior consistent statements admitted at trial may have improperly influenced the jury's verdict of armed robbery, we elect to consider the defendant's contentions under the plain-error doctrine." (People v. Davis, 130 Ill.App.3d at 54, 85 Ill. Dec. 19, 473 N.E.2d 387.) The court then found that the admission of the prior consistent statements was reversible error. People v. Davis, 130 Ill.App.3d at 57, 85 Ill. Dec. 19, 473 N.E.2d 387.
Error of a similarly egregious nature was found in People v. Hudson (1980), 86 Ill.App.3d 335, 340, 41 Ill. Dec. 903, 408 N.E.2d 325, where throughout the trial, the State's witnesses "read into the record prior consistent statements they had given to an investigating officer." (People v. Hudson, 86 Ill.App.3d at 338, 41 Ill. Dec. 903, 408 N.E.2d 325.) The court held that there was plain error requiring reversal, finding that the "prosecution must have known such a tactic to be highly improper, bordering on prosecutorial misconduct and overreaching." People v. Hudson, 86 Ill. App.3d at 340, 41 Ill. Dec. 903, 408 N.E.2d 325.
Defendants rely on People v. Wheeler (1989), 186 Ill.App.3d 422, 134 Ill. Dec. 345, 542 N.E.2d 524. In that case, where the trial was held without the defendant being present, the State was permitted to introduce testimony from the eyewitness who saw defendant throw a brick through the eyewitness's living room window, that shortly after the crime he "gave police a statement describing" the individual who committed the crime and the vehicle that individual used. In closing argument the prosecutor argued "He gave you that description as he testified immediately thereafter to the police. He also identified the vehicle * * * to the police at that date, and he remembers it to this date." (People v. Wheeler, 186 Ill.App.3d at 426, 134 Ill. Dec. 345, 542 N.E.2d 524.) The court held this was sufficiently egregious to constitute plain error requiring reversal where "proof of defendant's guilt depended almost entirely on the testimony" of the eyewitness. (People v. Wheeler, 186 Ill.App.3d at 427, 134 Ill. Dec. 345, 542 N.E.2d 524.) Here, the entire case against defendant consisted of more than Moore's witnessing of the shooting, although that was a key fact. Unlike Wheeler, where there was nothing corroborating the eyewitness's identification of defendant except his mother's testimony that she saw a black man running away, here Moore's testimony was corroborated by the police officers' testimony that the victim was a police informant, and by the physical evidence, including the blood-stained rug from the trunk of the car in which the dead body was transported.
We conclude that no plain error occurred here.
VIII. Sentencing: Improper Testimony
Next, defendant Clay alone argues that a new sentencing hearing is required because one witness's testimony was not accurate.
At the sentencing hearing, David Robinson, a CHA maintenance mechanic, testified that on August 6, 1987, he worked at Cabrini Green. Robinson was driving nearby when he saw defendant Clay, whom Robinson had known for ten years, arguing with a friend. Clay "ran out of the Hudson playground and shot through my car door and shot me in the side." Robinson testified that he signed a complaint but the case had not yet been prosecuted.
The rules of evidence governing trial and sentencing procedures differ. (Williams v. New York (1949), 337 U.S. 241, 246-51, 69 S. Ct. 1079, 1083-85, 93 L. Ed. 1337, 1342-44.) Evidence of criminal conduct may be introduced at a sentencing hearing, even if no prosecution or conviction resulted from that misconduct, as long as the sentencing judge exercises care to determine the relevance and insure the accuracy of the information considered. People v. La Pointe (1981), 88 Ill. 2d 482, 494-99, 59 Ill. Dec. 59, 431 N.E.2d 344; People v. Goebel (1987), 161 Ill.App.3d 113, 112 Ill. Dec. 664, 514 N.E.2d 60.
In the present case, there was extensive cross-examination by defense counsel regarding the circumstances of the shooting. For example, defense counsel brought out *988 that earlier that day, Robinson had slapped a man named Jimmy Chancellor. Later, while Robinson was driving near the Hudson playground, Chancellor ran within 20 feet of the car and shot at Robinson, missing him. Robinson, who was laughing, drove another 15 feet when defendant Clay ran out and shot him.
We conclude that the trial court could properly consider Robinson's testimony at the sentencing hearing. The information was clearly relevant to the question of the "likelihood or unlikelihood that defendant[s] would commit other offenses." (People v. La Pointe, 88 Ill.2d at 498, 59 Ill. Dec. 59, 431 N.E.2d 344; see also People v. Brisbon (1985), 106 Ill. 2d 342, 88 Ill. Dec. 87, 478 N.E.2d 402.) The accuracy of the fact that defendant shot Robinson was not challenged. (See People v. La Pointe.) The information regarding prior misconduct was presented in the form of sworn testimony in open court and was subject to extensive cross-examination. See People v. La Pointe; People v. Goebel.
IX. Excessive Sentencing
Both defendants argue that the sentences were excessive. A sentencing decision is a matter of judicial discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 11 Ill. Dec. 274, 368 N.E.2d 882.) That decision will not be altered on review absent an abuse of discretion. People v. Perruquet.
Where defendants are similarly situated, they should receive similar sentences. (People v. Paino (1985), 137 Ill. App. 3d 645, 654, 92 Ill. Dec. 251, 484 N.E.2d 1106.) A disparate sentence is warranted only if there is a difference in the nature and extent of each defendant's participation. People v. Godinez (1982), 91 Ill. 2d 47, 55, 61 Ill. Dec. 524, 434 N.E.2d 1121.
Here, both defendants confronted the victim and accused him of being a "stool pigeon." Williams pointed his gun at the victim, and Clay held a gun, also. Both defendants carried the victim's body to the car, brought it to a factory area, removed it from the trunk and placed it on the ground. The only difference, therefore, is that only Clay actually shot the victim. That difference, considering their total complicity and participation, does not mandate a sentence differential.
Defendants argue that the trial court did not adequately weigh their rehabilitative potential. While rehabilitative potential must be considered by the sentencing court, the court need not give that potential greater weight than the seriousness of the crime. People v. Bunch (1987), 159 Ill.App.3d 494, 518, 111 Ill. Dec. 359, 512 N.E.2d 748.
The record here indicates that the trial court considered defendants' rehabilitative potential. The court expressly stated that it considered defendants' presentence investigation reports (PSI). The PSI reports included defendants' full background which pertains to their rehabilitative potential.
Defendant Clay's reliance on People v. Steffens (1985), 131 Ill.App.3d 141, 86 Ill. Dec. 392, 475 N.E.2d 606, and People v. Smith (1977), 50 Ill.App.3d 320, 8 Ill. Dec. 320, 365 N.E.2d 558, is misplaced.
In Steffens, the court on appeal reduced the 30-year sentence for murder, to 20 years' imprisonment based on the fact that defendant had just turned 16; had only one prior conviction [burglary as a juvenile 3 years earlier]; had never been convicted of a violent crime; cooperated with probation officer; the murder was not calculated or premeditated; the victim initiated the confrontation with defendant and the murder resulted from a sudden escalation of the encounter between defendant and the victim's family. People v. Steffens, 131 Ill. App.3d at 152, 86 Ill. Dec. 392, 475 N.E.2d 606.
In Smith, the court on appeal reduced the 60 to 100 year sentence for murder to a sentence of 20 to 40 years' imprisonment, based on the fact that defendant was only 18 years old; had only one prior juvenile misdemeanor conviction; and the nature of the crime. People v. Smith, 50 Ill.App.3d 320, 8 Ill. Dec. 320, 365 N.E.2d 558.
In contrast, here defendant Clay was 23 years old at the time of sentencing, *989 and had two prior adult felony convictions for robbery and possession of a stolen motor vehicle. Instead of cooperating with his probation officer, he asserted an alibi for the first time after trial. Defendant Williams was 33 years old and apparently had 9 or 10 prior convictions. Moreover, the sentencing court could find it significant that defendants executed the victim in a cold, calculated manner as punishment for his cooperating with the police department's investigation of illegal gang activity. Thus, defendants' prior criminal record and the nature of the crime support the sentence imposed by the trial court.
Clay also contends that the legislature has found 20 years' imprisonment to be adequate time for punishment and rehabilitation for the crime of murder. The relevant statute states that 20 to 60 years is appropriate for murder. (Ill.Rev.Stat.1987, ch. 38, par. 1005-8-1(a)(1).) The sentences here were within the statutory limits.
X. Correction to Mittimus
Defendants next contend that each mittimus should be amended to reflect only one conviction for murder. The State agrees. The jury found defendants guilty of murder and concealment of a homicidal death. The court merged the convictions. The court then stated it was sentencing each defendant to a term of 40 years' imprisonment. However, the order of sentence and commitment for each defendant erroneously states that the sentence on "each count [is] concurrent." Moreover, under the "offense" section of the order, both defendants' forms list murder under section 9-1(a)(1), and murder under section 9-1(a)(2). Ill.Rev.Stat.1989, ch. 38, para. 9-1(a)(1), 9-1(a)(2).
Where there was only one victim, there can only be one murder conviction. (People v. Mack (1984), 105 Ill. 2d 103, 85 Ill. Dec. 281, 137, 473 N.E.2d 880.) Thus, here the defendants' convictions under section 9-1(a)(1) should be left as is, and the defendants' convictions under section 9-1(a)(2) should be vacated. Each defendant's mittimus should be corrected to reflect this change. See People v. Torres (1986), 146 Ill.App.3d 250, 259, 99 Ill. Dec. 968, 496 N.E.2d 1060.
There is no need to remand for resentencing because nothing in the record indicates the court was influenced by the second conviction when it imposed sentence upon defendants. See People v. Lego (1987), 116 Ill. 2d 323, 344-345, 107 Ill. Dec. 647, 507 N.E.2d 800; People v. Smith (1984), 124 Ill.App.3d 805, 813, 80 Ill. Dec. 310, 465 N.E.2d 101; People v. Garza (1984), 125 Ill.App.3d 182, 198, 80 Ill. Dec. 483, 465 N.E.2d 595.
Defendants rely on People v. Bone (1982), 103 Ill.App.3d 1066, 59 Ill. Dec. 745, 432 N.E.2d 329. In Bone, unlike the present case, the jury found defendant guilty of two counts of murder when only one person had been killed, and the trial court entered judgment on both counts.
XI. Cumulative Errors
Defendants next contend that the cumulative effect of the errors deprived them of their right to a fair trial. (See People v. Albanese (1984), 102 Ill. 2d 54, 83, 79 Ill. Dec. 608, 464 N.E.2d 206; People v. Whitlow (1982), 89 Ill. 2d 322, 341, 60 Ill. Dec. 587, 433 N.E.2d 629.) Although we have found individual error in regard to the prior consistent statement of Moore, and several of the comments made in closing argument, no individual error was sufficient to alter the outcome. We further find, after reviewing the record in its entirety and each individual error in context, that the aggregate of these errors is also not enough to prejudice the outcome of the case in view of the overwhelming evidence of defendants' guilt in this case. See People v. Buchanan.
XII. Ineffective Assistance of Counsel: Failure to Object
Defendants next contend that they were denied effective assistance of counsel for failure to object or preserve any of the above issues for appeal. We have found no ineffective assistance of counsel, as stated above. Moreover, failure to preserve an issue for appeal does not constitute ineffective assistance of counsel where there is *990 overwhelming evidence of defendant's guilt. (See People v. Enoch, 122 Ill.2d at 201-08, 119 Ill. Dec. 265, 522 N.E.2d 1124.) In addition, we have addressed all questions which were waived by counsel's failure to object.
For the foregoing reasons, the judgments of the circuit court of Cook County are affirmed; the causes are remanded for correction of each defendant's mittimus.
Judgments affirmed; causes remanded with directions.
McNULTY, P.J., and MURRAY, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2025746/ | 593 N.E.2d 893 (1992)
229 Ill. App. 3d 128
171 Ill. Dec. 73
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Darnell LANDIS, Defendant-Appellant.
No. 1-89-2486.
Appellate Court of Illinois, First District, Second Division.
May 12, 1992.
*894 Randolph N. Stone, Public Defender of Cook County, Chicago (Frank Madea, of counsel), for defendant-appellant.
Jack O'Malley, State's Atty. of Cook County, Chicago (Renee Goldfarb, Gael M. O'Brien and Susan Wigoda, of counsel), for plaintiff-appellee.
Presiding Justice HARTMAN delivered the opinion of the court:
Defendant, Darnell Landis, appeals his conviction by a jury of aggravated criminal sexual assault (Ill.Rev.Stat.1987, ch. 38, par. 12-14), and 30-year sentence in custody of the Illinois Department of Corrections. On appeal he questions whether (1) his conviction was improperly based upon unreliable out-of-court statements; (2) his right to confrontation of witnesses was violated by the admission of the statements; (3) he was denied a fair trial due to closing argument remarks; and (4) his sentence was excessive.
During a pretrial competency hearing, held in accordance with section 115-10 (Ill. Rev.Stat.1989, ch. 38, par. 115-10, (section 115-10)), the six-year-old victim, who was five years of age when assaulted, was questioned. She was unaware of the difference between the truth and a lie, but cognizant of punishment for lying. The meaning of an oath; the number of days in a week or months in a year; the day, month or time of year; and her present or *895 previous location were beyond her knowledge. She was found incompetent and unable to understand the significance of the court and not allowed to testify.
To evaluate admissibility of the victim's alleged out-of-court statements, the hearing continued. The victim's mother testified that she lived with three of her four daughters in July of 1988, at which time defendant was her boyfriend of four months. On July 7 at 2 a.m., she went to sleep. Defendant was in her bed, and her daughters were in their bedrooms. No other men were inside the apartment and the front and back doors were closed and locked. At 4 or 5 a.m., she awoke. Defendant was gone. Reasoning he was in the bathroom, she went back to sleep. Her daughter, who shared a bedroom with the victim, was in the mother's bed. The victim had brought her there earlier that night.
At 8 a.m., she awoke to find defendant back in bed. On her way downstairs, she noticed that the victim, who was wearing a shirt and underpants when put in bed, was naked. She never before removed her own panties. The mother returned upstairs and entered the victim's bedroom. White and brown substances were on the victim's upper thigh above her vagina. She awoke and jumped. After being asked twice if "somebody been messing with you," she asserted that defendant "stuck his thing in my t.t." "Thing" was the word she used for penis, and "t.t." was her word for vagina. This scenario occurred within 30 seconds from the time the victim woke. The victim indicated that this had happened once before. The mother left and called the police from a neighbor's home. After the police spoke with the victim alone, the mother took her to the hospital, where it was learned that the victim had contracted gonorrhea.
On cross-examination the mother asserted that the victim told her defendant "stayed on her, did it to her until he did that stuff out." Additionally, the mother heard defendant indicate to the police that he was "the one."
Chicago Police Officer John Hett testified that on July 7 at 8:45 a.m., he and his partner arrived at the home in response to a domestic disturbance assignment. The mother met him outside. She asserted that the victim said "defendant put his thing in her t.t." and that defendant was inside. He entered the residence, handcuffed defendant and proceeded upstairs. His partner remained with defendant.
The victim informed Officer Hett that "he put his thing in my t.t.," indicating this had happened before. He observed the white and brown substances on the child. Although he first asserted the victim did not mention defendant by name, after reading his police report, he testified that she did so. He did not recall the minor recanting or reaffirming her statements and there was no indication of arguing between defendant and the mother. Defendant did not confess at the scene in the officer's presence.
Chicago Police Detective Ernest Bell testified that he arrived at the house at 9 a.m. Defendant, whom he identified in court, was in custody. Inside the home, the victim asserted "he stuck his thing in my t.t.," pointing to defendant. He spoke with her again at the hospital, where she repeated this accusation, and affirmatively indicated a prior occurrence. Medical examination revealed redness and tenderness. The examining doctor observed a discharge and a white liquid outside of the vagina and on the stomach area.
On cross-examination, Detective Bell asserted the victim did not mention defendant by name. She related the occurrence to him. Defendant came into her bed while she was asleep. She awoke and he was there. He put his "thing" into her "t.t." At the police station, she pointed to a doll's vaginal area in reference to "t.t."
Following argument, the court found the necessary indicia of reliability in relation to the victim's statements made in the home. The mother and both officers were allowed to relate these statements at trial. The victim's utterances at the hospital and police station were excluded. The case proceeded to trial.
*896 At trial, the mother related the victim's statements and testified to substantially the same sequence of events as at the preliminary hearing. She added that the victim would not speak of the events when defendant was present, and she had no prior reason to suspect sexual abuse in her household.
At trial, Officer Hett's testimony also tracked that given at the pretrial hearing, noting that "a white, like a slimy substance" was around and above defendant's crotch, around his zipper and on his underwear. He inventoried the pants and underwear, which were forwarded to the crime laboratory.
Pamela Fish, a seven-year Chicago police department criminalist, testified that she analyzed a vaginal smear and swab specimen, a pelvic swab specimen, a bed sheet, a pair of pants and a pair of defendant's underwear. Semen stains were found on the pants and underwear. There was no semen or spermatozoa on the specimens or bed sheet. She acknowledged that if defendant did not climax inside the victim, the discovery of sperm would have been affected.
Dr. Jai Arya, M.D., who examined the victim at the hospital, testified that during a complete examination he observed that her vaginal area was swollen and tender and a sticky discharge was present. A growth of "gonoccoccus [sic,"] indicated gonorrhea. The swollen vaginal area was possibly due to the gonorrhea or a penis, hand or other blunt injury. The minor might have been sexually abused. The hymen was not broken. At the time of the injury, he believed the sticky discharge could only have come from a penis. Due to its location and the injury, it did not come from the victim. He added that the victim could have contracted gonorrhea from earlier contact or a penis discharge lying in that area. He admitted the infection could have occurred due to a recent discharge on a bed sheet, which was sat on in such a way as to cause contact with the vagina, rectal area or mouth where there was a skin wound.
On redirect examination, Dr. Arya asserted that the bruise on both sides of the victim's vulva area was consistent with some acute injury in that area; the abuse of which the victim complained was consistent with his observations; and the sticky substance came from someone who had gonorrhea. He indicated it could have been passed by someone ejaculating on the pelvic area. He swabbed the pelvic area outside of the vagina for semen and the culture.
Ronald Rose, a technician in the transmission and cure of sexually transmitted diseases employed by Cermak Health Services at Cook County Jail, stated that on July 9 he examined defendant's culture and found that it tested positive for gonorrhea.
Detective Bell testified to substantially the same sequence of events as he did at the pretrial hearing.
Defendant's motion for a directed finding at the close of the State's case-in-chief was denied.
Defendant testified on his own behalf. Defendant denied sexually assaulting the victim. He was living at the victim's home intermittently. For two to three weeks prior to the incident, he had occasionally stayed the night. On the evening of the incident he had sexual intercourse with the mother between 10 and 10:30 p.m., after which he went to a friend's house and spent the night. Defendant returned between 7:30 and 7:45 a.m., and was let in by the mother, as he did not have his own key. They went upstairs. The mother went downstairs to answer the door and returned, indicating someone was abusing her daughter. Defendant got out of bed and approached the victim's bedroom. He asked her if "someone messed with her." She did not respond. The mother left and called the police from a neighbor's house. The police arrived and arrested defendant.
On cross-examination, defendant acknowledged that he had a burning sensation around his penis for two or three weeks. He experienced a white discharge from his penis for about three weeks prior to the incident, which he contracted from the victim's mother. He remembered *897 someone taking a swab from his penis, making a culture plate and receiving treatment, but not being told he tested positive.
The defense rested. In rebuttal, the State submitted two certified copies of defendant's convictions, which were received in evidence. The first conviction was for burglary and the second was for armed robbery.
As previously mentioned, the jury found defendant guilty of committing aggravated criminal sexual assault on July 7, 1988; and he was sentenced as noted.
I.
Defendant initially urges that the evidence was so improbable that it creates reasonable doubt as to defendant's conviction.
It is asserted that the conviction was improperly based upon an unreliable hearsay statement, namely, defendant stuck or put "his thing in my t.t." Also, because the hymen was not torn; there were no semen or spermatozoa on the vaginal and pelvic specimens; the redness and tenderness could have come from the venereal disease; the disease could have been contracted from another source; and the minor's statements were coaxed and not spontaneous, defendant asserts that there was insufficient proof of any crime committed.
Section 115-10 contains a hearsay exception which permits admission of testimony relating to an out-of-court statement made by a child under the age of 13 in a prosecution for a sexual act perpetrated upon the child. Such testimony may be admitted after a hearing is conducted outside the presence of the jury. The court must determine whether the time, content and circumstances of the statement provide sufficient safeguards of reliability. (Section 115-10; Ohio v. Roberts (1980), 448 U.S. 56, 66, 100 S. Ct. 2531, 2539, 65 L. Ed. 2d 597.) Further, if the child is unavailable as a witness, there must be corroborative evidence of the act which is the subject of the statement, which amounts to a "particularized guarantee of trustworthiness." People v. Rocha (1989), 191 Ill.App.3d 529, 541, 138 Ill. Dec. 714, 547 N.E.2d 1335. See People v. Denning (1991), 219 Ill.App.3d 428, 434, 162 Ill. Dec. 129, 579 N.E.2d 943.
In the present case, the mother and both police officers testified to the victim's out-of-court statements at the pretrial hearing, after which the circuit court determined that they were reliable. The court's conclusions as to reliability were consistent with the criteria set forth by the United States Supreme Court in Idaho v. Wright (1990), 497 U.S. 805, 110 S. Ct. 3139, 3150, 111 L. Ed. 2d 638. First, the victim's statements were spontaneous and consistently repeated. The first time she informed her mother was within 30 seconds after waking. Second, as to the minor's mental state, there is no evidence that the minor was in a mind-set that impacted upon her communication abilities. Third, the terminology used was not unexpected. "Thing" and "t.t." are expected utterances from a five-year-old child. Her description, however, of intercourse is unexpected and indicates she was assaulted or had observed the act. Finally, there was no motive to fabricate, the fourth factor.
The court's determination of reliability was further supported by requiring counsel to address significant factors relevant to determine whether the time, content and circumstances of a child's out-of-court statement provide sufficient safeguards of reliability. Several of these factors are substantially similar to those in Wright, 110 S.Ct. at 3150. Additional factors include the child's physical condition; the nature and duration of the sexual act; the relationship of the child and the accused; reaffirmance or recantation; whether the child is likely, apart from the incident, to have sufficient knowledge of sexual matters to realize the act is possible and sexually gratifying to some; whether the language is embarrassing and, therefore, only spoken if true; and whether it was a cry for help. E. Cleary & M. Graham, Handbook of Illinois Evidence § 803.23, at 188-89 (4th ed. Supp.1989).
In this case, by virtue of the circuit court's earlier ruling, the minor was unavailable to testify (People v. Hart (1991), *898 214 Ill.App.3d 512, 525, 158 Ill. Dec. 103, 573 N.E.2d 1288); therefore, corroborative evidence of the act was required. (Rocha, 191 Ill.App.3d at 539, 138 Ill. Dec. 714, 547 N.E.2d 1335.) We find such corroboration existed. Semen stains were found on the underwear and pants defendant was wearing upon arrest. The victim's vaginal area was swollen, tender and covered with a sticky discharge. The discharge came from someone who had contracted gonorrhea; defendant tested positive for gonorrhea. The bruise on her vulva area was consistent with acute injury, and Dr. Arya's observations were consistent with the victim's complaint. The cumulative effect of these facts supports the circuit court's conclusion that there was sufficient corroboration of the sexual assault. (Hart, 214 Ill.App.3d at 521, 158 Ill. Dec. 103, 573 N.E.2d 1288.) The victim's statements to others were properly admitted in accordance with section 115-10. Rocha, 191 Ill. App.3d at 539, 138 Ill. Dec. 714, 547 N.E.2d 1335.
Although there was no semen found in the victim's pelvic or vaginal specimens, the presence of semen is not required to prove that a sex crime was committed. (People v. Allman (1989), 180 Ill.App.3d 396, 402, 129 Ill. Dec. 332, 535 N.E.2d 1097.) Additionally, defendant's reliance on People v. Lambert (1984), 104 Ill. 2d 375, 84 Ill. Dec. 467, 472 N.E.2d 427, and People v. Zwart (1990), 208 Ill.App.3d 407, 153 Ill. Dec. 415, 567 N.E.2d 373, is misplaced. Lambert involves the corroboration of a confession and the lack of evidence to prove a relationship between the victim's condition and the commission of the crime. In this case, substantial evidence exists to prove the relationship. In Zwart, the court found the hearsay statements unreliable because of a lapse in time before the making of the statements, which is not an issue in this case because of the victim's prompt report to her mother.
The victim's outcries and the corroborative evidence fulfilled the essential elements of defendant's conviction, aggravated criminal sexual assault (Ill.Rev.Stat. 1987, ch. 38, par. 12-14). Accordingly, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found defendant guilty of aggravated criminal sexual assault beyond a reasonable doubt. (Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560; People v. Young (1989), 128 Ill. 2d 1, 131 Ill. Dec. 78, 538 N.E.2d 453.) We find no improbability in the evidence which rises to a reasonable doubt of defendant's guilt.
II.
Defendant next asserts that the admission of the minor's reported statements violated his right to confrontation of witnesses under the United States and Illinois Constitutions.
The confrontation clause of the United States Constitution, as applied to the states through the fourteenth amendment (U.S. Const., amend. XIV), provides that "[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him" (U.S. Const., amend. VI). Substantially the same right is contained in the Illinois Constitution, which endows an accused with the right "to meet the witnesses face to face." Ill. Const.1970, art. I, § 8.
The confrontation clause requires the circuit court to make special inquiry into a statement's reliability if the declarant is not subject to cross-examination. (Ohio v. Roberts (1980), 448 U.S. 56, 66, 100 S. Ct. 2531, 2539, 65 L. Ed. 2d 597; People v. Rocha (1989), 191 Ill.App.3d 529, 540, 138 Ill. Dec. 714, 547 N.E.2d 1335.) An accused may challenge whether the declarant was sincerely telling what he believed to be the truth or whether the declarant's intended meaning is adequately conveyed by the language employed. Roberts, 448 U.S. at 71, 100 S. Ct. at 2541.
Section 115-10 comports with these guarantees. It secures the reliability of a hearsay statement by requiring a hearing and corroboration if the declarant is unavailable, thereby mandating that the evidence in each case demonstrate a particularized guarantee of trustworthiness. (Rocha, *899 191 Ill.App.3d at 541, 138 Ill. Dec. 714, 547 N.E.2d 1335.) The court must find at a hearing conducted outside the presence of the jury that the time, content and circumstances of the statement provide sufficient safeguards of reliability. Rocha, 191 Ill. App.3d at 541, 138 Ill. Dec. 714, 547 N.E.2d 1335.
In the case sub judice, the court conducted a proper hearing in compliance with section 115-10 and, therefore, defendant's confrontation rights were not violated.
III.
Denial of a fair and impartial trial by way of the State's closing comments is the basis for defendant's next point of error.
Defendant waived this issue by failing to object to most of the comments and by omitting them from his post-trial motion (People v. Morgan (1991), 142 Ill. 2d 410, 445, 154 Ill. Dec. 534, 568 N.E.2d 755). Even were we to consider them on their merits, the remarks did not constitute reversible error.
Considerable latitude is allowed in making closing and rebuttal argument. (People v. Thompkins (1988), 121 Ill. 2d 401, 445-46, 117 Ill. Dec. 927, 521 N.E.2d 38.) The circuit court's ruling in this regard generally will be upheld absent clear abuse of discretion. (People v. Cisewski (1987), 118 Ill. 2d 163, 175, 113 Ill. Dec. 58, 514 N.E.2d 970.) Here, several of the remarks properly were comments on the evidence and legitimate inferences therefrom (People v. Harris (1989), 187 Ill.App.3d 832, 842, 135 Ill. Dec. 291, 543 N.E.2d 859). Some were responses to defense counsel's argument (People v. Morando (1988), 169 Ill.App.3d 716, 733, 120 Ill. Dec. 150, 523 N.E.2d 1061). Others were mere overstatements of the evidence (People v. Enoch (1989), 189 Ill.App.3d 535, 551, 136 Ill. Dec. 905, 545 N.E.2d 429). Furthermore, remarks regarding defendant's prior convictions were permissible, for they related to defendant's credibility (People v. Stiff (1989), 185 Ill.App.3d 751, 757, 134 Ill. Dec. 213, 542 N.E.2d 392), as the jury was instructed (People v. McKinney (1983), 117 Ill.App.3d 591, 597, 453 N.E.2d 926). These comments did not constitute reversible error.
Additionally, any error was cured and harmless. The court sustained several objections (Cisewski, 118 Ill.2d at 178, 113 Ill. Dec. 58, 514 N.E.2d 970), and instructed the jury that closing argument is not evidence. (People v. Barney (1982), 111 Ill. App. 3d 669, 677-78, 67 Ill. Dec. 282, 444 N.E.2d 518.) The evidence was substantially against defendant, and the remarks were not a factor in his conviction, nor did they result in substantial prejudice to him or affect the verdict (Harris, 187 Ill.App.3d at 842-43, 135 Ill. Dec. 291, 543 N.E.2d 859). In sum, the State's closing argument did not constitute reversible error.
IV.
Defendant lastly asserts that his 30-year sentence is excessive because he did not cause permanent harm to the victim and did not hold a position of trust, a factor in aggravation. Ill.Rev.Stat.1987, ch. 38, par. 1005-5-3.2.
The circuit court addressed the former argument, observing that the transmission of a venereal disease to a five-year-old child caused her "serious physical harm," while noting, in mitigation, that she was treated with no evident residual effect. In applying the position of trust factor in aggravation, the court appropriately reasoned that the mother let defendant into her home and near the children, expecting that he would act in "the proper way." The imposition of a longer sentence to deter sexual abuse in the household is proper. (People v. Reid (1987), 160 Ill.App.3d 491, 493, 112 Ill. Dec. 103, 513 N.E.2d 517.) A sentence will not be altered upon review absent an abuse of discretion, which we do not find here. The sentence, as that entered in this case, should be based upon the unique circumstances of each case. People v. Perruquet (1977), 68 Ill. 2d 149, 154, 11 Ill. Dec. 274, 368 N.E.2d 882.
Aggravated criminal sexual assault is a Class-X felony carrying a sentence of 6 to 30 years' imprisonment. Defendant, however, was eligible for a 60-year sentence *900 due to a prior conviction. (Ill.Rev.Stat. 1989, ch. 38, par. 1005-5-3.2; Ill.Rev.Stat. 1989, ch. 38, par. 1005-8-2.) The circuit court weighed all aggravating and mitigating factors and recognized that defendant was subject to this extended term, but did not impose it. Defendant was amenable to a sentence of 30 years in prison, the maximum for a Class-X felony without an extended term. The circuit court did not abuse its discretion by imposing this sentence for aggravated sexual assault of a five-year-old child.
For the aforesaid reasons we affirm defendant's conviction and sentence.
Affirmed.
DiVITO and McCORMICK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1982474/ | 293 F. Supp. 1076 (1968)
SELECTMEN OF the TOWN OF NAHANT
v.
UNITED STATES of America.
Civ. A. No. 67-263-F.
United States District Court D. Massachusetts.
December 5, 1968.
*1077 André R. Sigourney, Boston, Mass., for plaintiff.
O. S. Sughrue, Asst. U. S. Atty., for defendants.
OPINION
FRANCIS J. W. FORD, District Judge.
This action, in which plaintiff town by its substitute complaint seeks to recover from the United States compensation for the use and occupancy of certain real estate, raises the question of whether plaintiff or the United States is the owner of the particular lot of land involved.
The interest of the United States in this land was acquired from the plaintiff town, then owner of the land, under an instrument dated October 27, 1898. Under the terms of this deed, the town "in consideration of the sum of one dollar, the receipt of which is hereby acknowledged, and other good and valuable consideration, by these presents grants, demises, releases and conveys unto the said United States all that certain lot of land situate on Short Beach * * the said premises to be used and occupied for the purpose named in said Act of March 3, 1875: To have and to hold the said lot of land and privileges unto the United States from this date. And the said party of the first part for itself, and its successors, does covenant with the United States to warrant and defend the peaceable possession of the above-described premises to the United States, for the purposes above named, for the term of this covenant * * *" The Act of March 3, 1875, 18 Stat. 372, provided: "And the Secretary of the Treasury is hereby authorized, whenever he shall deem it advisable, to acquire by donation or purchase in behalf of the United States, the right to use and occupy sites for life-saving or life-boat stations, houses of refuge and sites for pier-head beacons, the establishment of which has been or shall hereafter be authorized by Congress."
The United States Coast Guard thereafter established and operated a life saving station on the land in question until March 2, 1964. Plaintiff alleges that the United States on that date ceased to operate the life saving station and since that date has retained possession of the land for other purposes. Plaintiff argues that the interest in the premises conveyed to the United States was a fee simple determinable, and that when the United States ceased to use the premises *1078 for the purpose set forth in the original conveyance title to the land reverted to the plaintiff.
A fee simple determinable is created by a conveyance which contains words effective to create a fee simple and in addition a provision for the automatic expiration of the estate on the occurrence of a stated event. Restatement, Property § 44. The conveyance here contains no language providing for the expiration of the grantee's estate. There is no language indicating that the estate is to expire when the property ceases to be used for the purposes mentioned or that it is intended to last only so long as the property is so used. Dyer v. Siano, 298 Mass. 537, 540, 10 N.E.2d 451. Cf. Brown v. Independent Baptist Church of Woburn, 325 Mass. 645, 91 N.E.2d 922; Institution for Savings, etc. v. Roxbury Home for Aged Women, 244 Mass. 583, 139 N.E. 301; First Universalist Society of North Adams v. Boland, 155 Mass. 171, 29 N.E. 524, 15 L.R.A. 231. The mere recital in the deed of the purpose for which the land conveyed was to be used is not in itself sufficient to impose any limitation or restriction on the estate granted. Barker v. Barrows, 138 Mass. 578; Rawson v. Inhabitants of School District No. 5, 7 Allen (89 Mass.) 125; Packard v. Ames, 16 Gray (82 Mass.) 327. Clearly under Massachusetts law, the 1898 deed gave the United States an estate in fee simple absolute.
Assuming, however, that the United States did receive in 1898 only a fee simple determinable in the land[1], plaintiff still could not prevail. Mass. G.L. Ch. 260 § 31A is a statute of limitations which provides in substance, as applicable here, that no proceeding based on a possibility of reverter of land subject to a fee simple determinable created before January 2, 1955 shall be maintained after January 1, 1964 unless before January 1, 1964 the reverter had occurred, or the person entitled to the land if the reverter had occurred had filed in the appropriate registry of deeds a statement giving the required description of the claimed right. The section is expressly made applicable to rights owned by a government or governmental subdivision. Any reverter, if any, in this case did not occur until after January 1, 1964. The plaintiff town has never filed the required statement. Consequently plaintiff's action is barred by § 31A.
Plaintiff argues that § 31A is unconstitutional, apparently on the ground that its application constitutes a taking of property without due process or an impairment of the obligation of contracts. But it is well established that a statute limiting the time for assertion even of preexisting property or contract rights is not unconstitutional provided it allows a reasonable time after its enactment for the assertion of those rights. Mattson v. Department of Labor, 293 U.S. 151, 55 S. Ct. 14, 79 L. Ed. 251; Atchafalaya Land Co. v. F. B. Williams Cypress Co., 258 U.S. 190, 42 S. Ct. 284, 66 L. Ed. 559; Meyer v. City of Eufaula, 10 Cir., 154 F.2d 943; Mulvey v. City of Boston, 197 Mass. 178, 83 N.E. 402. The statute in question, Ch. 260 § 31A, was originally enacted in 1956, fixing the date for compliance as January 1, 1966, and amended in 1961 to make the date January 1, 1964. This clearly gave plaintiff reasonable time to take the required steps to protect any right of reverter which it might have in the land in question.
There is no merit to the contention that the Act of March 3, 1875 limited the United States to acquiring a mere right to use and occupancy of land. It seems a reasonable interpretation of the act that it authorized the Secretary of the Treasury to acquire land under *1079 any kind of title, including estates in fee simple absolute or fee simple determinable which would ensure the right of the United States to use and occupy the land for the specified purposes for an indefinite time in the future. Cf. 29 Opinions of the Attorney General 48.
The motion of the United States for summary judgment is allowed.
NOTES
[1] Some cases arising in other states have interpreted language identical to or similar to the language in the deed involved here as conveying only a fee simple determinable. United States v. Beals, D.C., 250 F. Supp. 440; United States v. Roebling, D.C., 244 F. Supp. 736; Etheridge v. United States, D.C., 218 F. Supp. 809. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8326477/ | Curran, Dennis J., J.
On September 20, 2006, Robert Marshall’s foot was crushed when James Cheatham drove his car over it. Marshall sued Cheatham under a theory of negligence and his employer Northrop Grumman Information Technology under respondeat superior. Northrop Grumman has moved for summary judgment under Mass.R.Civ.P. 56, arguing that it cannot be liable because Marshall’s injury did not occur within the scope of Cheatham’s employment. For the reasons that follow, Northrop Grumman’s motion is DENIED.
BACKGROUND
The summary judgment record sets forth the following facts, taken in the light most favorable to the plaintiff, the non-moving party.
Marshall worked as a security officer at the Hanscom Air Force Base. Access to this military base is tightly controlled: two entrances exist, one for civilian vehicles, and a second for military/government-credentialed individuals. At approximately 7:30 a.m. on September 20, 2006, Marshall was working at the *274military security gate performing inspection checks on vehicles entering the base. This process consisted of checking vehicle inspection stickers and decal stickers, and then checking drivers’ computer-access cards (“CACs”), which are government-issued military identification cards.
At the time of the injury, Cheatham worked on the base for the defense contractor, Northrop Grumman. When Cheatham arrived that morning in his personal car, Marshall stopped him and asked to see his credentials. Cheatham gave Marshall his CAC, which Cheatham reviewed and returned to him. As he was pulling away, Cheatham fumbled with his wallet, and in doing so, drove over Marshall’s foot.
Northrop Grumman employees, including Cheatham, could not enter the base for work without showing a CAC. Cheatham received his CAC as part of his employment after Grumman applied for it on his behalf. The United States Air Force does not permit its defense contractor’s workers onto the base without passing through such a security point.
DISCUSSION
Under the established standard, summary judgment will be granted where, viewing the evidence in the light most favorable to the non-moving party, all material facts have been established, and the moving party is entitled to judgment as a matter of law. Cabot Corp. v. AVX Corp., 448 Mass. 629, 636-37 (2007). “The moving party must establish that there are no genuine issues of material fact, and that the nonmov-ing party has no reasonable expectation of proving an essential element of its case.” Miller v. Mooney, 431 Mass. 57, 60 (2000). When the moving party does not bear the burden of proof at trial, it is entitled to summary judgment either by submitting affirmative evidence that negates an essential element of the opposing party’s case or by demonstrating that the opposing party has no reasonable expectation of proving an essential element of its case. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). The summary judgment record is examined in the light most favorable to the nonmoving party. Foster v. Group Health, Inc., 444 Mass. 668, 672 (2005).
Northrop Grunman has moved for summary judgment arguing that Cheatham was not within the scope of his employment at the time of the injury. Employers are vicariously liable for the torts of their employees if the tortious behavior is performed within the scope of employment. “(C)onduct of an [employee] is within the scope of employment if it is of the kind he is employed to perform; if it occurs substantially within the authorized time and space limits; and if it is motivated, at least in part, by a purpose to serve the employer.” Wang Laboratories, Inc. v. Business Incentives, Inc., 398 Mass. 854, 859 (1986) (citations omitted). “It has long been settled . . . that travel back and forth from home to a fixed place of employment is not ordinarily regarded as incident to employment and the employer is not answerable for an employee’s torts in the course of such activity." Kelly v. Middlesex Corp., 35 Mass.App.Ct. 30, 32 (1993).
Northrop Grumman, relying on Clickner v. City of Lowell, 422 Mass. 539, 542-44 (1996), urges this court to hold that no reasonable jury could find that Cheatham arrived at work after he showed his CAC, was inspected, and permitted entry past the security checkpoint. In Clickner, a police officer used a department vehicle for personal use to attend an all-day golf tournament and awards soiree. After the ceremonies had concluded and while driving drunk to work, the officer tried to use his cell phone to call a subordinate. In doing so, his car crossed the centerline and crashed into another car, causing serious personal injuries. The Appeals Court held that the “momentary act of responding to a page was not enough to make his driving the automobile which had hitherto been for a day-long personal excursion an activity within the scope of his employment.” Id. at 544.
This case is not Clickner. Here, Cheatham could not perform his job without showing his CAC and being permitted access to the base. His job access was expressly conditioned upon displaying proper credentials to the satisfaction of the security officer. Entry onto this government military base was tightly controlled—for obvious reasons. There was no reason for Cheatham to be on that base except to work. A reasonable jury could find that Cheatham stopped commuting to work after being permitted onto the base—and not before. In other words, Cheatham was permitted entry only after he had displayed his CAC and passed inspection on several marks. At that point, viewing the evidence in a light most favorable to Marshall, Cheatham was at work advancing his employer’s interest. Thus, whether Cheatham was acting within the scope of his employment is a question of fact appropriate for resolution by a factfinder. I decline to truncate such factual inquiry.
Northrop Grumman argues that Cheatham was “ ‘neither on duty nor in a place helpful to his employer’ at the time of the incident,” and that “even after entering the external security checkpoint, his was not [the] conduct of the kind [he was] hired to perform occurring ‘within authorized time and space limits,’ ” citing Clickner at 542 and 543.1 respectfully disagree. See Lev v. Beverly Enterprises-Massachusetts, Inc., 457 Mass. 234, 243-44 (2010).
ORDER
For the foregoing reasons, the defendant Northrop Grumman Information Technology’s motion for summary judgment is DENIED. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/993585/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 97-7103
LOUIS A. CARTER, II,
Plaintiff - Appellant,
versus
OFFICERS OF THE ROXBURY CORRECTIONAL INSTI-
TUTE; D. ANGLE, Lieutenant; OFFICER MUNSON;
OFFICER NESTOR; OFFICER SIGLER,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CA-
97-109-PJM)
Submitted: October 23, 1997 Decided: November 17, 1997
Before HAMILTON and WILLIAMS, Circuit Judges, and PHILLIPS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis A. Carter, II, Appellant Pro Se. John Joseph Curran, Jr.,
Attorney General, Glenn William Bell, OFFICE OF THE ATTORNEY GEN-
ERAL OF MARYLAND, Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant appeals the district court's order denying relief on
his 42 U.S.C. § 1983 (1994) complaint and the order denying his
motion for appointment of counsel. We have reviewed the record and
the district court's opinions and find no reversible error. Accord-
ingly, we affirm on the reasoning of the district court. Carter v.
Officers of Roxbury Corr. Inst., No. CA-97-109-PJM (D. Md. Apr 29,
and Jul 8, 1997). We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2231569/ | 893 N.E.2d 348 (2008)
IN RE T.K.
No. 41A01-O803-JV-98.
Court of Appeals of Indiana.
August 19, 2008.
ROBB, J.
Disposition of case by unpublished memorandum decision. Affirmed.
NAJAM, J. Concurs.
MAY, J. Concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3347191/ | This case has been brought to recover damages for injuries allegedly sustained by plaintiff, Anthony Malizia, when a bicycle he was riding allegedly was struck by an automobile driven by the *Page 115
defendant Kristen B. Anderson. The case is presently before the court on the motion of defendant Robert Anderson to strike the second count of the two count second amended complaint. The issue presented is whether the second count of the second amended complaint is subject to a motion to strike for failure to allege sufficient facts to state a cause of action under the "family car" doctrine. For the following reasons, this court concludes that the second count sufficiently alleges facts necessary to state such a claim and the motion to strike should be denied.
The second count of the second amended complaint alleges the following facts. On or about October 23, 1988 at about 5 p.m., a car driven Kristen Anderson allegedly collided with a bicycle being operated by the plaintiff. The plaintiff alleges that he suffered serious injuries as a result of the negligence of Kristen Anderson.
The car Kristen Anderson was driving is alleged to be owned by the defendant Buck Scientific, Inc., a Delaware corporation authorized to transact business in Connecticut. The plaintiff alleges that the car, owned by Buck Scientific, was furnished to Kristen Anderson by her father, Robert Anderson, who is alleged to be a principal stockholder in the defendant's corporation. The plaintiff alleges that Kristen Anderson resided in her father's household and at the time of the accident was operating the automobile as a "family car" and within the scope of general authority from her father and as his agent. The claim in the second count is based on the common law "family car" doctrine and on General Statutes § 52-182.
Pursuant to Practice Book § 151 the defendant Robert Anderson now moves to strike the second count on the grounds that the family car doctrine does not *Page 116
extend to individual stockholders of a closely held corporation and that there is no justification for piercing the corporate veil of Buck Scientific to sue Robert Anderson personally as an officer of that closely held corporation.
The defendant filed a memorandum of law in support of his motion in accordance with Practice Book § 155. The plaintiff has objected to the motion, and has filed a memorandum of law in opposition.
A motion to strike tests the legal sufficiency of a pleading. Practice Book § 152 Ferryman v. Groton, 212 Conn. 138,142, 561, A.2d 432 (1989). If a complaint contains the necessary elements of a cause of action, it will survive a motion to strike. D'Ulisse-Cupo v. Board of Directors of Notre Dame High School,202 Conn. 206, 218-19, 520 A.2d 217 (1987). A motion to strike admits all well pleaded facts; Ferryman v. Groton, supra, 142, and the allegations are construed in the light most favorable to the plaintiff. Levenstein v. Yale University, 40 Conn. Sup. 123,125, 482, A.2d 724 (1984). In ruling on a motion to strike the court may not look outside the pleadings for facts not alleged. Cavallo v. Derby Savings Bank, 188 Conn. 281, 286, 449, A.2d 986 (1982).
In support of the first ground for his motion, Robert Anderson argues that if the family car doctrine is applicable to closely held corporations, it does not afford a legal basis for the imposition of liability on an individual officer of that corporation when the corporation is already named as a defendant. He contends that the cases which have allowed suit against a corporation did not extend liability to the individual corporate officers.
He argues, therefore, that he is not liable for the actions of his daughter under the family car doctrine.
As to the second ground for the motion, Robert Anderson argues that plaintiff's allegations are *Page 117
insufficient to support piercing the corporate veil under either the instrumentality or identity theory and those theories are factually and legally inapplicable to the present case.
The plaintiff argues in opposition that legal title to the automobile is not required for the application of the family car doctrine. He contends that the "sole issue to be decided is whether Mr. Anderson can escape liability under the "family car" doctrine by having bare legal title in the name of the `family corporation'". The plaintiff contends further that Robert Anderson's control of the use of the car is sufficient for liability to attach under the doctrine. The plaintiff claims that in the present case, the inquiries are whether the head of the family had control over the car or the ability to furnish it to his daughter, with whom he lived and to whom he gave general permission to use the car, whether sufficient facts have been pleaded to support the plaintiff's claim.
Regarding the second ground for the motion to strike, the plaintiff contends that Robert Anderson has mischaracterized the claim it is unnecessary to pierce the corporate veil to find him liable because the plaintiff's claim is made on the basis that Robert Anderson furnished the car for general family purposes to his daughter. The plaintiff argues that he does not seek to hold Robert Anderson liable by virtue to his ownership of corporate shares or by virtue of his ownership of corporation's alleged liability to the defendant. The plaintiff argues that since the corporate defendant has denied that Kristen Anderson was in its employ or acting as its agent at the time of the accident, then Kristen Anderson was operating the car for family purposes, and thus the alternative theories are properly pleaded. It is the opinion of the court that plaintiff's statement of the corporation's denial of liability imparts facts outside the pleadings, and cannot be considered. *Page 118
Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073
(1988). It has long been settled in Connecticut that when a car is maintained by its owner for the "general use, and convenience of his or her family" the owner is jointly and severally liable for the negligence of a family member who, having general authority to drive the car, uses it negligently while embarked on a family purpose, that is, for the pleasure or convenience of the family as a unit, or of an individual member of it. Thus, the right of the plaintiffs to recover rests on their ability to establish facts which render the family car doctrine applicable, and consequently, the defendant presumptively liable as the owner of such a family car. Cook v. Nye, 9 Conn. App. 221, 225, 518 A.2d 77 (1986). (Emphasis in original). The count in Cook v. Nye further stated: "Applicability of the family car doctrine is dependent upon the connection that the member of the household has with the car. He or she must own, maintain, or furnish the car, and have or exercise some degree of control over its use. 60A C.J.S., Motor Vehicle § 433(3). Usually, liability under the doctrine is sought to be imposed on a member of a household who owns the car. It is not necessary to fit both these rules, however. Generally, control over the use of the car rather than legal title is dispositive; 2 F. Harper F. James, Torts, p. 1421; although ownership is significant. (Emphasis in original). Id., 226.
In the present case, the plaintiff alleges his claim to be based upon the previously stated common law family car doctrine and upon §52-182. This section provides: "Proof that the operator of a motor vehicle or a motor boat, as defined in section 15-127, was the husband, wife, father, mother, son or daughter of the owner shall raise a presumption that such motor vehicle or motorboat was being operated as a family car or boat within the scope of general authority from the owner, and shall impose upon the defendant the burden of rebutting *Page 119
such presumption. Section 52-182 places upon the defendant the burden of introducing evidence to rebut the statutory presumption, once the plaintiff has introduced sufficient evidence to raise the presumption, Cook v. Nye, 226-27.
This court finds that although Robert Anderson argues that the plaintiff is attempting to impose liability upon him by virtue of his status as the principal stockholder of Buck Scientific, the allegations of the fourth paragraph of the second count actually seek to impose liability upon him as the person who furnished the car to Kristen Anderson and who exercised some degree of control over its use. The court finds further that, when these allegations are read in the light most favorable to the plaintiff, a claim under the family car doctrine has been sufficiently pleaded, and that such claim does not require an allegation that the defendant owned the car. See Cook v. Nye, supra, 226.
Regarding Robert Anderson's second ground for the motion to strike, that a claim for piercing the corporate veil has not been sufficiently pleaded, it is found that the second count makes no attempt to plead such a claim, and therefore this ground for the motion to strike is without merit.
For the foregoing reasons, the motion to strike is denied. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2507287/ | 264 F. Supp. 2d 470 (2003)
In the Matter of an Arbitration Between
KARAHA BODAS COMPANY, L.L.C., Petitioner,
v.
PERUSAHAAN PERTAMBANGAN MINYAK DAN GAS BUMI NEGARA, Respondent.
No. CIV.A.H 01-0634.
United States District Court, S.D. Texas, Houston Division.
April 26, 2002.
*472 E. Thomas Bayko, Jones Day, Houston, TX, Kenneth S. Marks, Susman Godfrey LLP, Houston, TX, Christopher F. Dugan, Paul Hastings, Washington, DC, for Karaha Bodas Co., LLC.
Michael Lamar Brem, Baker Botts LLP, Houston, TX, Matthew D. Slater, Cleary Gottlieb, Washington, DC, F. Walter Conrad, Jr., Baker Botts, Houston, TX, Jonathan D. Schiller, William A. Isaacson, Boies & Schiller, Washington, DC, for Perusahaan Pertambangan Minyak Dan Gas Bumi Negara.
Eric Scott Lipper, Jirsch & Westheimer, Houston, TX, for Bank of America.
Patrick Carlton Appel, Adams & Reese LLP, Houston, TX, Douglas G. Boven, Crosby Heafey, San Francisco, CA, f American Overeas Petroleum, Ltd, PT Caltex Pacific Indonesia.
Jesse Ricker Pierce, Clements O'Neill, Houston, TX, Eric Grannon, Carolyn B. Lamm, Frank Panopoulos, White & Case, LLP, Washington, DC, for Ministry of Finance of Republic of Indonesia.
Roxanne Armstrong, Apache Corp., Houston, TX, for Apache Corp.
Carleton A. Davis, Hilgers & Watkins, Austin, TX, for OpicOil Houston, Inc.
ORDER GRANTING PRELIMINARY INJUNCTION
ATLAS, District Judge.
This case, in which a final judgment confirming an arbitral award in favor of Karaha Bodas Company, L.L.C. ("KBC") against Perusahaan Pertambangan Minyak Dan Gas Bumi Negara ("Pertamina") was entered on December 4, 2001, is before the Court on KBC's Motion for Preliminary Injunction.[1] The Motion has been briefed and is ripe for determination.[2] Both parties represented to the Court that no evidentiary healing on KBC's Motion for Preliminary Injunction was necessary. Having considered the parties' submissions, argument of counsel at hearings on March 29, 2002 and April 2, 2002, all matters of record, and applicable legal authorities, *473 the Court concludes that KBC's Motion for Preliminary Injunction should be granted.
I. PROCEDURAL BACKGROUND
An international arbitral tribunal made an award of over $261,000,000, plus interest, in damages in favor of KBC against Pertamina in Geneva, Switzerland, on December 18, 2000 (the "Arbitral Award"). The arbitration arose from a commercial dispute over the construction and operation of a power plant in West Java, Indonesia. Pertamina acknowledges that all post-arbitration proceedings are governed by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention"). As contemplated by the New York Convention, Pertamina appealed the Arbitral Award to the Swiss Supreme Court. The Swiss court declined to hear Pertamina's appeal due to a procedural error in paying the appeal costs. In August 2001, the Swiss court rejected Pertamina's request for reconsideration and the Swiss Court's dismissal of the appeal became final.
Meanwhile, in February 2001, KBC filed this case seeking confirmation of the Arbitral Award pursuant to Article V of the New York Convention. This Court entered a final judgment (the "Judgment") confirming the Arbitral Award on December 4, 2001. Pertamina appealed the Judgment to the Fifth Circuit, but has not filed a supersedeas bond or otherwise acted to stay the Judgment's execution. The appeal is still pending.
KBC actively is pursuing execution on the Judgment by registering it in other states and seeking writs of execution, garnishment, and turnover of assets KBC believes are owned by Pertamina. These proceedings are being conducted according to the local laws and practices of the states in which the assets are located. KBC also is seeking enforcement in Canada, Hong Kong, and Singapore of the Arbitral Award in original proceedings commenced under Article V of the New York Convention.
In March 2002, about fifteen months after entry of this Court's Judgment enforcing the Arbitral Award and seven months after the Swiss Supreme Court dismissed Pertamina's appeal, Pertamina filed suit in the District Court of Central Jakarta, Indonesia, seeking an injunction and penalties against KBC to prevent it from enforcing the Arbitral Award and seeking to annul the Arbitral Award (the "Indonesian Action").
KBC filed an emergency request in this Court for a temporary restraining order to prevent Pertamina's Indonesian Action from proceeding and to prevent entry of an injunction against it at a hearing scheduled for April 1, 2002 in Indonesia. The Court held a hearing on March 29, 2002, at which both parties argued their respective positions at length. This Court issued a limited temporary restraining order directing Pertamina to withdraw its request for injunctive relief against KBC at or prior to the hearing scheduled for April 1, 2002, in the Indonesian Action. This temporary restraining order was issued in order to preserve the integrity of the Court's Judgment, which had become final and was on appeal without bond, and to maintain the parties' positions prior to Pertamina's commencement of the Indonesian Action. The Court needed additional time to determine the merits of Pertamina's position that it had the right to proceed with its annulment action. So as not to prejudice Pertamina's rights, the Court did not grant KBC's request to order Pertamina to dismiss the Indonesian Action. Also, to protect Pertamina's interests in being able to defend against proceedings initiated by KBC to enforce the Arbitral Award or to *474 execute on the Judgment, KBC was ordered not to seek ex parte or emergency relief from any court. The Court made it clear that the parties were permitted to make any and all arguments they saw fit in enforcement or execution proceedings on notice to the opponent. The temporary restraining order was narrowly tailored to protect the status quo that existed prior to Pertamina seeking entry of the Indonesian Injunction without interfering with the jurisdiction of other courts. By its terms, the temporary restraining order was to last only until a ruling could be made on the pending motion for a preliminary injunction after full briefing.
Despite receiving actual notice of this Court's March 29 Order, Pertamina did not withdraw its injunction request in the Indonesian Action. The Indonesian court on April 1, 2002, issued an injunction with draconian enforcement penalties against KBC (the "Indonesian Injunction").[3] KBC complained, and at a hearing on April 2, 2002, this Court found Pertamina in contempt of the March 29, 2002 restraining order, again ordered Pertamina to withdraw its request in Indonesia for injunctive relief against KBC, and ordered Pertamina to indemnify KBC for any penalties imposed pursuant to the Indonesian Injunction for conduct by KBC that takes place while KBC's Motion for Preliminary Injunction is pending. As the Court explained on April 2 and in its written injunction, Pertamina's pursuit in Indonesian courts of a broad injunction, and "enforcement penalties" for violation of that injunction, impinges on this Court's Judgment and upon KBC's legitimate efforts to enforce its rights thereunder.
Pertamina has sent a transcript of the hearings in this Court to the Indonesian court and has sent a letter notifying the Indonesian court that this Court has ordered Pertamina to file an application for the withdrawal of the Indonesian Injunction.[4] To date Pertamina has not filed a formal application withdrawing its injunction request nor made any commitment to the Indonesian court not to enforce the Injunction. Pertamina has committed through a letter from its President Director and C.E.O. that it will not seek to enforce the Indonesian Injunction against KBC for KBC's actions within the United States.
II. KBC'S MOTION FOR PRELIMINARY INJUNCTION
KBC's Motion for Preliminary Injunction has two parts. First, it seeks an injunction prohibiting Pertamina from seeking (a) to enjoin KBC's attempts to execute on this Court's December 4, 2001 *475 Judgment and (b) to take steps to enforce the December 18, 2000 Arbitral Award in the United States or in other jurisdictions. Second, KBC seeks an anti-suit injunction prohibiting Pertamina from pursuing its annulment action in Indonesia altogether.
Pertamina contends that this Court cannot enjoin the Indonesian action because Indonesia is the only court with jurisdiction to consider Pertamina's claim for annulment of the Arbitral Award.
Traditionally, a plaintiff seeking a preliminary injunction must show the following four elements: (1) a substantial likelihood of success on the merits; (2) a substantial threat that it will suffer irreparable injury absent the injunction; (3) that the threatened injury outweighs any harm the injunction might cause the defendants; and (4) that the injunction will not impair the public interest. Enrique Bernat F., S.A v. Guadalajara, Inc., 210 F.3d 439, 442 (5th Cir. 2000) (citing Sugar Busters, L.L.C. v. Brennan, 177 F.3d 258, 265 (5th Cir. 1999)). In addition, it is well-established in the Fifth Circuit that federal courts have the power to enjoin foreign suits by persons subject to their jurisdiction. Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 626 (5th Cir. 1996); see also Bethell v. Peace, 441 F.2d 495, 498 (5th Cir. 1971); accord Laker Airways Ltd. v. Sabena Belgian World Airlines, 731 F.2d 909, 926 (D.C.Cir. 1984). There is no dispute that this Court has jurisdiction over Pertamina.
In setting the standard for issuance of an anti-suit injunction, the Fifth Circuit has emphasized the need to prevent vexatious or oppressive litigation, and has concluded that "a district court does not abuse its discretion by issuing an anti-suit injunction when it has determined that allowing simultaneous prosecution or the same action in a foreign forum thousands of miles away would result in `inequitable hardship' and `tend to frustrate and delay the speedy and efficient determination of the cause.'" Kaepa, 76 F.3d at 627. The Fifth Circuit has declined "to require a district court to genuflect before a vague and omnipotent notion of comity every time that it must decide whether to enjoin a foreign action." Id.
In this case, there is a Judgment issued by this Court after extensive and detailed litigation. The Judgment has long been final in the District Court and has been appealed by Pertamina to the Fifth Circuit. The Judgment enforces the Arbitral Award. Until two weeks ago, after this Court issued its temporary restraining order, Pertamina did not seek a stay of the Judgment. Pertamina has never filed, nor offered to file, any bond to prevent KBC's execution or enforcement efforts. KBC contends this Court's Judgment and KBC's ability to seek enforcement of it are threatened by Pertamina's new Indonesian proceeding. After a judgment on the merits, there is less need for concern about interfering with a foreign court's jurisdiction and "a court may freely protect the integrity of judgments by preventing their evasion through vexatious or oppressive relitigation." Laker Airways, 731 F.2d at 928.
To the extent that it is necessary for KBC to meet the traditional requirements for a preliminary injunction in addition to meeting the standard articulated in Kaepa, the Court finds KBC has done so with respect to both aspects of its preliminary injunction request. First, KBC has shown a substantial likelihood of success on the merits. As explained further below, the Indonesian court is not the proper forum for Pertamina's annulment action. Pertamina raises the same issues in Indonesia that this Court has already ruled upon in KBC's favor. Second, absent a preliminary injunction, KBC will suffer irreparable *476 harm; KBC will be forced to relitigate in a foreign forum issues it has already fully litigated and won in this Court. Further, KBC is justified in assuming that forum will be biased against it, rendering the current Judgment meaningless. Third, the balance of harm weighs in favor of granting a preliminary injunction. The Indonesian Injunction and Indonesian Action pose draconian penalties threatening KBC's ability to collect on the Judgment of this Court both in the United States and abroad. Indeed, at Pertamina's request the Injunction was issued without any meaningful due process afforded to KBC. On the other hand, Pertamina is permitted to assert any and all arguments in its favor in courts where KBC seeks to enforce or execute on assets on the basis of this Court's judgment.
Although the Court has been careful not to undermine international comity, the Court is not required to give absolute deference to proceedings in a foreign court filed without viable legal authority, especially when a final judgment on the matter has already been entered. In this preliminary injunction of this Court does not impinge on another court's jurisdiction or cause comity concerns. It is the latefiled Indonesian Action that potentially interferes with this Court's jurisdiction, not vice versa. Moreover, as explained hereafter, the Indonesian court does not have jurisdiction under the New York Convention over Pertamina's claims. Thus, the preliminary injunction KBC seeks is consistent with the standards expressed by the Fifth Circuit in Kaepa and is not contrary to public policy.
These elements and the ways in which the Indonesian Injunction and the Indonesian Action threaten this Court's jurisdiction and KBC's rights are discussed in detail below.
1. The Indonesian Injunction
KBC argues that the injunction sought and obtained by Pertamina in Indonesia is an attack on this Court's jurisdiction and interferes with this Court's inherent authority to enforce its judgments. KBC contends that this effect flows both from the fact that the Indonesian Injunction prevents KBC from seeking enforcement of the Judgment enforcing the Arbitral Award in the United States, and because it prevents KBC from seeking enforcement of the Arbitral Award in other countries under the New York Convention and through other local means.
Pertamina's briefs do not address the injunction aspect of its Indonesian Action except with the following oblique statement: "The only aspect of the Indonesian annulment proceeding that even raised this prospect [of interference] was to the extent [Pertamina] sought an injunction against enforcement of the [arbitral] Award that might apply in the United States, which this Court's March 29 order and now Pertamina's commitment not to pursue or enforce such relief." Pertamina's Memorandum in Opposition, at 13. The Court interprets this statement as Pertamina's continued commitment to this Court that Pertamina will not take steps to enforce the Indonesia Injunction against KBC as to actions KBC might undertake in the United States. It is unclear what Pertamina's position is as to the Indonesian Court's sua sponte deeming KBC's actions within the United States a violation of its injunction. As to steps KBC might take to enforce the Arbitral Award outside of the United States under the New York Convention or otherwise, the Court construes Pertamina's position to be that the Indonesian Injunction does not interfere with this Court's jurisdiction, that this Court's restraining order is invalid or ineffective outside the United States, and that *477 Pertamina is not in contempt for any violation of that order.
The Court at the March 29 (and April 2) hearing raised the issue of whether res judicata bars Pertamina's Indonesian Action and whether the Indonesian Action is simply an end-run around the Judgment and appeal here. Pertamina has declined this Court's invitation to submit briefing on the res judicata effect of this Court's Judgment in foreign jurisdictions where KBC seeks enforcement. KBC has presented affidavits supporting its contention that the courts and laws of Canada, Hong Kong, and Singapore would apply res judicata or analogous principles to give effect to this Court's Judgment is making their own enforcement determinations.[5] Pertamina has submitted nothing to contradict KBC's evidence as to the extraterritorial effect of this Court's Final Judgment.
Moreover, Pertamina has presented no authority to support the legitimacy of the Indonesian Injunction in light of the completion of the enforcement proceeding here pursuant to Article V of the New York Convention. Pertamina has cited, and the Court has found, no authority under the New York Convention (which Pertamina concedes contains the exclusive procedure for recognition and enforcement of foreign arbitral awards by its signatories, including Indonesia) for a court in which an action to annul an award is pending to enjoin enforcement proceedings or a party's post-judgment enforcement efforts in another jurisdiction. Instead, the New York Convention contemplates that, under appropriate circumstances, a court in which enforcement is sought may stay the enforcement proceeding pending the annulment action.[6]
The Court concludes that unless and until this Court's Judgment is vacated or stayed by the Court of Appeals for the Fifth Circuit, KBC has every right to rely on this Court's Judgment in its enforcement actions in other countries. The Indonesian Injunction against enforcement of the Arbitral Award is a patent attempt to interfere with the Court's Judgment against and deprives KBC of enjoyment of the Judgment's purpose and effect under United States law and the New York Convention. Therefore, The Court concludes that KBC's request for a preliminary injunction restraining Pertamina from enforcing the Indonesian Injunction has merit and will be granted. The Court also concludes that the indemnification provision of the temporary restraining order is fully justified and necessary. The indemnification provisions will be included in a preliminary injunction, until and unless Pertamina withdraws its request for an injunction and the present injunction is vacated by the Indonesian court.
*478 2. The Indonesian Action
KBC contends that no proceeding under the New York Convention may be maintained in Indonesia because Indonesia is neither the place of arbitration nor the place in which enforcement is sought. Pertamina argues that the Indonesian court has jurisdiction over its annulment proceeding pursuant to Articles V(1)(e) and VI of the New York Convention, and that this Court, as an enforcing court, cannot enjoin the annulment proceeding. Article V(1)(e) provides that recognition and enforcement of an award "may be refused" if "[t]he award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, the award was made." Pertamina concedes that the phrase "under the law of which" in Article V(1)(e) refers to the arbitral law under which the award was made, not the substantive law that applied to the merits of the dispute.[7] Because of the distinction under the New York Convention between the proper forum for enforcement of an arbitral award versus the forum for annulment of an arbitral award, Pertamina nevertheless contends that the Indonesian Action in no way interferes with this Court's jurisdiction.
Pertamina insists that this Court lacks jurisdiction under the New York Convention to enjoin the Indonesian Action. Pertamina misconstrues the source of this Court's injunction jurisdiction. The Court is not attempting to usurp the annulment jurisdiction that is bestowed upon the "country of origin" under the New York Convention. Instead, the Court's injunction is based on its inherent power to protect its own jurisdiction, as clearly established by Fifth Circuit authority. Kaepa, 76 F.3d at 627. The Court has jurisdiction over Pertamina and thus has jurisdiction to enjoin Pertamina's actions in a foreign country to the extent those actions interfere with the jurisdiction of this Court or the effect and scope of its orders. Id.
The Court finds that KBC has met its burden to show that an anti-suit injunction is appropriate in this case. Pertamina's assertion that the annulment proceeding is not an attack on this Court's jurisdiction and Judgment is disingenuous. Pertamina has admitted that if it is successful in the Indonesian Action, it intends to invoke Article V(1)(e) in support of a motion to this Court to vacate the Judgment confirming the Arbitral Award.[8] In fact, Pertamina *479 clearly seeks to circumvent this Court's rulings by belatedly relitigating the validity of the Arbitral Award in a presumably more sympathetic forum. The Court recognizes that, as an enforcing court, its review of the Arbitral Award was limited to the defenses listed in Article VI of the New York Convention, whereas a court of competent authority with jurisdiction to set aside the Arbitral Award is not so limited. See Yusuf, 126 F.3d at 21 (a motion to set aside an international arbitral award is controlled by the domestic law of the rendering state). Nevertheless, in this case, virtually all Pertamina's asserted grounds for annulling the Arbitral Award were litigated fully before this Court. Pertamina states:
Pertamina's application to annul the award is based inter alia, on the following grounds: (1) in rendering the Award, the Tribunal exceeded the power conferred on it by the applicable arbitration agreements by disregarding the parties' express choice of Indonesian law, in violation of both the parties' agreements and the applicable UNCITAL Arbitration Rules; (2) the Tribunal improperly consolidated the two proceedings into a single arbitration, also in violation of both parties' agreements and the applicable UNCITRAL Arbitration Rules; (3) the Tribunal improperly forced Pertamina to share the choice of an arbitrator with the Government of Indonesia and with PLN, in violation of the express procedure laid out by the parties' agreements; and (4) the Award contravenes the public policy of the Republic of Indonesia because it held Pertamina (and PLN) liable for its (their) compliance with Indonesian law. Neither grounds (1) nor (4) had been rased before this Court in the enforcement proceedings.
Pertamina's Memorandum in Opposition, at 3-4. This argument is belied by the record in the present case. Pertamina expressly argued before this Court that the Arbitral Tribunal failed to consider Indonesian law. See Respondent Pertamina's Memorandum in Opposition to KBC's Motion for Summary Judgment [Doc. # 29], at 67 ("Not only is such a result fundamentally unfair and contrary to public policy, but it makes no sense under the contracts or Indonesian law. As a matter of Indonesian law, the Tribunal's determination to award damages is in conflict with its factual determination that the parties were prevented from performing by an action that neither party causedspecifically, Presidential Decree No. 5/1988."); id. at 71 ("there is no basis under the contracts or Indonesian law for the award of damages"); see also Respondent Pertamina's Sur-Reply Memorandum in Opposition to KBC's Motion for Summary Judgment [Doc. # 42], at 26 ("[KBC] ignores (as did the tribunal) that it [secured contractual benefits from Pertamina] in return for and in the context of the application of Indonesian law. As Pertamina's Indonesian law expert Didi Dermawan established, the clauses in the JOC and ESC did not shift the risk of a Government Related Event to Respondents as KBC seeks to do, as a matter of Indonesian law... In reaching a different conclusion, the tribunal did not purport to resolve disagreements between experts on the interpretation of Indonesian law.... Nor did the tribunal purport to explain how and *480 why the JOC or ESC should be construed as modifying Indonesian law. To the contrary, the tribunal did not refer at all to Indonesian law, but instead reasoned from abstract legal propositions that were not founded on Indonesian law.").
In addition, this Court expressly ruled that the Arbitral Tribunal did not find Pertamina liable for its compliance with Indonesian law. Although the issue before this Court arose, in part, in the context of the application of United States' public policy, this finding would be equally applicable to an argument regarding Indonesian public policy. Moreover, Pertamina in effect argued that the award also violated Indonesian public policy in connection with its "abuse of rights" defense. Respondent Pertamina's Memorandum in Opposition to Further, KBC's Motion for Summary Judgment [Doc. # 29], at 57 ("The award violates public policy and should not be enforced because, by awarding $150 million in lost profits where KBC had not yet even begun construction of a power plant, could not have reasonably done so, and would have senselessly contributed to the further impoverishment of Indonesia by doing so, it sanctions an abuse of rights by KBC and against Pertamina and PLN (and ultimately, the people of Indonesia")); id. at 64 ("And the economic distress to which Indonesia had fallen in 1997 had no more improved as of the hearing in this case than it had in the Himpurna or Patuha cases, and there continues to be a considerable over-supply of electricity."); id. at 64 n. 37 ("As of July 27, 2001, the Dollar-Rupiah exchange rate (1:10050) is still more than four times greater than it was before the Asian financial crisis, thus increasing the prospective prices for KBC's electricity by four-fold; clearly this is prohibitive in the dramatically depressed Indonesian economy .... It remains the fact that the natural resources of Indonesia belong to the Government for the benefit of all people; they do not belong to Pertamina. Pertamina's exploitation of those resources is for the benefit of the people of Indonesia, not for its own benefit or for the benefit of any private parties, and payment of the Award would cause a very substantial blow to Indonesia's precarious economic standing."). Presumably, Pertamina intends to argue that the Award violates Indonesian public policy for the same reasons it argued that Award violates United States public policy, namely because it holds Pertamina liable for engaging in conduct that was compelled by Indonesian law, "which governed the parties' relations" and because it is "injurious to the public interest."[9]Id. at 67. Thus, Pertamina's efforts to relitigate the same issues actually decided by this Court is an obvious attempt to attack this Court's jurisdiction by relitigating old issues in a more favorable forum.[10]
*481 In this case, Pertamina never raised the possibility of seeking annulment of the Arbitral Award by an Indonesian court during the summary judgment proceedings, despite Pertamina's awareness of the defense to enforcement provided by Article V(1)(e) of the New York Convention. Furthermore, Pertamina has spared no expense in its attack on the Arbitral Award. The company is represented by highly regarded, sophisticated lawyers who have raised every conceivable argument in Pertamina's defense. The Indonesian Action appears to be no more than a last ditch effort to avoid the effect of this Court's Judgment enforcing the Arbitral Award.
To the extent Pertamina contends that the Indonesian Action is based on grounds not presented to this Court, that position depends on a finding that, pursuant to the parties' agreements, Indonesian arbitral law applied in the arbitration.[11] Pertamina's interpretation of the contracts in this regard is unpersuasive.[12] Under Pertamina's own expert's standards, the parties failed to make it clear in the governing agreements that Indonesian arbitral law was to apply. Rather, the parties made it clear to the arbitrators that the arbitration in fact was to be conducted under the arbitral law of Switzerland.[13] The Court combed the arbitration record presented by the parties in connection with the summary judgment motion and the pending motion and has found no indication that Pertamina ever argued for *482 the application of Indonesian arbitral law.[14] Under Pertamina's own theory, the New York Convention vests jurisdiction to set aside an arbitral award only in the "country in which, or under the law of which, that award was made." There can be no doubt that the physical and legal situs of the Arbitral Award was Geneva, Switzerland. Since Pertamina never argued in the arbitration that the parties' contracts selected Indonesian arbitral law, and the arbitral panel adopted Swiss arbitral law, Pertamina is bound to its prior positions.[15]See supra n. 13 and cites therein.
Pertamina's new posture is further undermined by its previous representations to this Court that the arbitration was conducted pursuant to Swiss arbitral law.[16] Pertamina's comments in its motion for a stay of the instant case pending resolution of Pertamina's Swiss appeal, filed May 19, 2001, are telling. Pertamina argued not only that the Swiss Supreme Court had jurisdiction to hear its appeal (without eliminating the possibility that an Indonesian court might share such jurisdiction), but also urged specifically, repeatedly and unequivocally that Swiss arbitration law applied in the arbitration. Pertamina opened its Motion by stating: "The arbitration award ... was conducted subject to the arbitration laws of Switzerland, and the Swiss court is empowered to vacate an award rendered in Switzerland.... KBC is asking this Court to act prematurely to confirm an award that might be overturned in the country whose law governed the arbitration." [17] Pertamina added that "it is fundamental that the courts of the originating nation are in the best position to pass on issues under their own law.... Here, Pertamina's appeal encompasses questions of Swiss law." Id. at 6; see also Respondent Pertamina's Memorandum in Opposition to KBC's Motion to Summary Judgment [Doc. # 29], at 34-35 ("By adopting an arbitral procedure that resulted in such a disparate outcome, the tribunal thus exceeded its authority and failed to accord the parties equal treatment in direct contravention of the procedural law governing this arbitration. See RLA 1, Swiss Private International Law Statute ('PIL'), Article 182(3) ('the arbitral tribunal *483 shall ensure equal treatment of the parties and the right of the parties to be heard in an adversarial procedure'); UNCITRAL Arbitration Rules, LA-6, Article 15 (requiring that parties `are treated with equality and that at any stage of the proceedings each party is given a full opportunity of presenting its case'). Neither the UNCITRAL Arbitration Rules nor the Swiss Private International Law Statute provide for non-consensual consolidation of arbitration disputes.").[18] Because Swiss arbitral law applied in the arbitration, Pertamina's argument that only the court in Indonesia has jurisdiction to annul the Arbitral Award under the New York Convention, and thus Pertamina's defense to KBC's preliminary injunction, fails entire
III. CONCLUSION AND ORDER
Because the injunction entered against KBC in Indonesia and the annulment proceeding pending there threaten both this Court's jurisdiction to enforce its Judgment and KBC's rights, the Court concludes that a preliminary injunction is warranted. It is therefore,
ORDERED that KBC's Motion for Preliminary Injunction [Doc. # 88] is GRANTED. It is further
ORDERED that Pertamina shall not at any time while this Preliminary Injunction is in force seek to enforce the Indonesian Injunction entered in its favor against KBC on April 1, 2002 in District Court in Jakarta, Indonesia. It is further
ORDERED that Pertamina shall not at any time while this Preliminary Injunction is in force collect (or take steps to collect) any fine or penalty from KBC as a result of the Indonesian Injunction entered in its favor against KBC on April 1, 2002 in District Court in Central Jakarta, Indonesia. It is further
ORDERED that while this Preliminary Injunction is in force, Pertamina shall indemnify KBC for all monetary punishments or penalties imposed under the Indonesian Injunction as a result of any action taken by KBC to enforce the Arbitral Award or to execute on the Judgment. It is further
ORDERED that if any order is issued by any court against KBC ordering KBC to pay penalties arising from the Indonesian Injunction, Pertamina shall pay KBC such monies prior to KBC having any obligation to pay Pertamina or the ordering court such amounts. It is further
ORDERED that Pertamina shall take no action while this Preliminary Injunction is in force to prosecute the action it filed against KBC in the District Court in Central Jakarta, Indonesia. It is further
ORDERED that Pertamina shall inform the District Court in Central Jakarta, Indonesia that it cannot and will not take any action to pursue the action pending there. It is further
ORDERED that the Temporary Restraining Order and Order of Contempt issued by this Court April 9, 2002, as extend by Order issued April 17, 2002, is superseded by this Preliminary Injunction, and all restraints not expressly set forth in this Preliminary Injunction are dissolved.
NOTES
[1] The Court issued a Temporary Restraining Order orally on the record at a hearing on March 29, 2002 and issued a Temporary Restraining order and Order of Contempt orally on the record at a hearing April 2, 2002. The Court's oral orders were memorialized in a Temporary Restraining Order and Order of Contempt issued April 9, 2002 [Doc. # 129], as extended by Order issued April 17, 2002 [Doc. #132].
[2] KBC filed an Application for Temporary Restraining Order [Doc. # 88] and Memorandum in Support of Application for Temporary Restraining Order ("KBC's Memorandum of Law") [Doc. # 90], followed by its Memorandum in Support of its Motion for Preliminary Injunction [Doc. # 111] and KBC's Reply Memorandum in Support of its Motion for a Preliminary Injunction [Doc. # 128]. Pertamina filed Pertamina's Memorandum of Law in Opposition to Petitioner's Motion for a Restraining Order and in Support of its Right to Seek Annulment of the Arbitral Award in Indonesia ("Pertamina's Memorandum in Opposition") [Doc. # 115] and Pertamina's Reply Memorandum of Law in Opposition to Petitioner's Motion for a Restraining Order and in Support of its Right to Seek Annulment of the Arbitral Award in Indonesia [Doc. # 127].
[3] The Indonesian Injunction prohibits KBC from taking any action to enforce:
[t]he arbitral award rendered in Geneva, Switzerland, on 18 December 2000(P-1), arising from Joint Operating Contract/JOC; and Energy Sales Contract/ESC, upon the condition that KBC is imposed with the obligation to pay enforcement money in the amount of US$500,000.00 for each day this order is contravened, which amount must be paid promptly and fully to the Pertamina.
Exhibit 3 to Petitioner Karaha Bodas Company, L.L.C.'s Motion for Contempt.
[4] Pertamina has filed a Motion to Purge Contempt and to Alter or Amend the Adjudication holding Pertamina in Contempt [Doc. # 131]. Pertamina contends that its letter to the Indonesian court satisfies the Court's Temporary Restraining Order. Pertamina further contends that it should be purged of contempt because the oral TRO issued March 29, 2002, on which the contempt was based, was defective and, given the time difference involved, compliance was impossible. Pertamina's Motion to Purge Contempt is denied. However, the Court notes that the April 9, 2002 Temporary Restraining Order and Order of Contempt is superseded by this Preliminary Injunction Order.
[5] See Declaration of Douglas Alexander Bodner, Exhibit 1 to KBC's Memorandum of Law (Canada); Declaration of Russell Coleman, Exhibit 2 to KBC's Memorandum of Law (Hong Kong); Declaration of Nandakumar Ponniya, Exhibit 3 to KBC's Memorandum of Law (Singapore).
[6] Article VI of the New York Convention provides: "If an application for the setting aside or suspension of the award has been made to a competent authority referred to in Article V(1)(e), the authority before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision of the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security." (Emphasis added.) In connection with its response to KBC's pending application for turnover, Pertamina filed a cross-motion to stay enforcement proceedings until the Indonesian court has ruled [Doc. # 101]. Pertamina's cross-motion, filed April 1, 2001, has only recently become ripe and will be addressed in a separate order.
[7] See Pertamina's Memorandum of Law, at 3 ("Under Indonesian law and as envisaged by the New York Convention, Pertamina is authorized to seek annulment of the Award in Indonesia because the Award is governed by the arbitration law of Indonesia."); Expert Report of Albert Jan van den Berg, Exhibit B to Pertamina's Memorandum of Law, ¶ 7 ("In most cases, the country of origin is the country where the place of arbitration is located and the arbitral award is made. That corresponds to the territorial concept of international arbitration, according to which the place of arbitration determines the applicable arbitration law (which law is to be distinguished from the law applicable to the merits)."); id. ¶ 19 ("when parties agree on a governing arbitration law that is different than that of the arbitral locale, the country whose arbitration law was chosen by the parties to govern the proceedings is the proper jurisdiction for bringing an annulment proceeding."); see also Yusuf Ahmed Alghanim & Sons, W.L.L. v. Toys "R" Us, Inc., 126 F.3d 15, 21 (2d Cir. 1997) ("only the state under whose procedural law the arbitration was conducted has jurisdiction under Art. V(1)(e) to vacate the award." (Emphasis added)).
[8] Pertamina's plan is complicated by the fact that this Court lacks jurisdiction to issue the relief Pertamina seeks, since the Judgment has been final for months and Pertamina has appealed the matter. Pertamina would have to seek relief in the Fifth Circuit. Moreover, this Court would not be obligated to give effect to an Indonesian judgment annulling the Arbitral Award. See In re Chromalloy Aeroservices, 939 F. Supp. 907, 911-13 (D.D.C. 1996) (refusing to give res judicata effect to an Egyptian judgment annulling an otherwise valid arbitration award made in Egypt). Based on the information currently presented, the Court questions how much weight an Indonesian annulment judgment would be entitled to in a proceeding to vacate the Judgment.
[9] Pertamina's argument that the damages award is contrary to public policy because it would be injurious to the Indonesian economy is at odds with its position that it is an independent company and the Indonesian government is not liable for its debts. The Court is not making a ruling as to the ownership of any assets at this time. If in fact Pertamina has no assets subject to execution, as it has contended in response to KBC's attempts at execution, then the existence of the Arbitral Award itself will not affect Indonesia's assets nor injure the Indonesian economy.
[10] Pertamina is much like the vexatious plaintiffs enjoined in Younis Bros. & Co. v. CIGNA Worldwide Ins. Co., 167 F. Supp. 2d 743, 747 (E.D.Pa. 2001):
[P]laintiffs are obviously unhappy with the results of their litigation [in the United States] and are attempting to get a `second opinion' from the Liberian courts .. . [defendant] has already succeeded on the merits, and it will be irreparably harmed if it is forced to continue to defendant against plaintiffs' vexatious and duplicative Liberian litigation and/or defend against execution upon a judgment that conflicts with the final judgment in this case.
[11] There is no dispute that Indonesian law applied to the merits. However, Pertamina does not argue that the choice of substantive law governs the forum for its annulment proceeding under the New York Convention.
[12] Pertamina's own expert points out that "if the parties agree on a place of arbitration, it is generally assumed that such agreement implies a choice on the arbitration law of the place of arbitration. However, if the parties have agreed on a place of arbitration and the applicability of the arbitration law of another country (which is exceptional), they have agreed on the place of arbitration in the physical sense as opposed to the one they agreed to in the legal sense." Expert Report of Jan van den Berg, ¶ 9. Jan van den Berg further states "[m]y own view is that the agreement to arbitrate under the law of a country which is not the country in which the award is to be made needs to be clear as it is a rather exceptional agreement." Expert Report of Jan van den Berg, ¶ 20. Yet, Jan van den Berg seems to ignore his own standards when he goes on to opine that the parties' mere reference to certain provisions of the Indonesian Code of Civil Procedure is a sufficiently "clear" expression of the parties' intent to make the "rather exceptional" selection of Indonesian law as the law governing the arbitration and award. Id. ¶ 27. This Court places no weight on this expert's ultimate conclusion as to the parties' intent as to the choice of arbitral law.
[13] See, e.g., Preliminary Award in an Arbitration Procedure Under the UNCITRAL Arbitration Rules, September 30, 1999, § B(1) ("The Respondents support this conclusion by making reference to Swiss law as the JOC and the ESC provide for UNCITRAL Arbitration in Geneva between the parties which are neither Swiss nor Swiss resident. As a result, and under both contracts, the arbitration proceedings are governed by Chapter 12 of the Swiss Private International Law Statutes. Under Swiss law, [Respondent contends] the Arbitral Tribunal is lacking jurisdiction because KBC failed to comply with the contractual prerequisites to arbitration."); id. § C(1) ("The Respondents also state that, under the arbitration agreements and Swiss law, the arbitrators have no power to consolidate..."); id. § C(3) (citing the "famous Westland Case" of the Swiss Federal Tribunal in support of its decision that a consolidated arbitration was appropriate); id. § D(1) (Respondents contend "such solution is not acceptable under the applicable Swiss law"). For this reason, it is not necessary to interpret the underlying contracts or to address KBC's argument that Pertamina's Expert Report of Albert Jan van den Berg improperly assumes the role of the Court by interpreting the contracts.
[14] In fact, as the Court pointed out in its December 2001 Memorandum and Order affirming the Arbitral Award, Pertamina's counsel expressly represented to the tribunal at the close of evidence that Pertamina had no objections (beyond those already lodged) to the arbitration proceeding. Hearing Transcript, Vol. V, at 814.
[15] An arbitration decision can have collateral estoppel or res judicata effect between the same parties in a subsequent proceeding. Universal American Barge Corp. v. J-Chem, Inc., 946 F.2d 1131, 1137 (5th Cir. 1991); RESTATEMENT (SECOND) JUDGMENTS § 84 (1980).
[16] Although the Court denied Pertamina's motion to stay the enforcement proceeding pending a decision from the Swiss court, the Court did slow the proceedings in this case in deference to Pertamina's request. The Court finds that this is an appropriate case for application of judicial estoppel. There are no in flexible prerequisites nor is there a definitive formula for determining the applicability of judicial estoppel. New Hampshire v. Maine, 532 U.S. 742, 751, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001); see also United States v. McCaskey, 9 F.3d 368, 378 (5th Cir. 1993) ("the policies underlying the doctrine [of judicial estoppel] include preventing internal inconsistency, precluding litigants from `playing fast and loose' with the courts, and prohibiting parties from deliberately changing positions according to the exigencies of the moment."). This Court was led to believe that the Swiss court had exclusive jurisdiction to annul the Arbitral Award and it relied on that representation in proceeding to final judgment in this enforcement proceeding only after the Swiss appeal was dismissed and that dismissal became final.
[17] See Respondent Pertamina's Motion for Stay Pending Resolution of Swiss Appeal and Memorandum in Support [Doc. # 13], at 1.
[18] As a practical matter, Pertamina's current suggestion that both Switzerland and Indonesia have jurisdiction to set aside the award seems particularly at odds with the "well established principal of current international commercial arbitration that the court of the country of origin is exclusively competent to decide on the setting aside of the award." ALBERT JANVAN DEN BERG, THE NEW YORK ARBITRATION CONVENTION OF 1958, at 10 (Kluwer Law and Taxation Publishers 1981)(emphasis added). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609873/ | 866 P.2d 470 (1993)
125 Or. App. 365
In the Matter of Sonja A. Johansen, a Mentally Ill Person.
STATE of Oregon, Respondent,
v.
Sonja A. JOHANSEN, Appellant.
M87-4-11; CA A69256.
Court of Appeals of Oregon.
Argued and Submitted October 16, 1992.
Decided December 22, 1993.
Reconsideration Denied February 6, 1994.
*471 Thomas A. Coleman, Portland, argued the cause and filed the brief for appellant.
Janet A. Metcalf, Asst. Atty. Gen., argued the cause for respondent. With her on the brief were Charles S. Crookham, Atty. Gen., and Virginia L. Linder, Sol. Gen.
Before ROSSMAN, P.J., and De MUNIZ and LEESON,[*] JJ.
ROSSMAN, Presiding Judge.
Appellant, a patient at Dammasch State Hospital, was involuntarily committed for 180 days in May, 1983. ORS 426.130(3).[1] Since then, she has been recommitted under ORS 426.301 to successive 180-day terms. On March 20, 1991, the trial court again ordered her committed for an additional 180-day period. Appellant seeks review of that order, contending that the recommitment procedure of ORS 426.301 to ORS 426.307 is unconstitutional on its face under the Due Process Clause of the Fourteenth Amendment to the United States Constitution and under Article III, Section 1, and Article VII (Amended), Section 1, of the Oregon Constitution. We affirm.
We first address appellant's contention that Oregon's civil recommitment procedure fails to afford an allegedly mentally ill person (AMIP) the procedural safeguards required by the Due Process Clause.[2] She asserts that for the recommitment scheme to be constitutionally adequate, it must require that an adversarial hearing be provided to every individual against whom a certification for continued commitment is filed, and must require that the decision as to whether continued confinement is warranted be made by a neutral decisionmaker. The state counters that our holding in Dietrich v. Brooks, 27 Or.App. 821, 558 P.2d 357 (1976), is controlling and compels the conclusion that the recommitment procedure comports with the minimum requirements of due process.
Dietrich involved a procedural due process challenge to former ORS 426.290,[3] which permitted revocation of a patient's trial visitation privileges if two individuals filed a sworn complaint and the acts complained of indicated to an examining physician that the patient should no longer be allowed to remain on trial visit. In upholding the constitutionality of the statute, we said:
"Termination of a trial visit is not an isolated event. If it were, then denial of liberty based upon the sworn statements of two people and the judgment of an admitting physician, standing alone, would be unconstitutional for lack of due process. Rather, it is one of a sequence of events within a course of confinement and treatment. It is the procedural protection which surrounds that course of confinement and treatment which must be measured against the Due Process Clause to determine if it is appropriate to the public purpose to be served and to the nature of the individual loss to be guarded against." Dietrich v. Brooks, supra, 27 Or.App. at 827, 558 P.2d 357. (Emphasis supplied.)
We held that:
"the entire pattern of protection is constitutionally valid. A person is accorded notice, counsel, and confrontation at the initial commitment. ORS 426.100, State v. O'Neill, 274 Or 59, 545 P.2d 97 (1976). Involuntary confinement is limited to 180 days and cannot be extended except by consent or by a similar judicial hearing, ORS 426.301 to 426.307. * * * We therefore conclude that the entire statutory scheme of involuntary commitment, including the return to the institution following a trial visit, provides procedural safeguards which satisfy the requirements of the Due Process Clause." Dietrich v. Brooks, supra, 27 Or.App. at 827-28, 558 P.2d 357.
*472 Our holding in Dietrich that the involuntary commitment procedure, as a whole, withstands scrutiny under the Due Process Clause, is persuasive authority for the proposition that the recommitment procedure established in ORS 426.301 to ORS 426.307 provides all the "process" that is constitutionally "due." However, the constitutionality of the recommitment procedure was not at issue there, and, consequently, our holding in that case is not dispositive of the issues presented in this appeal. Nonetheless, Dietrich does provide important guidance with regard to the manner in which we should review the constitutionality of the recommitment procedure. Because recommitment to a mental institution is not "an isolated event," but "is one of a sequence of events within a course of confinement and treatment," 27 Or.App. at 827, 558 P.2d 357, here, as in Dietrich, we must look to the entire statutory scheme of involuntary commitment in deciding whether the recommitment process meets minimum constitutional requirements.
An initial involuntary commitment can be initiated by any person or persons who give the notice required by ORS 426.070(2)[4] to the community mental health and development disabilities program director or a designee of the director in the county where the allegedly mentally ill person resides. The director or its designee then informs the circuit court of the notification and initiates an investigation to determine whether there is probable cause to believe that the AMIP is mentally ill. ORS 426.070(3)(a), (c). Upon completion of the investigation, a report recommending whether the AMIP should be committed to a mental hospital is prepared and submitted to the court. ORS 426.070(4). If the court concludes that there is probable cause to believe that the AMIP is mentally ill, the AMIP is issued the citation described in ORS 426.090 and then brought before the court for a hearing to determine whether the AMIP is mentally ill. ORS 426.070(5)(a). A certified copy of the citation must be personally served on the AMIP prior to the hearing. ORS 426.090. The citation states the nature of the information contained in the notification and the specific reasons the person is believed to be mentally ill. It also must contain
"a notice of the time and place of the commitment hearing, the right to legal counsel, and, if requested, to have legal counsel immediately appointed, the right to subpoena witnesses in behalf of the person to the hearing and other information as the court may direct." ORS 426.090.
ORS 426.090 also provides that the AMIP "shall have an opportunity to consult with legal counsel prior to being brought before the court."[5]
When the AMIP appears before the court, she must again be informed of the reason she has been summoned, the nature and possible results of the proceedings, her rights regarding representation by or appointment of counsel and her right to subpoena witnesses at the hearing. ORS 426.100(1). At the hearing, the AMIP and the person representing the state may cross-examine all witnesses, examining physicians,[6] other qualified medical examiners and the persons responsible for preparing the investigation report. *473 ORS 426.095.[7] If, after hearing all the evidence and reviewing the findings of the examiners, the court is persuaded by clear and convincing evidence that the person is mentally ill,[8] then it may order the person committed to a mental hospital for a period of time to be established by the court. ORS 426.130(1)(b)(C).
ORS 426.301 to ORS 426.307 describes the procedures by which the period of initial commitment may be extended. ORS 426.301 provides that a patient is to be released from the custody of the Mental Health and Developmental Disabilities Services Division at the end of the patient's term of commitment
"unless the [D]ivision certifies to the court in the county where the treating facility is located that the [patient] is still mentally ill and in need of further treatment." ORS 426.301(1).
The Division may delegate to the hospital director the responsibility for making the "certification." That director must consult with "the community mental health and developmental disabilities program director of the county of residence prior to making the certification." ORS 426.301(1). If the certification is made, the patient is not released. Either the hospital director or a designee serves the certification upon the patient. The hospital director then informs the circuit court in writing of the fact and date of service. ORS 426.301(2). ORS 426.301(3) requires that the certification advise the patient:
"(a) That the division or facility has requested that commitment be continued for an additional period of time.
"(b) That the person may consult with legal counsel and that legal counsel will be provided for the person without cost if the person is unable to afford legal counsel.
"(c) That the person may protest this further commitment within 14 days, and if the person does not commitment will be continued for an indefinite period of time up to 180 days.
"(d) That if the person does protest a further period of commitment, the person is entitled to a hearing before the court on whether the commitment should be continued."
The certification must also apprise the patient that a protest may be made either orally or in writing by signing the form accompanying the certification and that the patient is entitled to have a physician or other qualified person[9] examine her and report the results to the court. ORS 426.301(3)(e).[10]
The person who serves the certification on the patient must read and deliver it to the *474 patient and ask whether she protests the further period of commitment. If the patient does not protest within 14 days of service of the certification,
"the [D]ivision or facility shall so notify the court and the court shall, without further hearing, order the commitment of the [patient] for an additional indefinite period of time up to 180 days." ORS 426.301(5).
If the patient does protest within the 14-day period, she is brought before the court and again advised that continuation of commitment has been requested and that if she does not protest, "the commitment will be continued for an indefinite period of time up to 180 days." ORS 426.303. Upon the patient's request, the court must conduct a hearing de novo to determine whether the patient is still mentally ill and in need of further treatment. If the court answers both questions in the affirmative, it "may order commitment to the [D]ivision for an additional indefinite period of time up to 180 days." ORS 426.307(6).
With those commitment procedures in mind, we return to appellant's claim that the procedure for extending the initial period of confinement fails to satisfy the strictures of the Due Process Clause. Involuntary commitment, or recommitment, to a mental institution involves a "massive curtailment of liberty," Vitek v. Jones, 445 U.S. 480, 491, 100 S. Ct. 1254, 1263, 63 L. Ed. 2d 552 (1980), and, consequently, invokes due process protections. Parham v. J.R., 442 U.S. 584, 600, 99 S. Ct. 2493, 2503, 61 L. Ed. 2d 101 (1979); Addington v. Texas, 441 U.S. 418, 425, 99 S. Ct. 1804, 1809, 60 L. Ed. 2d 323 (1979). As the Supreme Court recognized in Vitek v. Jones, supra:
"The loss of liberty produced by an involuntary commitment is more than a loss of freedom from confinement. It is indisputable that commitment to a mental hospital `can engender adverse social consequences to the individual' and that `[w]hether we label this phenomena "stigma" or choose to call it something else * * * we recognize that it can occur and that it does have a significant impact on the individual.'" 445 U.S. at 492, 100 S.Ct. at 1263. (Citations omitted.)
The state concedes that the involuntary extension of a patient's period of confinement implicates the patient's constitutionally protected liberty interest in avoiding mental hospitalization. It contends, however, that the recommitment procedure, when considered in conjunction with the procedural safeguards afforded an AMIP upon initial commitment, does not contain any constitutional infirmity.
It has long been recognized that due process "is not a technical conception with a fixed content unrelated to time, place and circumstances," Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S. Ct. 1743, 1748, 6 L. Ed. 2d 1230 (1961), but is instead a flexible concept that "calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484 (1972). To determine what procedural protections the Constitution requires and whether a disputed procedure provides those protections, we apply the three-prong balancing test first articulated in Mathews v. Elridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18 (1976):
"First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail."
Applying those criteria, we first consider the patient's liberty interest in avoiding continued confinement in a mental hospital. As discussed above, because of the "massive curtailment of liberty" that results from involuntary commitment or recommitment to a mental facility, a patient has a substantial liberty interest in obtaining a release from further confinement. An extended period of commitment pursuant to ORS 426.301 to ORS 426.307 clearly infringes on this liberty interest.
We next consider the likelihood of an erroneous recommitment under the current procedure employed by the state. Appellant claims that the recommitment process is inherently *475 error prone, because it places the burden of obtaining judicial review of the certification entirely on the patient, who, appellant argues, cannot realistically be expected to initiate the review process. Appellant's argument in this regard is based on the Ninth Circuit Court of Appeals' decision in Doe v. Gallinot, 657 F.2d 1017 (9th Cir. 1981).[11]Doe involved a due process challenge to a procedure that allowed certain designated persons to effect an emergency detention of a person in a mental hospital for up to 72 hours. During the 72 hour period, the person was psychologically evaluated by hospital staff and either released or held for the entire 72 hours.
At the end of the 72 hour detention, the person could be "certified" by the staff for up to 14 additional days of treatment. To certify a person, a notice of certification had to be delivered personally to the patient. The person who delivered the notice was required to inform the patient of her right to petition for a writ of habeas corpus to obtain judicial review of the certification, to explain the habeas corpus procedure to her and to inform her of her right to counsel. If she requested a writ or otherwise indicated a desire to be released, she signed a written release form, which was given to the person in charge of the facility. That person then informed the court of the requested release and the court scheduled a hearing within two days of the writ being filed.
After considering the "certification" procedure in the light of Mathews, the court in Doe concluded that the procedure was constitutionally deficient. Although the procedure at issue in Doe and the one being challenged in this case both involve an individual's liberty interest in avoiding mental hospitalization, the similarity ends there. In Doe, the certification procedure authorized an initial involuntary commitment for up to 17 days solely on the basis of staff evaluation and without any type of hearing.[12] In the present case, we are not confronted with an initial involuntary confinement, but, rather, with an extension of an existing confinement. A patient who is "certified" for recommitment has already had an adversarial proceeding before a circuit court that had declared the patient mentally ill and in need of treatment. As for the second factor in the Mathews analysis, the court in Doe observed that the district court's finding that certification decisions were "highly error prone" was amply supported by the record:
"Statistics cited by the district court showed that a substantial number of detainees who sought habeas corpus review under the existing procedures were discharged at or before the hearing. Adoption of mandatory review procedures, therefore, promises to effect a reduction in erroneous certifications." 657 F.2d at 1023. (Citation omitted.) *476 Here, appellant has presented no evidence that certification decisions under the recommitment scheme are in any way error prone.[13] Simply making an assertion that the recommitment procedure presents an undue danger of erroneous confinement does not make it so.
In our view, the involuntary commitment scheme provides several procedural mechanisms that protect against the risk of an erroneous certification. First, the patient has already been adjudged mentally ill by a circuit court in an adversary hearing in which the patient was accorded notice, counsel and confrontation. See Dietrich v. Brooks, supra, 27 Or.App. at 827, 558 P.2d 357. The recommitment process is not invalidated solely because the patient is required to initiate judicial review. In Doe v. Gallinot, supra, the district court found it noteworthy that the avenue for judicial review of the certificationhabeas corpus"is difficult to understand." 657 F.2d at 1022. Here, in contrast, the patient may obtain judicial review simply by voicing an objection to the certification or by signing the protest form; she is not required to initiate a complex collateral proceeding to challenge the certification. Furthermore, in addition to the certification form advising the patient of the uncomplicated methods of obtaining review, the person delivering the certification must explain those methods to the patient and ask whether she wishes to protest the certification. In short, the simple and straightforward review procedure established in ORS 426.301(2)-(5) provides the patient with an accessible opportunity for judicial recourse.[14]
Second, the accuracy of the recommitment process is enhanced by the fact that the certification is made either by the Division or through the collaborative efforts of the hospital director and another mental health professional.[15] The question of whether a patient is mentally ill and in need of further treatment is medical in nature. See Parham v. J.R., supra, 442 U.S. at 609, 99 S. Ct. at 2507. Although the Division or the director must necessarily make findings relevant to those determinations, the ultimate resolution of those questions "turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists." Addington v. Texas, supra, 441 U.S. at 429, 99 S. Ct. at 1811. (Emphasis in original.) Thus, it cannot be seriously disputed that specialists trained in the field of mental health are better qualified than judges or administrative hearings officers to make the certification decision.
Appellant contends that the mental health specialists empowered to make the certification are not "neutral and detached" decisionmakers as required by the Due Process Clause. Again, appellant has not presented any evidence that impugns the neutrality of the mental health specialists and has failed to *477 show that the specialists are unable to provide an independent evaluation of a patient's mental fitness. The unarticulated premise in appellant's argument appears to be that the specialists cannot be disinterested and impartial, because they are affiliated with the hospital where the patient receives treatment. However, the United States Supreme Court has recognized that, when deciding whether a person should be committed to a mental hospital, a decisionmaker within the hospital is acceptable. See, e.g., Vitek v. Jones, supra, 445 U.S. at 496, 100 S. Ct. at 1265 (independent decisionmaker need not come from outside prison or hospital administration); Parham v. J.R., supra, 442 U.S. at 607, 99 S. Ct. at 2493 (staff physician may determine whether child should be admitted to a mental hospital "so long as he or she is free to evaluate independently the child's mental and emotional condition and need for treatment"). By expressing confidence in the decisions of medical examiners, we do not mean to imply that the certification procedure is entirely free of any risk of error. Indeed, "[t]he subtleties and nuances of psychiatric diagnosis render certainties virtually beyond reach in most situations." Addington v. Texas, supra, 441 U.S. at 430, 99 S. Ct. at 1811. However, we do not believe that the substitute or additional safeguard of a mandatory judicial or administrative hearing would be of value in reducing the possibility of unnecessary recommitments. As the Court noted in Parham v. J.R., supra:
"[W]e do not accept the notion that the shortcomings of specialists can always be avoided by shifting the decision from a trained specialist using the traditional tools of medical science to an untrained judge or administrative officer after a judicial-type hearing. Even after a hearing, the nonspecialist decisionmaker must make a medical-psychiatric decision. Common human experience and scholarly opinions suggest that the supposed protections of an adversary proceeding to determine the appropriateness of medical decisions for the commitment and treatment of mental and emotional illness may well be more illusory than real." 442 U.S. at 609, 99 S. Ct. at 2507.
Moreover, the possibility that there may occasionally be an improper recommitment does not afford a rational predicate for striking down the entire recommitment scheme, for "[s]uch cases, if they are found, can be dealt with individually; they do not lend themselves to class-action remedies." Parham v. J.R., supra, 442 U.S. at 616, 99 S. Ct. at 2511.
"[P]rocedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions." Mathews v. Elridge, supra, 424 U.S. at 344, 96 S. Ct. at 907.
In essence, appellant is asking that we act to repair the recommitment procedure even though she has presented no evidence that the procedure is broken. The Due Process Clause does not require such precipitous action.
Finally, we note that the state has a significant interest under its parens patriae powers "in providing care to its citizens who are unable because of emotional disorders to care for themselves" and in protecting others in the community from the dangerous proclivities of some who are mentally ill. Addington v. Texas, supra, 441 U.S. at 426, 99 S. Ct. at 1809; Grant v. Johnson, 757 F. Supp. 1127, 1134 (D.Or.1991). The state also has a substantial interest in allocating priority to the diagnosis and treatment of patients, rather than to "time consuming procedural minuets" performed after admittance to justify continuing a patient's confinement. See Parham v. J.R., supra, 442 U.S. at 605, 99 S. Ct. at 2505. Requiring a formal hearing for every patient in connection with a certification decision would undoubtedly increase the amount of time that mental health specialists would spend preparing for and participating in hearings and would reduce the amount of time they would spend performing the rehabilitative tasks for which they have been trained. As the Court observed in Parham v. J.R., supra, 442 U.S. at 605-06, 99 S. Ct. at 2505-06, "[b]ehavioral experts in courtrooms and hearings are of little help to patients."
Given that appellant has failed to demonstrate that the recommitment process involves *478 a constitutionally impermissible risk of error, and considering the involuntary commitment and recommitment procedures in light of the AMIP's liberty interest in freedom from restraint and the government's interest in the well-being of its citizenry, we conclude that the balance tips in favor of the constitutionality of the recommitment process. We hold that the recommitment procedure established in ORS 426.301 to ORS 426.307 provides the minimum due process protections owed to the patient.
Because the statute affords an adequate opportunity for judicial review of the certification decision, appellant's claim that the recommitment procedure contravenes the separation of powers doctrine of Article III, Section 1, of the Oregon Constitution,[16] must fail. See Perkey v. Psychiatric Security Review Board, 65 Or.App. 259, 263-64, 670 P.2d 1061 (1983). For the same reason, ORS 426.301 to ORS 426.307 do not constitute an "outright hindrance of a court's ability to adjudicate a case," nor does it entail "the substantial destruction of the exercise of a power essential to the adjudicatory function." Circuit Court v. AFSCME, 295 Or. 542, 551, 669 P.2d 314 (1983). Consequently, appellant's claim under Article VII (Amended), Section 1,[17] also fails.
Affirmed.
De MUNIZ, Judge, dissenting.
Appellant was originally involuntarily committed to a state mental hospital in 1983. Since then, she has been recommitted, under ORS 426.301 to ORS 426.307, to successive 180-day terms. Before each recommitment, she has allegedly waived her rights to counsel and to a court hearing to contest the recommitment. I disagree with the majority's conclusion that the recommitment procedures contained in ORS 426.301 to ORS 426.307 do not violate appellant's due process rights under the United States Constitution. Accordingly, I dissent.
The majority correctly recognizes that appellant has a substantial liberty interest in obtaining a release from further confinement. In the light of that liberty interest, the constitutionality, under the Due Process Clause, of the recommitment procedure in ORS 426.301, must be determined by the balancing of a number of factors. In Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), the United States Supreme Court identified those factors:
"First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail."
The majority purports to balance each of the Mathews v. Eldridge factors. My disagreement with the majority centers on its conclusion that the "several procedural mechanisms [in ORS 426.301 to ORS 426.307] that protect against the risk of erroneous [recommitment]," 125 Or.App. at 376, 866 P.2d at 476, are sufficient under the Due Process Clause. In my view, those so-called "procedural mechanisms" are, for the most part, illusory and do not withstand constitutional scrutiny.
The recommitment procedure in ORS 426.301 is very much like the initial involuntary commitment procedure that was found constitutionally deficient by the Ninth Circuit Court of Appeals in Doe v. Gallinot, 657 F.2d 1017 (9th Cir.1981). Gallinot involved a due process challenge to a procedure that allowed for the emergency detention of a person in a mental hospital for up to 72 hours. At the *479 end of the 72-hour detention, the person could be certified by the staff for up to 14 additional days of treatment. The certification notice had to be delivered personally to the patient. At that time, the person delivering the notice was required to inform the patient of her right to counsel and the right to obtain judicial review of the certification through habeas corpus. Judicial review occurred only if the patient requested a writ of habeas corpus or otherwise indicated to the person delivering the certification that she desired to be released. That person then informed the court of the requested release and the court scheduled a hearing within two days of the writ being filed.
In concluding that placing the burden on the protected person to initiate judicial review was not a sufficient protection from erroneous commitment under the Due Process Clause, the court stated:
"No matter how elaborate and accurate the habeas corpus proceedings available under the LPS Act may be once undertaken, their protection is illusory when a large segment of the protected class cannot realistically be expected to set the proceedings into motion in the first place. It is the state, after all, which must ultimately justify depriving a person of a protected liberty interest by determining that good cause exists for the deprivation. Suzuki v. Yuen, 617 F.2d 173, 175-78 (9th Cir.1980). Indeed, the irony of the appellants' argument is that the more accurate the determinations of the statutory habeas corpus proceedings may be, the more irrational it is to afford those proceedings only to those in a position to request them." 657 F.2d at 1023. (Footnote omitted.)
The majority attempts to distinguish Gallinot on three grounds. First it points out that, unlike Gallinot, appellant has offered "no evidence that certification decisions under the recommitment scheme [in ORS 426.301 to ORS 426-307] are in any way error prone." 125 Or.App. at 375, 866 P.2d at 476. The majority is correct that, in Gallinot, evidence in the record "`showed that a substantial number of detainees who sought habeas corpus review under the existing procedures were discharged at or before the hearing.'" 125 Or.App. at 375, 866 P.2d at 475; 657 F.2d at 1023. However, a close reading of Gallinot reveals that that evidence, while supporting the court's legal analysis, was not an indispensable part of its ultimate conclusion. Instead, central to the court's conclusion that the procedure violated the Due Process Clause was its determination that procedures for judicial intervention are "illusory when a large segment of the protected class cannot realistically be expected to set the proceedings into motion in the first place." 657 F.2d at 1023.
That conclusion was based on a plain reading of the statutes involved and an acknowledgement by the court of the adverse setting in which the protected person was expected to initiate judicial review. In that regard, the court noted that in the mental facility setting, the protected person may be incapable of invoking her "procedural rights" and initiating judicial review, because she may be under heavy sedation; she may be inhibited by her surroundings, intimidated by or distrustful of the staff, or may feel obliged to cooperate with the staff who control nearly every aspect of her life; she may be unaccustomed to or afraid of courts and attorneys and, therefore, reluctant to protest review; she may be afraid of even a relatively innocuous requirement such as signing the form requesting relief. Doe v. Gallinot, supra, 657 F.2d at 1023 n. 7.
It is beyond dispute that the same adverse setting exists here and can properly be considered by us in the facial challenge brought by appellant in this case. In summary, the majority's concern that the record contains no empirical data about erroneous recommitments has very little impact on the legal analysis necessary to determine whether there is a significant risk of an erroneous recommitment under the procedure in ORS 426.301.
Second, the majority attempts to distinguish Gallinot on the ground that it involved an initial confinement procedure, not "an extension of an existing confinement," or "[a] patient * * * `certified' for recommitment [that] has already had an adversarial proceeding before a circuit court that had declared the patient mentally ill and in need of *480 treatment." 125 Or.App. at 375, 866 P.2d at 475. That distinction might be meaningful if appellant's last judicial hearing had occurred only 180 days earlier. Unfortunately, that is not the case here. Appellant's last judicial hearing, in which a neutral factfinder made a determination about the necessity of appellant's confinement, occurred more than 10 years ago. Since then, appellant has borne the heavy burden of initiating judicial review. Viewed in that light, it is difficult to conclude, as does the majority, that recommitment, under the procedures in ORS 426.201, does not involve the same risk of error present in an involuntary commitment proceeding that places the burden on the protected person to initiate a request for judicial review.
Finally, the majority attempts to distinguish Gallinot on the ground that the habeas corpus method used for seeking judicial review in that case "is difficult to understand," while here, "the patient may obtain judicial review simply by voicing an objection to the certification or signing the protest form; she is not required to initiate a complex collateral proceeding to challenge the certification." 125 Or.App. at 376, 866 P.2d at 476. That distinction is meaningless. A plain reading of ORS 426.301 reveals that, although the protected person must be given a copy of the certification, which lists her right to counsel, a hearing, etc., and must be read to her, there is no requirement that anyone ascertain whether, at that moment, she is capable of understanding the rights listed in the certification. The Due Process Clause requires that meaningful notice be given and that the waiver of such fundamental rights as that of counsel and a judicial hearing must be done sentiently. See Armstrong v. Manza, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191, 14 L. Ed. 2d 62 (1965); Honor v. Yamuchi, 307 Ark. 324, 329, 820 S.W.2d 267 (1991) (due process requires that person subject to involuntary commitment proceeding make intelligent waiver of right to counsel). In other words, the relative simplicity of voicing an objection or signing a protest form has little to do with the question of whether that procedure assures notice and a conscious and knowing waiver of the right to initiate judicial review of the recommitment decision. The simple truth here is that ORS 426.301 provides no assurance that the protected person has any understanding of her right to initiate judicial review at the moment she is advised of that right.
Given the adverse setting in which the protected person is advised of her right to initiate judicial review and the failure of ORS 426.301 to require anyone to determine and represent to the court that the protected person was capable of understanding her right to judicial review and consciously chose not to do so, I would hold that the risk of erroneous confinement is significant and that the procedure in ORS 426.301 to ORS 426.307 violates the Due Process Clause.
Having satisfied itself that there is no significant risk of erroneous confinement under the procedures in ORS 426.301, the majority also appears to conclude that the state's interest in providing care to its citizens and protecting the community from "the dangerous proclivities of some who are mentally ill," 125 Or.App. at 378, 866 P.2d at 477, means that the work of mental health specialists in state mental facilities should be unburdened by the need to participate in formal court hearings "for every patient in connection with a certification [recommitment] decision." 125 Or.App. at 379, 866 P.2d at 477.
I am not unmindful of the soundness of the argument that mental health specialists are better used in the treatment of patients rather than in participating in court hearings. However, the majority's concern in that regard is misplaced. ORS 426.301 already provides for judicial review. What is missing from the procedure in ORS 426.301 is the assurance that the protection of judicial review is not illusory. In my view, that problem can be satisfied by a procedure within the institution that requires a finding that, at the time the protected person was served with a copy of the certification and informed of her rights under ORS 426.301, she was capable of fully understanding those rights and consciously waived them. In the absence of that finding appearing in the protected person's record, a judicial hearing should be mandatory.
NOTES
[*] Leeson, J., vice Buttler, J., retired.
[1] The version of ORS 426.130(3) in effect in 1983 limited the initial period of involuntary confinement to 180 days. The current version authorizes the court to establish a period of involuntary commitment that may exceed 180 days. ORS 426.130(1)(b)(C)(i).
[2] The Due Process Clause requires that the state provide "due process of law" when it deprives a person of "life, liberty, or property * * *." U.S. Const., Amend. XIV.
[3] Repealed by Or.Laws 1985, ch. 242, § 1. ORS 426.273, ORS 426.275 and ORS 426.292 were enacted to replace of former ORS 426.290.
[4] ORS 426.070 sets out the initiation and notification requirements:
"(1) Any of the following may initiate the commitment procedures under this section by giving notice described under subsection (2) of this section:
"(a) Two persons;
"(b) The county health officer; or
"(c) Any magistrate.
"(2) For purposes of subsection (1) of this section, the notice must comply with the following:
"(a) It must be in writing under oath;
"(b) It must be given to the community mental health and development disabilities program director or a designee of the director in the county where the allegedly mentally ill person resides; and
"(c) It must state that a person within the county other than the person giving the notice is a mentally ill person and is in need of treatment, care or custody."
[5] If requested by the AMIP, her attorney or guardian or the person representing the state, the court may postpone the hearing to allow time for the parties to prepare. ORS 426.095(2)(c).
[6] ORS 426.110(1) requires that the court appoint at least one qualified examiner and, if requested, one additional examiner.
[7] ORS 426.095(4) permits the court to consider as evidence medical records from the current involuntary prehearing period of detention, the investigation report, the testimony of any treating physicians for the prehearing period of detention and
"statements attributed by the maker of the medical records or the investigation report to witnesses concerning their own observations in the absence of objection or if such persons are produced as witnesses at the hearing available for cross-examination."
[8] ORS 426.005(2) provides that a "mentally ill person" is
"a person who, because of a mental disorder, is one or more of the following:
"(a) Dangerous to self or others.
"(b) Unable to provide for basic personal needs and is not receiving such care as is necessary for health or safety.
"(c) A person who:
"(A) Is chronically mentally ill, as defined in ORS 426.495;
"(B) Within the previous three years, has twice been placed in a hospital or approved inpatient facility by the division under ORS 426.060;
"(C) Is exhibiting symptoms or behavior substantially similar to those that preceded and led to one or more of the hospitalizations or inpatient placements referred to in subparagraph (B) of this paragraph; and
"(D) Unless treated, will continue, to a reasonable medical probability, to physically or mentally deteriorate so that the person will become a person described under either or both paragraph (a) or (b) of this subsection."
[9] The physician or other person cannot be a member of the staff at the facility where the patient is confined. ORS 426.301(3)(e).
[10] In addition, the certification must notify the patient that she may subpoena witnesses and offer evidence on her behalf at the hearing and that if the patient lacks funds to retain legal counsel or an examining physician or other qualified person, the court will have one appointed at no cost to the patient. ORS 426.301(3)(f), (g).
[11] Appellant also relies on Zinermon v. Burch, 494 U.S. 113, 110 S. Ct. 975, 108 L. Ed. 2d 100 (1990), as support for her claim that the recommitment procedure fails to satisfy the minimum requirements of due process. In Zinermon, however, the issue was whether the appellant's complaint stated a claim under 42 U.S.C. § 1983 for violation of the petitioner's constitutional rights under the Due Process Clause. The Court's limited holding was that Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981), which established that a post-deprivation remedy satisfies due process when the deprivation is the result of a random and unauthorized act by a state employee, did not preclude section 1983 liability under the facts presented. The Court stated that the issue to be decided was
"only whether the Parratt rule necessarily means that [petitioner's] complaint fails to allege any deprivation of due process * * *. The broader questions of what procedural safeguards the Due Process Clause requires in the context of admission to a mental hospital, and whether [the state's] statutes meet these constitutional requirements, are not presented in this case." Zinermon v. Burch, supra, 494 U.S. at 117, 110 S. Ct. at 979.
[12] The Doe court noted:
"[I]f a patient requests habeas corpus relief on the first day of certification, and if the petition is filed immediately and a hearing is scheduled on the following day, five days of involuntary detention (72 hours plus two days of the 14-day certification period) is the minimum that these patients must endure. Any delay in the system would, of course, increase the time before a hearing is provided. If the patient does not request a writ of habeas corpus, then no hearing is held during the certification period and thus the patient may be detained for up to 17 days (72 hours plus 14 days) before any type of hearing is held." 657 F.2d at 1020 n. 3. (Emphasis in original.)
[13] Appellant alleges that there were several errors in her certification forms over the years, ranging from the court signing the certification form before the 14-day protest period had expired to the court overlooking a protest request. Although those errors may have provided procedural grounds for declaring the certification order invalid, see State v. Gardipee, 108 Or.App. 474, 814 P.2d 563 (1991), they do not indicate that the decision to certify was wrong or that certification decisions generally are erroneous and result in unnecessary commitments.
[14] Appellant also asserts that there is a high risk of an erroneous recommitment, because "the [recommitment] process * * * allows the State to [easily] ignore the few procedural protections in ORS 426.301." Once again, appellant has attempted to launch an attack on the statute without providing any fuel for takeoff. The record is devoid of any evidence of a practice of state officials subverting the procedural safeguards provided in ORS 426.301 to ORS 426.307.
[15] Although the hospital director may not be a licensed physician, the administrative rules governing the Division require that the director will be a "Qualified Mental Health Professional." That term is defined in OAR 309-33-105(11) as any person with the following qualifications:
"(a) Psychiatrist licensed to practice in the State of Oregon;
"(b) Physician licensed to practice in the State of Oregon;
"(c) Graduate degree in psychology;
"(d) Graduate degree in social work;
"(e) Graduate degree in psychiatric nursing and licensed in the State of Oregon;
"(f) Graduate degree in another mental health related field;
"(g) Any other person whose education and experience meet, in the judgment of the Division, a level of competence consistent with the responsibilities required by the Division."
[16] Article III, section 1, provides:
"The powers of the Government shall be divided into three separate departments, the Legislative, the Executive, including administrative, and the Judicial; and no person charged with official duties under one of these departments shall exercise any of the functions of another, except as in this Constitution expressly provided."
[17] Article VII (Amended), section 1, provides, in part:
"The judicial power of the state shall be vested in one supreme court and in such other courts as may from time to time be created by law." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1992786/ | 194 B.R. 267 (1996)
In the Matter of TURTLE CREEK, LTD., et al., Debtors.
CONDOR ONE, INC., Plaintiff,
v.
TURTLE CREEK, LTD., et al., Defendants.
Bankruptcy Nos. 92-82216 to 92-82227. Adv. Nos. 95-80151 to 95-80162.
United States Bankruptcy Court, N.D. Alabama, Northern Division.
April 3, 1996.
*268 *269 Sherrie Tucker Freeman, Birmingham, AL, John Whittington, Birmingham, AL, for plaintiff.
Chuck Gibbs, Dallas, Texas, Michael Held, Dallas, Texas, Kyle Weems, Chattanooga, TN, for defendants/debtors.
MEMORANDUM OPINION
JACK CADDELL, Bankruptcy Judge.
On consideration before the Court is a complaint filed by Condor One, Inc. (hereinafter "Condor"), to determine the extent and priority of Condor's lien against certain accrued rents, and to require turnover or, alternatively, to enjoin the use of said funds. On July, 17, 1995, Condor filed the above-styled adversary proceeding. On the same day, Debtors filed their Complaint to Determine Validity and Extent of Liens with respect to the accrued rents. By certain procedural order dated July 28, 1995, the Court determined that the relief requested in Condor's complaint subsumed the relief requested in Debtors' complaint. Accordingly, the Court consolidated the adversary proceedings with Condor treated as the plaintiff, and Debtors as the defendants herein.
The trial in this matter was held on January 25 and 26, and February 7, 1996. Appearing were Douglas Goldrick, a representative of Condor, counsel for Condor, Sherrie Freeman and John Whittington, Bryan Doran, a representative of debtors/defendants, and counsel for the debtors/defendants, Chuck Gibbs, Michael Held, and Kyle Weems. The Court has considered the pleadings, the documents submitted in support thereof, and the arguments of counsel, and finds and concludes as follows.[1]
I. STATEMENT OF FACTS
1. The debtors are twelve limited partnerships: Turtle Creek, Ltd., The Northwood Company, Northwood II, Ltd., Skyline South, Ltd., Sundown, Ltd., Creekside, Ltd., Four Seasons, Ltd., Knollwood II, Ltd., Knollwood, Ltd., Lost Tree, Ltd., Hunter's *270 Pointe, Ltd., and McRae, Ltd. (hereinafter the "Debtors"), with two general partners, Das A. Borden ("Borden"), and Das A. Borden & Company ("DAB"). Each Debtor owns a single multi-family apartment project located in Alabama. The Debtors have no source of income other than from the rental income generated by the operation of the multi-family projects.
2. Each Debtor mortgaged its project by executing and delivering a mortgage agreement[2] and note to its mortgagee. The mortgages and notes were duly recorded in the appropriate county Probate Court. The loans are nonrecourse such that the lender is not entitled to receive more than the value of the collateral upon foreclosure, absent certain exceptions.
3. The United States Department of Housing and Urban Development ("HUD") guaranteed each loan by providing federal mortgage insurance to the issuer of each loan pursuant to Section 221(d)(4) of the National Housing Act, 12 U.S.C. § 1701, et seq. The mortgage insurance provides protection to mortgagees by allowing a mortgagee to assign the loan to HUD upon default.[3] Before HUD will provide mortgage insurance to a mortgagee, HUD requires all mortgagors to execute certain Regulatory Agreements[4] pursuant to Section 221(d)(4) of the National Housing Act, 12 U.S.C. § 17151(d)(4). The Regulatory Agreements govern the rights and responsibilities of the mortgagor to HUD and of HUD to the mortgagor. The Regulatory Agreements remain in effect "so long as the contract of mortgage insurance continues in effect and during such further time as the Secretary shall be the owner, holder or reinsurer of the mortgage or obligated to reinsure the mortgage."
4. Pursuant to the Regulatory Agreements, Debtors were required to seek HUD approval before a transfer of the real estate properties could be effectuated. In 1987, Borden and DAB transferred 51% of their general partnership interests to the Hall Financial Group ("Hall"), but failed to receive HUD approval of the transfer. Upon discovery of the transfer, HUD initiated an investigation of the circumstances surrounding said transfer by the Office of the Inspector General. Based upon the findings embodied in a report prepared by the Inspector General, HUD required the sale to Hall to be set aside. See Condor Exhibit 40.
5. On April 18, 1988, an involuntary bankruptcy proceeding was filed against Borden. Borden consented to the bankruptcy, and converted the case to a case under Chapter 11, with DAB also filing a voluntary petition for relief under Chapter 11.
6. By March of 1991, each of the Debtors had defaulted on its loan thereby precipitating the assignment of the loans to HUD, whereby HUD became the owner of the Mortgages and Mortgage Notes rather than merely insuring the same. As the record owner of the loans HUD, by and through a HUD official located in the Birmingham office, *271 Robert Moore, filed a motion to lift stay in the Borden proceedings on September 12, 1991, in which HUD sought permission to proceed against Debtors' properties.
7. HUD obtained appraisals on each of the twelve properties in connection with the motion to lift to demonstrate that Debtors lacked equity in the properties.
8. On January 21, 1992, the primary secured creditor of Borden and DAB, E.L. McMillian, filed a Second Amended Chapter 11 Plan of Reorganization ("Plan") on behalf of Borden and DAB. The Plan proposed to restructure the debts owed by Debtors to HUD in the context of bankruptcy proceedings of the Debtors' general partners, Borden and DAB. Specifically, the debts were to be restructured by reducing the amounts due thereon to the appraised value of each property, plus an additional $150,000.00 over said amount in the event the property was sold for a profit. The Plan further proposed to re-amortize the debts over a term of thirty (30) years.
9. The motion to lift the stay and confirmation hearing were held on February 19, 1992. At the hearing, HUD, through Richard O'Neal, an Assistant U.S. Attorney, vigorously objected to the proposed modification of the debts owed to HUD. Nevertheless, Judge Breland instructed counsel for E.L. McMillian (the primary secured creditor of Borden and DAB), David Anderson, to propose an order confirming the plans for Borden and DAB. Moore testified that it was his belief that Judge Breland intended to approve the Second Amended Plan of Reorganization, thereby restructuring Debtors' debts in a bankruptcy proceeding in which HUD was not a creditor.
10. At the conclusion of the hearing, Moore informed Anderson that HUD would appeal any decision in which the debts were non-consensually restructured where HUD was not a creditor in the bankruptcy proceeding. Faced with an imminent appeal, Anderson suggested that such protracted litigation could possibly be avoided by reaching an agreement outside of the Borden bankruptcy whereby the debts would be consensually modified with the Debtors' agreement to file individual Chapter 11 petitions.
11. Accordingly, the proposed order was never presented to Judge Breland because Borden agreed to remove the Debtors from the Plan upon the execution of certain Modification Agreements in which the debts owed to HUD were to be consensually modified upon the filing of twelve individual bankruptcy petitions for each of the Debtors.
12. In response to Anderson's suggestion, Moore contacted Regional Counsel, Ray Buday to arrange a conference call with the appropriate HUD officials to discuss possible remedies that could bring about the conclusion of the Borden litigation. The conference call was held on February 24, 1992. Included in the conference call were Robert Moore, Ray Harris, Regional Administrator for the Atlanta region, Richard Compton, Deputy Regional Administrator, Ray Buday, Regional Counsel, Bill Miller, Acting Regional Director for Housing, Ralph Ruggs, Director of Management in Birmingham, and Richard O'Neal, Assistant U.S. Attorney.
13. After the conference call, Moore continued to negotiate a conclusion to the Borden litigation with Anderson. Pursuant to these negotiations, Moore supervised the drafting of certain Modification Agreements that are the subject of this adversary proceeding. The Modification Agreements included the following provisions:
(a) Waiver of all prior defaults under the original terms of the mortgage;
(b) Equity participation out of net sales proceeds or an equity kicker;
(c) Modified payment provisions under which HUD agreed to forgive 10,000,000.00 in debt, including past due principal, accrued interest, delinquent charges; and
(d) Payment of sanctions issued by HUD regarding the Hall transfer.
14. On April 30, 1992, Moore forwarded the Modification Agreements to Anderson for execution. Jane Springer, an employee of Borden, executed each of the documents on behalf of Debtors. Thereafter, Anderson returned the documents to HUD where Robert Lunsford, the Area Manager of the local HUD office located in Birmingham, Alabama, *272 executed the same on behalf of HUD. After the documents were fully executed, Moore communicated the fact to Anderson in a letter dated June 8, 1992. On that same day, Moore was advised that there were problems with the execution of the Modification Agreements, and that no further action was to be taken at that time regarding said agreements.
15. On June 15, 1992, Moore advised Anderson that a question regarding the execution of the agreements had arisen. Thereafter, in a letter dated June 18, 1992, Moore advised Anderson that he had "been instructed to rescind/retract" the Modification Agreements in that no official located in either the Birmingham Field Office or the Atlanta Regional Office was authorized to enter an agreement that undertook to compromise debt owing to HUD. See Condor Exhibit 37.
16. HUD never transmitted a copy of the fully executed Modification Agreements to Debtors. Nevertheless, Debtors began to make payments in accordance with the provisions of the modified mortgage terms, and each filed with this Court a voluntary petition under Chapter 11 of Title 11, of the United States Bankruptcy Code, 11 U.S.C. §§ 101 et seq., on October 5, 1992. Pursuant to §§ 1107 and 1108 of the Code, the Debtors remained in possession of their property and managed their affairs as debtors-in-possession. No Trustee or committee of creditors has heretofore been appointed in this case. For approximately one year after the execution of the Modification Agreements Debtors made payments thereunder to HUD totalling $1,941,495.64. Debtors also paid the aforementioned sanctions in full, totalling $375,698.94, into a Modification Agreement Reserve Account.
17. On March 6, 1995, Debtors filed a Motion for Use of Cash Collateral, specifically accrued post-petition rents, pursuant to 11 U.S.C. § 363(c)(2), and a motion for valuation of HUD's interest in Debtors' property pursuant to 11 U.S.C. § 506. HUD filed an objection to Debtors use of the accrued rents on March 10, 1995. However, prior to the filing date of Debtors' petitions, HUD did not take any action to have a receiver appointed nor to sequester the rents.
18. On May 8, 1995, HUD assigned its interest in the Mortgage and Mortgage Notes to Condor. The Loan Sales Agreement between HUD and Condor provided that "[f]rom and after the Closing Date, the Regulatory Agreement relating to each Mortgage Loan shall be released and terminated as provided in the Release of Regulatory Agreement."
19. HUD effectuated the release of each of the Regulatory Agreements between May 8, 1995 and July 31, 1995. However, on August 25, 1995, HUD executed a Supplement Assignment in favor of Condor that attempted to clarify the interest transferred to Condor on May 8, 1995.
20. On May 26, 1995, Condor filed a Notice of Transfer of Claims from HUD to Condor, and a motion seeking the turnover of all accrued rents held by Debtors in escrow, prohibiting Debtors' use of said accrued rents, and requesting relief from the automatic stay. During the hearing on the motion, the Court determined that certain issues before the Court required the filing of an adversary proceeding. The Court entered an order dated August 21, 1995, reserving ruling on the motion pending the outcome of the consolidated adversary proceeding.
II. CONCLUSIONS OF LAW
The central issues presented by this case are: (1) Whether the alleged Modification Agreements are enforceable where Condor contends that the official who executed said agreements lacked authority to bind HUD and Condor as HUD's assignee; and (2) Whether Debtors are entitled to the use of certain accrued, post-petition rents generated by the Debtors' properties from the filing date, October 5, 1992, until May 26, 1995?
A. MODIFICATION AGREEMENTS
Debtors contend that the Modification Agreements govern the indebtedness owed by Debtors to HUD and Condor as HUD's assignee, while Condor counters that the original Mortgage Notes govern said indebtedness. *273 In support of their position, Debtors argue that Condor is estopped from asserting that the Modification Agreements are unenforceable because the execution of said agreements did not contravene enumerated regulation or statute.[5] Alternatively, Debtors argue that the Modification Agreements are enforceable because they were executed in settlement of litigation. After careful consideration, the Court concludes that the only argument which presents a valid and substantial question is the argument that Condor is estopped from denying the enforceability of the Modification Agreements.
The doctrine of equitable estoppel precludes a litigant from asserting a claim or defense that might otherwise be available to it against another party that has detrimentally altered its position in reliance on the former's misrepresentation. Federal Deposit Ins. Corp. v. Harrison, 735 F.2d 408, 410 (11th Cir.1984). The traditional elements of equitable estoppel are: (1) words, acts, conduct or acquiescence causing another to believe in the existence of a certain state of things; (2) willfulness or negligence with regard to the acts, conduct or acquiescence; and (3) detrimental reliance by the other party upon the state of things so indicated. Romagnolo v. United States (In re Romagnolo), 190 B.R. 946 (Bankr.M.D.Fla.1995); Harrison, 735 F.2d at 411. In the Eleventh Circuit, the affirmative defense of equitable estoppel is only available against the government where the litigant proves (1) the traditional elements of equitable estoppel; (2) that the government acted in a proprietary capacity; and (3) that the agent purporting to bind the government, acted within the scope of his or her actual authority. United States Vonderau (In re Vonderau), 837 F.2d 1540 (11th Cir.1988); In re Romagnolo, 190 B.R. at 946; In re Harrison, 735 F.2d at 410.
Although certain courts have applied the doctrine of equitable estoppel to prevent the government from asserting a claim or defense to which the government would otherwise be entitled, the Supreme Court has "reversed every finding of estoppel" against the government that it has reviewed. Office of Personnel Management v. Richmond, 496 U.S. 414, 422, 110 S. Ct. 2465, 2470, 110 L. Ed. 2d 387 (1990). In the case of Romagnolo v. United States (In re Romagnolo), 190 B.R. 946 (Bankr.M.D.Fla.1995), Judge Paskay questioned whether equitable estoppel is ever available against the government. In the Eleventh Circuit case of Bokum v. Comm'r of Internal Revenue, 992 F.2d 1136 (11th Cir.1993), Chief Judge Tjoflat recognized that the Supreme Court has made it clear that equitable estoppel will lie against the government only in the rarest circumstance, if ever:
Equitable estoppel claims lodged against the government are of a different ilk from those asserted against a private party. The Supreme Court has stated that equitable estoppel will not lie against the government as against private litigants. Heckler v. Community Health Serv., 467 U.S. 51, 60, 104 S. Ct. 2218, 2224, 81 L. Ed. 2d 42 (1984). The Court emphasized that it has, however, refused to adopt a "flat rule" prohibiting estoppel claims against the government, leaving open the question of whether such a claim is ever available. Id. at 420, 110 S. Ct. at 2470-71; Heckler, 467 U.S. at 60, 104 S. Ct. at 2224. *274 Recently, the Eleventh Circuit acknowledged that the "defense of equitable estoppel to a federal cause of action will lie against the government only in the most extreme circumstances." Gibson v. Resolution Trust Corp., 51 F.3d 1016, 1025 (11th Cir.1995).
In the instant case, the principal contested issue is whether or not Lunsford, the HUD official who executed the Modification Agreements, had actual authority to execute said agreements thereby binding HUD and Condor as HUD's assignee to the terms of the agreements. As the party alleging the validity of the Modification Agreements, Debtors have the burden of proving each element. See Hall v. United States, 19 Cl.Ct. 558, 559-60 (1990).
To sustain this burden of proof with regard to the element of actual authority, Condor contends that Debtors are required to cite a statute or regulation that authorized Lunsford to execute an agreement purporting to forgive debt on behalf of HUD. See Empire-Detroit Steel v. Occupational Safety and Health Review Commission, 579 F.2d 378, 383 (6th Cir.1978) (noting that "no statute, regulation or other authority" was cited authorizing the government agent to enter into a binding contract during a telephone conversation without memorializing the same). In contrast, Debtors insist that the doctrine of equitable estoppel can be used to prevent the federal government from denying the enforceability of an agreement entered into by a federal agent where no enumerated policy specifically prohibits the agents actions. See Molton, Allen & Williams, Inc. v. Harris, 613 F.2d 1176 (D.C.Cir.1980); Tom's Foods, Inc. v. Lyng, 703 F. Supp. 1562 (M.D.Ga.1989); Federal Deposit Ins. Corp. v. Harrison, 735 F.2d 408 (11th Cir.1984).
The Court finds Debtors' argument that the government is estopped from asserting its claim or defense where no statute or other authority exists prohibiting the conduct of the federal agent unpersuasive. However, the Court does not believe that Debtors' inability to cite a statute, regulation or other authority expressly providing Lunsford with actual authority to execute the Modification Agreements is dispositive. Instead, Debtors' inability to cite such statute is merely one factor which must be considered when determining whether Lunsford had actual authority to bind the government. Nevertheless, the Court finds that Debtors have not satisfied their burden of proof with regard to the element of actual authority.
The cases cited by Debtors in support of their position can be distinguished from the instant case. In the case of Federal Deposit Ins. Corp. v. Harrison, 735 F.2d 408 (11th Cir.1984), the FDIC was equitably estopped from asserting its claim against two defendant guarantors when their former business associate defaulted on a loan guaranteed by defendants. After the guarantors signed the original guaranty contract, they divided the note into three equal shares with each party becoming primarily liable for one of the notes. After being appointed as the receiver of the insolvent issuing bank, the FDIC made a demand for the three notes. Each of the defendants' contacted the FDIC separately to determine the extent of his liability. The defendants were each assured by FDIC agents that the FDIC would not enforce the guaranty contracts. The Eleventh Circuit distinguished cases involving actions taken by government agents that were beyond the scope of the agents authority because the FDIC did not contend that its agents lacked the authority to waive the FDIC's rights under the guaranty contracts.
This case cannot stand for the proposition that where no statute specifically prohibits the actions taken by a federal agent, the government is estopped from denying the enforceability of the agents actions. The authority of the FDIC agent was simply not at issue in Harrison. The instant case is exactly in opposite in that Condor adamantly maintains that Lunsford did not have the authority to bind HUD.
Another case which Debtors cite in support of their position is Tom's Foods, Inc. v. Lyng, 703 F. Supp. 1562 (M.D.Ga.1989). In that case, the plaintiff filed a complaint against the USDA after being assessed penalties for the violation of certain peanut support regulations. Plaintiff notified an officer of the Georgia-Florida-Alabama Peanut Association ("GFA") that it had entered an agreement with another peanut handler under which the parties agreed to exchange *275 certain support obligations, but only on paper. The GFA represents the Commodity Credit Corporation ("CCC"), an agency of the United States Department of Agriculture. Although the GFA had a long-standing history of advising peanut handlers regarding compliance procedures, the officer never informed plaintiff that the intended transaction would violate CCC procedure. Id. at 1565. The court determined that the actions of the GFA officer were within the scope of his authority. The court explained as follows:
The provisions of the Agricultural Adjustment Act and the CCC's own regulations establish that the GFA is a representative of the CCC and acted within the scope of his authority in approving the arrangement between Tom's and Columbian and as a matter of law the CCC, as an agent of the United States, is bound by the acts of its agent, the GFA.
Id. at 1570.
From this, Debtors ask this Court to hold that the actions of Lunsford, a representative of HUD, were within the scope of his authority because no statute expressly prohibits a local HUD official from authorizing the forgiveness of $10,000,000.00 in debt owed to HUD. However, the court in Lyng based its decision upon the finding that the CCC's own regulations established that the agent acted within his authority. This case clearly cannot support Debtors' argument.
Debtors' further contend that the case of Molton, Allen & Williams, Inc. v. Harris, 613 F.2d 1176 (D.C.Cir.1980), supports their position that the government is estopped from asserting the validity of a contract entered into by a federal agent where no specific statute contradicts the actions taken by the federal agent. However, the court in Harris specifically found that the governing provisions of GNMA, memorialized in the GNMA Seller's Guide, reserved unto GNMA the right to alter or waive any condition precedent, consistent with law, to contract formation. Accordingly, GNMA had actual authority to waive the condition precedent of delivery to enter into a binding contract. The court further found that GNMA had delegated this authority to the GNMA agent who acted as GNMA's attorney in fact by regulation whereby such agents were granted "the full authority to do all things necessary and proper to their duties, `to all intents and purposes, as the Association might or could do.'" Id. at 1178. Although it is true that no statute specifically authorized the actions of the federal agent, the court nevertheless found that actual authority existed because general authority to modify the contract requirements existed. Debtors have not demonstrated to this Court that any such general authority exists for a local HUD official to forgive debt owed to HUD. Without more, this Court will not infer that Lunsford had the authority to forgive approximately $10,000,000.00 in debt due to HUD simply because no statute specifically contradicts such actions.
Because this Court finds that Debtors failed to prove the third element of equitable estoppel, specifically that the government agent who executed the Modification Agreements on behalf of HUD had the authority to do so, it is unnecessary for the Court to consider the remaining elements. We must, therefore, turn to the original mortgage notes to determine who is entitled to the subject accrued rents.
B. CASH COLLATERAL: Accrued Post-Petition Rent
Section 363 of the Bankruptcy Code allows a debtor-in-possession, as trustee, to use, sell, or lease certain property of the estate in the ordinary course of the debtor's business. One notable exception to this rule arises where a debtor seeks to use cash or "cash collateral" in which another has a security interest. A debtor cannot use cash collateral unless the secured creditor consents to the use, lease or sale of such funds or the court enters a cash collateral order permitting the use, sale or lease after a hearing is held to determine whether the creditor is adequately protected pursuant to 11 U.S.C. § 363(c). Section 363(a) defines cash collateral to include:
. . . cash, negotiable instruments, documents of title, securities, deposit accounts, or other cash equivalents whenever acquired in which the estate and an entity *276 other than the estate have an interest and includes the proceeds, products, offspring, rents, or profits of property subject to a security interest as provided in section 552(b) of this title, whether existing before or after the commencement of a case under this title.
Section 552(b), as in effect at the time of the filing date of Debtors' petitions, directs us to look to applicable nonbankruptcy law to determine whether a creditor has a valid security interest in property of the estate:
[I]f the debtor and an entity entered into a security agreement before the commencement of the case and if the security interest created by such security agreement extends to property of the debtor acquired before the commencement of the case and to proceeds, product, offspring, rents or profits of such property, then such security interest extends to such proceeds, product, offspring, rents, or profits acquired by the estate after the commencement of the case to the extent provided by such security agreement and by applicable nonbankruptcy law, except to any extent that the court, after notice and a hearing and based on the equities of the case, orders otherwise.
Condor asserts that all accrued rents generated by Debtors' properties from the filing date of Debtors' petitions through May 26, 1995 constitute the cash collateral of Condor because the applicable nonbankruptcy law is Alabama case law which provides, according to Condor, that upon default by a mortgagor, the mortgagee immediately becomes entitled to any rents generated by the mortgagor's property until foreclosure occurs where the mortgage contains an assignment of rents clause. Alternatively, Condor alleges that it is entitled to all accrued rents generated by Debtors' properties from the filing date of the petition through May 8, 1995, because Condor, as the assignee of HUD, has succeeded to all of HUD's rights as a federal lender.
Debtors, meanwhile, assert that state law, i.e. Alabama law, rather than federal common law must be used to determine whether Condor has an enforceable interest in rents collected postpetition because HUD released the Regulatory Agreements before assigning its interest thereunder to Condor. Debtors further argue that Condor has not taken all the necessary actions to enforce its rights to the accrued rents pursuant to applicable case Alabama law.
The Court finds that Condor does not have an enforceable interest in the accrued rents for the following reasons:
(i) The Supplemental Assignments did not convey federal lender status unto Condor, thus Alabama law controls as the applicable nonbankruptcy law referred to in section 552(b) of the Bankruptcy Code; and
(ii) Condor failed to take the necessary actions with regard to the accrued rents as mandated by relevant Alabama case law to perfect/enforce its rights therein.
(1) FEDERAL LENDER STATUS
Under section 552 of the Bankruptcy Code, Condor will be deemed to have a security interest in Debtors' postpetition rents only to the extent that its security interest has been perfected under applicable nonbankruptcy law. It is well established that "[u]nless some federal interest requires a different result" state law determines whether a mortgagee has an enforceable interest in postpetition rents. Butner v. United States, 440 U.S. 48, 55, 99 S. Ct. 914, 918, 59 L. Ed. 2d 136 (1979).[6] However, federal common law governs the manner by which HUD, as a federal lender, "may perfect its interest in rental income." In re Executive House Assocs., 99 B.R. 266, 275 (Bankr. *277 E.D.Pa.1989) (citing U.S. v. Landmark Park & Assocs., 795 F.2d 683, 684 (8th Cir.1986)); United States v. Borden Fin. Corp. (In re Borden Fin. Corp.), 164 B.R. 260 (Bankr. E.D.La.1994) (providing that federal law should be applied to determine if HUD perfects its security interest in rent).
Condor, as HUD's assignee, asserts that federal common law also governs the manner by which it was required to enforce its rights to the subject postpetition rents because HUD assigned its rights as a federal lender to Condor under the HUD Regulatory Agreements. The Court is of the opinion that Condor is not entitled to step into the shoes of HUD as a federal lender. HUD failed to assign its rights under the Regulatory Agreements to Condor, the only contract between HUD and Debtors, because HUD executed certain Release of Regulatory Agreements, thereby terminating HUD's rights under the Regulatory Agreements. Thereafter, HUD executed certain Supplement Assignments wherein HUD purported to assign its interest under the Regulatory Agreements to Condor. The Supplemental Assignments, however, did not effectuate the assignment of HUD's rights under the Regulatory Agreements to Condor because HUD executed the Supplemental Assignments over one month after it executed the last Release of Regulatory Agreement.
According to Condor, HUD released its future rights under the Regulatory Agreements, but retained all rights to which HUD was entitled prior to the execution of the Releases. In support of its position Condor cites the following language in the Release of Regulatory Agreement:
. . . HUD does hereby release and terminate prospectively the Regulatory in effect with respect to the Project and does hereby agree that the Mortgagor, its successors and assigns are released prospectively from all obligations set forth in the Regulatory Agreement . . .
The Court does not agree with Condor's interpretation of the Releases. The Regulatory Agreements, by their own terms, terminated upon the sale of the mortgage notes to Condor. The Regulatory Agreements were to remain in effect only "so long as the contract of mortgage insurance continue[d] in effect and during such further time as the Secretary [was] the owner, holder or reinsurer of the mortgage or obligated to reinsure the mortgage." Moreover, the sales agreement between HUD and Condor reiterated the fact that the Regulatory Agreements were to terminate upon the sale of the subject projects wherein the Loan Sales Agreement provided that "[f]rom and after the Closing Date, the Regulatory Agreement relating to each Mortgage Loan shall be released and terminated as provided in the Release of Regulatory Agreement."
Debtors insist that the language relied upon by Condor merely means that HUD agreed to release the Regulatory Agreements from the date of execution and forward. The Court agrees with Debtors interpretation, and finds that the language relied upon by Condor to reserve its rights as HUD's assignee under the Regulatory Agreements was ineffective to accomplish Condor's desired result. The Court further believes that Condor, aware of the legal defect in the Loan Sale Agreement, attempted to cure the deficiency by inducing HUD to execute the Supplemental Assignments. However, the Supplemental Assignments were likewise ineffective to assign HUD's rights under the Regulatory Agreements to Condor in that HUD no longer had any rights thereunder when the Supplemental Assignments were executed. Accordingly, we must look to Alabama law to determine whether Condor has enforced its rights to the accrued rents.
(2) ENFORCEMENT OF RIGHT TO RENTS
Under section 552(b) of the Bankruptcy Code, as in effect at the time of the filing date of Debtors' petitions,[7] Condor must satisfy the following requirements before it will have an enforceable interest in the postpetition rents generated by Debtors' properties:
*278 (a) The debtor and creditor have entered into a security agreement prior to the commencement of the bankruptcy;
(b) The security interest created under the agreement extends to property acquired by the debtor prior to the commencement of the bankruptcy case and to the rents derived from such property; and
(c) If these two conditions are present, then the security interest extends to postpetition rents derived from the property to the extent that such an interest is contemplated by the relevant security agreement and to the extent permitted under applicable nonbankruptcy law.
Matter of May, 169 B.R. 462, 465 (Bankr. S.D.Ga.1994) (citing In re Vienna Park Properties, 976 F.2d 106, 111-12 (2d Cir.1992)).
There is no dispute that the parties entered into a security agreement prior to the commencement of the case, nor that Condor's security interest extends to the rents generated by Debtors' properties. Thus, Condor has established the first two elements of section 552(b). The only remaining issue is whether Condor perfected/enforced its interest in the subject rents.
As discussed supra, the applicable nonbankruptcy law in this instance is Alabama law. Although the law in Alabama is relatively undeveloped on this issue, the Court believes that a mortgagee is required to take an additional step such as foreclosure, sequestration of rents, or by having a receiver appointed to collect the rents, or some similar action in order to perfect a lien in rents generated by a mortgagor's property in Alabama.
Some courts take the position that an assignment of rents clause transfers the present legal right to rents to the mortgagee subject to a condition precedent that it shall take effect upon default. This is known as an absolute assignment of rents. Other courts hold that an assignment of rents clause simply creates a security interests in the rents, i.e. a collateral or conditional assignment of rents. The distinction is significant. If the assignment of rents is determined to be absolute, the rents are outside of the estate and the creditor may simply collect said rents. Paul P. Daily et al., When Are They Cash Collateral?, 379 PRAC.L.INST. 773 (1992). If however, the assignment of rents is a collateral assignment, the mortgagee may be required to take some affirmative action to enforce or perfect its security interest. Id. Such affirmative acts include taking possession of the subject property or filing an action to enforce the assignment. A close reading of the assignment of rents is required to distinguish an absolute assignment from a collateral assignment. In re Galvin, 120 B.R. 767, 770 (Bankr.D.Vt.1990).
According to Condor, the assignment of rents clause in the instant case is absolute, and, therefore, the Debtors' rights to said rents terminated upon default. To support its position, Condor relies upon the following language in the Mortgages:
4. That all rents, profits and income from the property covered by this Mortgage are hereby assigned to the Mortgagee for the purpose of discharging the debt hereby secured. Permission is hereby given to Mortgagor so long as no default exists hereunder, to collect such rents, profits and income;
Condor further cites and heavily relies upon the case of HomeCorp v. Secor Bank, 659 So. 2d 15 (Ala.1994), in which the Supreme Court of Alabama held that a notice of default to the mortgagor's rental agent rendered the rents to be the property of the mortgagee as of the time that an uncured event of default occurred. Condor interprets this decision to provide that an assignment of rents becomes absolute upon a mortgagor's default at which time the mortgagee becomes entitled to the rents generated by the mortgagor's property from the date of default until foreclosure. The Court does not believe that HomeCorp can be cited for this proposition. The mortgage in HomeCorp specifically provided that the assignment of rent was "intended to be an absolute assignment from the Mortgagor to the Mortgagee and not merely the passing of a security interest." Id. at 18.
The mortgage in the instant case contains no such language. Indeed, a close reading of the mortgage indicates that the assignment of rents was intended only as security for the *279 debt. Paragraph one of the mortgage provides that it was given "for the purpose of securing the prompt payment of the indebtedness . . ." Further, the assignment of rents provision specifically provided that the assignment was given "for the purpose of discharging the debt hereby secured." Mortgage, p. 4. Thus, the Court finds that the instant assignment of rents clause is distinguishable from HomeCorp in that it was not intended as an absolute assignment of rents, but merely a collateral assignment to secure the mortgages.
Moreover, despite the court's finding that the mortgage in HomeCorp contained an absolute assignment of rents provision, the court determined that the mortgagee was only entitled to the rents that accrued after the occurrence of an uncured event of default until foreclosure. In July of 1988, the mortgagor in HomeCorp began to pay its net operating cash flow to the mortgagee in lieu of the required monthly mortgage payments. In July of 1989, the mortgagee transmitted a demand letter accelerating the amount due under the note. Although the mortgage contained an absolute assignment of rents clause, the Alabama Supreme Court determined that the mortgagee was only entitled to the rents that began to accrue ten days after the mortgagee transmitted the demand letter to the mortgagor. The mortgagee was not entitled to the rents that accrued from July of 1988 until July of 1989.
The Court notes that a Pennsylvania court recently held that postpetition rents are the exclusive property of the mortgagee in a title state where the mortgage contains an assignment of rents clause and the mortgagee makes a pre-petition demand for the rents. Commerce Bank v. Mountain View Village, Inc., 5 F.3d 34 (3d Cir.1993). Like Pennsylvania, Alabama is a title theory state, "which means that legal title passes to the mortgagee upon execution of the mortgage." Southern Bank of Lauderdale County v. Internal Revenue Service, et al., 770 F.2d 1001, 1003 (11th Cir.1985).[8] However, the Court believes that although Alabama is clearly a title theory state, Alabama case law, nevertheless indicates, that some action by the mortgagee is required after the uncured event of default by the mortgagor occurs before the mortgagee shall be entitled to enforce its interest in rents.[9]
Although not precisely on point, the Court finds the case of Farmers Nat'l Bank v. Abernathy, 10 B.R. 418 (Bankr.M.D.Ala. 1981), very persuasive. In that case, the bankruptcy court found that the mortgagee had not perfected its interest in rent pursuant to section 552(b) of the Bankruptcy Code and applicable Alabama case law. Condor argues that this case is clearly distinguishable because the bankruptcy court found that the subject mortgage did not contain an assignment of rents provision. However, the Court believes that the case, nevertheless, provides guidance on the issue presented in this matter. In Abernathy, the court specifically found that under "applicable non-bankruptcy law found in Alabama case law . . . until default and intervention by the mortgage holder, the rents received by the mortgagor . . . are property of the mortgagor." Id. at 419 (citing Lamar v. Johnson, 16 Ala. *280 App. 648, 81 So. 140 (1919), in which the Alabama court held that rent belongs to the mortgagor until the mortgagee takes some affirmative act of intervention after default occurs); See also Zeidman v. Homestead Savings & Mortgage Co., 221 Ala. 386, 129 So. 281, 282 (1930) (providing that "it is well settled in this state that . . . the mortgagor is entitled to the rents from the mortgaged premises until there has been an intervention by the mortgagee"). In addition to Alabama case law requiring an act of intervention, the subject mortgage also contemplates the necessity of such action. Paragraph five (5) of the subject mortgage provides as follows:
That upon default hereunder Mortgagee shall be entitled to the appointment of a receiver by any court having jurisdiction, without notice, to take possession and protect the party described herein and operate and collect the rents, profits and income therefrom.
Accordingly, the Court finds that the recordation of the mortgage, without further action, did not fully perfect Condor's interest in the subject postpetition rents. Thus, although the recordation of the mortgages created a security interest in the rents, this security interest was not perfected until Condor filed its motion for turnover on May 26, 1995. Condor does not hold a perfected security interest in said rents pursuant to applicable Alabama law. The subject accrued postpetition rents are property of the Debtors' estates.
An Order in accordance with this opinion will be entered.
NOTES
[1] The following Memorandum Opinion constitutes Findings of Fact and Conclusions of Law pursuant to Federal Rule of Bankruptcy Procedure 7052.
[2] Paragraph four (4) of each mortgage contains the following assignment of rent clause:
That all rents, profits and income from the property covered by this Mortgage are hereby assigned to the Mortgage for the purpose of discharging the debt hereby secured. Permission is hereby given to Mortgagor, so long as no default exists hereunder, to collect such rents, profits and income.
[3] Paragraph five (5) of each mortgage provides:
That upon default hereunder Mortgagee shall be entitled to the appointment of a receiver by any court having jurisdiction, without notice, to take possession and protect the property described herein and operate same and collect the rents, profits and income therefrom;
[4] Each of the Regulatory Agreements contains the following assignment of rent provision:
As security for the payment due under this Agreement to the reserve fund for replacements, and to secure the Security because of his liability under the endorsement of the note for insurance, and as a security for the other obligations under this Agreement, the Owners respectively assign, pledge and mortgage to the Secretary their rights to the rents, profits, income and charges of whatsoever sort which they may receive or be entitled to receive from the operation of the mortgage property, subject, however, to any assignment of rents in the insured mortgage referred to herein. Until a default is declared under this Agreement, however, permission is granted to Owners to collect and retain under the provisions of this Agreement such rents, profits, income, and charges, but upon default this permission is terminated as to all rents due or collected thereunder.
[5] Albert Sullivan, Director of the Office of Multi-Family Asset Management and Disposition, testified that to his knowledge no provision exists which expressly prohibits local HUD officials from authorizing the forgiveness of debt owed to HUD. Sullivan further testified that the following provision is the only statute, regulation or other authority that could conceivably be interpreted to prohibit the forgiveness of debt by local HUD officials:
Cash Final Settlements:
* * * * * *
If the mortgagor wants to pay off a delinquent mortgage for less than the debt, the only procedure for this is for the mortgagor to bring the loan current and bid on it in a scheduled HUD mortgage auction.
Handbook No. 4350.1 CHG-54 ¶ 3.9.
However, Sullivan admitted that this paragraph merely applies where a mortgagor wishes to pay off its mortgage early for less than the full value of the mortgage.
[6] The 1994 amendments to the Bankruptcy Code, contained in the Bankruptcy Reform Act of 1994, Pub.L. No. 103-394, enacted October 22, 1994, undertook to revise section 552(b) of the Code. The amendments attempted to clarify the treatment of security interests in postpetition rents by dividing section 552(b) into two paragraphs, and deleting the reference to "applicable nonbankruptcy law" in subparagraph (b)(2). Apparently, Congress intended to alleviate the necessity of analyzing state law with respect to the assignment of rents. However, the effect of revised section 552(b) is debatable. Regardless, the amendments do not apply to bankruptcy cases filed before the enactment of the 1994 amendments. See In re Crossroads Market, Inc., 190 B.R. 269, 271 (Bankr.N.D.Miss.1994).
[7] See supra note 6.
[8] In a title theory state, mortgagors only hold an equitable interest in the mortgaged property. Central Bank v. Thomas (In re Thomas), 121 B.R. 94 (Bankr.N.D.Ala.1990). "The mortgagor is left with an equity of redemption, but upon payment of the debt, legal title revest in the mortgagor." Southern Bank, 770 F.2d at 1009 (citing Trauner v. Lowrey, 369 So. 2d 531, 534 (Ala.1979). In a title state, the mortgagee has title, the right to possession, and absolute ownership rights in the mortgaged property. However, as a practical standpoint, the mortgagor remains in possession, even though the mortgagee has all of the incidents of ownership.
[9] Although HUD filed a motion to lift the automatic stay with regard to Debtors' properties in the context of the Borden bankruptcy on September 12, 1991, the Court does not believe that said motion constitutes an act of perfection/enforcement. The motion to lift the stay was adjudicated by Judge Breland on February 19, 1992 during the Borden confirmation hearing. At the conclusion of the hearing, Judge Breland indicated to the parties his intent to confirm Borden's plan of reorganization. An order was never presented to Judge Breland because Borden agreed to remove the Debtors from the Plan upon the execution of the previously discussed Modification Agreements. Thereafter, neither HUD nor Condor pursued the motion to lift until Condor filed its motion for turnover on May 26, 1995. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609877/ | 866 P.2d 976 (1994)
124 Idaho 953
HAWKEYE-SECURITY INSURANCE COMPANY, an Iowa insurance company, Plaintiff-Respondent,
v.
Cordon L. GILBERT and Terri M. Gilbert, husband and wife, Defendants-Respondents, and
Greg Laragan, an individual, Defendant-Appellant.
No. 20213.
Court of Appeals of Idaho.
January 3, 1994.
*977 Ringert, Clark Chtd., James P. Kaufman, Boise, argued for appellant.
Brady, Lerma & Thomas Chtd., John J. Lerma, Boise, argued for respondent Hawkeye-Security Ins. Co. Respondents Gilbert did not appear or present argument on appeal.
LANSING, Judge.
This case presents an unusual factual background for a claim against an automobile insurer for injuries inflicted on a bicyclist by the owner of the insured vehicle. We conclude that the automobile liability insurance coverage does not extend to the incident that resulted in the bicyclist's injuries.
Hawkeye-Security Insurance Co. ("Hawkeye") instituted this declaratory judgment action to determine whether an automobile insurance policy issued by it to Cordon L. Gilbert covers injuries sustained by the bicyclist, Greg Laragan. On cross-motions for summary judgment, the district court granted summary judgment in favor of Hawkeye, and Laragan appeals. We affirm the well-reasoned decision of the district court.
I. BACKGROUND
The facts giving rise to this litigation can be summarized as follows. On July 26, 1990, Gilbert and Laragan were involved in an incident on Eagle Road in Ada County, Idaho. Laragan was riding his bicycle northbound on Eagle Road when Gilbert approached *978 from behind in his automobile. Gilbert allegedly observed Laragan swerving back and forth in the lane of traffic. As Gilbert started to pass, Laragan moved into Gilbert's lane, causing Gilbert to hit his brakes and honk his horn for several seconds. Gilbert pulled alongside Laragan, gestured at Laragan with his fist and finger, and shouted at him. Laragan nodded his head to acknowledge Gilbert's presence, but did not turn his head in that direction. After staying beside Laragan for about one hundred yards, Gilbert drove ahead of Laragan and pulled off the road onto the graveled shoulder. As Gilbert rolled down his window in an attempt to speak to Laragan, Laragan rode by without stopping and continued north on Eagle Road. Gilbert pursued, overtaking and passing Laragan. At the crest of a hill, Gilbert observed a wide spot about seventy-five to one hundred yards ahead where he could pull off the road. Gilbert parked the car on the right shoulder of the road, rapidly got out of his car, and took a position near the center of the road. Gilbert stood with his hands on his hips, and, as Laragan approached, extended his left arm in the manner of a traffic officer directing a vehicle to stop. Laragan attempted to pass between Gilbert and his automobile. As he did so, Gilbert touched Laragan in some way, causing Laragan to fall from his bicycle. Laragan states that it felt as if Gilbert had grabbed his left arm. Gilbert denies having grabbed Laragan and states that he believes that he and Laragan hit elbows. As a result of his fall, Laragan suffered a compound fracture of the right tibia, a fracture of the right fibula, and numerous cuts, scrapes and bruises. At the time of the incident, Gilbert's car was completely stopped with the motor turned off, and the automobile at no time came into physical contact with Laragan. Gilbert was arrested and charged with aggravated battery, I.C. § 18-907, but was acquitted following a jury trial. Except for the noted disagreement regarding Gilbert's manner of touching Laragan, which is not material to our inquiry on this appeal,[1] these facts were undisputed for purposes of the summary judgment motion.
Laragan made a claim against Gilbert and his automobile insurance carrier, Hawkeye, to recover damages for his injuries. Hawkeye denied the claim and filed this declaratory judgment action asking the court to determine that the policy issued to Gilbert does not obligate Hawkeye to provide a defense for Gilbert or to indemnify Gilbert for any liability he may bear toward Laragan.
Both parties moved for summary judgment. The district court granted summary judgment in favor of Hawkeye, holding that Gilbert's potential liability was not covered by the insurance policy because Laragan's injuries did not arise from the ownership, maintenance or use of the insured automobile. Laragan appeals, contending that because Gilbert was driving the car when he initially encountered Laragan, and because Gilbert used the automobile to overtake and stop Laragan and to cut off Laragan's potential escape along the shoulder of the road, Gilbert's actions were within the coverage of the policy.
That portion of the insurance policy governing the scope of coverage states:
A. We will pay damages for "bodily injury" or "property damage" for which any "insured" becomes legally responsible because of an auto accident.... We have no duty to defend any suit or settle any claim for "bodily injury" or "property damage" not covered under this policy.
While the term "auto accident" is not defined in the policy, both Hawkeye and Laragan recognize that, pursuant to this state's Motor Vehicle Financial Responsibility Act, I.C. §§ 49-1201 et seq., an owner's policy of liability insurance must insure the named insured "against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of the [insured] motor vehicles...." I.C. § 49-1212(1)(b). Because the policy's language does not provide for coverage greater than that mandated by I.C. § 49-1212(1)(b), the parties agree that the scope of coverage afforded by the Hawkeye policy is that prescribed by the statute. Accordingly, the question presented is *979 whether Laragan's injuries arose out of Gilbert's "use" of his automobile.[2]
Laragan argues that his injuries did in fact arise out of Gilbert's use of his vehicle in two fashions. First, it was while Gilbert was driving his automobile that he initially encountered Laragan, became irritated at Laragan, and pursued and overtook him. This use, he asserts, ultimately led to the incident where Laragan was injured. Second, Laragan contends that Gilbert used his parked automobile to block Laragan's escape along the right-hand shoulder of the roadway, making the automobile an instrumentality that aided in causing the injuries. The district court concluded there was not a sufficient causal relationship between the use of the vehicle and Laragan's injuries and, therefore, held that the automobile insurance policy did not afford coverage.
II. STANDARD OF REVIEW
Ordinarily, on appeal from a summary judgment, we review the facts to determine whether any genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Mitchell v. Siqueiros, 99 Idaho 396, 582 P.2d 1074 (1978); Gro-Mor, Inc. v. Butts, 109 Idaho 1020, 712 P.2d 721 (Ct.App.1985). However, on this appeal Laragan does not contend that there are material factual issues which preclude summary judgment. Therefore, our review is limited to a determination of whether Hawkeye is entitled to judgment as a matter of law. This requires interpretation of I.C. § 49-1212 and application of that statute to the facts of the case. This is a question of law which we freely review. Hix v. Potlatch Forests, Inc., 88 Idaho 155, 159, 397 P.2d 237, 241 (1964).
III. ANALYSIS
The issue of whether a particular act constitutes "use" of an insured vehicle for purposes of insurance coverage has frequently been the subject of litigation in other jurisdictions where the courts have construed the term as it is used in insurance policies or in statutes similar to I.C. § 49-1212. See generally Larry D. Scheafer, Annotation, Automobile Liability Insurance: What are Accidents or Injuries "Arising out of Ownership Maintenance, or Use" of Insured Vehicle, 15 A.L.R. 4th 10 (1982). Our appellate courts have considered the issue on only one prior occasion, in State Farm Mutual Automobile Insurance Co. v. Smith, 107 Idaho 674, 691 P.2d 1289 (Ct.App.1984). In Smith, an occupant of a parked motor home was shot when a shotgun discharged while being pulled across a bed. We held that the insurance policy issued by State Farm did not provide coverage for the passenger's death because the accident did not arise out of the use of the motor home. We explained:
The policy provision requiring the injury to "arise out of the use" of the vehicle connotes a causal relation between the injury and the use. The causal connection must be more than incidental or fortuitous. The accident and resulting injury must have arisen out of the inherent nature of the automobile in order to bring it within the terms of the "use" clause. [Citations omitted.]
Id. at 675, 691 P.2d at 1290. We concluded that the accident "was caused by the negligent handling of a loaded firearm, not by the type of use associated with the inherent nature of the motor home," which was "merely the situs of the accident." Id. at 676, 691 P.2d at 1291.
Although our decision in Smith interpreted the term "use" as it appeared in an automobile insurance policy, we think the same analysis applies to interpretation of the term in I.C. § 49-1212, which governs the content of such policies. Therefore, under the law announced in Smith, liability insurance coverage will be afforded in the present case only if Laragan's injury was causally connected to Gilbert's use of the automobile and that use of the vehicle was related to the inherent nature of the automobile.
*980 A. Use of the Vehicle at the Time of Initial Encounter and to Overtake Laragan.
We consider first Laragan's argument that the fact that Gilbert was driving the car when he initially observed and became troubled by Laragan and overtook Laragan creates a sufficient causal relationship.
As Smith illustrates, courts confronted with this issue agree that a causal relation or connection must exist between an accident or injury and the "use" of a vehicle in order for the accident or injury to come within the meaning of the clause "arising out of the use" of a vehicle. Where such causal connection or relation is absent, coverage will be denied. See generally, 6B JOHN A. APPLEMAN, INSURANCE LAW & PRACTICE § 4316 (1979); Scheafer, supra. Although the causal nexus need not rise to the level of proximate cause, the mere fact that the injury occurred in or near an automobile does not lead inexorably to the conclusion that there is coverage. It is not enough to say that "but for" the use of the automobile, the injury would not have occurred. There must be some substantial nexus between the use of the vehicle and the injury.
Cases from other jurisdictions involving facts analogous to those presented here have noted the absence of a minimal causal connection between the injury and the vehicle and have denied coverage. While this Court is not bound by these decisions, their reasoning is persuasive.
Among the cases we relied upon in Smith was Kangas v. Aetna Casualty & Surety Co., 64 Mich.App. 1, 235 N.W.2d 42 (1975). In Kangas, a vehicle owned and driven by Kangas, and insured by Aetna, pulled over opposite a pedestrian, and some or all of the occupants left the car and proceeded to assault and batter the pedestrian. Aetna refused to defend Kangas in the subsequent civil action brought by the pedestrian. Assuming that the "intentional acts" exception to the policy was inapplicable, the Kangas court specifically rejected a "but for" test for causation. There, the insured argued that but for the automobile, the driver and his passengers would not have been at the scene of the accident; but for the automobile, the pedestrian would not have been asked if he wished a ride; and but for the invitation to a ride, the pedestrian and a passenger would not have argued, with the resulting assault and battery on the pedestrian. The court rejected this remote causation stating:
[W]e conclude that while the automobile need not be the proximate cause of the injury, there still must be a causal connection between the injury sustained and the ownership, maintenance or use of the automobile and which causal connection is more than incidental, fortuitous or but for. The injury must be foreseeably identifiable with the normal use, maintenance and ownership of the vehicle.... The use of the vehicle had no connection with the unexpected subsequent altercation between the passenger Giddis and the pedestrian.
Id. 235 N.W.2d at 50.
In United Services Automobile Association v. Ledger, 189 Cal. App. 3d 779, 234 Cal. Rptr. 570 (1987), Tippitt, USAA's insured, made a sudden lane change which required Arters to take evasive action to avoid a collision. Arters followed Tippitt and, when Tippitt drove into a parking area, Arters pulled his vehicle alongside, blocking any further movement of Tippitt's vehicle. Arters challenged Tippitt to fight, and Arters was fatally stabbed. While recognizing that "arising out of the use" of the motor vehicle means that there must be only some minimal causal connection between the injury and the vehicle, the Ledger court held that there was an insufficient causal connection to afford coverage.
The fatal injury was inflicted approximately five miles from the inadvertent lane change and only after Arters followed Tippitt to the Valley Meadow Road location. The stabbing itself, however regrettable and unfortunate, was not causally connected with Tippitt's use of the vehicle [n]or can any stretch of the imagination bring the stabbing incident within the contemplation of the parties to the insurance contract. As pointed out by [USAA], the vehicle served only to transport Tippitt to the scene where the stabbing took place. Therefore, we conclude that there was an *981 insufficient causal connection between the stabbing and the vehicle to consider that the former "arose out of the use" of the latter.
Id. 234 Cal.Rptr. at 572.
The decision in Ledger was based in large measure upon the decisions in Rustin v. State Farm Mut. Auto. Ins. Co., 254 Ga. 494, 330 S.E.2d 356 (1985), and Foss v. Cignarella, 196 N.J.Super. 378, 482 A.2d 954 (1984). In Rustin, Spain, insured by State Farm, stopped behind Rustin at a stoplight. When the light changed, Rustin did not proceed through the intersection. After sounding his horn several times to alert Rustin that the light had changed, Spain drove around him. A short distance away, Rustin's automobile struck the rear bumper of Spain's vehicle. Rustin sped off, with Spain in pursuit. After a brief chase, both men stopped and exited their vehicles. Rustin charged at Spain, who then shot Rustin. The Georgia Supreme Court held that Rustin's death was not caused by the "use" of Spain's automobile, so as to trigger the liability coverage section of Spain's policy with State Farm.
The evidence strongly indicates that the conflict developed between Rustin and Spain as a result of the incident at the stoplight and the further incident in the driveway. We agree with appellants that there is a relationship between these incidents and the ultimate death of the victim. That there is such relationship, however, does not mean that Rustin's death was a result of Spain's use of the automobile. Spain's car was employed for the purpose of transporting him to the scene of his final encounter with Rustin. Rustin's death did not result from the employment of the vehicle for any further purpose. Rather, Rustin's death resulted from the employment of the pistol, either to frighten the deceased or to kill him, whether maliciously or in self-defense. It is clear that beyond transporting Spain to the scene of Rustin's death, the car was not used for any purpose regarding the death within the meaning of the liability insurance policy in question.
Rustin, 330 S.E.2d at 358 (emphasis in original).
In Foss, Cignarella, the insured, sideswiped Foss's vehicle. Both drivers stopped on the shoulder of the road; however, Foss's vehicle rolled forward, bumping into the rear of Cignarella's car. Cignarella flew into a rage, exited his vehicle and stabbed Foss in the chest while Foss was seated in his car with the door closed but the window partially open. Holding that the stabbing of Foss by Cignarella did not arise out of the use of the insured vehicle by Cignarella, the Foss court reasoned:
This act of Cignarella ... was not causally connected with his operation of the automobile. It did not originate from the use of the vehicle as such, nor can it be said that it arose out of, or was connected with, the inherent nature of the automobile. At best, the connection between plaintiff's injury and the insured vehicle was that Cignarella's use of the car permitted him to be at the place where he committed his attack upon plaintiff, or, "but for" his use of the automobile and the ensuing accident, the assault upon the plaintiff would not have occurred. This is not the substantial nexus required between the use of the insured vehicle and the injury to impose liability upon the insurer. But even if it be considered that the stabbing was sufficiently related to the Cignarella vehicle as to constitute conduct arising from his use thereof, it would be unreasonable to conclude that the parties to the insurance contract contemplated that the policy would insure against such an incident.
Foss, 482 A.2d at 957.
Similarly, in Holm v. Mutual Service Casualty Co., 261 N.W.2d 598 (Minn.1977), it was held that injuries sustained by Holm as a result of an alleged tortious battery inflicted by a police officer did not arise out of the use of the police car where the vehicle was used merely to transport the officer to the scene. After noting that Minnesota requires only "at a minimum some causal relationship between the use of a vehicle and the injury for which coverage is sought," id. at 602, the Holm court reviewed several cases, including Kangas, and concluded that:
In each of these decisions the acts of leaving the vehicle and inflicting a battery *982 were viewed as events of independent significance which broke the causal link between the "use" of the vehicle and the injuries inflicted. And this was so in spite of the fact that in each instance the subject auto was used to transport the tortfeasor(s) to the scene of the incident. Read together, the cases fully support the general proposition that for an injury to "arise out of the use" of an automobile, it must be causally related to the employment of the vehicle for transportation purposes.
Id. at 603. See also Lindsey v. Sturm, 436 N.W.2d 788 (Minn.Ct.App.1989) (rejecting a "but for" causation test and holding that battery which resulted from argument over parked position of insured vehicle did not arise out of use of the vehicle); Fowler v. State Farm Mutual Auto. Ins. Co., 548 So. 2d 830 (Fla.Dist.Ct.App.1989) (no coverage where a near-collision in a parking lot escalated into a confrontation and shooting).
Laragan seeks to distinguish most of the foregoing cases and similar decisions on grounds that they involved firearms or criminal acts. These cases are inapplicable, he asserts, because Gilbert was acquitted by a jury of any criminal conduct. We find this distinction insignificant. None of the decisions above nor those relied upon by the district court turned upon a factual finding of guilt or innocence in a criminal proceeding; for the most part, they do not mention whether criminal charges were brought. Nor does the fact that a firearm was involved in some cases make them any less relevant. Each decision turned upon the nature of the causal relationship between the automobile and the injury.
Laragan's theory of causation is similar to those asserted by the injured parties in the foregoing cases. He argues that but for Gilbert's use of his automobile he would not have approached Laragan riding his bicycle, would not have become angry or concerned about Laragan's cycling, and would have been unable to pass Laragan and attempt to stop him. This "but for" causation analysis, however, was eschewed by this Court in Smith and by the courts of virtually all jurisdictions that have considered it in analogous cases.
Laragan's injuries did not arise out of Gilbert's use of his vehicle in initially encountering Laragan and subsequently driving to the scene of the injury. Such use of the automobile merely enabled Gilbert to be at the situs of the confrontation. Gilbert's acts of leaving his car, walking onto the roadway and making physical contact with Laragan as he attempted to pass were independent acts that caused the injuries. A contrary view would, if carried to its logical conclusion, "attach automobile insurance coverage to every accident which occurred after an insured had first been transported by automobile." Aetna Casualty and Surety Co. v. Safeco Insurance Co., 103 Cal. App. 3d 694, 163 Cal. Rptr. 219, 223 (1980).
B. Use of the Vehicle to Block Laragan's Escape Along the Shoulder of the Road.
Laragan contends that, aside from using the vehicle to transport Gilbert to the point of their initial meeting and the situs of Laragan's injury, Gilbert also used the car as an aid in stopping Laragan. He postulates that Gilbert deliberately parked his vehicle on the right shoulder of the roadway in order to cut off Laragan's escape and force him to stop.
Even assuming that such utilization of the vehicle by Gilbert bears the requisite causal relationship to Laragan's injuries a relationship that is more than merely incidental or fortuitous we conclude it is not a use that is within the scope of Gilbert's insurance policy.
In State Farm Mutual Automobile Insurance Co. v. Smith, supra, we held that, to be subject to coverage, a use of the insured vehicle must not only be causally related to the injuries but also must be related to "the inherent nature of the automobile." Smith, at 675, 691 P.2d at 1290. Whether a particular employment of an automobile is related to its inherent nature turns upon whether the use is associated with the automobile's normal and expected function as a mode of transportation. See Holm v. Mutual Service Casualty Insurance Co., 261 N.W.2d 598, 603 (Minn.1977) ("for an injury to `arise out of the use' of an automobile, it *983 must be causally related to the employment of the vehicle for transportation purposes"); Akerly v. Hartford Insurance Group, 136 N.H. 433, 616 A.2d 511, 515 (1992) (the term "use" means the normal use for which a vehicle is intended); Tomlin v. State Farm Mutual Automobile Liability Insurance Company, 95 Wis. 2d 215, 290 N.W.2d 285, 290 (1980) ("use" means "the use of a vehicle as such and does not include a use which is completely foreign to a vehicle's inherent purpose"). In making this inquiry, it is helpful to consider whether, in using the vehicle, the tortfeasor was behaving as a motorist, passenger or transporter of goods, or was acting in some capacity unrelated to motoring. See Day v. State Farm Mutual Insurance Company, 261 Pa.Super. 216, 396 A.2d 3, 5 (1978) (driver who, after a collision, alighted from his vehicle and engaged in a fistfight with the other driver "was clearly not behaving as a motorist" at the time of the assault); Akerly v. Hartford Insurance Group, supra (driver who, after being placed under arrest, injured police officer in scuffle outside the car was not "behaving as a motorist" when the injury occurred).
Some courts have approached this issue from the perspective of the intent of the parties to the insurance contract. For example, in Tomlin v. State Farm Mutual Automobile Liability Insurance Company, supra, the court stated:
The issue is whether the vehicle's connection with the activities which gave rise to the injuries is sufficient to bring those general activities, and the negligence connected therewith, within the risk for which the parties to the contract reasonably contemplated there would be coverage. This question is usually resolved by determining whether the alleged "use" is one which is reasonably consistent with the inherent nature of the vehicle.
Id. at 290 N.W.2d 285, 290, quoting from Lawver v. Boling, 71 Wis. 2d 408, 238 N.W.2d 514, 518 (1976). Similarly, in Commercial Union Insurance Co. of New York v. Hall, 246 F. Supp. 64, 65 (E.D.S.C.1965), the court held that use of a vehicle to run another driver off the road and block his escape was not a "use" reasonably contemplated by the insurer and the insured.
Use that relates to a vehicle's inherent nature is not limited to the vehicle's actual operation. It extends to activities that are reasonably expected as normal incidents to the automobile's operation. Such incidental activities to which insurance coverage has been held to apply include entering and exiting the vehicle, Bolton v. North River Insurance Co., 102 So. 2d 544 (La.Ct.App.1958) (slamming a door on a person's hand); National Indemnity Co. v. Farmers Home Mutual Ins. Co., 95 Cal. App. 3d 102, 157 Cal. Rptr. 98 (1979) (child exiting vehicle and crossing street when hit by oncoming car); loading and unloading, Perryman v. Citizens Ins. Co. of America, 156 Mich.App. 359, 401 N.W.2d 367 (1986); holding goods or animals while the vehicle is parked, Transamerica v. Farmers Ins. Exchange, 463 N.W.2d 641 (N.D.1990) (pedestrian bitten by a dog while the dog sat in the back of a pickup truck and the pedestrian stood on the sidewalk); and normal maintenance or repairs, Eichelberger v. Warner, 290 Pa.Super. 269, 434 A.2d 747 (1981) (putting gas into vehicle); United Services Automobile Association v. United States Fire Ins. Co., 36 Cal. App. 3d 765, 111 Cal. Rptr. 595 (1974) (starting car while gas was being poured into carburetor).
Nonetheless, "use" that relates to the inherent nature of the vehicle, for which liability insurance coverage is mandated by I.C. § 49-1212(1)(b), does not extend to every utilization of a motor vehicle that may be devised. Here, if Gilbert used his automobile to block Laragan's avenue of movement or escape, this was not a use of the vehicle as a vehicle but as a barricade. When Gilbert parked his car in a position to narrow the area available for Laragan's passage and exited the vehicle to confront Laragan, he abandoned his role as a motorist and also abandoned any use of the car reasonably related to its inherent nature as a vehicle.
We find support for this conclusion in Commercial Union Insurance Co. of New York v. Hall, supra, where the court held there was no insurance coverage for a driver who pulled his vehicle in front of another automobile, forcing it to stop, and then used *984 his vehicle to block the other driver's escape on foot from impending fisticuffs. The court reasoned that this was not a type of "use" reasonably contemplated by the insurer and insured.
While utilization of an automobile to create a barrier or roadblock may be a normal and expected use if the automobile is a police car, see, e.g., Oberkramer v. Reliance Insurance Co., 650 S.W.2d 300 (Mo.Ct.App.1983), it is not a normal use for ordinary motorists.
IV. CONCLUSION
The district court correctly determined that Laragan's injuries did not arise out of "use" of the insured automobile within the meaning of I.C. § 49-1212(1)(b). Therefore, the summary judgment entered below is affirmed. Costs on appeal are awarded to Hawkeye-Security Insurance Company. No award is made for attorney fees as such an award has not been requested.
WALTERS, C.J., and PERRY, J., concur.
NOTES
[1] This factual dispute would be relevant if the court were considering application of a policy exclusion precluding coverage for injuries caused by the insured's intentional acts.
[2] There is no contention that Laragan's injuries arose from the "ownership" or "maintenance" of the automobile. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610114/ | 485 P.2d 375 (1971)
82 N.M. 619
STATE of New Mexico, Plaintiff-Appellee,
v.
John Wesley PAUL, Defendant-Appellant.
No. 566.
Court of Appeals of New Mexico.
April 2, 1971.
Rehearing Denied May 5, 1971.
Certiorari Denied May 19, 1971.
*376 John V. Coan, Jack L. Love, Albuquerque, for appellant.
James A. Maloney, Atty. Gen., Santa Fe, Leila A. Andrews, Asst. Atty. Gen., for appellee.
OPINION
DEE C. BLYTHE, District Judge.
The defendant appeals from his conviction of armed robbery, raising questions concerning line-up identification, sufficiency of the evidence to support the grand jury indictment, and admission of evidence of "casing" of the store which later was robbed. We affirm.
Despite the line-up identification issue, the defendant was convicted wholly on circumstantial evidence. None of the eye-witnesses to the crime was able to identify him as being one of the three robbers, although his physical characteristics were similar to those of a masked gunman they did describe. The evidence which linked the defendant with the crime included the finding of his fingerprint on a vodka bottle in the getaway car, which was wrecked in the store's parking lot with some of the stolen money still inside. This car was identified by appearance and by license number as being the same one used by the suspicious characters who "cased" the store earlier. A small Negro with a gun in his hand, later identified in the line-up as being the defendant, tried to commandeer a car near the robbery scene a short time after the robbery occurred; he had a cut on his hand and his teeth were bloody. In the wrecked getaway car was a nylon stocking knotted on one end, similar to that worn by the gun-wielding robber. The money taken in the robbery was in the car, which also contained a paper plate containing the remains of some barbequed ribs and potato *377 salad similar to a meal purchased by the defendant a short time before the robbery.
Appellant's first point is:
"THE COURT SHOULD HAVE HELD A HEARING OUTSIDE THE JURY'S PRESENCE TO DETERMINE WHETHER THE LINEUP WAS UNLAWFUL, AND SHOULD HAVE EXCLUDED EVIDENCE OF THE LINEUP IDENTIFICATION."
The facts which are necessary to present a question for review by the appellate court are those facts established by the record and any fact not so established is not before us on appeal. Section 21-2-1 (17) (1), N.M.S.A. 1953 (Repl. Vol. 4 (1970)); State v. Colvin, 82 N.M. 287, 480 P.2d 401 (Ct.App. 1971).
We do not reach defendant's first contention. There is nothing in the record on which to base defendant's allegation. Only Manuel Sanchez and the defendant testified about the lineup identification procedure. Sanchez testified that about 7 p.m. (a few minutes after the robbery) on November 10, 1969, he and his brother-in-law were trying to start a stalled car about two blocks from the store which was robbed. A Negro man approached the car, got in and asked for a ride. Sanchez refused, whereupon the Negro pointed a gun at him. Just then a police patrol car passed, and the Negro got out of the car and ran down the alley. Sanchez noticed that the Negro had a cut on his right hand, was bleeding from his teeth, and was about 5 feet 6 inches tall.
Sanchez testified about the line-up procedure. He said that there were six or seven Negroes in the line-up; that he thought three or four of them were taller than himself (5 feet 7 inches); that he thought more than one was young; and that he made his identification of the Negro who approached his car with a gun on the basis of a cut on the hand and bloody teeth.
The defendant testified he was in a line-up but the record does not indicate it was the same line-up viewed by Mr. Sanchez. Even assuming it was the same line-up, we do not know whom Mr. Sanchez pointed out in the courtroom. The record only shows that the man picked out of the line-up was sitting in the courtroom. This does not show that the identification was of the defendant.
On the in-court identification Mr. Sanchez testified:
"Q. Now, you say you identified this person. Who did you identify him as?
"A. The person sitting right there, I think.
"Q. Now, do you see in the courtroom this afternoon the same person that ran up to your car with the gun?
"A. Yes.
"Q. Would you point him out please?
"A. Sitting right there.
"Q. The Negro with the white shirt on?
"A. Yes, sir."
Next, appellant asserts,
"THE INDICTMENT SHOULD HAVE BEEN QUASHED BECAUSE THE LEGAL EVIDENCE BEFORE THE GRAND JURY WAS INSUFFICIENT TO ESTABLISH PROBABLE CAUSE THAT THE DEFENDANT COMMITTED THE OFFENSE."
In so contending, appellant admits that we would have to overrule or distinguish State v. Chance, 29 N.M. 34, 221 P. 183 (1923) in order to reverse on this ground. He suggests that we might distinguish the two cases on the basis that in Chance the court was concerned with the secrecy of the grand jury proceedings whereas here the transcript of the grand jury proceedings was revealed to the defense and made an exhibit in the case, hence no need for secrecy exists. However, secrecy was not the only or the most important consideration in Chance, where the court pointed out the procedural problems involved and the lack of statutory authority for the *378 courts to review the sufficiency of the evidence adduced before grand juries.
To be sure, the statutes on the subject have been changed since Chance was decided in 1923, but they are essentially similar to those there involved and still do not provide for judicial review of the sufficiency of the evidence considered by the grand jury. See §§ 41-5-10 and 41-5-11, N.M.S.A. 1953, as amended by Laws of 1969, ch. 276, §§ 10 and 11.
Since the legislature in amending the laws pertaining to grand juries in 1969 still did not see fit to give the courts authority to review the sufficiency of evidence to support grand jury indictments, and since it is deemed to have had State v. Chance, supra, in mind when it enacted the new statutes, we see no reason to overrule or distinguish Chance. We note also that the Supreme Court of the United States had adopted a rule similar to that in Chance. Costello v. United States, 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397 (1955).
Another and shorter answer to the contention that the indictment should have been quashed is that defendant's motion (to dismiss) was filed after the defendant had pleaded not guilty to the indictment. We have long held that pleading to an information waives the right to a preliminary hearing or any formal defects therein, e.g., State v. Selgado, 78 N.M. 165, 429 P.2d 363 (1967); State v. Leyba, 80 N.M. 190, 453 P.2d 211 (Ct. App. 1969) cert. denied 80 N.M. 198, 453 P.2d 219 (1969). By the same rationale, and the weight of authority, a motion to quash an indictment must be made before arraignment and plea. 42 C.J.S. Indictments and Informations § 199, pp. 1168, 1169; 41 Am.Jur.2d, Indictments and Informations, § 281, p. 1053.
For his final point, appellant states:
"THE EVIDENCE OF THE CASING OF THE PREMISES PERMITTED THE JURY TO BASE AN INFERENCE ON AN INFERENCE, AND WAS OTHERWISE IMMATERIAL."
The victims of the robbery testified that over a period of about 30 days before the robbery three of four Negroes excited their suspicions by loitering around the store which had very few Negro customers. Three of the victims testified to seeing these Negroes in or around a car which later turned out to be the getaway car. One even copied down the license number. None of the victims identified the defendant as being one of these Negroes who appeared to have reconnoitered or "cased" the store. Therefore, appellant contends, all this testimony was immaterial and prejudicial.
It was important to the state's case to connect the robbers with the car which was found wrecked on the store's parking lot shortly after the robbery. The robbers were not observed leaving in it, but the victims, from prone positions in the back of the store, heard the squeal of tires and then a crash. As previously stated, money identified as having been taken from the store was found in the car, as was a stocking mask such as one robber wore. The identification of the money was not by serial numbers but only by the way it was held together in certain quantities by rubber bands. Thus the "casing" of the premises by various Negroes, even though not identified as including the defendant, was material because they were using the purported getaway car.
Under this point, though not mentioned in it, appellant argues that the court improperly refused to give an instruction tendered by him relating to circumstantial evidence and particularly having reference to basing an inference upon an inference. The particular portion of the instruction to which appellant directs his argument is as follows:
"An inference of fact which is essential to establishing an offense cannot be rested upon an inference, nor can presumption be superimposed on presumption in order to reach ultimate conclusion of guilt."
*379 The trial court did give an instruction on circumstantial evidence, the correctness of which is not challenged. The trial court, in our opinion, correctly declined to give appellant's tendered instruction, and, in particular, the portion thereof which we have quoted.
The evidence presented and to which we have referred does not properly suggest the necessity of cautioning the jury as suggested by the proposed instruction. The evidence connecting defendant with the crime is circumstantial and, as such, may properly serve as a basis for an inference of fact essential to the establishment of the offense. See State v. Serrano, 74 N.M. 412, 394 P.2d 262 (1964).
Since we find no error, the conviction should be affirmed.
It is so ordered.
SPIESS, C.J., and HENDLEY, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1416227/ | 395 F. Supp. 803 (1975)
In re the Extradition of Christian Jacques DAVID.
Civ. No. 73-300-E.
United States District Court, E. D. Illinois.
June 13, 1975.
*804 *805 Henry A. Schwarz, U. S. Atty., William C. Evers, III, Asst. U. S. Atty., East St. Louis, Ill., for the Government of France.
Paul M. Caldwell, Benton, Ill., Michael J. Rovell of Jenner & Block, Chicago, Ill., Ivan S. Fisher, New York City, for David.
ORDER
FOREMAN, District Judge.
This is an international extradition proceeding instituted by the United States Attorney for the Eastern District of Illinois acting on behalf of the Republic of France. The amended complaint for extradition alleges that Christian Jacques David, a citizen of France, is legally charged in France with the murder of a police commissioner and with the attempted murder of a police officer. It is further alleged that David has sought asylum in the United States and may be found within this judicial district. The complaint prays that this Court find that David is extraditable under the 1911 Extradition Treaty with France, and certify said finding to the Secretary of State pursuant to the terms of 18 U.S.C. § 3184.
Respondent, David, through his attorneys, raised numerous objections and defenses at the final hearing in this case. Several of these matters were taken under advisement and therefore must be ruled on at this time.
I
David objects to the admissibility of Exhibit Number One of the Republic of France. The Exhibit consists of a number of different documents written in French with English translations. These documents represent the larger part of the proof presented against David. They include depositions, the warrant for arrest, a request for extradition, and photographs and fingerprints of the man wanted by France. It is obvious that if Exhibit Number One is not admissible, then there is no adequate basis for permitting his extradition to France.
David's primary objection to Exhibit Number One is that it is not properly authenticated. The proper method for authenticating the documents contained in Exhibit Number One is to have them certified by the principal consular officer of the United States residing in France, 18 U.S.C. § 3190. All of the documents in the exhibit are so certified. David contends, however, that this certification is invalid because there is a blank on the certificate which is not filled in. It is clear that "France" goes in the blank space. The Court feels that this omission is in the nature of a clerical error and does not affect the validity of the certification. Certificates which are in substantial conformity *806 with the requirements of the statute provide adequate assurance of the authenticity of the documents certified, In re Neely, 103 F. 626 (C.C.N. Y.1900); In re Lo Dolce, 106 F. Supp. 455 (D.C.N.Y.1952).
David also claims that the documents in Exhibit Number One are inaccurately translated. The only basis for this claim is that one page of the translation contains fewer paragraphs than the original French document. The Court feels that the translations must be presumed to be correct unless David presents some convincing evidence otherwise. The fact that one page of the translation contains fewer paragraphs than the original is not in itself sufficient to impeach the authenticity of the translation.
David also objects to the admissibility of Exhibit Number One because it contains hearsay and legal conclusions. This objection is without merit. Ordinary rules of evidence do not apply to extradition proceedings. Documents which are otherwise properly certified are admissible at an extradition hearing even though they would not be admissible at a criminal trial, In re Lo Dolce, supra; Caputo v. Kelly, 19 F. Supp. 730 (D.C.N.Y.1937).
David's objections to Exhibit Number One have all been denied. Since the documents contained therein are relevant to this proceeding, France's Exhibit Number One will be admitted into evidence.
II
David also seeks to have the testimony of France's only two witnesses stricken. These witnesses testified that fingerprint comparisons showed that David was the same person as the individual sought by France. David objects to their testimony because France's answers to his interrogatories stated that no witnesses would be called and that fingerprints would not be used as a means of identification. David claims that he was prejudiced by the "surprise" witnesses because his attorneys were not prepared to cross-examine them or to present independent fingerprint experts in his behalf.
At the hearing David's attorneys were given an opportunity to interview France's identification witnesses before cross-examining them. They were also told to inform the Court whether they felt further proceedings would be necessary because of the "surprise" witnesses. David's attorneys have subsequently informed the Court that they do not wish to call any witnesses on the identification issue and that they would not further cross-examine France's identification witnesses if another hearing were held. Since David has been given an opportunity to alleviate any prejudice due to the two "surprise" witnesses, the Court does not see any reason to strike their testimony.
III
David next contends that the arrest warrant is not based on the depositions contained in Exhibit Number One. Article Three of the Treaty with France states as follows:
"If the person whose extradition is requested . . . is merely charged with a crime or offense, a duly authenticated copy of the warrant of arrest in the country where the crime or offense has been committed and of the depositions or other evidence upon which such warrant was issued, shall be produced."
The arrest warrant to which David refers, is the original arrest warrant issued in France shortly after the crime occurred. This warrant could not be based on the depositions contained in Exhibit Number One since it was issued before they were taken. However, the Court interprets Article III of the Treaty to refer to the International Warrant for Arrest, rather than the original French arrest warrant. The Court finds that Article III has been adequately complied with in regard to the International Warrant for Arrest.
*807 David further claims that there has been no showing that a request for extradition has been made by the proper party. Article III of the Treaty provides that requests for extradition shall be made by a diplomatic agent of the country requesting extradition. Exhibit Number One of the Republic of France from the hearing of February 5, 1974, contains a sworn statement by a State Department Official that the Ambassador of France to the United States has requested the extradition of David. The Court is satisfied from this affidavit that a request for extradition by a diplomatic agent of France has been made.
David next claims that Assistant United States Attorney Evers has not been properly authorized to represent France in these proceedings. Article XII of the Treaty provides that:
"The appropriate legal officers of the State in which the extradition proceedings take place shall, by all legal means within their power, assist the requesting party before the respective judges and magistrates."
The Court interprets this language to authorize Mr. Evers to act on behalf of France when, as here, a proper request for extradition has been made.
IV
David claims that his extradition is barred by the circumstances surrounding his alleged kidnapping from South America to the United States. At the final hearing David offered to prove that in addition to being kidnapped he was brutally tortured. The Court has previously ruled that kidnapping alone is not a defense to extradition, In re David, 390 F. Supp. 521 (E.D.Ill.1975). The Court now holds that the brutal torture of an individual prior to kidnapping is not a defense to extradition. Such mistreatment may be a defense to a criminal prosecution where immediate loss of liberty can result, but it should not be defense in an extradition proceeding at which the guilt of the accused is not decided. Further, even if David's alleged torture were a defense, he waived this defense by pleading guilty in New York to a violation of American narcotics laws, In re David, supra.
David next contends that France is seeking his extradition in order to punish him for certain political crimes. If an individual proves that he is sought for such purposes, then it is a defense to his extradition, Article VI of the Treaty. At the final hearing in this case David made an offer of proof in which he alleged that France was seeking to extradite him for the purpose of punishing him for certain political crimes. David failed to present any evidence on this issue, however, although he was in no way precluded from doing so. If he had wished to present evidence as to political crimes, he should have done so at the final hearing. Since he did not present such evidence, David has failed to establish that he is being sought for political crimes.
V
Finally, David claims that the crimes he is charged with are not covered by the Extradition Treaty. He is charged with willful homicide and attempted willful homicide. The Treaty provides for the extradition of persons charged with murder and attempted murder. The Court has carefully examined the translations of the French Criminal Code contained in the International Arrest Warrant and is satisfied that willful homicide and attempted willful homicide are the legal equivalents of murder and attempted murder.
VI
The Court now turns to France's case. The Court makes the following findings from the evidence presented by France:
1. There is a valid extradition treaty in existence between France and the United States, a copy of which was admitted into evidence as France's Exhibit Number Two.
*808 2. The French government has made a proper request for the extradition of Christian Jacques David.
3. There is probable cause to believe that the respondent is the same person as the individual sought by France.
4. The crimes charged are crimes covered by the Extradition Treaty.
5. There is probable cause to believe that the crimes charged did occur and that the respondent David committed them.
6. The respondent David sought asylum in the United States and may be found in the Eastern District of Illinois. Based upon the evidence heard and the findings made the Court hereby certifies to the Secretary of State pursuant to 18 U.S.C. § 3184 that the evidence against the respondent, Christian Jacques David, is sufficient to sustain the charges made under the Treaty of Extradition between France and the United States.
It is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610118/ | 15 Ariz. App. 35 (1971)
485 P.2d 859
Reynaldo BASURTO, Appellant,
v.
UTAH CONSTRUCTION & MINING COMPANY, Inc., a Delaware corporation, Pima Mining Company, Inc., a California corporation, Appellees.
No. 2 CA-CIV 840.
Court of Appeals of Arizona, Division 2.
June 4, 1971.
Rehearing Denied June 30, 1971.
Review Denied September 28, 1971.
*36 Miller, Pitt & Feldman, P.C., by David J. Leonard, Tucson, for appellant.
Browder, Gillenwater & Daughton, by Robert W. Browder, Phoenix, for appellees.
HOWARD, Judge.
The appellant, Reynaldo Basurto, the plaintiff below, brought an action against the appellees with regard to an industrial accident which occurred on the premises of the appellee Pima Mining Company, Inc., hereinafter referred to as Pima, while appellant was employed by Cascade Construction Company, hereinafter referred to as Cascade, an independent contractor of Pima doing construction work.
The undisputed facts show that on April 15, 1965, the appellee Utah Construction & Mining Company, hereinafter referred to as Utah, entered into a written contract with Pima whereby Utah agreed, inter alia, to do certain construction work in regard to the expansion of Pima's copper concentrator located at Pima Mines. The work required by the contract included a new crushing plant, conveyor systems, expansion of fine ore storage, grinding, flotation, concentrate handling, lime re-agent facility, tailings disposal facilities and a railroad spur.
For reasons not divulged by the facts, on July 1, 1966, the contract entered into by Utah and Pima was assigned to Cascade, a corporation whose stock was wholly owned by Utah. The assignment was in writing *37 and agreed to by the assignee, Cascade, and Pima which assumed all obligations thereunder. The record further shows that after the accident, appellant Basurto, filed a workmen's compensation claim for the injuries he received.
On March 5, 1969, the defendants moved the court for summary judgment. The hearing date for the motion was subsequently vacated and the hearing was continued subject to call. On December 8, 1969, at the pretrial, the following admissions and stipulations were entered into between appellant and appellees: (1) That the plaintiff was an employee of Cascade Construction Company at the time of the accident in question; (2) Pima Mining Company was the owner of the premises where the action occurred; (3) that at the time of the accident Cascade Construction Company was an independent contractor as to Pima Mining; (4) when the contract was entered into, Utah Construction was an independent contractor and at all times Utah Construction & Mining Company, Inc., performed construction work (at oral argument both counsel agreed that this meant that no construction work was done by Utah after Cascade took over the job); (5) that Utah Construction & Mining Company, Inc., actually performed under the contract prior to the assignment.
No mention was made in the pretrial order of the pending motion for summary judgment. The case was set for trial on December 17, 1969, and on that day, in the judge's chambers, prior to trial, counsel stipulated as follows:
* * * * * *
"* * * that at the time of the accident and at all times material hereto, Pima Mining Company had in its employ three or more workmen regularly employed in its business, and that Pima Mining Company is subject to the Workmen's Compensation Laws of Arizona.
It is further stipulated that the claim of the Pltf. against Utah Construction & Mining Company is not predicated on any negligence of Utah or its employees, but is on a contract basis as stated in the Pre-Trial Order.
It is further stipulated that the Defts. can at this time make a motion for summary judgment and that as to the Deft. Utah Construction & Mining Company, Exhibits 1 and 2 are already in evidence, being the contract between Utah and Pima and the assignment from Utah to Cascade, and that the Court can consider those in determining whether or not Utah has a contractual liability to the Pltf.
It is further stipulated that the legal arguments have been presented to the Court and will not be repeated on the record, the position of the Deft. being in general that the Pltf. does not have a claim as a third party beneficiary of either Exhibits 1 or 2 as against Utah. As to the Deft. Pima Mining Company, its motion for summary judgment is based on the proposition that if in fact there were sufficient evidence from which a jury could be permitted to find that Pima retained or assumed and exercised control over the method and manner by which the Cascade employees did the work of installing the pipe, that in such case, based on the other stipulated facts, Pima would then be a statutory employer of the Pltfs. under the Workmen's Compensation Laws of this state and Pltf's exclusive remedy would be under the Workmen's Compensation Laws.
* * * * * *
It is further stipulated that at the time of the accident, Cascade and its employees, including the Pltf., were in the process of installing pipe which would become an integral part of the mining and milling operations of Pima Mining Company, and that although Pima Mining Company is not a licensed contractor, it has on occasion hired its own employees to do similar work; that is, to install pipes which would become an integral part of the mining and milling process."
* * * * * *
The court granted summary judgment for both Utah and Pima and appellant lodged this appeal.
*38 With respect to his claim against Utah, appellant Basurto contends that he is a third-party beneficiary of the contract entered into between Utah and Pima and that the assignment of the contract to Cascade did not change Utah's liability.
As to Pima, appellant contends that Pima retains sufficient control of the work to be responsible for appellant's safety and that Pima, as the owner of the premises, is vicariously liable to employees of its independent contractor as a result of the inherently dangerous nature of the work being performed.
THE CLAIM AGAINST UTAH
Paragraph 2.4.4 of the contract between Utah and Pima provides:
"Protection of the Public, and Work, and Proporty [sic] The Contractor shall provide and maintain all necessary watchmen, barricades, red lights and warning signs and take all necessary precautions for the protection and safety of employees on the work, of all other persons and adjacent private and public property. The Contractor at all times shall maintain adequate protection of the work from damage and shall protect the Owner's property and all persons thereon from injury, damage or loss by reason of any act or omission of the Contractor or any Subcontractor."
Paragraph 9.1 of the contract states:
"Indemnity by Contractor The Contractor shall save harmless and indemnify the Owner from and against any expense, loss or damage on account of any claim, demand or suit made by any person whomsoever, including any employee of the Owner, which is in any way caused by or connected with, or grows out of the execution and performance of this Contract by the Contractor or any subcontractor; provided, however, that the Contractor shall not be required to indemnify the Owner against any loss caused solely by the negligence or wilful fault of the Owner or its employees. The Contractor accepts all risk of injury or damage and all responsibility for any claims for damages whatsoever resulting from the use, misuse, or failure of any hoist, rigging, blocking, scaffolding, or other like or unlike equipment used by the Contractor or any subcontractor, even though such equipment be furnished or loaned to the Contractor or any such Subcontractor by the Owner, and shall indemnify the Owner against all such claims."
The assignments of the contract provides, inter alia:
"1. Assignor hereby assigns to Assignee all of Assignor's right, title and interest in and to said construction contract and any amendments or change orders made or to be made thereto;
2. Assignee hereby accepts such assignment and assumes and undertakes to perform all of the obligations of said construction contract and any amendments or change orders made or to be made thereto;
3. In consideration of the consenting to such assignment by owner, Assignor hereby guarantees to Owner the performance by the Assignee of all of the obligations, duties and undertakings of said construction contracts; * * *."
Appellant asserts that the contractual liability of Utah Construction Company rests upon the terms of the original contract between Utah Construction Company and Pima and not upon the terms of the assignment. Utah contends that its liability, if any, should rest upon the guarantee set forth in the assignment. In deciding Utah's liability we shall, for the purpose of this opinion, assume the strongest case in favor of the appellant, to-wit, that Utah is still a party to the contract and that the assignment and the terms therein have not created any new relationship between Utah and Pima.
Appellant cites several cases in support of his proposition that he is a third-party beneficiary under the contract between *39 Utah and Pima.[1] Although Arizona recognizes the right of third-party beneficiaries to sue on a contract, the Arizona courts, contrary to the Restatement of the Law of Contracts, § 133(1) (b), do not follow the liberal view of the Restatement relating to third-party creditor beneficiaries but has rather adopted the rule that before a person can claim to be a third-party beneficiary, the intention to benefit the third person must be indicated in the contract itself. Irwin v. Murphey, 81 Ariz. 148, 302 P.2d 534 (1956). As the court stated in Irwin v. Murphey, supra:
"* * * We dealt with the question in Treadway v. Western Cotton Oil & Ginning Co., 40 Ariz. 125, 10 P.2d 371, and recovery under the third-party creditor-beneficiary doctrine was denied because the agreement was held not made for the third person's benefit in that the alleged benefit was not intentional and direct. We expressly held in that case that the benefit contemplated must be intentional and direct."
Not only must the benefit be intentional and direct but the third person must be the real promisee.[2] The promise must be made to him in fact although not in form and it is not enough that the contract may operate to his benefit but it must appear that the parties intended to recognize him as the primary party in interest and as privy to the promise. Seargeant v. Commerce Loan & Inv. Co., 77 Ariz. 299, 270 P.2d 1086 (1954). This theory has been subsequently adhered to in the case of California Cotton Oil Corporation v. Rabb, 88 Ariz. 375, 357 P.2d 126 (1960). If the appellant is merely an incidental beneficiary then he cannot recover under the contract. Whether the third-party beneficiary is merely an incidental beneficiary, or one for whose express benefit the contract was entered into and therefore one who can maintain an action on the contract, is always a question of construction. Irwin v. Murphey, supra. Being a question of construction of the contract, it is a question of law for the court. Kintner v. Wolfe, 102 Ariz. 164, 426 P.2d 798 (1967).
The cases of Giarratano v. Weitz Co., supra; Blount Brothers v. Rose, supra; Presser v. Siesel Construction Co., supra, and Smith v. Ledbetter Brothers, Inc., supra, do not stand for the proposition that a contractual provision similar to the one in the case sub judice gives the beneficiary of the provision a cause of action on the contract itself.[3] Rather, these foregoing cases stand for the proposition that such a provision creates a duty upon which one can base a case in negligence for the failure to perform the duty created by reason of the contractual obligations. Noting that the plaintiff in this case has stipulated that his claim against Utah Construction Company is not predicated on any negligence of Utah or its employees but is on a contract basis, we are unable to see how these cases can benefit the plaintiff. Instead, we refer to the case of Iowa Power & Light Company v. Abild Construction Co., 259 Iowa 314, 144 N.W.2d 303 (1966), wherein the court in construing the contractual *40 provisions of the same tenor of the one in the case at bench states:
"The terms relied on appear to involve only the relationship between the parties and are designed to protect the owner from faulty workmanship and liability to the workmen or public which might result from the contractor's failure to do the work in a workmanlike manner or provide all the necessary safeguards. It is this type of provision which would expressly give the owner the right of indemnity against the contractor for injuries sustained by a workman or the public generally." at 313.
We agree with the trial court. In the absence of negligence he cannot recover against Utah.
THE CLAIM AGAINST PIMA
Appellant does not contend that Pima itself was negligent toward him. Rather, he contends that the work which Pima contracted with Utah to perform was inherently dangerous and that Pima should have recognized the work as involving a peculiar risk of bodily harm. Appellant therefore contends that Pima is vicariously liable to him for the negligence of Cascade, appellant's employer. This contention is based upon the theory that although Cascade is an independent contractor the inherently dangerous character of the work places Pima within the exceptions set forth in the Restatement of Torts (Second) §§ 413, 416 and 427.[4]
Appellant's contention was advanced in the case of Welker v. Kennecott Copper Company, 1 Ariz. App. 395, 403 P.2d 330 (1965). In rejecting same this court held that the sections of the Restatement cited by appellant do not apply to the employees of an independent contractor. See also E.L. Jones Construction Company v. Noland, 105 Ariz. 446, 466 P.2d 740 (1970).
This does not however, terminate the issue of Pima's liability. For the purpose of the summary judgment the question of retained or assumed control on the part of Pima was still in dispute. It was the position of Pima that even assuming it retained or assumed and exercised control over the method and manner by which Cascade employees did the work of installing the pipe, that Pima would be a statutory employer of the plaintiff under Workmen's Compensation Laws and that plaintiff's exclusive remedy would be under such laws.
A.R.S. § 23-902(B) provides as follows:
"B. When an employer procures work to be done for him by a contractor over whose work he retains supervision or control, and such work is a part or process in the trade or business of the employer, then such contractors and the persons employed by him, * * * are, *41 within the meaning of this section, employees of the original employer." (Emphasis added).
A.R.S. § 23-1022(A) provides as follows:
"A. The right to recover compensation pursuant to the provisions of this chapter for injuries sustained by an employee shall be the exclusive remedy against the employer, * * * except as provided by §§ 23-906 and 23-964, and except where the injury is caused by the employer's * * * wilful misconduct and the act causing the injury is the personal act of the employer himself * * * or if the employer is a partnership, on the part of one of the partners, or if a corporation, on the part of an elective officer thereof, and the act indicates a wilful disregard of the life, limb or bodily safety of employees, in which event the injured employee may, at his option, either claim compensation or maintain an action at law for damages."
The applicability of A.R.S. § 23-902(B) turns on whether or not the work being done by Cascade was work that is "part or process in the trade or business" of Pima.
The purpose of such a statutory provision is ably set forth in the case of Jamison v. Westinghouse Electric Corporation, 375 F.2d 465 (3rd Cir.1967):
"The general purpose of such statutes is to afford workmen's compensation protection to injured employees of uninsured contractees by imposing secondary liability therefor upon the contractor who let out the work. The requirement that the work performed by the employees of the contractee must be part of the `regular business' of the contractor emphasizes the purpose of the statute to prevent evasion of the Act by an employer through the device of subcontracting its regular operations and thereby avoiding direct employment relations with the workers and making them dependent on their immediate employer for compensation. See generally 1A Larson, Workmen's Compensation (1966), § 49.11; * * *." at 468.
In view of the purpose of such statutes, the general rule of thumb is that the statute covers all situations in which work is accomplished which this employer, or employers in a similar business, would ordinarily do through employees. 1A Larson, Workmen's Compensation (1967) § 49-12.
We now turn our attention to the stipulation entered into by the parties and upon which the court based its summary judgment. We find they stipulated that "* * * at the time of the accident, Cascade and its employees, including the Pltf., were in the process of installing pipe which would become an integral part of the mining and milling operations of Pima Mining Company, and that although Pima Mining Company is not a licensed contractor, it has on occasion hired its own employees to do similar work; that is, to install pipes which would become an integral part of the mining and milling process."
In our opinion Pima's reliance on such a stipulation begs the question. Pima takes a much too limited view of the statute and case law. The issue is not whether its own employees installed pipe, but whether or not its own employees regularly and ordinarily do the type of work which Cascade contractually agreed to do, to-wit, construction of a crushing plant, conveyor systems, expansion of fine ore storage, grinding, flotation, concentrate handling, lime re-agent facilities, tailing disposal facilities and railroad spurs. Cf. Moak v. Link-Belt Company, 229 So. 2d 395 (La. App. 1969).
To support its view Pima cites the case of Lessley v. Kansas Power & Light Company, 171 Kan. 197, 231 P.2d 239 (1951). The Kansas court, fearful of a rule that would negate statutory employer status, has adopted a very restricted construction. The Kansas test is "whether the work contracted to be done was a part of appellee's trade or business." The Kansas court pursues the question no further and demonstrates its reasons for its reluctance when it states:
"If under the same circumstances upon which he here relies in a common-law *42 action the appellant had sought relief for some injury under the Workmen's Compensation Act, he would have been entitled to and would have received the benefit of such liberal construction. It would be ironical to apply a different rule simply because in this instance he chooses another course. It would also be unfair to other workmen whose interests may well be affected in the future." At 248.
In other words, Kansas fears that a liberal interpretation of the statute would detract from the impact and salutary effects of the Workmen's Compensation Act. The Kansas argument is answered in Jamison v. Westinghouse Electric Corporation, supra, wherein the court states:
"Courts must be careful not to enlarge beyond its proper limits the statutory employment relationship, out of consideration for the injured employee's right to workmen's compensation. For we must recognize that although the Workmen's Compensation Act was designed to provide compensation to employees for their injuries without regard to the negligence of their employer, the statutory employer provision has come increasingly to be used as a shield to avoid heavy negligence recoveries against remote parties who have contracted with the injured workman's immediate employer. See McSparran v. Hanigan, 225 F. Supp. 628, 635 (E.D.Pa. 1963) Aff'd 356 F.2d 983 (3 Cir.1966)." 375 F.2d at 470.
We believe the test as set forth in Larson and Jamison v. Westinghouse Electric Corporation, supra, is more in keeping with the purpose and spirit of A.R.S. § 23-902(B).
We believe that factual issues still exist as to whether or not Pima is a statutory employer under the rules which we adopt in this opinion. Further, since the question of control over the work is still in doubt, it is evident that Pima cannot prevail under the present record in a motion for summary judgment.
Judgment is affirmed as to Utah and reversed as to Pima for further proceedings consistent with this opinion.
KRUCKER, C.J., and HATHAWAY, J., concur.
NOTES
[1] Giarratano v. Weitz Co., 259 Iowa 1292, 147 N.W.2d 824 (1967); Blount Brothers Construction Co. v. Rose, 274 Ala. 429, 149 So. 2d 821 (1962); Presser v. Siesel Construction Company, 19 Wis. 2d 54, 119 N.W.2d 405 (1963); Smith v. Ledbetter Brothers, Inc., 111 Ga. App. 238, 141 S.E.2d 322 (1965). Also cited is Gobos v. George A. Fuller Co., 5 A.D.2d 773, 170 N.Y.S.2d 56 (1958). The reading of this latter case and the authority cited therein indicates that the undertaking contained a provision whereby the contractor agreed to pay for any damages. See for example, Vance v. Yonkers Contracting Co., Inc., 280 A.D. 839, 113 N.Y.S.2d 733 (1952), cited in Gobos wherein the undertaking stated that it "shall protect the owners of adjacent property from injury arising from the carrying out of this contract, and shall make good any such damage and injury * * *."
[2] The "intent to benefit" and "primary party" criteria have been criticized by legal writers. See 54 Virginia Law Review 1166 (1968) and 57 Columbia Law Review 406 (1957).
[3] However, the dicta in Blount Brothers Construction Co. v. Rose, supra, so states.
[4] Section 413 provides:
"One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer
(a) fails to provide in the contract that the contractors shall take such precautions, or
(b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions."
Section 416 provides:
"One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise."
Section 427 provides:
"One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor's failure to take reasonable precautions against such danger." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3346290/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION
This is an action to modify custody of a minor child brought by the plaintiff father, Garland Guillory, of Pomfret in this judicial district. The defendant mother, Melanie Francks, resides in Florida. CT Page 2536
On July 19, 2001, a Florida court gave custody of the minor child of the plaintiff and defendant, Samantha Guillory, to the plaintiff, after the defendant consented to allegations [of neglect] contained in a Petition for Dependency. (Plaintiff's Exhibit 3) Father had removed to Connecticut with the child in late May 2001, based upon an earlier order of the Florida court dated May 9, 2001. (Plaintiff's Exhibit 2) Upon his return to Connecticut father began to register the foreign judgments and on December 5, 2001, he filed a motion to modify custody. On December 7, 2001, the same Florida court granted the defendant unsupervised contact with Samantha. (Defendant's Exhibit 3)
The defendant has filed a motion to dismiss based upon her claim that this court lacks subject matter jurisdiction. Additional facts will be found as necessary.
On July 19, 2001, when the most recent custody orders entered, Florida was the home state of Samantha who had been residing there continuously since July of 2000. Although she removed to Connecticut with the plaintiff in late May of 2001, Florida continued to exercise jurisdiction over her. A Department of Children and Families (DCF) study dated October 9, 2001 prepared for a judicial review scheduled for October 12, 2001, made recommendations that essentially preserved the status quo, i.e., Samantha was to remain with the plaintiff. (Defendant's Exhibit 2) Then on December 7, 2001, the court granted some unsupervised contact with Samantha to the defendant.
The defendant argues that Florida remains the home state of Samantha under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The plaintiff argues that the UCCJEA confers jurisdiction in Connecticut.
Under § 46b-115 (7) "`Home State' means the state in which a child lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months old, the term means the state in which the child lived from birth with any such parent or person acting as a parent. A period of temporary absence of any such person is counted as part of the period." (Emphasis added.)
The custody of Samantha was initially granted to the plaintiff when Florida was clearly her home state. By order of July 19, 2001, that custody arrangement continued. A DCF study of October 9, 2001 prepared for the Florida court recommended that temporary custody continue. The December 7, 2001 contact order modified the earlier order to provide for visitation for the defendant. CT Page 2537
The DCF study of October 9, 2001 indicates that Samantha was "dismissed" from the case by the order of July 19, 2001. The order itself does not indicate that any adjudication of the status of Samantha occurred.1
From the record before this court the court concludes that the Florida court continues to exercise jurisdiction in the case. The order of December 7, 2001 says that DCF shall continue supervision; the next Case Plan is due February 28, 2002. This court is convinced, based upon the continuing activity in the Florida court, that Samantha's presence here in Connecticut is due to a temporary custody order in favor of the plaintiff and thus pursuant to § 46b-115 (7) Florida remains the home state of Samantha.
The plaintiff asks this court to apply § 46b-115m (b) to the facts of this case in support of his claim that Connecticut may modify the child custody determination made in Florida. That section reads as follows:
Section 46b-115m (b) Notwithstanding the provisions of this chapter, a court of this state may modify a child custody determination made by a court of another state if: (1) The child resides in this state with a parent; (2) the child has been, or is under a threat of being, abused or mistreated by a person who resides in the state which would have jurisdiction under the provisions of this chapter; and (3) the court of this state determines that it is in the child's best interest to modify the child custody determination.
From the facts previously found it is clear that Samantha is in Connecticut by reason of mother's admission of neglect. The first two requirements of § 46b-115m (b) are met. What is not so clear is the third requirement of § 46b-115m (b) that it is in the best interest of the child for this court to modify Florida's child custody determination in view of the ongoing year long investigation there involving the court and DCF. A review of the records made available to this court and marked as exhibits reveals a lengthy social study report prepared by DCF as recently as October 9, 2001 and at least three and possibly four in court reviews since the petition was filed on March 2, 2001. To date the best interests of the child appear to be well protected. This is not to say that there may not be good reason to modify custody or visitation as sought by the plaintiff. This is a jurisdictional finding only. Issues of custody and visitation pursuant to the UCCJEA and/or the Uniform Child Custody Jurisdiction Act (UCCJA) should be decided in Florida, not Connecticut. CT Page 2538
The motion to dismiss is granted.
____________________, J. Potter, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2984020/ | May 15, 2014
JUDGMENT
The Fourteenth Court of Appeals
SWE HOMES, LP, Appellant
NO. 14-12-01116-CV V.
WELLINGTON INSURANCE COMPANY, Appellee
________________________________
This cause, an appeal from the judgment in favor of appellee, Wellington
Insurance Company, signed November 14, 2012, was heard on the transcript of the
record. We have inspected the record and find error in the judgment. We therefore
order the judgment of the court below REVERSED and REMAND the cause for
proceedings in accordance with the court’s opinion.
We further order that all costs incurred by reason of this appeal be paid by
appellee, Wellington Insurance Company.
We further order this decision certified below for observance. | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1436900/ | 542 F.3d 669 (2008)
Steve COX, Petitioner-Appellant,
v.
Frankie Sue DEL PAPA, Respondent-Appellee.
No. 06-15106.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted August 15, 2007.
Filed September 4, 2008.
*671 Paul G. Turner, Assistant Federal Public Defender, Las Vegas, NV, argued the cause for the petitioner-appellant and filed briefs; Franny A. Forsman, Federal Public Defender and Danice Arbor Johnson, Research & Writing Specialist, Las Vegas, NV, were on the briefs.
David Neidert, Senior Deputy Attorney General, Las Vegas, NV, argued the cause for the respondents-appellees; Catherine Cortez Masto, Attorney General and Dennis C. Wilson, Deputy Attorney General, filed and were on the brief.
Before: DIARMUID F. O'SCANNLAIN, MICHAEL DALY HAWKINS, and KIM McLANE WARDLAW, Circuit Judges.
O'SCANNLAIN, Circuit Judge:
We must decide whether the Constitution requires that a trial court conduct a sua sponte examination of a criminal defendant's Miranda waiver when his competency to stand trial has been raised.
I
Sometime in March 1990, Steve Cox left Vallejo, California, headed to Tennessee in a 30-year old truck with a football-sized hole in the windshield. He carried approximately $16,000 in cash. Upon arrival in Las Vegas, Nevada, Cox stopped to repair his ailing truck. While there, he became involved with Carita Wilson, a prostitute with an extensive criminal record. Cox checked into the Days Inn Motel in North Las Vegas, accompanied by Wilson. The next day, on March 22, 1990, hotel employees *672 found Wilson's strangled body in the hotel room. When police arrived, they noted that Wilson had a television cord wrapped around her wrist and a towel around her throat.
Later that day, Officers Scott Tyman and M.L. Ransom of the Arizona Highway Patrol arrested Cox about nine miles from Winslow, Arizona. Officer Tyman told Cox that he was being "detained for committing the crime of being a fugitive of justice" and read him his Miranda rights from a Department-issued card.[1] Cox "acknowledge[d] that he understood the Miranda warnings." Tyman asked him whether he knew why he was being arrested, and Cox stated that he "was framed, that it was self-defense." Ransom "asked him whether he killed anybody," whereupon "[Cox] said that the girl had come to him with fangs and fingernails and that he only choked her around the neck long enough to subdue her, to get away." Cox "talked a lot" for the next 10 minutes. The officers then took him to the county jail and documented his property, which included roughly $8,000 in cash.
A week later, Detectives Bruce Scroggin and Jack Larason of the North Las Vegas Police Department went to Arizona to interview Cox. They "advised Mr. Cox of his rights and he chose not to talk to [them]." Cox also made clear that he "did not wish to return or come willingly back [to Nevada]." After obtaining a governor's warrant to bring Cox back to Nevada, Detective Scroggin returned to Arizona in May 1990, this time joined by Detective A. Calvert. Prior to departing with Cox, Scroggin read Cox his Miranda rights. Again, Cox acknowledged that he understood his rights.
Detective Scroggin also told Cox that he and Detective Calvert "were not going to question him about the incident at all" during the ride back to Las Vegas. However, Cox decided to speak spontaneously "for almost 10 hours straight about everything under the sun."[2] Among other things, Cox told the detectives that Wilson had emerged from the bathroom with her hair dripping wet and wrapped in a towel, that she had "flipped out," and that Cox had to remove the towel and restrain her, causing her to pass out. When she awoke, she again "flipped out" and he again had to restrain her because she was "acting bizarre and devilish." She passed out again, and after he restrained her a third time, she did not regain consciousness. At this point, he checked her pulse, found it to be "racing at 90 miles an hour and [ ] felt she was going to die," and left the hotel "hoping someone would find her and take care of her."
A
On April 11, 1990, state prosecutors in Clark County, Nevada, charged Cox with murder with use of a deadly weapon. Before trial, several psychiatrists examined Cox to determine whether he was competent to stand trial. Psychiatrist Dr. Franklin Master explained that he "did not get a feeling of psychosis, but rather felt that [Cox] was attempting to malinger because of the seriousness of the charge against him." And although Dr. Master noted "the possibility that this individual's behavior on the night in question might well have been influenced by his use of *673 cocaine," and "the possibility that even now there could be residual effects of heavy cocaine use," he concluded that Cox was not "currently[] under the influence of any substance," and was "competent to assist counsel."
In a report dated several months later, psychiatrist Dr. William O'Gorman recorded Cox's family history and assessed his mental state. He found that Cox exhibited "a moderate degree of repression and suppression," signs of "a personality disorder of a mixed type with noticeable paranoid trends and some preoccupation, overcompensation and some immaturity with impulsiveness in his relationships with people." However, Dr. O'Gorman discerned "no true disorganization of personality," noted that Cox "denie[d] being addicted to cocaine," and concluded that "Cox [wa]s knowledgeable to the events that transpired regarding the present charge and c[ould] assist his attorney in his own defense if he so desire[d]."[3]
Two other psychiatrists who examined Cox later on disagreed, however, and opined that Cox was not competent to stand trial. Dr. Jack Jurasky wrote that Cox was "intelligent, cooperative, fluent, and articulate," but "suffer[ed] from a psychotic process called `Delusional Disorder' as manifested by florid paranoid and grandiose delusions about his importance." He stated that he believed Cox should be considered "`Guilty But Mentally Ill'" but not "Not Guilty by Reason of Insanity" because Cox "certainly comprehend[ed] the nature and quality of the charges against him and respond[ed] to those charges relevantly in the manner by which he denie[d] them."
Less than a month later, Dr. William Pike evaluated Cox and rendered the following diagnosis: "Schizoaffective disorder, manic, chronic." He stated his "firm opinion that [Cox][wa]s not able to effectively cooperate with counsel in the defense of his case and [wa]s not competent to stand trial," urging that Cox "should be hospitalized for treatment."
The trial judge held a competency hearing on June 25, 1991, and considered the reports of the doctors who had examined Cox over the past year. On August 6, 1991, the trial judge held Cox incompetent to stand trial, found that Cox "would constitute a danger to the safety of himself and to society if released from custody," and concluded "that commitment is required for a determination of his ability to attain competence." Cox was transferred to the Lakes Crossing Center, a mental health facility.
On January 2, 1992, the trial court impaneled a "Sanity Commission" to reevaluate Cox. The Sanity Commission, guided by the reports of three doctors, opined that Cox was still incompetent. The trial court recommitted Cox to Lakes Crossing on February 11, 1992, and ordered that Cox receive periodic competency evaluations.
On March 27, 1992, the trial judge impaneled a second Sanity Commission, received its reports, and found that Cox had become competent to stand trial. The court scheduled the trial to begin, and Cox and the government stipulated that the death penalty would not be pursued. The parties also stipulated that the court would determine the sentence if Cox were found guilty. However, the trial judge rejected the sentencing stipulation, believing state *674 law to require the jury to decide the sentence.
B
Trial began on May 24, 1993, on the charge of first degree murder.[4] Cox was represented by counsel. At trial, Officers Tyman and Ransom testified to the inculpatory statements that Cox made to them at the time of his arrest. Detectives Scroggin and Calvert testified to the inculpatory statements that Cox made to them during the car ride from Arizona to Nevada. A jury found Cox guilty of first degree murder and rendered a special verdict imposing life in prison without the possibility of parole.
In due course, Cox appealed to the Nevada Supreme Court, which held that state law did not require that a jury impose sentence and that the trial court should have sentenced Cox, pursuant to the parties' stipulation. It remanded the case for resentencing by the trial judge. On September 29, 1994, the trial court resentenced Cox to life in prison without possibility of parole. Cox appealed his sentence on grounds of judicial bias, but the Supreme Court of Nevada affirmed.
Still seeking relief in state court, Cox filed a Motion for Acquittal and a Motion for an Advisory Opinion. Construing these motions as a habeas corpus petition, the state trial court rejected Cox's claims of ineffective assistance of counsel at trial and at sentencing, and held that he waived his other claims by failing to raise them on direct appeal. The Supreme Court of Nevada affirmed this final state appeal on April 10, 1998.
C
Cox next petitioned for habeas relief under 28 U.S.C. § 2254, asserting various constitutional violations including ineffective assistance of counsel at trial and sentencing.[5]
The district court deemed several claims unexhausted and offered Cox a choice between abandoning them or having the court dismiss the petition in toto "so that [Cox] c[ould] attempt to exhaust his unexhausted claims and thereafter return with a petition ready for review on the merits of all his claims." Cox chose to abandon the unexhausted claims which, importantly, included his claim of ineffective assistance of counsel at trial. Ultimately, the district court denied the habeas petition and Cox's request for a certificate of appealability, but a panel of our court granted the certificate and Cox timely appealed.
II
Cox first argues that because the state trial court received psychiatric evaluations that revealed some doubts as to his competency to stand trial, the court should also have ordered, sua sponte, a hearing on his cognitive ability to waive his Miranda rights.
A
The Supreme Court has never held that a trial court must order sua *675 sponte a hearing regarding a defendant's cognitive ability to waive his Miranda rights. In Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) itself, the Court has "concluded that in the context of `custodial interrogation' certain procedural safeguards are necessary to protect a defendant's Fifth and Fourteenth Amendment privilege against compulsory self-incrimination." Rhode Island v. Innis, 446 U.S. 291, 297, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). Before a court may introduce statements made by a suspect in custody and under interrogation, "[t]he government has the burden of proving that the defendant has knowingly and voluntarily waived his Miranda rights." United States v. Heldt, 745 F.2d 1275, 1277(9th Cir.1984) (internal citations omitted). Although "the State need prove waiver only by a preponderance of the evidence," Colorado v. Connelly, 479 U.S. 157, 168, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986), "[t]his burden is great" and "[w]e must indulge every reasonable presumption against waiver of fundamental constitutional rights." Heldt, 745 F.2d at 1277. The government satisfies its burden only if it makes two prerequisite showings:
First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.
Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986) (emphasis added).
The distinction between a claim that a Miranda waiver was not voluntary, and a claim that such waiver was not knowing and intelligent, is important. "The voluntariness of a waiver ... has always depended on the absence of police overreaching." Colorado, 479 U.S. at 170, 107 S. Ct. 515. In other words, the voluntariness component turns upon external factors, whereas the cognitive component depends upon mental capacity. Although courts often merge the two-pronged analysis, the components should not be conflated.[6] Here, Cox challenges only the cognitive component.
B
Cox claims that lack of mental capacity bars admission of his statements to Officers Tyman and Ransom upon his arrest, as well as his statements to Detectives Scroggin and Calvert on the ride from Arizona to Nevada. But, Miranda only applies to the first set of statements; the latter statements were clearly spontaneous.[7] Although Cox correctly notes that the government "do[es] not argue that [he] was not in custody," Miranda applies only "where a suspect in custody is subjected to interrogation." Innis, 446 U.S. at 300, *676 100 S. Ct. 1682 (emphasis added).[8]
Cox does not dispute that Detective Scroggin told him that the detectives "were not going to question him about the incident at all." Therefore, we confine our analysis to the statements he made to Officers Tyman and Ransom when they held him in custody and interrogated him in his Las Vegas jail cell.
C
To show valid waiver, the government offered Officer Tyman's testimony, which indicated that Cox had "acknowledge[d] that he understood the Miranda warnings"; Cox did not present evidence to suggest otherwise.[9] However, Cox claims that the trial court's early finding of incompetency should have alerted both his lawyer and the court, sua sponte, to the need to conduct an evaluation and hearing as to whether he had the mental capacity to waive his Miranda rights.[10] Without holding a special hearing and evaluation of competency, Cox argues, the trial court could not find a valid Miranda waiver.
The Nevada Supreme Court rejected this argument, noting that "Cox d[id] not claim his Miranda waiver was invalid; he merely complain[ed] that there was never a formal evaluation of its validity." In any event, Cox argues that the state trial court violated due process by ignoring all obvious signs that he lacked the psychological capacity at the time of arrest to understand and knowingly waive his Miranda rights.
Cox primarily relies on Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), to support his view that a trial court has a protective duty to hold a *677 hearing sua sponte on whether a defendant in these circumstances validly waived his Miranda rights. Zerbst, however, addressed a waiver of the Sixth Amendment right to counsel. There, the trial court made no finding that the defendants knowingly and intelligently waived their right to counsel and permitted the trial to proceed, whereupon the defendants were tried, convicted, and sentenced, without assistance of counsel. Id. at 460, 58 S. Ct. 1019. The Supreme Court reversed. "The Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel." Id. at 463, 58 S. Ct. 1019. To protect the right to counsel, a court must ascertain affirmatively that waiver is knowing and intelligent:
The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accusedwhose life or liberty is at stakeis without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.
Id. at 465, 58 S. Ct. 1019 (emphasis added).
The Court then remanded the case, with the instruction that the defendant bore the burden of proof to show that "he did not competently and intelligently waive his right to counsel." Id. at 469, 58 S. Ct. 1019. Indeed, the Court shifted the burden of proof of waiver: "Where a defendant, without counsel, acquiesces in a trial resulting in his conviction and later seeks release by the extraordinary writ of habeas corpus, he burden of proof rests upon him to establish that he did not competently and intelligently waive his constitutional right to assistance of [c]ounsel." Id. at 468-69, 58 S. Ct. 1019 (emphasis added); see also United States v. Santiago Soto, 871 F.2d 200, 201 (1st Cir.1989) (stating that "the conventional wisdom among our sister circuits is that, absent a defendant's request for a hearing on the issue of voluntariness, or at least an objection to the admission of an incriminating statement or confession into evidence, the requirement of a hearing is waived").
Cox invokes Zerbst for the proposition that the "protecting duty" articulated there applies equally to Miranda waivers. He leans on Minnick v. Mississippi for support: "[W]e have adhered to the principle that nothing less than the Zerbst standard for the waiver of constitutional rights applies to the waiver of Miranda rights." 498 U.S. at 160, 111 S. Ct. 486. However, the so-called "Zerbst standard" to which the Court referred in Minnick was merely the requirement that a waiver be voluntary, knowing, and intelligent:
The Zerbst waiver standard, and the means of applying it, are familiar: Waiver is "an intentional relinquishment or abandonment of a known right or privilege," and whether such a relinquishment or abandonment has occurred depends "in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused."
Id. at 159, 111 S. Ct. 486 (quoting Zerbst, 304 U.S. at 464, 58 S. Ct. 1019). No Supreme Court case suggests that the protective duty of the court applies to Miranda waivers generally. Nor does AEDPA permit an extension of the Supreme Court's Zerbst decision to the very different issue at bar. The need for court *678 assistance with respect to a waiver of trial counsel does not suggest a similar need for court assistance when a defendant already has the assistance of counsel.[11] Thus, Zerbst cannot support Cox's claim that the trial judge had a protective duty to order a hearing to ensure that his waiver was knowing and intelligent, rather than determining simply whether the government had met its burden of proof.
"Given the lack of holdings from [the Supreme] Court ... it cannot be said that the [Nevada Supreme C]ourt `unreasonabl[y] appli[ed] clearly established Federal law.'" Carey v. Musladin, 549 U.S. 70, 127 S. Ct. 649, 654, 166 L. Ed. 2d 482 (2006) (citing § 2254(d)(1)). Therefore, Cox is not entitled to habeas relief on his sua sponte hearing claim.
III
Cox also argues that he suffered from ineffective assistance of counsel because defense counsel failed to develop and to present a mitigating case at sentencing.[12]
A
To prevail on an ineffective assistance of counsel claim, a defendant must show that his counsel's performance was deficient and prejudiced the outcome. Strickland v. Washington, 466 U.S. 668, 693-94, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
"[To establish deficiency,] a defendant must show that counsel's representation fell below an objective standard of reasonableness." To establish prejudice he "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."
Williams, 529 U.S. at 390-91, 120 S.Ct. 1495(quoting Strickland, 466 U.S. at 688, 694, 104 S. Ct. 2052).
In Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003), the Supreme Court explained that the Strickland standard governs counsel's obligation to investigate and to present mitigating evidence at sentencing. In Wiggins, two defense lawyers limited their investigation to Wiggins's Pre-Sentence Investigation Report and Department of Social Services records. Id. at 533, 123 S. Ct. 2527. They investigated no further, although they were aware of Wiggins's troubled background. The Court found that their limited "investigation into Wiggins' background did not reflect reasonable professional judgment" and was "neither consistent with the professional standards that prevailed... nor reasonable in light of the evidence counsel uncovered in the social services records." Id. at 534, 123 S. Ct. 2527. The lawyers' deficient performance prejudiced Wiggins, because available evidence of his "severe privation and abuse" and the "physical torment, sexual molestation, and repeated rape [he suffered during many] years in foster care," id. at 535, 123 S. Ct. 2527, "`might well have influenced the jury's appraisal' of Wiggins' moral culpability." Id. at 538, 123 S. Ct. 2527.
The Court's decision in Wiggins did not alter the standard set forth in Strickland. Nor did the case unsettle the rule that counsel has "wide latitude ... in making tactical decisions" and "[j]udicial *679 scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689, 104 S. Ct. 2052. However, Wiggins did make clear that deference should not be given unless counsel completes an adequate investigation. See Wiggins, 539 U.S. at 536, 123 S. Ct. 2527 ("[C]ounsel were not in a position to make a reasonable strategic choice ... because the investigation supporting their choice was unreasonable."). What constitutes an adequate investigation again requires reference to Strickland:
[Counsel] has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.
The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions.... In short, inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions.
Strickland, 466 U.S. at 691, 104 S. Ct. 2052.
B
We must therefore determine whether the Nevada Supreme Court's decision to deny Cox relief was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" with respect to his claim that his counsel did not fulfill his duty to investigate and to present available mitigating evidence.[13] 28 U.S.C. § 2254(d)(1). A review of the resentencing proceeding is essential.
First, the judge noted that the sentencing choices were "life with and life without the possibility of parole," and asked Cox whether he had anything to suggest: "This is your time to tell me what you think is appropriate relative to the sentence." Cox responded by insisting on his innocence and noting that his wife, who was present but whom he "ha[d no]t seen in three years," also believed he was innocent. Cox then cited several mitigating circumstances, such as that he "had no problems or complaints within the system," was "not a troublesome person," and "ha[d] no prior records in regards to being an adult offender." He also noted "mitigating circumstances which were not brought up in the trial," including "the cocaine incident and the conspiracy to set me up to cause my death and robbery, which you know I had a large amount of money"[14] and Wilson's "extensive criminal record."[15] He added that although he "grieve[d] for the *680 loss of a life," he felt that Wilson had been "causing many losses ... and heartaches of families, too" and "[i]t's just that at this time, [the] situation went the other way."
The court then allowed Cox's counsel to offer mitigating evidence. The lawyer began by giving the judge a brief letter that Cox's wife had "just handed [him]." Then counsel reminded the judge that the prosecution had offered Cox a plea agreement whereby Cox would have pled guilty to second degree murder and would have faced only a sentence of five years to life in prison.
Next, counsel argued that the court should consider Cox's potential for safe release. He argued that Cox was no longer inclined toward the kind of violent behavior that he had exhibited as a juvenile.[16] Reading from the most recent Pre-Sentence Investigation report, the lawyer noted that "[s]ince his arrival in [prison], [Cox] ha[d] sustained no disciplinary sanctions and ha[d] adjusted within acceptable standards" and "[c]ontact with his current case worker indicated Cox programs well." Counsel pointed out that another report stated that Cox was "polite and courteous at all times," was "not a problem to anyone," and was "trying to cope within the system."
Counsel then explained that his own investigations had revealed some positive aspects of Cox's character and potential for living a lawful existence. During the long period between trial and sentencing, the lawyer explained, he had traveled to Northern California and had spoken to Cox's wife and "some of his associates and others."
I met with a man in San Francisco who worked for the City of San Francisco in their housing department who talked to me and told me of the marvelous work Steve did as journeyman carpenter on this gentleman's personal properties. He said he would trust him with his life. Because, he said he did beautiful work, he was honest and truthful in everything that he did for him.
Counsel stated that others had expressed "that same feeling about [Cox] and didn't understand why he was in the [criminal] situation." They speculated that his actions were caused by "the drugs that he got involved with."
Building upon that suggestion, counsel sought to reduce Cox's culpability by emphasizing his "use of cocaine" and "mental problems." He explained that Cox had misunderstood the fits Wilson was having and had honestly believed she would hurt him: "He responded to something he thought was taking place because of the drugs that were in his system and what was going on in that hotel room. And he's convinced to this day that's what happened; you've heard him say that." (referencing Cox's testimony that he believed Wilson would harm him).
At this point, however, Cox interrupted his counsel: "Your Honor, there was no drugs in my system. And I refute that allegation by my counsel, if I may, as a defendant." He insisted that Wilson was involved in a conspiracy to rob him and began to repeat his testimony on this score, although the judge reassured him that he had "heard all that at trial." Still attempting to persuade the judge that he was not delusional, Cox told the judge: "I refused to take drugs, even at Lakes Crossing [mental health facility]. No drug was ever dispensed to me."
Confronted with this resistance from Cox, counsel changed his strategy. He emphasized that sentencing Cox to life in prison with possibility of parole would not *681 endanger society, because it would simply leave open the possibility that, at some later point, Cox might be deemed no longer to pose a threat to society: "I think it should be within the power of the Parole Board to look at him and say is he of such a state of mind that it's safe for him to be on the streets again. They should have that power. And when that time comes, I think it is appropriate that they be allowed to seriously consider that and give him that opportunity." Counsel concluded by urging the court to impose the lesser sentence of "life with the possibility of parole."
The court declined to do so, however, and imposed life without possibility of parole. Although the judge agreed with Cox's counsel that Cox was not "a typical murderer," he noted that the crime was not "a typical murder." He further explained that "the nature of the killing itself,[Cox's] continuing indication to me that the problems have probably stemmed, in large part, from the use of crack cocaine continue to give real problems to [him] in understanding fully, or perceiving fully the real world as others perceive it." As a result, the judge concluded that Cox remained "a dangerous person." He told Cox that if he was "again going to see the light of day, ... it should be more a matter for the Pardons Board rather than the Parole Board."
C
Cox now seeks to overturn his sentence, claiming ineffective assistance of counsel. He argues that "[c]ounsel[ ] fail[ed] to put forth any effort to educate the court about Cox's true psychiatric and behavioral condition and Cox's realistic expectations of improvement with appropriate treatment." In particular, he argues that counsel should have investigated and presented evidence of Cox's "serious mental problems," "severe cocaine addiction," and "how drug use interacted with Cox's mental illness," as well as evidence of "positive behavioral consequences if Cox received appropriate mental health care and drug rehabilitation opportunities." He objects that counsel offered no live witnesses, although expert witnesses "were readily available" and his counsel could have called "business associates who spoke well about Cox's character and work ethics [sic]."
1
Cox's arguments are without merit, particularly viewed in light of AEDPA's deferential standard of review. First, he fails to show a failure to investigate. His counsel drew to the court's attention Cox's "mental problems," which were already documented by at least four psychiatrists. The detailed reports and the court's own investigation into Cox's competency to stand trial, see supra at 672-74, did not suggest that additional research would have been fruitful. Nor did Cox present any specific background facts that counsel should have pursued. Counsel had no duty to present mitigating evidence that did not exist. Even on appeal, Cox does not say what evidence counsel could have found. Without any specification of the mitigating evidence that counsel failed to unearth, Cox's claim must fail. See James v. Borg, 24 F.3d 20, 26 (9th Cir.1994) ("Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.").
In any event, our own search of the record shows that there was no "powerful" mitigating evidence left unearthed. Wiggins, 539 U.S. at 534, 123 S. Ct. 2527. Cox "noted no significant problems during his childhood and/or adolescence." The troubles he had encountered in his adult relationships hardly suggested mitigating circumstances: he had fathered two illegitimate *682 children and married the mother of a third (but separated from her prior to the crime); none of the children or their mothers lived with him.[17] As for his drug use, Cox "denie[d] a problematic association with alcohol or illegal controlled substances" although he did "acknowledge weekly consumption of marijuana from age 20 until age 31 and recreational usage of cocaine from the early 1980's until December 1989."[18] These facts did not suggest that further investigation of Cox's life history would unearth mitigating evidence.
2
Nor was counsel deficient for failing to emphasize Cox's limited criminal record. The Pre-Sentence Report ("PSR") already revealed that Cox "possesse[d] limited prior contacts within the criminal justice system" but that "all of his prior contacts have been for violent crimes." (emphasis added).[19] Defense counsel reasonably and presumably strategically chose to emphasize Cox's good behavior while incarcerated after the crime rather than draw further attention to Cox's prior record of limited but violent incidents.
More troubling, but still not deficient, especially in light of Supreme Court precedent, was counsel's decision not to investigate or present additional evidence regarding Cox's use of drugs. The trial court had already ordered psychiatric reports from four doctors and impaneled two Sanity Commissions to ascertain Cox's mental state. These reports had revealed Cox's mental problems, but had also noted that he denied a drug problem and insisted that he only used cocaine in order to study its pernicious effects on others. In any case, counsel did argue that Cox's drug use affected his judgment, and the existing records did not alert him to a further need to investigate or present evidence on that score.[20]
Furthermore, even if counsel could have discovered additional evidence regarding the influence of drugs upon Cox, no prejudice resulted. First, the judge considered Cox's drug use to be aggravating evidence, because he felt that the "use of crack cocaine continue[d] to give real problems to [Cox] in understanding fully, or perceiving fully the real world as others perceive it," and made him "a dangerous person." Offering further evidence of Cox's drug problem could have exacerbated the judge's view that he was dangerous.
*683 Second, Cox had continuouslyand strenuously protested when counsel suggested that his behavior was the result of drug use. Had his lawyer attempted to continue that line of argument, the record suggests that Cox would have stopped him. The Supreme Court recently held that no prejudice could be found in a case where the defendant had interrupted counsel in a similar manner. In Schriro v. Landrigan, ___ U.S. ___, 127 S. Ct. 1933, 1942, 167 L. Ed. 2d 836 (2007), counsel had attempted to put a positive spin on the defendant's actions, but every time he attempted to do so, the defendant interrupted and opposed the introduction of mitigating evidence. The Court held that counsel was not ineffective, even though he failed to present any mitigating evidence, because "regardless of what information counsel might have uncovered in his investigation,[the defendant] would have interrupted and refused to allow his counsel to present any such evidence." Id. The Court explained that prior precedent did not suggest otherwise:
Neither Wiggins nor Strickland addresses a situation in which a client interferes with counsel's efforts to present mitigating evidence to a sentencing court. ... [I]t was not objectively unreasonable for [the state] court to conclude that a defendant who refused to allow the presentation of any mitigating evidence could not establish Strickland prejudice based on his counsel's failure to investigate further possible mitigating evidence.
Id. Under the Court's reasoning in Landrigan, as well as consideration of the judge's stated belief that Cox's drug use underscored his dangerousness, counsel's decision not to present further evidence of his drug use was not prejudicial.
3
Finally, Cox's argument that counsel should have sought out and presented witnesses at resentencing does not merit relief. Cox argues that his wife could have testified. But having her testify would have been a risky strategy, given that Cox and his wife were separated, she was raising his son without him, and by the time of resentencing, they had not seen one another for three years. Although we do not know the contents of her letter, we know that it was brief. It was not unreasonable to avoid the risk of having her cross-examined.
Cox also urges that counsel should have called his "business associates" to testify, rather than simply paraphrasing their assertions that Cox was honest. But their live testimony would have done little to mitigate his culpability for the murder, which they expressly stated they could not understand (suggesting that they did not appreciate the dangerous aspects of his character). Furthermore, a decision to paraphrase the most positive statements made by Cox's associates falls within counsel's "wide latitude ... in making tactical decisions." Strickland, 466 U.S. at 689, 104 S. Ct. 2052.
Nor was it unreasonable for counsel to comment upon the expert statements in the record rather than call the experts to testify directly to the court. Cox offers no reason to believe that the court would have learned anything different or in addition to their reports, and he does not mention any expert who might have offered a new and more powerful mitigating argument. Even during habeas proceedings, Cox did not cite evidence that "should have been discovered" (beyond his general assertions that counsel should have investigated his mental problems and drug use further).
The record suggests no grounds for counsel to believe other witnesses were *684 available who could have testified to Cox's reduced culpability or potential for rehabilitation. Indeed, during the trial Cox sought to speed up the proceedings, explaining that he was tired of the delay in his case and that no further investigation was needed because "the witnesses have all been accounted for that pertain to my case." (emphasis added). The Supreme Court has made clear that "when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether." Strickland, 466 U.S. at 691, 104 S. Ct. 2052.
4
In sum, after scouring the record for mitigating evidence that counsel failed to presentand in light of Cox's failure to present any such evidence on his ownwe must conclude that counsel's investigation was appropriate and reasonable in light of the facts and issues in this case and the applicable AEDPA deferential standard of review. Therefore, the Nevada Supreme Court's denial of relief, despite Cox's claim of ineffective assistance of counsel at resentencing, cannot be said to be "contrary to, or ... an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." § 2254.
IV
For the foregoing reasons, the decision of the district court denying federal habeas relief is
AFFIRMED.
NOTES
[1] The account presented here comes from the testimony of Officer Tyman, and Cox does not dispute its truth. Officer Tyman testified with reference to a report that he wrote "the same night [Cox] was arrested," when the events were "very fresh in [his] memory."
[2] Cox does not argue that the officers asked him questions or pressured him to speak.
[3] Dr. O'Gorman evaluated Cox again a second time and found his emotion "controlled," "no evidence of hallucinations," and repeated his finding that Cox has a "paranoid personality" but no "psychotic reaction" and was thus competent to assist his attorney at trial and understand the charges and potential penalties.
[4] The court amended the criminal information to remove "with use of a deadly weapon."
[5] The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this case, because Cox filed his original federal habeas petition on August 24, 1998. Under AEDPA, we review the district court's decision to deny a habeas petition de novo. Benn v. Lambert, 283 F.3d 1040, 1051 (9th Cir.2002).
A habeas petition must be denied unless the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1)
[6] The distinction is reflected in the different standards of review: the question of voluntariness (whether the defendant's will was overborne) is reviewed de novo, but the question of cognitive capacity (whether the defendant had the requisite mental state as a factual matter) is reviewed for clear error. Collazo v. Estelle, 940 F.2d 411, 415-16 (9th Cir.1991) (en banc).
[7] Cox objects that "an inquiry was never made as to his competency to waive his Miranda rights in March and May of 1990." (emphasis added).
[8] In Innis, officers investigating a murder arrested a suspect, but the shotgun used to commit the crime had not been found. Innis, 446 U.S. at 294, 100 S. Ct. 1682. During the car trip, two officers conversed, and one commented that "`there's a lot of handicapped children running around in this area, and God forbid one of them might find a weapon with shells and they might hurt themselves.'" Id. at 294-95, 100 S. Ct. 1682. The "officers' comments struck a responsive chord," and the suspect was "suddenly [] moved to make a self-incriminating response [offering to show the officers the location of the gun]." Id. at 303, 100 S. Ct. 1682. The Court held that the suspect's right to counsel was not violated, because "the respondent was not subjected by the police to words or actions that the police should have known were reasonably likely to elicit an incriminating response." Id.
[9] The record includes a mental health report written in 2000, in which the examiner found that Cox suffered from a delusional or paranoid disorder and retrospectively opined that "without treatment, it [wa]s inconceivable that Mr. Cox's condition improved and he was mentally competent [to stand trial]." The examiner also opined that Cox's "statements to the arresting officers may not have resulted from a knowing and intelligent waiver of his Miranda rights." Although the examiner concluded that "Cox has a delusional disorder affecting his ability to make rational decisions including waiving his Miranda rights," he did not go so far as to state that Cox's waiver was, in fact, not knowing and intelligent. It is not clear what additional medical examination would have helped illuminate that issue, and Cox does not argue that further examination would refute the government's testimonial evidence supporting the validity of the waiver.
[10] Cox's counsel objected to the introduction of Detective Scroggin's report regarding Cox's statements in the car, but Miranda does not apply to such spontaneous statements, as explained above. Furthermore, the lawyer simply objected to the tardy nature of the disclosure of certain written statements by Detective Scroggin, which included details previous reports had not. Such objection, of course, did not address Cox's competence to waive his Miranda rights.
Most importantly, Cox's counsel never objected to the introduction of the statements Cox made to Officers Tyman and Ransom on March 22, 1990.
[11] The defendant may, of course, elect to represent himself. And if he chooses representation by another, who then fails to assist him adequately, he may file an ineffective assistance of counsel claim.
[12] Cox formally abandoned his claim that trial counsel was ineffective because "he made no effort to have Cox examined to determine if he was competent to be [re]sentenced in September, 1994."
[13] Strickland, Williams, Wiggins, and Schriro v. Landrigan, ___ U.S. ___, 127 S. Ct. 1933, 1942, 167 L. Ed. 2d 836 (2007), described infra at 682-83, all involved the assistance of counsel in the penalty phases of capital cases. They did not expressly state that the same standard would apply in non-capital cases, such as the one at bar. However, the government implicitly agrees with applying this standard to non-capital cases, for it also relies upon Supreme Court capital sentencing precedents to illuminate the proper standard.
In any case, Cox's claims lack merit even when evaluated under the high standard set forth in the Court's death penalty jurisprudence.
[14] Cox apparently was convinced that Wilson conspired to take his money (and acted as if demonically possessed). See supra at 672 (describing testimony by Cox's arresting officers that he had told them "he was framed, that it was self-defense," and "the girl had come to him with fangs and fingernails").
[15] The judge excluded such evidence and Cox sought federal habeas relief on that ground, which the district court denied. Cox does not appeal that ruling.
[16] See infra note 19 & accompanying text.
[17] Ten years after the crime, his youngest son still did not know he was in prison and his wife had not visited him for the previous six years.
[18] A report commissioned by the Assistant Federal Public Defender in 2000 did not reveal further evidence. The report simply confirmed what psychiatrists had told the trial court: that Cox was "cooperative and can-did" but had "illogical thought progressions that involved his cocaine use and the belief in a conspiracy against him" and "a delusional disorder, which is also known as a paranoid disorder." The report offered no new evidence of drug effects that counsel could have unearthed in 1990. See supra note 10 (describing the report).
[19] The PSR stated that Cox "voluntarily acknowledge[d] entering the juvenile justice system at approximately age 16 and sustaining three referrals for violent type offenses.... He entered the adult criminal justice system at approximately age 30, sustaining one misdemeanor conviction for a violent offense."
[20] Cox admitted as much: In an amended state habeas petition, Cox alleged that "Counsel failed to attack the first degree murder charge by presenting evidence of Cox's cocaine use, even though the defense of voluntary intoxication was available to defeat the necessary intent element, and even though counsel later argued these facts in hopes of mitigating the sentence imposed." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2984023/ | May 15, 2014
JUDGMENT
The Fourteenth Court of Appeals
RANDALL ANDREZ JEFFERY, Appellant
NO. 14-13-00987-CR V.
THE STATE OF TEXAS, Appellee
________________________________
This cause was heard on the motion of the appellant to withdraw notice of
appeal. Having considered the motion the Court orders the appeal DISMISSED.
We further order appellant pay all costs expended in the appeal.
We further order the mandate be issued immediately. We further order this
decision certified below for observance. | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2610027/ | 467 P.2d 820 (1970)
George W. HATTERMAN, Plaintiff in Error,
v.
The INDUSTRIAL COMMISSION of Colorado, Illinois-California Express, and Transport Indemnity Company, Defendants in Error.
No. 24235.
Supreme Court of Colorado, In Department.
April 6, 1970.
Marvin Dansky, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for defendant in error Industrial Commission of Colorado.
Wormwood, Wolvington, Renner & Dosh, Byron G. Rogers, Jr., Denver, for other defendants in error.
GROVES, Justice.
The plaintiff in error was claimant under the Workmen's Compensation Act. His claim was reopened upon his petition for additional compensation. After further hearings the Industrial Commission declined to grant further compensation to the claimant. The district court affirmed. We sustain the affirmance.
On March 20, 1963, while in the course of his employment, the claimant was on a flat rack trailer and was struck by falling side gates, thereby causing him to be knocked to the ground. He filed a claim for compensation. On December 23, 1964, he was awarded permanent partial disability of 3½% as a working unit because of a back injury. About 14 months following the accident the claimant began suffering epileptic or cerebral seizures. In November *821 1966, the claimant petitioned for reopening of the claim. The petition was granted. After a hearing before a referee, the Industrial Commission refused to grant further compensation, thereby confirming the referee's determination. In October 1967, the Industrial Commission again reopened the matter upon petition of the claimant and further hearings were had. The referee and Industrial Commission again denied additional compensation, and this denial became the subject of review in the district court and here.
The issues before the Industrial Commission were whether the seizures were traumatic in origin and, if so, whether they resulted from the accident.
The referee, whose findings were confirmed by the Industrial Commission, found that, if the accident were the cause of the seizures, the claimant would necessarily have been rendered unconscious at the time; that he was not rendered unconscious; and that the seizures therefore were of an undetermined etiology.
There was competent testimony which supported the claimant's position that the seizures resulted from the accident. It is fundamental, however, that neither the district court nor this court can usurp the functions of the Industrial Commission and conclude that were we in its position we would grant the claimant further compensation. Rather, the only question before us on review is whether there was competent evidence to support its findings. United Utilities & Specialties Corp. v. Industrial Comm'n., 160 Colo. 518, 418 P.2d 896.
There was conflicting medical testimony as to whether traumatic epilepsy could have been caused by the accident if the claimant were not rendered unconscious. One medical expert expressed the definite opinion that the seizures were not traumatic if he had not been rendered unconscious. At the time of the accident in 1963, Dr. Mogens Jacobsen examined the claimant and made a written report five days later in which he stated that, "initially he was stunned but was not unconscious at any time." In 1966 and 1967, the claimant told experts who were examining him that he had been rendered unconscious at the time of the accident. It readily can be seen that, if Dr. Jacobsen's report constituted competent evidence, the referee was entitled to attach great weight and significance to it.
The claimant argues that Dr. Jacobsen's report was not competent evidence as it was not offered or admitted as an exhibit at any of the hearings. Actually, the report became a part of the Industrial Commission file on March 29, 1963. At the hearing on November 17, 1967, the referee advised the parties that he was going to have a further hearing on December 22, 1967, and mentioned that counsel for the employer had asked to cross-examine certain medical experts whose reports had been filed. He further indicated that the parties should have "everything done" by the time of the further hearing and that he would consider all medical reports in the file. At the last continued hearing counsel for claimant asked to be assured that all evidence taken at prior hearings be considered by the referee. In response the referee said, "I will read every word in the file I promise you."
Rule XX, 8(b) of the Industrial Commission's Rules of Procedure provides as follows:
"When medical examinations are made on behalf of the respondent prior to filing an Admission-Special Liability or prior to a hearing or the entry of an order in the claim, the reports of ALL physicians who so examined the claimant must be filed in duplicate with the Commission.
"If either party believes that the report of any physician so filed is adverse to his case it may elect to secure the attendance of the physician at a hearing and to cross-examine him upon his report."
In his brief the claimant cites Montgomery Ward & Co. v. Industrial *822 Commission, 128 Colo. 465, 263 P.2d 817. In oral argument counsel for the defendants in error employer and insurance company stated that Montgomery Ward is determinative of this matter. In that case written reports of three medical experts, including Dr. Gunderson, were in the Industrial Commission file. The referee requested the employer to notify him within ten days if it wished to bring any medical experts for direct testimony or, "if you wish the reports made a part of the file and an appropriate order entered." Counsel for the employer responded that he wished to present the three doctors involved for direct testimony. The attorneys for the claimant advised the referee that they did not desire to cross-examine these doctors. At the hearing the claimant did not appear and Dr. Gunderson was not called. Dr. Gunderson's report became the basis of some of the findings of the Industrial Commission. This court affirmed the findings of the Industrial Commission and said:
"Dr. Gunderson's report was not formally offered in evidence and it is contended that the Commission should not have considered it. With this we cannot agree. Dr. Gunderson was the employer's witness. The reason that an order making his written report a part of the case was not entered, was that the employer's representatives stated to the referee that they wished to present the doctor for oral examination at the hearing to be held in Denver. This they did not do. Claimant's counsel already had waived the cross-examination of this witness. Certainly no surprise can be claimed in the consideration of the Gunderson report by the Commission."
While the facts are not completely analogous, we find the reasoning and result of Montgomery Ward to be authority supporting the consideration of Dr. Jacobsen's report here. The above quoted rule, combined with the indication of the referee that he was going to consider the reports in the file, placed the claimant in a position from which he should not be allowed to complain now about the consideration of Dr. Jacobsen's report. He did not attempt to cross-examine Dr. Jacobsen nor prevent consideration of the report. The Industrial Commission file was available to claimant and his counsel and, under the circumstances, it was incumbent upon him to apprise himself of its contents, if he were not already so apprised. This report, combined with testimony at the hearings, constituted sufficient competent evidence to support the findings of the Industrial Commission.
Judgment affirmed.
McWILLIAMS, C. J., and KELLEY and LEE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3167765/ | DATE NAME OF CASE (DOCKET NUMBER)
01/07/16 GRANT W. MORGAN VS. RAYMOURS FURNITURE COMPANY, INC.,
ET AL.
A-2830-14T2
Defendants appealed the denial of their motion to compel
arbitration of claims contained in plaintiff's complaint, which
included age discrimination and wrongful termination claims,
arguing that within its employee handbook could be found
plaintiff's agreement to both arbitrate and waive his right to
sue. Although those provisions were located within, the
employer had prefaced the handbook with a disclaimer against any
assumption that its provisions were "contractual in nature."
The court affirmed the denial of arbitration, concluding the
employer could not equitably have it both ways and that the
presence of the employer's disclaimer precluded a determination
that the employee had contracted away his right to sue.
12/30/15 SEOUNG OUK CHO, ET AL. VS. TRINITAS REGIONAL MEDICAL
CENTER, ET AL.
A-5923-13T2
On the day before jury selection in this medical
malpractice case, defendant filed a motion that was purportedly
a "motion in limine," but which sought the dismissal of the
complaint against him in its entirety, an admitted violation of
the rule governing summary judgment motions.
The fact that this misuse of the motion in limine occurs
sufficiently often to win our notice, despite our repeated
cautions against such practice, leads us to conclude it
necessary to state clearly what a motion in limine is not. It
is not a summary judgment motion that happens to be filed on the
eve of trial. When granting a motion will result in the
dismissal of a plaintiff's case or the suppression of a
defendant's defenses, the motion is subject to Rule 4:46, the
rule that governs summary judgment motions. We hold the trial
court's consideration of these motions and dismissal of the
complaint against defendant deprived plaintiffs of their right
to due process of law, reverse that dismissal and remand for
restoration of the complaint to the trial calendar.
12/30/15 J-M MANUFACTURING COMPANY, INC. VS. PHILLIPS & COHEN,
LLP, AND JOHN HENDRIX
A-5867-13T2
We affirm the Rule 4:6-2(e) dismissal of J-M's complaint
based on application of the entire controversy doctrine. In
2006, defendant John Hendrix, plaintiff J-M's former employee,
filed a federal qui tam action in California under the False
Claims Act (FCA), 31 U.S.C.A. §§ 3729-3732, alleging J-M
defrauded various governmental entities in the sale of PVC pipe.
Hendrix gathered the information which formed the basis of the
FCA action while represented by his attorneys, defendant
Phillips & Cohen. The FCA protects legitimate whistleblowers
from counterclaims meant to harass or indemnify a liable
defendant by holding the counterclaims in abeyance until a
defendant's liability is decided. If a defendant is found
liable, the counterclaim is dismissed as the FCA prohibits a
defendant from obtaining indemnification or offset for its
wrongdoing. No counterclaim was filed by J-M.
While the qui tam action was pending final resolution, J-M
sued in New Jersey seeking damages against Hendrix and his
attorneys for Hendrix's investigatory activities, including the
removal or duplication of confidential documents, customer
information, and other claimed breaches of Hendrix's contractual
commitments to J-M. We conclude that the entire controversy
doctrine mandates dismissal of the New Jersey complaint because
it was based on the same transaction or transactional
circumstances as the California proceedings. We further
conclude that in light of the purpose of the entire controversy
doctrine and the policy aims of the FCA, the fact that the cases
were being pursued simultaneously did not prevent application of
the doctrine.
12/29/15 IN THE MATTER OF THE NEW JERSEY MARITIME PILOT &
DOCKING PILOT COMMISSION'S DETERMINATION REGARDING
EXAMINATION REQUIREMENT FOR LICENSURE OF NEW JERSEY
DOCKING PILOTS
A-5176-13T1
In this appeal, appellants challenged the validity of a
regulation adopted by the New Jersey Maritime Pilot & Docking
Pilot Commission, which required docking pilot apprentices to
pass an examination before licensure as a docking pilot. We
rejected appellants' contentions that the regulation was
inconsistent with the New Jersey Maritime Pilot and Docking Act,
which had no such requirement, was contrary to legislative
intent, transgressed the Commissions enabling legislation, and
lacked regulatory standards. We held that the regulation fell
within the substantive authority vested in the Commission under
the Act and was consistent with and achieved the express
legislative policies and overall objectives underlying the Act.
We also held that the docking pilot regulations as a whole
provided sufficient regulatory standards to inform the public
and docking pilot apprentices of the content of the examination.
12/28/15 STATE OF NEW JERSEY VS. MWANZA FITZPATRICK/
STATE OF NEW JERSEY VS. KEEYAN BRISTER
A-2477-14T3/ A-2478-14T3
These consolidated appeals present a question of first
impression of what is the time within which the State can appeal
the denial of a drug offender restraining order sought in
connection with a sentence. At sentencing, the State requested
drug offender restraining orders in accordance with N.J.S.A.
2C:35-5.7(h). The sentencing court denied those applications
and the State appealed. We hold that the governing statute,
N.J.S.A. 2C:35-5.7(k), requires such appeals to be filed within
ten days of the date of sentencing. Because the State failed to
file its notices of appeal in these matters within the ten-day
period, we dismiss both appeals for lack of jurisdiction.
12/22/15 HACKENSACK RIVERKEEPER, INC. AND NY/NJ BAYKEEPER VS.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION
A-1752-12T3
Two non-profit organizations challenged DEP's promulgation
of its "public trust rights rule," N.J.A.C. 7:7-9.48, and
"public access rule," N.J.A.C. 7:7-16.9, first adopted in 2012,
re-codified in 2014, and re-adopted as re-codified in 2015. In
Borough of Avalon v. New Jersey Department of Environmental
Protection, 403 N.J. Super. 590 (App. Div. 2008), certif.
denied, 199 N.J. 133 (2009), we concluded earlier versions of
the rules were "not statutorily authorized and therefore
invalid." Id. at 597. In this opinion, we conclude that the
current regulations are not authorized by case law developed
under the "public trust doctrine," or by CAFRA, and invalidate
the regulations.
12/21/15 STATE OF NEW JERSEY VS. DAVID HUDSON
A-2943-14T4
In this interlocutory matter, we review an order
disqualifying counsel and his firm from representing defendant,
a former Newark police officer. The State moves for
disqualification alleging an actual conflict of interest
resulted because one of the ten Newark police officers
identified by the State as possible witnesses was counsel's
former client. Additionally, the State alleges counsel had a
current conflict based on an appearance of impropriety as he was
an attorney for the Newark Fraternal Order of Police lodge, in
which the Newark police officers are members.
We reverse the order and remand for further proceedings,
concluding the record did not support the finding or existence
of an actual conflict of interest. Further, the trial judge
erred in grounding his determination of a potential conflict on
the appearance of impropriety. We hold the appearance of
impropriety standard may not be used as a basis to find a
conflict of interest under RPC 1.7 or 1.9. In re Supreme Court
Advisory Comm. on Prof'l Ethics Op. No. 697, 188 N.J. 549, 563
n.5, 568 (2006).
12/18/15 IN THE MATTER OF THE NEW JERSEY FIREMEN'S ASSOCIATION
OBLIGATION TO PROVIDE RELIEF APPLICATIONS UNDER THE
OPEN PUBLIC RECORDS ACT
JEFF CARTER VS. JOHN DOE
A-2810-13T2
In this OPRA and common law right of access case, the New
Jersey State Firemen's Association secured a declaratory
judgment that it correctly denied access to records of a relief
award to an Association member. The records requestor appealed.
We conclude a records custodian may not bring a declaratory
judgment action against a record requestor to enforce its right
to withhold records, because OPRA does not provide the records
custodian an independent right of action. As to both OPRA and
the common law, declaratory relief was inappropriate in this
case because the declaratory judgment action was essentially an
effort to preempt an imminent claim by the records requestor;
and allowing a declaratory judgment action solely with respect
to the common law would unnecessarily fragment claims. As a
substantive matter, we conclude that under the circumstances
presented, both OPRA and the common law required disclosure of
documents containing the applicant's name and the award amount.
Judge Messano concurs in the judgment, but declines to join
in the section of the opinion that expresses the general
principle that if there is no private right of action under a
particular statute, a party may not secure a declaration of its
statutory rights under the Declaratory Judgment Act.
12/17/15 MARK LAGERKVIST VS. OFFICE OF THE GOVERNOR OF THE
STATE OF NEW JERSEY AND JAVIER DIAZ, LEGAL
SPECIALIST/RECORDS CUSTODIAN
A-0250-14T3
A journalist appeals a Law Division order denying him
access to records of the Governor and unspecified members of his
senior staff's third-party funded travel. He contends that the
Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13,
required the custodian of the records to have attempted to reach
an agreement with him before denying the request, and that in
any event, his inquiry, which covered a two-year period and did
not specify dates, events, or participants other than the
Governor himself, was not unclear or overbroad.
Having decided the inquiry exceeded OPRA's scope, we also
declined to expand the effect of N.J.S.A. 47:1A 5(g), which
requires the custodian to "attempt[] to reach a reasonable
solution with the requestor" when a records request would
"substantially disrupt agency operations." We found it does not
include this scenario, when research and information, not
records, are sought.
12/15/15 MICHAEL BANDLER VS. ROCCO MELILLO
A-1315-14T2
In this opinion, we address a situation where plaintiff's
only argument on appeal is that the trial judge included dictum
in his written opinion dismissing plaintiff's complaint. He
asked that we redact the dictum from the judge's decision.
We concluded that a party may not parse through the opinion
of a trial judge and take an appeal from words, sentences, or
sections of the opinion that he or she finds objectionable when
the party is not asserting the order or judgment was made in
error. Because appeals are taken from actions of a trial court,
and not from the trial court's rationale, much less dicta, we
dismissed plaintiff's appeal for want of jurisdiction.
12/15/15 STATE OF NEW JERSEY VS. RODNEY J. MILES
A-2692-12T1
The defendant was arrested during an undercover drug
operation. Defendant was charged on a warrant with possession
of a CDS with intent to distribute on or near school property.
Defendant was also charged on a summons with a disorderly
persons offense of possession of marijuana.
After defendant was indicted, he appeared pro se in
municipal court via video conference after being incarcerated
for a family matter. The disorderly persons drug offense, which
was not joined with the indictable offense, was pending.
Without the presence or participation of the State, but in
accord with the existing "practice," the judge amended the
offense to loitering and then took a plea from defendant.
Predicated upon his plea, defendant sought to bar the
prosecution of the indictable charge.
The court held that the subsequent prosecution and
conviction on the indictable charge was barred under the "same
evidence" test which is still recognized under state
constitutional principles. The court reasoned that the
"fundamental fairness" doctrine did not apply, notwithstanding
the State's failure to join the disorderly offense with the
indictable charges and defendant's reasonable expectation that
his plea to the disorderly offense charge resolved all charges
which arose out of his arrest.
12/11/15 IN THE MATTER OF THE ESTATE OF MICHAEL D. FISHER, II
A-0878-14T2
In this case of first impression, we interpret N.J.S.A.
3B:5-14.1(b)(1), which provides that a parent who is deemed to
have "abandoned" his or her child "by willfully forsaking" the
child is barred from sharing in the child's estate if the child
dies intestate. Among other things, we conclude that the party
seeking to apply the statute to bar recovery must demonstrate by
a preponderance of the evidence that the parent, through his or
her intentional conduct, manifested a settled purpose to
permanently forego all parental duties and relinquish all
parental claims to the child.
In our case, we determined that while the parent did not
take the steps needed to resume parenting time with his child
after a final restraining order prohibiting parenting time was
issued near the time of the parties' divorce, he did not intend
to permanently forego all parental duties and claims. Most
notably, the parent continued to pay child support, and was in
contact with the child over social media several months prior to
the child's death.
12/08/15 IN THE MATTER OF BOARD OF FIRE COMMISSIONERS, FIRE
DISTRICT NO. 1, MONROE TOWNSHIP AND MONROE TOWNSHIP
PROFESSIONAL FIREFIGHTERS ASSOCIATION, INTERNATIONAL
ASSOCIATION OF FIREFIGHTERS, LOCAL 3170
A-0765-14T2
Applying the dual motivation test in In re Township of
Bridgewater, 95 N.J. 235 (1984), PERC determined that anti-union
animus was a substantial or motivating factor for the Board's
termination of firefighters. It also rejected as pretextual the
Board's assertion that it fired the firefighters as a cost
saving measure.
We affirmed PERC's determinations and held that after it
reinstates an aggrieved employee, a public employer retains its
rights under the New Jersey Employer-Employee Relations Act,
N.J.S.A. 34:13A-1 to -43, "to discharge a worker for a
legitimate business reason, unrelated to the employee's union
activities." Twp. of Bridgewater, supra, 95 N.J. at 237. The
reinstatement of the employee, therefore, does not forever
preclude the public employer from making legitimate and non-
retaliatory employment decisions.
12/03/15 STATE OF NEW JERSEY VS. WALTER A. TORMASI
A-3830-13T4
Defendant, convicted of his mother's 1996 murder, filed in
2011 a post-conviction relief petition based on an incomplete
affidavit purporting to contain his father's acknowledgement
that he, not defendant, was responsible for the murder; this
thirty-eight-page document was discovered by defendant's brother
shortly after the father's death in 2010. The PCR judge
conducted a testimonial hearing limited solely to the
admissibility of the document; defendant's siblings testified
they had seen the complete document, with a signed and notarized
thirty-ninth page years earlier. The PCR judge concluded —
without opining on the siblings' credibility — that the document
was inadmissible because it was neither handwritten, signed, nor
capable of being authenticated. The court reversed, holding
that, even though incomplete, the document was admissible
pursuant to N.J.R.E. 803(c)(25) and capable of being
authenticated pursuant to N.J.R.E. 901. The court remanded for
consideration of the witnesses' credibility and the other
factors relevant to claims of newly-discovered evidence.
11/25/15 IN THE MATTER OF THE ADOPTION OF THE MONROE TOWNSHIP
HOUSING ELEMENT AND FAIR SHARE PLAN AND IMPLEMENTING
ORDINANCES
A-0688-15T1
In the wake of In re N.J.A.C. 5:96 & 5:97, 221 N.J. 1
(2015), and In re Failure of the Council on Affordable Housing
To Adopt Trust Fund Commitment Regulations, 440 N.J. Super. 220
(App. Div. 2015), the trial court denied the motion of the
Department of Community Affairs to intervene in this action,
which was commenced by the Township of Monroe for a judgment
declaring its housing plan presumptively valid. The DCA sought
to file a counterclaim seeking an accounting and turnover of
Monroe's affordable housing trust funds based on an allegation
that Monroe failed "to spend or commit to spend" the funds with
the period prescribed by law. The court granted leave to appeal
and affirmed substantially for the reasons set forth in Judge
Douglas K. Wolfson's published written opinion.
11/25/15 STATE OF NEW JERSEY V. JEAN A. SENE
A-2256-13T1
The question of first impression presented on this appeal
is whether contact between defendant's vehicle and a victim is a
necessary element of leaving the scene of an accident in
violation of N.J.S.A. 2C:11-5.1. Defendant was driving a taxi
when a pedestrian stepped into his lane of traffic. The
pedestrian fell into the adjoining lane of traffic and was
killed when she was run over by another vehicle. Defendant did
not stop his taxi at the scene and left without speaking to
anyone. A jury convicted him of leaving the scene of a fatal
motor vehicle accident under N.J.S.A. 2C:11-5.1. On appeal,
defendant contends that a necessary element to the crime is
contact between his vehicle and the victim. We disagree and
hold that such contact is not an element of this crime. We also
hold that N.J.S.A. 2C:11-5.1 is not unconstitutionally vague.
We, therefore, affirm defendant's second-degree criminal
conviction.
Because the sentencing judge did not correctly identify the
aggravating and mitigating factors, we remand for resentencing.
We also vacate a $5000 restitution award and remand for a
hearing in accordance with N.J.S.A. 2C:44-2(b), (c).
11/24/15 LISA B. FREEDMAN AND JEFFREY C. ENDA VS. MURRAY N.
SUFRIN AND ELLEN L. SUFRIN, ET AL.
A-4942-13T1
Plaintiffs commenced this quiet-title action in response to
defendants' assertion that a restrictive covenant, which they
imposed years earlier on a former owner of plaintiffs' property,
required that "as many trees . . . as possible" be retained on
plaintiffs' property. In applying the long-standing rule of
strict construction of restrictive covenants of this nature, the
court found numerous ambiguities in the language employed by the
covenant's drafter that suggested, among other things, that the
tree-removal restriction was likely intended to apply only
during the construction of a residence on plaintiffs' property
that occurred many years earlier. Because the strict-
construction rule barred enforcement of the covenant in light of
these ambiguities, the court affirmed the summary judgment
entered in favor of plaintiffs.
11/19/15 ESTATE OF SANDRA BRUST AND PHILIP BRUST, ETC. VS. ACF
INDUSTRIES, LLC, ET AL.
A-3431-13T4
Sandra Brust's father, John Noga, was employed by the Port
Authority Transit Corporation (PATCO) from 1970 to 1977. His
job duties included adjustment and repair of locomotive brakes,
which allegedly released friable asbestos particles into the
air. He also worked on approximately one car a year for resale
after hours at home, removing and replacing automotive brake
shoes in the process. That also allegedly released asbestos
particles into the air. The family moved from New Jersey in
1977. Brust, who was born in 1963, came into contact with
Noga's asbestos-laden clothes when he came home from work and
when she helped her mother wash his laundry. She developed
mesothelioma in 2010. Plaintiffs sued the locomotive and
automotive defendants for personal injuries based on Brust's
secondary exposure to asbestos.
We conclude that Brust's state law claims against the
locomotive defendants regarding her secondary exposure to
asbestos in the years Noga was a PATCO employee were preempted
by federal law, specifically, the Locomotive Inspection Act
(LIA), 49 U.S.C.A. §§ 20701-20703. We further conclude that
Brust's secondary exposure to asbestos resulting from her
father's work on cars was not sufficiently frequent, regular,
and proximate to withstand the automotive defendants' motions
for summary judgment.
11/18/15 STATE OF NEW JERSEY IN THE INTEREST OF C.L.H.'S
WEAPONS
A-0072-14T2
The State appeals from a final order of the Family Part
denying its motion to have C.L.H. forfeit five illegal assault
rifles, among other weapons, and his firearms purchaser
identification card seized pursuant to the Prevention of
Domestic Violence Act of 1991.
Following the entry of a temporary restraining order
against C.L.H.'s wife arising out of a domestic violence
complaint brought by her eighty-one-year-old father, the police
seized the weapons from the couple's home pursuant to N.J.S.A.
2C:25-28j. While the forfeiture action was pending, C.L.H.
advised the prosecutor he was transferring the confiscated
weapons to a licensed firearms dealer pursuant to the 2013 gun
amnesty law. The Family Part determined that because C.L.H. was
not a defendant in the domestic violence case, and the guns were
seized solely because of a restraining order against C.L.H.'s
wife, not allowing him to take advantage of the gun amnesty law
was "not equitable."
The panel reversed, concluding the court erred in
determining the gun amnesty law applied because the weapons were
in the possession of the prosecutor on the law's effective date.
Instead it held that because the five assault firearms were
seized pursuant to the Prevention of Domestic Violence Act and
cannot be returned to C.L.H. under the Domestic Violence
Forfeiture Statute as they are contraband under N.J.S.A. 2C:64-
1a(1), C.L.H. is expressly disqualified from obtaining a handgun
purchase permit or firearms purchaser identification card under
the Gun Control Law, N.J.S.A. 2C:58-3c(8), and thus from
regaining possession of his remaining firearms and his firearms
purchaser identification card held by the prosecutor.
11/18/15 CASEY PIATT VS. POLICE AND FIREMEN'S RETIREMENT
SYSTEM, NEW JERSEY DEPT. OF CORRECTIONS, AND STATE OF
NEW JERSEY
A-5504-12T1
Under N.J.S.A. 43:16A-3 and N.J.A.C. 17:4-2.5(a), a person
must be no more than thirty-five years old when becoming a
member of the Police and Firemen's Retirement System (PFRS).
Plaintiffs are State corrections officers who claim that age
requirement cannot be applied to them. However, the long
history of PFRS makes clear that the Legislature intends to
restrict PFRS membership to persons meeting that age requirement
at the time they become a "policeman" or "fireman." N.J.S.A.
43:16A-3. Although N.J.S.A. 43:16A-3 applies by its terms to
political subdivisions, it also applies to State corrections
officers because the Legislature has included them in the
definition of "policeman." The age requirement serves the
Legislature's goals of using PFRS's heightened benefits to
encourage persons to become officers while young and fit, and to
retire at a relatively early age. Moreover, the PFRS Board by
regulation has properly applied this construction of the PFRS
Act for more than forty years. N.J.A.C. 17:4-2.5(a).
11/13/15 SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION LOCAL
UNION 22 VS. RAYMOND KAVANAGH VS. DAVID CASTNER, ET
AL.
A-3646-13T1
In this appeal of a summary judgment that affirmed a
union's imposition of fines against defendant, the court
affirmed the judge's upholding of the union's finding of
violations and also rejected defendant's contention that he was
wrongfully denied counsel at the union disciplinary proceedings.
The court, however, reversed the trial judge's determination
that the fines were reasonable because the judge did not
consider factors relevant and necessary to that determination.
The case is remanded for the trial judge to employ relevant
factors as set forth in this opinion in assessing the
reasonableness of the fine.
11/12/15 IN THE MATTER OF THE IMPLEMENTATION OF L. 2012, C. 24,
N.J.S.A. 48:3-87(t), ETC.
A-4565-13T3
Construing the Solar Act, N.J.S.A. 48:3-87, we affirmed a
decision of the Board of Public Utilities that appellant's
application could not be considered under N.J.S.A. 48:3-87(t),
because it concerned a solar project to be sited on property
which had been valued, assessed and taxed as farmland. Such
applications are governed by N.J.S.A. 48:3-87(s). In addition,
subsection (t) did not apply to the application because the
property was not a contaminated industrial or commercial site
within the definition of a brownfield, as set forth in N.J.S.A.
48:3-51.
11/09/15 LISA IPPOLITO VS. TOBIA IPPOLITO
A-4840-13T1
In this matrimonial action, the family judge instituted a
contempt proceeding, pursuant to Rule 1:10-2, against defendant
upon the judge's receipt of a letter from plaintiff's counsel
claiming that defendant violated an order which prohibited
defendant from "threatening or intimidating any expert in this
matter." Because the judge presided over the very contempt
proceeding he initiated, failed to appoint counsel to prosecute
the matter, and shifted the burden of persuasion to defendant,
the court vacated the order under review and remanded the
contempt proceeding to the assignment judge to designate another
judge to preside over the contempt proceeding.
11/06/15 ROSALIE BACON VS. NEW JERSEY STATE DEPARTMENT OF
EDUCATION
A-2452-14T1
Plaintiffs, a group of fifteen school districts, and
parents and children from those districts, appeal from the Law
Division's order dismissing their complaint for failure to state
a claim upon which relief can be granted. Plaintiffs brought
the complaint as a summary action "to enforce agency orders"
under Rule 4:67-6(a)(2). Plaintiffs sought to compel defendant
New Jersey State Department of Education to provide the funding
provided by the School Funding Reform Act of 2008 (SFRA), along
with facilities improvements and other measures.
In this opinion, we hold that plaintiffs could not bring
their complaint as a summary action under Rule 4:67-6(a)(2)
because the district-specific needs assessments which plaintiffs
sought to enforce did not require the Department to fully fund
the districts under the SFRA or otherwise provide for specific
relief and, therefore, there were no orders capable of being
enforced under the rule.
11/05/15 MICHAEL CONLEY, JR. AND KATIE M. MAURER VS. MONA
GUERRERO, BRIAN KRAMINITZ, AND MICHELE TANZI
A-3796-13T2
We affirm the trial court's determination that a
residential seller effectively terminated her sale agreement
with plaintiffs during the agreement's three-day attorney review
period, mandated by New Jersey State Bar Association v. New
Jersey Association of Realtor Boards, 93 N.J. 470 (1983), mod.,
94 N.J. 449 (1983). The agreement requires notice of
disapproval by certified mail, telegram or personal delivery to
the realtors; no delivery method is prescribed for notice to
parties. The seller's attorney sent the disapproval letter by
facsimile and email to the buyer's attorney and by email to the
realtor, a dual agent. It was undisputed that the realtor, the
buyer's attorney, and the buyers received actual notice of the
disapproval. The realtor did not complain about the method of
delivery. We conclude that, even assuming the buyers could
enforce the realtor's right to notice by the prescribed delivery
methods, substantial compliance sufficed, since the buyer did
not dispute actual notice and enforcement of the method-of-
delivery requirement would result in a disproportionate
forfeiture of the seller's right to disapprove the contract.
11/02/15 O.Y.P.C. VS. J.C.P.
A-0334-14T1
We remanded this case to the trial court, based on the
Supreme Court's recent decision in H.S.P. v. J.K., __ N.J. __
(2015), and we provided guidance for the trial court to follow
on remand. The trial court had dismissed the application for
lack of jurisdiction, because it concerned an immigrant who was
over the age of eighteen. Following H.S.P., we held that in
addressing an application filed as a predicate step in seeking
special immigrant juvenile (SIJ) status for a person under age
twenty-one, Family Part judges must make the required SIJ
findings regardless of whether other relief can be granted. We
also noted that the Family Court has some sources of
jurisdiction over persons between the ages of eighteen and
twenty-one, and the trial court's reliance on the definition of
"juvenile" set forth in the Code of Juvenile Justice was
misplaced.
10/30/15 STATE OF NEW JERSEY VS. RICKY ZUBER
A-4169-11T2
The United States Supreme Court has held that the Eighth
Amendment forbids the sentence of life without parole for a
juvenile offender who did not commit homicide. Graham v.
Florida, 560 U.S. 48, 74, 130 S. Ct. 2011, 2030, 176 L. Ed. 2d
825, 845 (2010). We hold that Graham applies retroactively.
Assuming Graham can be extended to aggregate term-of-years
sentences imposed consecutively for separate criminal episodes,
defendant's aggregate sentence of fifty-five years before parole
eligibility is not the "functional equivalent" of life without
parole. His sentence gives him a meaningful and realistic
opportunity for parole well within the predicted lifespan for a
person of defendant's age.
This predicted lifespan should be determined using the
CDC's National Vital Statistics Reports, "United States Life
Tables," as used in Appendix I of our Court Rules. When a
Graham claim is raised at a sentencing or PCR hearing, the court
should use the most recent table available for a person of the
defendant's age at the time of the hearing, without injecting
disparities regarding race, sex, and ethnicity.
10/29/15 BOUND BROOK BOARD OF EDUCATION VS. CIRIPOMPA
A-2198-14T1
This appeal involves a teacher-tenure arbitration conducted
pursuant to the Tenure Employees Hearing Law (TEHL), N.J.S.A.
18A:6-10 to -18.1. The Bound Brook Board of Education charged a
high school teacher with two counts of unbecoming conduct and
sought his dismissal. The arbitrator found that the Board
proved the first charge, but not the second charge, and modified
the penalty from dismissal to a 120-day suspension without pay.
The Board then filed an action in the Chancery Division
challenging the arbitrator's award. The Chancery Division judge
vacated the award as procured by undue means pursuant to
N.J.S.A. 2A:24-8(a) and remanded for a new arbitration hearing
before a different arbitrator.
We reversed the vacatur of the arbitration award and
reinstated the award. We also rejected the teacher's argument
that the court lacked authority to order a rehearing before a
different arbitrator beyond forty-five days of the first
arbitration hearing date.
10/26/15 STEPHEN BARR VS. BISHOP ROSEN & CO., INC.
A-2502-14T2
Plaintiff was employed for seventeen years with defendant,
a securities broker-dealer. In defining their relationship by
written agreements in 1997 and 2009, plaintiff consented to
arbitrate any dispute, but he did not expressly waive his right
to sue in a judicial forum. In 2000, defendant advised
plaintiff by memorandum of a federal regulation that required
broker-dealers to advise employees that, when agreeing to
arbitrate, the employee surrenders the right to sue. The court
held, in affirming the trial judge's denial of a motion to
compel arbitration of plaintiff's complaint regarding
compensation, that the 2000 memorandum could not inform or pour
content into the arbitration agreements executed in 1997 and
2009, because the disclosure was not simultaneously made.
10/23/15 IN THE MATTER OF THE ADOPTION OF A CHILD BY J.E.V. AND
D.G.V.
A-3238-13T3
The order terminating parental rights is reversed because
the indigent mother, who placed her special-needs two-year-old
daughter in foster care with a State-licensed private adoption
agency, had a constitutional and statutory right to court-
appointed counsel, beginning when the agency first determined to
proceed with an adoption over the mother's objection. The
agency decided on its own that the mother was an unfit parent
and had abandoned her child. In the future, in similar
circumstances, a private adoption agency must notify the court
when advising an indigent parent of its intention to proceed
with an adoption. The court must devise a procedure for
assigning pro bono counsel to represent an indigent parent in
this situation, prior to the filing of the adoption complaint.
10/22/15 JOHN M. GATELY AND PATTY SUE GATELY VS. HAMILTON
MEMORIAL HOME, INC., D/B/A BRENNA-CELLINI FUNERAL
HOME, AND MARIA E. BRENNA
A-4458-13T2
This appeal arises out of a no-cause jury verdict rejecting
a father's claims that a funeral home wrongfully released the
remains of his adult son for cremation without the father's
authorization. The father contends that he told an individual
employed by the home (known in the trade as an "intern") that he
did not want his son to be cremated. He claims that the intern
and funeral home ignored his protestations and instead
improperly acceded to the contrary direction of the decedent's
mother.
The main and novel legal issue presented to us is whether
the qualified immunity from civil liability granted to funeral
directors under N.J.S.A. 45:7-95 and N.J.S.A. 45:27-22(d)
extends to interns who are employed by funeral homes pursuant to
regulations issued by the State Board of Mortuary Science. The
immunity precludes liability unless the defendant had
"reasonable notice" of untrue representations or a lack of
authorization by the decedent's surviving next of kin.
We conclude that the statutory immunity does extend to such
interns. The trial judge consequently did not err in charging
the elements of the immunity to the jury.
10/21/15 CAROL JACOBY VS. ZONING BOARD OF ADJUSTMENT OF THE
BOROUGH OF ENGLEWOOD CLIFFS, ET AL./ MARCIA DAVIS, ET
AL. VS. BOARD OF ADJUSTMENT OF THE BOROUGH OF
ENGLEWOOD CLIFFS, ET AL.
A-0007-13T1/A-0259-13T1/A-0404-13T1(CONSOLIDATED)
In this prerogative writs case involving the proposed
construction of a building in close proximity to the historic
Palisades Cliffs, we reversed an order upholding a height
variance and remanded to the Zoning Board to conduct further
proceedings consistent with the enhanced standards of N.J.S.A.
40:55D-70(d)(6), as articulated in Grasso v Borough of Spring
Lake Heights, 375 N.J. Super. 41 (App. Div. 2004). We held that
in determining whether the height of the building is "consistent
with the surrounding neighborhood," the Board was obligated to
consider the impact that the structure would have on all
reasonable visual vantage points. We otherwise affirmed the
order upholding a bulk variance pursuant to N.J.S.A. 40:55D-
70(c)(2).
10/20/15 DEPARTMENT OF CHILDREN AND FAMILY, INSTITUTIONAL
ABUSE INVESTIGATION UNIT VS. D.B./ DEPARTMENT OF
CHILDREN AND FAMILIES, INSTITUTIONAL
ABUSE INVESTIGATION UNIT VS. A.G.
A-5434-12T3/A-0276-13T3 (CONSOLIDATED)
(NEWLY PUBLISHED OPINION FOR OCTOBER 20, 2015)
Applying established case law to N.J.A.C. 10:129-7.3,
effective April 1, 2013, the Institutional Abuse Investigation
Unit of the Department of Children and Families appropriately
entered findings of "not established" after investigating
allegations against two defendants — a teacher's aide for a
special needs child and an elementary school art teacher. The
reports, however, must be rewritten to clarify that no
determination as to the validity of the witness's statements was
made.
10/16/15 STANLEY E. WILLIAMS VS. BOROUGH OF CLAYTON
A-3191-14T2
We affirm the trial court's issuance of a declaratory order
confirming that N.J.S.A. 40A:14-129 and -130 restrict the
appointment of Police Chiefs in smaller cities (i.e., those not
of the "first class" or "second class" in population and which
are not civil service jurisdictions) to police officers who have
served in those police departments for at least three years.
The issuance of declaratory relief in this case was
appropriate because there was an actual controversy presented by
the Borough's plan to include external candidates who lack such
statutory eligibility in the testing and selection process for
Police Chief.
We also note that the trial court's order does not require
the Borough to appoint plaintiff, the sole statutorily-qualified
officer who had applied for the position, as Chief. The Borough
may choose to re-advertise the position or pursue other options
not contrary to these statutes.
10/14/15 DEBORAH SPANGENBERG VS. DAVID KOLAKOWSKI
A-2655-14T1
Among the issues reviewed in this post-judgment matrimonial
matter is defendant's argument that plaintiff's cohabitation
requires termination of his alimony obligation, as required by
newly enacted subsection (n), amending N.J.S.A. 2A:34-23. We
rejected defendant's suggestion applying N.J.S.A. 2A:34-23(n),
concluding the provisions are inapplicable to post-judgment
orders finalized before the statute's effective date.
10/14/15 STATE OF NEW JERSEY VS. VANCLEVE ASHLEY
A-0403-12T2
When there has been a plea agreement and a defendant seeks
to withdraw his guilty plea to multiple counts after providing
an inadequate factual basis to support the plea, the remedy is
to vacate the plea in its entirety, reinstate the dismissed
charges and restore both the State and the defendant to their
positions prior to the guilty plea. State v. Campfield, 213
N.J. 218, 232 (2013) (citing State v. Barboza, 115 N.J. 415, 420
(1989)). In this case, we consider whether the same remedy
applies when the guilty plea, lacking an adequate factual basis
for two of three charges, is entered without a plea offer from
the prosecutor, but after the defendant has been advised by the
trial court regarding the maximum sentence the judge was
"inclined" to impose. Because it was intended that the maximum
ten-year sentence the judge was inclined to impose would
globally address all charges and defendant provided an
inadequate factual basis for the most serious offenses, it was
error to deny his motion to vacate his plea and sentence him to
the ten year term.
09/17/15 A.A. VS. CHRISTOPHER J. GRAMICCIONI, ESQ., CAREY J.
HUFF, ESQ., AND OFFICE OF THE COUNTY PROSECUTOR OF
MONMOUTH COUNTY, NEW JERSEY
A-0946-13T3
This appeal involves an anonymous requestor of records
pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1
to -13, and alternatively under the common law right of access,
who seeks to remain anonymous when litigating in the Superior
Court. We conclude there is no statutory authorization, rule
authorization or compelling reason permitting A.A. to prosecute
this matter anonymously. We also conclude that the trial judge
properly dismissed the complaint for failure to comply with Rule
4:67.
09/17/15 JACQUELINE SCHIAVO, ET AL. VS. MARINA DISTRICT
DEVELOPMENT COMPANY, LLC, D/B/A BORGATA CASINO HOTEL &
SPA
A-5983-12T4
Plaintiffs, twenty-one women who are present or former
employees of defendant Marina District Development Company, LLC,
operating as the Borgata Casino Hotel & Spa, appeal from the
summary judgment dismissal of their complaint alleging
violations of the New Jersey Law Against Discrimination (LAD),
N.J.S.A. 10:5-1 to -49, as informed by Title VII of the Civil
Rights Act of 1964 (Title VII), 42 U.S.C.A. §§ 2000e to 2000e-
17. Plaintiffs allege defendant's adoption and application of
personal appearance standards (the PAS) subjected them to
illegal gender stereotyping, sexual harassment, disparate
treatment, disparate impact, and as to some plaintiffs, resulted
in adverse employment actions.
We examine the types of decimation claims and generally
hold the PAS requirements were permitted by N.J.S.A. 10:5-12(p),
a provision allowing an employer to establish reasonable
employee appearance standards and the LAD does not encompass
allegations of discrimination based on weight, appearance, or
sex appeal.
The evidence does not support plaintiffs' claims of gender
stereotyping, disparate treatment, and disparate impact.
However, the record does present a material dispute of facts
regarding defendant's application of the PAS weight standard to
harass certain plaintiffs whose lack of compliance resulted from
documented medical conditions and post-pregnancy, thus targeting
them because of their gender. As to those claims, summary
judgment is reversed and the matter remanded. | 01-03-2023 | 01-07-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2610040/ | 467 P.2d 27 (1970)
81 N.M. 361
Ralph M. COE and Wilhelmina N. Coe, Plaintiffs-Appellants,
v.
CITY OF ALBUQUERQUE, a municipal corporation, Jack Coogan and Alida Coogan, Roland Walters and Mary Walters, Defendants-Appellees.
No. 8739.
Supreme Court of New Mexico.
March 16, 1970.
*28 Oliver Burton Cohen, William H. Carpenter, Albuquerque, for appellants.
Hernandez, Atkinson & Kelsey, Albuquerque, for Coogan & Walters.
Frank M. Mims, Albuquerque, for City of Albuquerque.
OPINION
SISK, Justice.
Plaintiffs appeal from a summary judgment granted to the defendants, City of Albuquerque, Jack Coogan and Alida Coogan, and Roland Walters and Mary Walters. Plaintiffs sought to have three ordinances of the City of Albuquerque declared void, insofar as they affect the property or property rights of plaintiffs. Summary judgment may properly be granted only if the moving party is entitled thereto as a matter of law upon clear and undisputed facts. Ute Park Summer Homes Ass'n v. Maxwell Land Grant Co., 77 N.M. 730, 427 P.2d 249 (1967); Great Western Construction Co. v. N.C. Ribble Co., 77 N.M. 725, 427 P.2d 246 (1967).
In an effort to determine the basis for the granting of summary judgment, it is necessary to briefly review the few relevant pleadings and documents which are contained in the record. The complaint alleges that plaintiffs own certain specific lots in the Netherwood Park Addition in Albuquerque, as shown on a specified plat; that the defendants Coogan and Walters owned portions of property in such addition; that the City of Albuquerque by three ordinances vacated portions of Hermosa, Solano and Euclid Streets contiguous to the property of plaintiffs and defendants, and changed the zoning of plaintiffs' property; and that the ordinances would deprive plaintiffs of valuable property rights of access, in violation of their *29 rights under the federal and state constitutions.
The answers of defendants denied that plaintiffs were improperly deprived of any property rights and alleged that plaintiffs were lawfully notified of hearings before the Planning Commission and the City Commission concerning the zone change and the street vacation; that plaintiffs made no objection to and took no appeal from the action of the City and are estopped from questioning the validity of the ordinances; that plaintiffs failed to exhaust their administrative remedies and therefore cannot maintain this action; and that all actions of the City complied with its various ordinances, which actions were within the proper discretion of the City, and the resulting ordinances were therefore valid.
After hearing on the defendants' motion for summary judgment, the trial court entered an interlocutory order which, after making specific findings of fact, ordered that summary judgment would thereafter be entered dismissing plaintiffs' complaint with prejudice if the plaintiffs were granted an easement to and from their property described as Lots 23 and 26, Block 15, and Block [lot] 47, Block 16, of the Netherwood Park Addition. The order further provided that if the parties were unable to agree on the reasonableness of such access the court would determine that fact. Neither the plat of the addition nor any of the municipal ordinances appear in the record on appeal.
The court found that plaintiffs were duly notified of Planning Commission meetings on August 24, 1965, September 20, 1965, and October 4, 1965; and that the City Commission passed the three ordinances in question on October 12, 1965. The only statements before the court at the summary judgment hearing which concerned notice of any kind were contained in the deposition of Mr. Hernandez and the affidavit of Mr. Carruthers. Mr. Hernandez said that he ascertained that a letter of notification of the application for zone change and vacation of Hermosa Street was sent to and received by plaintiffs, but no mention was made of the date of that letter or of any of the meetings referred to in the court's findings. The affidavit of Mr. Carruthers stated that a certain zoning ordinance required five days' notice of the meeting at which an application was to be considered; that a notice was mailed to plaintiffs on August 12, 1965; and that the City Commission finally passed upon the zone change and street vacation application on October 4, 1965. This testimony is not sufficient to support the specific findings concerning notice which were entered following the summary judgment hearing.
Thereafter, at a hearing on the plaintiffs' motion to set aside the interlocutory order previously entered, the court found that an easement offered to plaintiffs by the defendants Coogan and Walters did afford reasonable access to and from the property of plaintiffs, identified as Lots 23 and 26, Block 15, of a certain plat of the Netherwood Park Addition. The court then specifically granted such easement to plaintiffs and granted summary judgment in favor of defendants.
Such a factual determination at summary judgment hearing was improper. See Rule 56, Rules of Civil Procedure (§ 21-1-1(56) (c), N.M.S.A. 1953); Shumate v. Hillis, 80 N.M. 308, 454 P.2d 965 (1969); Martin v. Board of Education, 79 N.M. 636, 447 P.2d 516 (1968); Johnson v. J.S. & H. Constr. Co., 81 N.M. 42, 462 P.2d 627 (Ct.App. 1969). There is no evidence that the easement offered by defendants, but not agreed to by plaintiffs, was reasonable. The easement granted by the court runs immediately behind and on the side of a shopping center, and covers a distance in excess of 1,000 feet from an existing street to Tract C of plaintiffs' property, which adjoins Tract B. This easement is the only access to these two tracts, and its corner only touches the corner of Tract C.
The record therefore reflects a situation where two tracts of land which previously fronted on streets dedicated by a plat were *30 left completely without access by municipal action in vacating the streets; where the zoning of those tracts was apparently changed from residential to commercial use, though the record does not reflect the actual result of the zone change; and where the trial court by summary judgment held that a long and circuitous private easement to one corner of the landlocked property afforded a reasonable access to that property.
Plaintiffs did not file affidavits or offer testimony to establish that the access provided by the easement was not reasonable, and at a trial on the merits the proof might well support the court's findings and the defenses raised by defendants. But a hearing on motion for summary judgment is not a substitute for trial. Spears v. Canon de Carnue Land Grant, 80 N.M. 766, 461 P.2d 415 (1969). The pleadings, depositions, affidavits and other matters before the court, and all reasonable inferences therefrom must be viewed in their most favorable aspect in support of the parties opposing the motion and of the right to a trial on the issues. Hewitt-Robins, Inc. v. Lea County Sand & Gravel, Inc., 70 N.M. 144, 371 P.2d 795 (1962). It is not possible to say from an examination of the record that there is no genuine issue of material fact concerning the reasonableness of the access granted by the easement.
Nothing in the record reflects what statutes and ordinances were employed by defendants to accomplish the vacation of the streets. There is more than one proper method by which streets may be vacated. Section 14-19-11, N.M.S.A. 1953, provides a means of vacating streets by partial vacation of a filed plat. Section 55-1-7, N.M.S.A. 1953, provides a means of vacating a street when a portion of it is no longer needed for public purposes. Section 14-18-11, N.M.S.A. 1953, provides that after a master plan of an area has been approved, a street can be vacated only with planning commission approval. The procedural requirements to accomplish the vacation by these means differ.
The record does reflect that the vacation was accomplished after planning department approval. The procedures of such a vacation must be implemented by municipal ordinance, and no ordinances appear in the record. We have held that an appellate court which is not trying the case de novo on appeal from a municipal court may not take judicial notice of municipal ordinances and that such ordinances are matters of fact which must be pleaded and proved the same as any other fact. General Services Corp. v. Board of Com'rs, 75 N.M. 550, 408 P.2d 51 (1965). The same principal is applicable in the present case with regard to ordinances which were apparently not before the trial court which granted summary judgment and are not included in the record on appeal to us from that summary judgment. Even if we were able to take judicial notice of all of the City of Albuquerque ordinances which pertain to zone changes and street vacations, it would still not be possible from the record to say that no genuine issue of material fact remains and that summary judgment was proper.
Whatever statutes and ordinances were employed, the end result of the street vacation was to leave two of the plaintiffs' tracts of land completely landlocked without any access whatever. Although the vacation of public streets is essentially a legislative function, the action must comply with constitutional guaranties that property cannot be taken without due process of law; and, if the facts reflect that a substantial property right has been taken, there is a right to have such action reviewed by the courts. Phillips Mercantile Co. v. City of Albuquerque, 60 N.M. 1, 287 P.2d 77 (1955); Thomas v. Jultak, 68 Wyo. 198, 231 P.2d 974 (1951). Various questions enter into the determination of whether a substantial property right has been erroneously taken, which questions must be determined through trial. The present record is deficient of evidence which would enable us to make the necessary determinations as a matter of law in this appeal.
*31 Summary judgment is reversed and the cause remanded to the trial court with instructions to reinstate it on the docket and afford a trial on the merits.
It is so ordered.
TACKETT J., and LaFEL E. OMAN, J., Ct.App., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610060/ | 467 P.2d 715 (1970)
81 N.M. 389
F.A. ARELLANO, Tom P. Crenshaw, Dave Zamora and Rudolph Schwartz, Plaintiffs-in-Error,
v.
Ruben LOPEZ, Mayor of the Village of Cimarron, Defendant-in-Error.
No. 8869.
Supreme Court of New Mexico.
March 31, 1970.
Rehearing Denied April 22, 1970.
Wright & Kastler, Raton, for plaintiffs in error.
McAtee, Marchiondo & Michael, Charles G. Berry, Albuquerque, for defendant in error.
*715 OPINION
MOISE, Chief Justice.
Plaintiffs in error were members of the Town Council of the Village of Cimarron when this action was commenced. They will be hereinafter referred to as defendants as they were in the court below. Defendant in error was the Mayor of the Village of Cimarron and plaintiff below. He will be so designated here. Plaintiff, by his complaint, sought removal from office of defendants Arellano, Crenshaw, and Zamora, because of claimed malfeasance in office. In a second count to the complaint plaintiff sought a declaration that the appointment of defendant Schwartz as a member of the Village Council was null and void and an order removing him from office. In a third cause of action plaintiff asked the court to declare that defendant Chavez had been illegally and improperly appointed as a police officer in the Village, and that he be removed from the office. For a fourth cause of action plaintiff asked for compensatory and punitive damages from the defendants because of the expense to which he had been put in employing counsel and bringing the action, and because of the alleged "willful, wanton, malicious, arbitrary, capricious, fraudulent conduct" of the defendants. The third count concerning defendant Chavez was dismissed by the court, as was the fourth count wherein compensatory and punitive damages were sought. No appeal or writ of error was prosecuted from these dismissals. Accordingly, the questions presented by counts one and two were tried to the court, and resulted in a conclusion that the three defendants named in cause of action number one were guilty of "intentionally, willfully, arbitrarily, capriciously, and maliciously enter[ing] into a plan or scheme between them to harass plaintiff and usurp the powers and duties of the office of mayor" and that because of their actions they should be removed. Concerning count two, the court concluded that the appointment of defendant Schwartz was wrongful and illegal and should be declared null and void, and that after his appointment defendant Schwartz joined with the other defendants in their plans and schemes and accordingly was guilty of malfeasance in office and should be removed. From the judgment entered pursuant to the court's decision, defendants sought and obtained the issuance of a writ of error by this court.
Although the court's findings disclose a number of matters of conflict between the plaintiff and defendants, they are summarized by plaintiff in his answer brief as follows:
"1. Refused to advise and consent to the appointment of Joe Rosso to fulfill the vacancy on the Village Council.
"2. Refused to advise and consent to the appointment of Gene Pompeo to fulfill the vacancy on the Village Council.
"3. Appointed, over the objections of plaintiff, Mr. Rudolph Schwartz to fulfill the vacancy existing on the Village Council.
"4 The defendant Rudolph Schwartz joined into such scheme by accepting such appointment and proceeding to act thereunder.
"5. Refused to act upon the appointments submitted to them to fulfill the vacancy of police officer.
"6. Refused to act upon appointments submitted to them by the plaintiff to fulfill the vacancy of water superintendent.
"7. Reappointed Mr. Paul Chavez to the office of police officer over the objections of the plaintiff.
"8. Proceeded to take over the supervision of the village police department."
Without attempting to detail the facts surrounding each of these items, it should be sufficient to note that the record discloses a considerable conflict existed between the parties. They arose primarily because of the defendants' refusal to approve either of two men nominated by plaintiff to fill a vacancy on the Council, and because when plaintiff left a regular meeting of the Council before adjournment, *717 upon a nomination by the president "pro tem" of the Council, the three members proceeded to appoint defendant Schwartz and have him immediately sworn into office. Also, a conflict existed between plaintiff and the three Council members, exclusive of defendant Schwartz, over appointment of a police chief and water superintendent.
Accordingly, we are called upon to determine that the acts of defendants constitute malfeasance in office as that term is used in § 14-9-8, N.M.S.A., 1953 Comp., reading:
"Any person elected or appointed to an elective office of a municipality may be removed for malfeasance in office by the district court upon complaint of the mayor or governing body of the municipality. * * *"
The powers of the mayor are set forth in §§ 14-10-2 to 14-10-7, N.M.S.A., 1953 Comp. Of particular importance to a consideration of our problem are §§ 14-10-5 (A), 14-10-6(A) (1), and 14-11-1, N.M.S.A., 1953 Comp. These sections read:
14-10-5:
"A. At the organizational meeting of the governing body, which shall be held on the second Monday following the election, the mayor shall submit, for confirmation by the governing body, the names of persons who shall fill the appointive offices of the municipality and the names of persons who shall be employed by the municipality. If the governing body fails to confirm any person as an appointive official or employee of the municipality, the mayor at the next regular meeting of the governing body shall submit the name of another person to fill the appointed office or to be employed by the municipality." (Emphasis added.)
14-10-6:
"A. Subject to the approval of a majority of all members of the governing body, the mayor shall:
(1) appoint all officers and employees except those holding elective office; * * *." (Emphasis added.)
14-11-1:
"Any vacancy on the governing body of a mayor-council municipality shall be filled by appointment of a qualified elector by the mayor of the municipality, with the advice and consent of the governing body. Any qualified elector appointed to fill a vacancy on the governing body shall serve until the next regular municipal election, at which time a qualified elector shall be elected to fill the remaining unexpired term, if any." (Emphasis added.)
From the plain language of the statutes quoted, the governing body has an important part to play in the selection of the appointive officers and employees of the municipality, and in the selection of a person to fill a vacancy on the village council. In failing to approve the Mayor's selection, or in refusing to give "advice and consent" to the Mayor's selection of a particular person to fill a vacancy on the Council, and in filling it themselves, were the defendant members of the Council guilty of malfeasance and accordingly subject to removal upon complaint of the Mayor under § 14-9-8, supra? We are convinced that the simple answer must be in the negative. The power to appoint being in the mayor, subject to "confirmation by the governing body," or "[s]ubject to the approval of a majority of all members of the governing body," or "with the advice and consent of the governing body," there can be no appointment until the confirmation, approval, or advice and consent, as the case may be, has been obtained. See Strachan v. Mayor of Everett, 326 Mass. 659, 96 N.E.2d 392 (1951); Broadwater v. Booth, 116 W. Va. 274, 180 S.E. 180 (1935); State ex rel. Sandquist v. Rogers, 93 Mont. 355, 18 P.2d 617 (1933).
The only cause for removal contained in the statutes is malfeasance. The term "malfeasance" has been variously defined *718 as a comprehensive term which includes any wrongful conduct affecting performance of official duties, State ex rel. LaMon v. Town of Westport, 73 Wash.2d 255, 438 P.2d 200, 202 (1968); or as a wrongful act which the actor had no legal right to do, or any wrongful conduct which affects, interrupts, or interferes with performance of official duties, or an act for which there is no authority or warrant of law or which a person ought not to do at all, or the unjust performance of some act, which party performing it has no right, Daugherty v. Ellis, 142 W. Va. 340, 97 S.E.2d 33 (1956); or doing an act which is wholly wrongful and unlawful, and which an officer has no authority to do, and if the act is discretionary it must have been done with an improper or corrupt motive, People v. Schneider, 133 Colo. 173, 292 P.2d 982, 985 (1956); also, as evildoing, the doing of an act which is wholly wrongful and unlawful, State v. Langley, 214 Or. 445, 315 P.2d 560, 323 P.2d 301, 309 (1958). We quote from State ex rel. Hardie v. Coleman, 115 Fla. 119, 155 So. 129 (1934):
"Malfeasance has reference to evil conduct or an illegal deed, the doing of that which one ought not to do, the performance of an act by an officer in his official capacity that is wholly illegal and wrongful, which he has no right to perform or which he has contracted not to do. `Words and Phrases, First, Second, Third, and Fourth Series, malfeasance; Webster's New International Dictionary.'
"Misfeasance is sometimes loosely applied in the sense of malfeasance. Appropriately used, misfeasance has reference to the performance by an officer in his official capacity of a legal act in an improper or illegal manner, while malfeasance is the doing of an official act in an unlawful manner. Misfeasance is literally a misdeed or a trespass, while nonfeasance has reference to the neglect or refusal without sufficient excuse to do that which was an officer's legal duty to do."
The following is stated in Jacobsen v. Nagel, 255 Minn. 300, 96 N.W.2d 569 (1959):
"That which constitutes malfeasance in an official capacity is not susceptible of an exact definition. It `has reference to evil conduct or an illegal deed, the doing of that which one ought not to do, the performance of an act by an officer in his official capacity that is wholly illegal and wrongful.' 43 Am.Jur., Public Officers, § 195."
The definitions could be multiplied many-fold, but to no purpose. Those set forth above should suffice.
In the light of these definitions we must here decide if the facts as found support the finding of malfeasance and the removal based thereon. We have no question in our minds that merely failing to consent to or approve an appointment cannot possibly come within any of the definitions above set forth. This is certainly true of the discretionary acts here in question unless done with improper, unlawful, or corrupt motives. People v. Schneider, supra. The court found that the acts in question were done intentionally, wilfully, arbitrarily, capriciously, and maliciously as a part of a plan or scheme entered into between them to harass the plaintiff. We assume, for the sake of argument, that the acts, if performed with the motives and for the reasons found by the court, would constitute malfeasance, but we do not find in the proof anything that can be described as substantial evidence which supports the descriptive terms used. All we see is a disagreement between officials, well within their statutory powers. The reasons may have been personal antagonism or animosity, it may have been politically motivated, or it may have been the result of something totally different, but how the recitals in the record as to what transpired at the various meetings of the Council when viewed in their best light in support of the findings made can possibly support a finding of malice or conspiracy to harass or an inference to this effect is beyond us. It is our conclusion that there is a total absence *719 of substantial evidence or inferences to support the court's findings as to reasons and motives, and accordingly they cannot stand in support of the conclusion of removal. Compare Herrell v. Piner, 78 N.M. 664, 437 P.2d 125 (1968).
We would add a word that malfeasance should never be inferred or elected officials removed from the office to which the public has elected them without strong proof of wilful and knowing wrongdoing. Vandergriff v. State, 185 Tenn. 386, 206 S.W.2d 395 (1937); Bateman v. State, 214 Ind. 138, 14 N.E.2d 1007 (1938); State v. Manning, 220 Iowa 525, 259 N.W. 213 (1935); In re Higgins, 266 A.D. 762, 41 N.Y.S.2d 122 (1943); In re Shoaf, 370 Pa. 567, 88 A.2d 871 (1952), from which we quote:
"When the people of any municipality, in a duly constituted election, select certain individuals to conduct their local government, those representatives of the people may be removed from office only upon showing of a perverseness which amounts to criminality or culpable indifference to their official duties." See, also, Jacobsen v. Nagel, supra.
A special word is required concerning the question arising by virtue of the appointment of defendant Schwartz by the mayor pro tem. That there may be a real question concerning the legality of this appointment we do not doubt since the power to fill vacancies in the Council is by statute placed in the mayor with advice and consent of the Council. § 14-11-1, N.M.S.A. 1953. However, if we assume, without deciding the issue that the appointment was invalid, the term for which defendant Schwartz was elected has expired and whatever effects may have been present in his original selection, the question is now moot. See In re Thaxton, 78 N.M. 668, 437 P.2d 129 (1968). We are advised that he is now a member of the Council by virtue of having been elected. We see no purpose to be served by any pronouncement we might make concerning the argument which surrounded his original appointment and efforts to have the appointment declared illegal and void. At least during the period he served under the appointment, whether legal or not, he was a de facto member of the Council, if not a de jure one. See 3 McQuillen, Municipal Corporations (3rd Ed.Rev.), § 12.102. He was clothed with all the powers of a de jure councilman if, indeed, he was not one. 3 McQuillen, Municipal Corporations (3rd Ed.Rev.), §§ 12.106 and 12.107.
We are satisfied that no sufficient showing was made of such malfeasance in office as would support the trial court's findings and conclusions. It follows that the judgment of removal should be reversed.
It is so ordered.
COMPTON and TACKETT, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876048/ | 260 S.W.3d 462 (2008)
In the Interest of D.W., T.W., and S.G., Children.
No. 08-0258.
Supreme Court of Texas.
July 25, 2008.
Melissa Lee Russell Paschall, Assistant District Attorney, Charles M. Mallin, Sharon Johnson, Assistant Criminal District Attorney, Fort Worth, TX, Duke Elton Hooten, Trevor Allen Woodruff, Michael C. Shulman, Texas Department of Family and Protective Services, Austin, TX, for Texas Department of Family and Protective Services.
Rachel Holland Moore, Koons, Fuller, Vanden Eykel & Robertson, P.C., Southlake, TX, Dean M. Swanda, Swanda & Swanda, PC, Arlington, TX, for Betty Washington.
Lee Ryan Owens, Owens & Owens, Arlington, TX, for D.W.
Michael B. Berger, Fort Worth, TX, for Ricardo Rosco.
PER CURIAM.
The petition for review is denied. In denying the petition, we neither approve nor disapprove the holding of the court of appeals regarding the constitutionality of Texas Family Code section 263.405(i). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1903523/ | 773 N.W.2d 225 (2009)
2009 WI App 128
STATE
v.
SMITH.
No. 2008AP1479-CR.
Court of Appeals of Wisconsin.
July 21, 2009.
Unpublished Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2898864/ | NO. 07-09-0136-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
AUGUST 20, 2009
______________________________
IN THE INTEREST OF Z.A.S., A CHILD
_________________________________
FROM THE 154TH DISTRICT COURT OF LAMB COUNTY;
NO. 17,297; HONORABLE FELIX KLEIN, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION
In this restricted appeal, appellant J.S.J. appeals a default judgment adjudicating
paternity of a child, Z.A.S. Appellee Office of the Attorney General of Texas confesses error through a joint motion of the parties requesting reversal and remand. Based on our finding of reversible error on the face of the record, the judgment will be reversed and remanded for further proceedings.
Background
The Attorney General sued to establish J.S.J. as biological father of Z.A.S. and set child support. J.S.J. was served with process and filed a
pro se
general denial. The trial court set the matter for final hearing. The clerk’s record contains an “Order Establishing the Parent-Child Relationship,” signed October 29, 2008. According to findings in the order, J.S.J., “although duly notified, did not appear,” and “[a] record of the proceedings was waived by the parties with the consent of the court.” The order adjudged J.S.J. the biological father of Z.A.S., appointed him a possessory conservator of the child, and ordered J.S.J. make current and retroactive child support payments. J.S.J. filed no post-trial motions and the record contains no action by him in the case until he filed a notice of restricted appeal within six months of the trial court’s order.
The Attorney General did not file an appellate brief. Instead, on August 13, 2009, the parties filed a document entitled “Joint Motion for Reversal and Remand and for Immediate Issuance of Mandate.” The motion bears the signatures of an assistant attorney general and counsel for J.S.J. The motion states J.S.J. was not present in person or by counsel for the hearing of the Attorney General’s suit, and by consenting to waiver of a record in J.S.J.’s absence the trial court erred.
Analysis
J.S.J. presents three issues on appeal. We find his first issue dispositive. Through it he challenges the trial court’s proceeding to judgment in default without a proper waiver of a reporter’s record.
A restricted appeal must be brought within six months of the date the trial court signs the judgment, by a party to the suit, who did not participate in the actual trial, and the error complained of must be apparent from the face of the record. Tex. R. App. P. 26.1(c);
Norman Communications v. Texas Eastman Co.,
955 S.W.2d 269, 270 (Tex. 1997) (per curiam) (discussing former writ of error procedure).
Of the grounds necessary for a restricted appeal, the sole question in the present matter is whether error appears on the face of the record. For purposes of restricted appeal, the face of the record consists of all papers on file in the appeal.
Id.
From the judgment of the trial court and the allegations of the joint motion, the trial court tried the Attorney General’s petition in the absence of J.S.J. without making a reporter’s record. Family Code Section 105.003 requires a record of the proceeding unless waived by the parties with the consent of the court. Tex. Fam. Code Ann. § 105.003(c) (Vernon 2008).
In
Stubbs v. Stubbs,
the court held that the statutory predecessor of section 105.003 placed an affirmative duty on the trial court to ensure that the court reporter makes a record of proceedings involving parent-child relationships, and failure to do so constitutes error on the face of the record requiring reversal. 685 S.W.2d 643, 645-46 (Tex. 1985);
In re Vega,
10 S.W.3d 720, 722 (Tex.App.–Amarillo 1999, no pet.). Section 105.003(c) places the same duty on the trial court.
See In re D.J.M.,
114 S.W.3d 637, 639 (Tex.App.–Fort Worth 2003, pet. denied).
The order at bar recites the parties waived a record of the proceedings. J.S.J., however, was not present in person or by counsel to make a valid waiver. In
In re Vega,
when confronted with similar circumstances, we held where a party is neither present nor represented by counsel at the hearing, making a record cannot be waived as to the absent party and a trial court commits error in consenting to the waiver of a record. 10 S.W.3d at 722 (
citing O'Connell v. O’Connell,
661 S.W.2d 261, 263 (Tex.App.–Houston [1st Dist.] 1983, no writ);
G.S.K. v. T.K.N.,
940 S.W.2d 797, 799 (Tex.App.–El Paso 1997, no writ)). The holding applies here. The trial court’s error is reversible error because, without a reporter’s record, we cannot determine whether the evidence supporting the trial court’s judgment was factually or legally sufficient. Tex. R. App. P. 44.1(a)(2).
J.S.J.’s prayer for relief also asks that we vacate an administrative writ of withholding issued by the Attorney General.
See
Tex. Fam. Code Ann. § 158.501(a) (Vernon 2008). The record contains no indication J.S.J. presented his request for vacation of the writ of withholding to the trial court.
See
Tex. Fam. Code Ann. § 158.506(a)-(c) (Vernon 2008). His appellate complaint concerning the writ of withholding presents nothing for our review.
See
Tex. R. App. P. 33.1 (requiring timely request to trial court as prerequisite to appellate review).
Accordingly, we sustain the first issue of J.S.J. to the extent it seeks reversal of the trial court’s order. Determination of his remaining issues is unnecessary to our disposition of the appeal.
See
Tex. R. App. P. 47.1.
The parties brought the joint motion according to Rule of Appellate Procedure 42.1 seeking reversal and remand and immediate issuance of mandate. We
may not “order a new trial merely on the agreement of the parties absent reversible error . . . .” Notes and Comments, Tex. R. App. P. 42.1.
Here, however, reversible error appears on the face of the record. The parties also ask that mandate issue concurrently with our opinion and judgment. Rule of Appellate Procedure 18.1(c) authorizes the early issuance of mandate on the motion of the parties. Tex. R. App. P. 18.1(c). We grant the joint motion.
Rule of Appellate Procedure 39.8 requires the clerk provide the parties a specified form of notice at least twenty-one days before argument or submission without argument.
See
Tex. R. App. P. 39.8. To expedite a decision, Rule of Appellate Procedure 2 authorizes a court on its own initiative to suspend the operation of a rule in a particular case. Tex. R. App. P. 2. By the joint motion, the parties seek immediate appellate relief. On our own initiative, we have applied Rule 2 and submitted the case without Rule 39.8 notice.
Conclusion
Having sustained the first issue of J.S.J. with respect to the action of the trial court, and granted the parties’ joint motion, we reverse the trial court’s
“Order Establishing the Parent-Child Relationship,” signed October 29, 2008,
and remand the case for further proceedings. Tex. R. App. P. 43.2(d). Mandate shall issue concurrently with this opinion and our judgment.
James T. Campbell
Justice | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3346295/ | A recital of the facts of this case as alleged in the pleadings would be of considerable length and is unnecessary.
The defendants claim that the plaintiff, by failing within due season to make an election as to acceptance of the terms of the will of Eleanor Mueller, dec'd., has forfeited his right to make any claim against the estate.
The plaintiff does not here make any claim against the estate. He claims that one-half of the real estate in possession of the administrator of the estate and the heirs of the deceased never did belong to the deceased, but belongs to him; and he claims that what is his be now delivered to him by those in possession of it.
The defendants rely upon section 5156 of the General Statutes, Revision of 1930, and cases based upon this statute. This statute has no application to the cause of action set forth *Page 142
by the plaintiff in his complaint.
The motion of the defendants, Ethel Northrup and Edith Pachl, for judgment upon the pleadings is denied. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2224643/ | 146 Wis.2d 636 (1988)
431 N.W.2d 737
Kris A. KETTNER, Plaintiff-Respondent,
v.
MILWAUKEE MUTUAL INSURANCE COMPANY and Dale M. Schuessler, Defendants-Appellants,[]
FIREMAN'S FUND EMPLOYERS INSURANCE COMPANY and Secura Insurance, formerly known as Home Mutual Insurance Company, Defendants.
No. 88-0101.
Court of Appeals of Wisconsin.
Submitted on briefs September 21, 1988.
Decided September 27, 1988.
*637 For defendants-appellants there were briefs by Alan S. Hoff of Glenn & Hoff, S.C., Appleton.
*638 For plaintiff-respondent there was a brief by James R. Long, Appleton.
Before Cane, P.J., LaRocque and Myse, JJ.
MYSE, J.
Milwaukee Mutual Insurance Company appeals a decision denying its post-verdict motions to limit Kris Kettner's recovery in a personal injury case to $100,000 or for a new trial. Milwaukee Mutual contends that the trial court erred by refusing to use Kettner's pretrial admission to reduce the jury's damages award to $100,000 or, alternatively, by denying its motion for a new trial. Because we conclude that a personal injury claim's value is not subject to a request for admission under sec. 804.11, Stats., and that Kettner is not bound to his admitted claim value by the doctrine of estoppel, we affirm.
Kettner brought a claim against Dale Schuessler, Secura Insurance Company, and Milwaukee Mutual for injuries Kettner sustained when his motorcycle collided with a vehicle Schuessler was driving. As Schuessler's excess carrier, Milwaukee Mutual was only liable for damages exceeding $100,000.
Milwaukee Mutual took the position early on that it would limit its participation in discovery and might not even attend the trial. This position was apparently taken because of Milwaukee Mutual's belief that Kettner was unlikely to recover damages in excess of those covered by Schuessler's primary insurer.
In May, 1987, Milwaukee Mutual submitted a request that Kettner admit that "the value of the plaintiff's claim for injuries in this case, taking into account his own contributory negligence does not exceed $100,000.00." Kettner responded that "said statement is admitted." Following this admission, Kettner's attorney submitted an offer of settlement *639 agreeing to settle the case for $90,000. None of the defendants responded to this offer.
Milwaukee Mutual brought a motion for summary judgment based on the admission, but the motion was denied because it was not brought within the time provided for such motions in the scheduling order. Milwaukee Mutual's attorneys contend that they then returned the file to Milwaukee Mutual's office in reliance on Kettner's admission and did not further participate fully in the trial or its preparation.
Kettner's treating physician, Dr. Schmitz, was deposed on October 5, 1987, but Milwaukee Mutual's attorneys were given an incorrect date for the videotape deposition and did not attend. They brought a motion on October 9, objecting to the use of the testimony at trial because they were unable to attend the deposition. The trial court allowed Milwaukee Mutual to review the deposition and make such objections as they believed appropriate. After reviewing the deposition, Milwaukee Mutual withdrew its objection.
During the course of the videotape deposition, Dr. Schmitz expressed an opinion that Kettner's permanent disability was between fifteen and twenty percent. Prior to that, and at the time the disputed $100,000 admission was made, his opinion was that Kettner's permanent disability was ten percent.
Milwaukee Mutual's counsel attended and participated in the trial. The jury awarded Kettner $227,080.05, which was reduced to $158,956.03 because Kettner was found contributorily negligent. Milwaukee Mutual then filed several motions, including a motion for a new trial and, alternatively, a motion to limit Kettner's recovery to $100,000 based *640 on the request for admission. The trial court denied these motions.
Milwaukee Mutual appears to be making two arguments. First, it argues that the trial court abused its discretion by refusing to grant Milwaukee Mutual's post-verdict motion to cap the verdict at $100,000 because the value of a claim is a proper subject for a sec. 804.11 request for admission.[1] Second, Milwaukee Mutual argues that Kettner waived any objection as to whether this is an appropriate subject for a request for admission because he never objected to it. We construe the waiver argument to be an attempt to limit Kettner's recovery to the value recited in the admission. Because this is essentially an estoppel argument, we treat it accordingly.
Section 804.11 permits a request for admission that would be dispositive of the entire case, including *641 requests for "ultimate facts." Schmid v. Olsen, 111 Wis. 2d 228, 236, 330 N.W.2d 547, 551 (1983). Therefore, Milwaukee Mutual is correct insofar as it asserts that the proper subjects for requests for an admission have been expanded by the adoption of sec. 804.11. However, neither Schmid nor Bank of Two Rivers v. Zimmer, 112 Wis. 2d 624, 334 N.W.2d 230 (1983), address the issue of whether a request for an admission can be used to establish the value of a claim.
We conclude that while certain components of a claim, such as past or future medical bills or lost wages are proper subjects for a sec. 804.11 request for admission, the claim's total value, including disability and pain and suffering, is not. There are several reasons for this conclusion. First, the legislature has already adopted a statute designed to facilitate the negotiation and settlement of claims. Section 807.01, Stats., provides a mechanism through which parties can make offers of settlement or judgment and recover costs and interest if the serving party ultimately does better at trial than it would have done had the offer been accepted.
Allowing a request for an admission as to the value of a claim would defeat the policy that favors settlement of claims by providing a means to evade sec. 807.01. While an accepted offer of settlement ends a case between the involved parties, a request for admissions like the one here does not. The case still proceeds to trial, the nature of which is not changed by the admission. The admission does not expedite the trial, nor does it solve any evidentiary problems. Additionally, only the party admitting the claim's value would be bound by the admission.
*642 [1]
The purpose of sec. 807.01 is to encourage settlement. Sachsenmaier v. Mittlestadt. 145 Wis. 2d 781, 791, 429 N.W.2d 532, 536 (Ct. App. 1988). This purpose would be undercut if claim values were an appropriate subject for a sec. 804.11 request for admission. We must construe statutes on the same subject matter in a manner that harmonizes them so as to give each one full force and effect. Glinski v. Sheldon, 88 Wis. 2d 509, 519, 276 N.W.2d 815, 820 (1979). Furthermore, because the legislature has provided a specific means for dealing with the value of a claim, the more general provisions found in sec. 804.11 should not govern the settlement of claims and their values. See Ballenger v. Door County, 131 Wis. 2d 422, 433, 388 N.W.2d 624, 630 (Ct. App. 1986).
Perhaps the more significant problem in using a request for admission for this purpose is the difficulty in naming the precise value of a claim months or years before the case actually goes to trial. Section 804.11 speaks in terms of admitting the "truth" of various matters. Therefore, certain aspects of a damage claim that are capable of determination and fixed in time are subject to a request for admission. But the value of a claim for pain and suffering and disability is inherently variable, especially when a long period of time elapses between submission of the request and the trial. While it is true that the admitting party can later make a motion to amend or withdraw an admission, the trial court's ability to grant such relief is limited if the requester would be prejudiced as a result. See Schmid, 111 Wis. 2d at 239, 330 N.W.2d at 553.
The facts of this case demonstrate this problem particularly well. The admission was made in June. *643 Prior to the trial in October, Kettner's treating physician changed his opinion as to the extent of Kettner's permanent disability. Had Kettner's attorney known this at the time of the admission, it presumably would have affected his opinion as to the claim's value.
If claim value were a proper subject for a request for admission, the trial court could have denied Kettner the right to change or withdraw his answer if to do so would have prejudiced Milwaukee Mutual. Kettner could thus have been deprived of the benefit of his expert's revised opinion. Because demands for admissions may be made so early in a case, it would be almost impossible for counsel to accurately respond to a requested admission as to a claim's value without jeopardizing his or her case.
Milwaukee Mutual argues that Schmid and Bank of Two Rivers control here. We disagree. In Schmid, the plaintiff requested the defendant to admit that she was seventy percent causally negligent in a car-motorcycle accident in which the plaintiff was injured. The supreme court recognized that this could be a proper subject for a request for admission. In Bank of Two Rivers, the court held that a request to admit that a party in a land dispute had no interest "of record" in a piece of land was allowable under sec. 804.11.
Both cases involved application of a legal concept to a set of facts, which are fixed in time and susceptible to valuation. In addition, these requests were made by the party who had the burden of proving the fact subject to the request for admission. The same is not true here. While Schmid and Bank of Two Rivers involved "ultimate facts" whose truth could be acknowledged, the value of a claim is inherently variable, *644 being based on a series of factors that constantly change prior to and during the trial.
[2]
The use of requests for admissions as to claim value intrudes into an area specifically provided by the legislature, presents a potential for abuse by penalizing a party for failing to accurately predict the jury answer to the damage question, and is inconsistent with the orderly settlement or trial of personal injury claims. We conclude that the total value of a personal injury claim is not a matter that a party can truthfully admit or deny under sec. 804.11. Therefore, the trial court did not abuse its discretion by denying Milwaukee Mutual's motions.
[3]
Milwaukee Mutual also argues that even though the claim's value may not be a proper subject for admission, it relief upon this admission to its detriment and, therefore, Kettner should be bound by it. For estoppel to bind Kettner to the admission, there must be conduct by Kettner that induced Milwaukee Mutual to reasonably rely on that conduct to its detriment. See Amtronix Industries, Ltd. v. LIRC, 115 Wis. 2d 108, 116, 339 N.W.2d 802, 806 (Ct. App. 1983). We reject this argument because Kettner's admission did not induce reliance by Milwaukee Mutual, nor would such reliance have been reasonable.
While Milwaukee Mutual's attorneys contend that they relied upon the admission and returned the file to their home office, the record discloses that they participated in discovery and the trial. For example, although they objected to the use of the videotape deposition taken in their absence, they withdrew the objection after reviewing the deposition. To the extent that Milwaukee Mutual failed to fully participate in *645 the case, this failure was a result of its belief, expressed to Kettner's attorney early on in the matter, that their excess coverage would probably not be triggered here. To the extent that Milwaukee Mutual continued to participate in the proceedings after the admission, it did not rely on the admission.
[4]
The trial court denied Milwaukee Mutual's motions because it concluded that Milwaukee Mutual took no further action to limit Kettner's recovery prior to the trial. Any reliance by Milwaukee Mutual would therefore not have been reasonable. A motion for summary judgment was not filed in a timely fashion, nor was a motion in limine or other relief sought from the trial court either at the time the admission was received or before the case went to the jury. Kettner's attorney stated in an affidavit before the trial that he did not believe the admission could limit his client's recovery. The trial court found that although there was a variety of alternatives available, Milwaukee Mutual did nothing to enforce the admission until after the jury returned a verdict. The court's conclusion that any reliance on the part of Milwaukee Mutual was not reasonable because of its failure to properly limit the amount of Kettner's recovery prior to trial is a sufficient basis for the trial court to deny Milwaukee Mutual's post-verdict motions.
By the Court.Judgment affirmed.
CANE, P.J. (concurring)
I concur with the result, but for a different reason. I would conclude that because Milwaukee Mutual worded its request for Kettner to admit or deny that the value of his claim "does not exceed $100,000" (emphasis supplied), the request was not for a statement or opinion of fact as *646 contemplated under sec. 804.11, Stats. It therefore becomes unnecessary to address the issue of whether a request for an admission can be used to establish the value of a case.
The purpose of sec. 804.11 is to provide a procedure for obtaining from a party to the case admissions of fact and other items of proof over which there is no dispute and that can be costly and time-consuming to prove at trial. Asking a party to admit or deny whether his damages exceed $100,000 is not an evidentiary "fact" that a party has to prove at trial. All it concludes is that the damages are somewhere between $0 and $100,000. That may be a "fact" in the abstract sense, but certainly not as contemplated under sec. 804.11. Nor would I accept the argument that this was a "fact" because it was important to Milwaukee Mutual in terms of whether their excess coverage would apply. The request was simply too broad. Obviously, the admission could not be offered or accepted to establish any particular evidentiary fact at trial, other than a vague and indefinite conclusion as to a range of damages. As worded, the request was entirely meaningless.
NOTES
[] Petition to review denied. BABLITCH, J., took no part.
[1] Section 804.11 provides:
(1) Request for admission. (a) A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of s. 804.01(2) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request.
. . . .
(2) Effect of admission. Any matter admitted under this section is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to s. 802.11 governing amendment of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining the action or defense on the merits. Any admission made by a party under this section is for the purpose of the pending action only and is not an admission for any other purpose nor may it be used against the party in any other proceeding. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3775774/ | Defendants-appellants, Monroe Township Trustees, in Clermont County, Ohio, appeal an order of the Clermont County Court of Common Pleas granting the petition for a writ of mandamus of plaintiff-appellee, Kenneth E. Clements.
In 1986, appellee bought an eight-acre piece of land in Monroe Township, Clermont County, Ohio. The sole means of ingress to and egress from appellee's property is through Dry Run Road, a dead-end single-lane road that runs from State Route 232 to appellee's property. The road runs parallel to Dry Run Creek except at two points where it crosses it by fords. By stipulations filed April 11, 1996, the parties stipulated that Dry Run Road (1) is the only means of ingress to and egress from appellee's property, (2) is a 0.7 mile public township road located in Monroe Township, and (3) is identified in the records of Monroe Township and the state of Ohio as Township Road T-31.
In the 1950s, five families lived on the property, which was then used as a minifarm to raise goats and sheep. Two-wheel-drive cars drove up to the property then. Appellee testified that the property owners before him had campers on the property.
Appellee testified that the road was "kind of rough" in 1986 but that it was passable after he made a few repairs to it. At the time appellee bought the property, Cincinnati Gas Electric Company had stretched a cable across the entrance of the road as a deterrent to the misuse of the road by vandals and *Page 3
drivers of four-wheel-drive vehicles, as well as a protection for its power lines. The power lines are located approximately one hundred fifty yards up the road. Appellants removed the cable in 1993. Appellee testified that following the removal of the cable, there was "foul use" of the road, which damaged the road. Appellee testified that the road is now so deteriorated that one cannot get to the property by car even with a four-wheel-drive vehicle.
Appellee further testified that since he bought the property, appellants have not performed any repairs or done any work on the road. This statement was confirmed by Williams Havens, a Monroe Township trustee, who testified that appellants have not done any maintenance work on the road since appellee bought his property. Havens testified that "as far as * * * [the] Township goes, * * * back in the 50's is when they really actually did any work to the road and what they did is dragged it once or twice a year with a scraper."
Following appellants' removal of the cable, appellee contacted appellants with regard to repairing the road. Appellee testified that he "got put off and put off over the [last] three years." Appellants eventually asked for bids, received several bids, but did not accept any.
On January 20, 1995, appellee filed a complaint in mandamus against appellants seeking to compel appellants "to improve, construct and maintain to legal specifications Dry Run Road." A hearing was conducted on April 11, 1996. By judgment entry filed June 7, 1996, the trial court granted appellee's petition for a writ of mandamus and ordered appellants "to improve, widen, construct, repair, and maintain Dry Run Road and construct any necessary culverts and fords that may be required to make Dry Run Road a safe and passable road."
Appellants timely filed this appeal. In their sole assignment of error, appellants argue that "the trial court exceeded its authority in issuing a writ of mandamus ordering appellant township to construct culverts on Dry Run Road, to widen the road, and to enhance fords along the road."
R.C. 2731.01 defines mandamus as a writ "commanding the performance of an act which the law specifically enjoins as a duty resulting from an office." A writ will not be issued unless the relator shows (1) a clear legal right to relief, (2) a clear legal duty on the part of the respondent to perform the requested act, and (3) no plain and adequate remedy in the ordinary course of law. State ex rel. Harris v. Rhodes (1978),54 Ohio St.2d 41, 42, 8 O.O.3d 36, 37, 374 N.E.2d 641, 641-642.
Pursuant to R.C. 5535.01, all roads in Ohio are classified as state roads, county roads, or township roads. R.C. 5535.01(C) specifically defines township roads as "all public highways other than state or county roads."1 R.C. 5535.01(C) further *Page 4
provides that "[t]he board of township trustees shall maintain
all such roads within its township." (Emphasis added.) R.C.5535.08 similarly provides that "[t]he state, county, and township shall each maintain its roads, as designated in [R.C.]5535.01 * * *."
R.C. Chapter 5571 governs the board of township trustees. R.C. 5571.02 provides that "[t]he board of township trustees shall have control of the township roads of its township andshall keep them in good repair." (Emphasis added.) R.C. 5571.12
governs dragging graveled and unimproved roads semiannually and provides in part:
"The boards of township trustees shall cause the graveled andunimproved public roads of the township to be dragged. At the beginning of each fiscal half year the board, before making any other appropriations from the township road fund, shall appropriate and set aside a sum sufficient to meet the expense of dragging the graveled and unimproved public roads of the township during the ensuing six months. Such sum shall not be used for any purpose other than that for which it was appropriated." (Emphasis added.)
It is well established that the foregoing statutory provisions, which require township trustees to keep their township roads maintained and in good repair and to drag them, are mandatory and that "the duties enjoined thereby may be commanded by a writ of mandamus." State ex rel. Rogers v. Taylor
(1949), 152 Ohio St. 241, 40 O.O. 288, 89 N.E.2d 136, syllabus. It is also well established that the foregoing statutory provisions apply to all township roads, improved or unimproved, and do not give township trustees discretion to leave certain roads or portions thereof unmaintained. State ex rel. Ramey v.Porter Twp. Trustees (C.P. 1971), 28 Ohio Misc. 215, 216-218, 57 O.O.2d 419, 420, 277 N.E.2d 245, 246-247.
In the case at bar, the record, which includes photographs of the road, shows that the road is unimproved and is in dire need of maintenance, repair, and dragging. Both appellee and Havens testified that appellants have not made any repairs or done any type of work, including maintenance work, to the road since at least 1986. Such failure on the part of appellants to keep Dry Run Road in good repair, to maintain it, and to drag it is in violation of R.C. 5535.01(C), 5535.08, 5571.02, and 5571.12. In light of the foregoing, we find that appellee is entitled to a writ ordering appellants to repair and maintain Dry Run Road.
Appellants argue, however, that the trial court exceeded its authority when it ordered that certain work be performed, namely to widen the road and to *Page 5
construct culverts and fords to make the road a safe and passable road. Appellants contend that the order is subject to the criticism that the court is attempting to control their discretion. Appellants also contend that the construction of culverts, the widening of a road, and the enhancing of fords over a creek are improvements, which are discretionary under R.C. 5571.01, and not repairs or maintenance, which are mandatory.
While it is well established that a trial court does not have the authority to direct township trustees as to the amount of money they should spend on each township road or to perform certain work, Adamson v. Wetz (App. 1952), 69 Ohio Law Abs. 281, 285-286, 124 N.E.2d 832, 834, we are of the opinion that the trial court's order is not an attempt to control appellants' discretion. While the trial court ordered appellants to widen the road, it did so after Havens, a Monroe Township trustee, testified that the township was willing to widen the road to an acceptable eight- to ten-foot width so that a car, a pickup, or a four-wheel-drive vehicle could get up the road.
With regard to the culverts and fords, the trial court ordered appellants "to construct any necessary culverts and fords that may be required to make Dry Run Road a safe and passable road." Contrary to appellants' contention, we find that this language gives broad discretion to appellants as to the type of work to be performed to make the road safe and passable. We further find that the construction of any necessary culverts and fords so as to repair a road that, by appellants' own admission, has not been maintained or repaired at all by appellants for at least ten years is more in the nature of maintenance that would bring the road back to where it would have been had the required maintenance been performed.
We therefore hold that the trial court did not err in granting appellee's petition for a writ of mandamus. Appellants' sole assignment of error is overruled, and the judgment of the common pleas court is affirmed.
Judgment affirmed.
WILLIAM W. YOUNG and POWELL, JJ., concur.
1 In light of R.C. 5535.01, which clearly classifies all roads in Ohio in three different categories, and in light of the fact that each category of roads has a specifically applicable Revised Code Chapter, we decline to apply to the case at bar, as suggested by appellants, any Revised Code Chapters other than Chapters 5535, 5571, and 5579. *Page 6 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2899243/ | NO. 07-08-0382-CR; 07-08-0383-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JUNE 2, 2009
                                       ______________________________
JEFFREY LYNN COX, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 64TH DISTRICT COURT OF HALE COUNTY;
NO. A15170-0310, A15191-0310; HONORABLE ROBERT W. KINKAID, JR., JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
          Appellant Jeffrey Lynn Cox appeals from the revocation of his community
supervision for the offenses of forgery and theft and the resulting concurrent sentences of
two years of confinement in a state jail facility. Appellant's attorney has filed a consolidated
brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493
(1967) and In re Schulman, 252 S.W.3d 403 (Tex.Crim.App. 2008) and certifies that there
are no non-frivolous issues to appeal. Agreeing with appointed counselâs conclusion the
record fails to show any arguably meritorious issue that could support the appeal, we affirm
the trial courtâs judgments.
          In October 2003, appellant was charged by indictment of the offense of forgery.
In a separate October 2003 indictment, appellant was charged with the offense of theft.
On February 23, 2004, pursuant to a plea agreement, appellant plead guilty as charged
in each of the indictments and, on February 24, was placed on deferred adjudication
community supervision for a period of five years for each cause. Appellantâs deferred
adjudication was conditioned on his compliance with specified terms and conditions.
          On March 13, 2006, the State filed its first motions to revoke. By agreed orders,
appellantâs community supervision for each cause was modified to include additional terms
and conditions. In June 2008, the State filed its second motions to revoke, setting forth
several violations of the terms and conditions of appellantâs deferred adjudication
community supervision. The alleged violations included allegations that appellant
committed the offense of intentionally, knowingly or recklessly causing bodily injury to
another on April 15, 2008, admitted to using alcohol in April 2008, failed to report as
required for the month of December 2007 and March 2008, failed to pay fines and fees as
required, failed to attend AA meetings as required, and willfully and knowingly violated his
curfew.
On September 5, 2008, this motion was heard by the court. Appellant pled âtrueâ
to all of the Stateâs allegations for each cause.
              The State presented the testimony of appellantâs community supervision officer.
Appellant testified, acknowledging and explaining the violation of the terms of his community
supervision. After hearing the evidence presented and pursuant to appellantâs pleas of
âtrue,â the trial court revoked appellantâs community supervision and sentenced appellant
to two years to run concurrently in a state jail facility of the Texas Department of Criminal
Justice, and ordered him to pay court costs, restitution, and any court appointed attorneyâs
fees. This appeal followed.
          Appellant's appointed appellate counsel filed a consolidated motion to withdraw and
a consolidated brief in support pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct.
1396, 18 L. Ed. 493 (1967), in which he certifies that he has diligently reviewed the record
for each cause and, in his professional opinion, under the controlling authorities and facts
of these cases, there is no reversible error or legitimate grounds upon which a non-frivolous
appeal can arguably be predicated. The brief discusses the procedural history of the
causes and the proceedings in connection with the motions to revoke. Counsel also notes
one potential issue upon which error may lie but has explained why the argument lacks
merit. Counsel has certified that a copy of the Anders brief and motion to withdraw have
been served on appellant, and that counsel has advised appellant of his right to review the
record and file a pro se response. Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.âWaco
1994, pet. ref'd). By letter, this Court also notified appellant of his opportunity to submit a
response to the Anders brief and motion to withdraw filed by his counsel. Appellant has not
filed a response.
          In conformity with the standards set out by the United States Supreme Court, we will
not rule on the motion to withdraw until we have independently examined the record.
Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.âSan Antonio 1997, no pet.). If this Court
determines the appeal has merit, we will remand it to the trial court for appointment of new
counsel. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991). In his brief, counsel notes a potential issue concerning the legal and factual
sufficiency of the evidence to support the revocations. At the revocation hearing, appellant
plead âtrueâ to all of the Stateâs allegations. A plea of âtrueâ to even one allegation in the
Stateâs motion is sufficient to support a judgment revoking community supervision. Cole v.
State, 578 S.W.2d 127, 128 (Tex.Crim.App. 1979); Lewis v. State, 195 S.W.3d 205, 209
(Tex.App.âSan Antonio 2006, pet. denied). We agree there is no arguably meritorious
ground for appeal on this point.
         We find also no arguably meritorious point may be raised with regard to the
punishment assessed to appellant. The trial court assessed punishment for appellant at two
years of confinement, to run concurrently, at a state jail facility. This is an acceptable term
within the permissible range.
It is the general rule that as long as a sentence is within the
proper range of punishment, it will not be disturbed on appeal. Jackson v. State, 680
S.W.2d 809, 814 (Tex.Crim.App. 1984).
          Our review convinces us that appellate counsel conducted a complete review of the
record for each cause. We have also made an independent examination of the entire record
for each cause to determine whether there are any arguable grounds which might support the
appeal. We agree the records present no arguably meritorious grounds for review. We grant
counsel's motion to withdraw
in each cause and affirm the judgments of the trial court.
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                                                                James T. Campbell
                                                                         Justice
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NO. 07-10-00380-CR; 07-10-00381-CR; 07-10-00382-CR
Â
IN THE COURT OF APPEALS
Â
FOR THE
SEVENTH DISTRICT OF TEXAS
Â
AT
AMARILLO
Â
PANEL B
Â
OCTOBER
8, 2010
Â
Â
DAVID MATTHEW LAYTON, APPELLANT
Â
v.
Â
THE STATE OF TEXAS, APPELLEE
Â
Â
FROM THE 251ST DISTRICT COURT OF POTTER
COUNTY;
Â
NO. 34,435-C, 34,436-C, 34,437-C; HONORABLE ANA ESTEVEZ, JUDGE
Â
Â
Before QUINN,
C.J., and CAMPBELL and HANCOCK, JJ.
Â
Â
MEMORANDUM OPINION
Â
Appellant, David Matthew Layton,
seeks to appeal orders in each of the above-identified causes denying his
requests for post-conviction DNA testing and appointment of counsel. See Tex.
Code Crim. Proc. Ann. arts.
64.01, .03, .05 (Vernon Supp. 2010). The orders denying appellantÂs requests were
signed on July 12, 2010. The deadline
for perfecting the present appeals was, therefore, August 11, 2010. See Tex.
R. App. P. 26.2(a)(1).[1]Â Appellant filed his notices of appeal on
September 27, 2010. Under these
circumstances, we lack jurisdiction to dispose of the purported appeals in any
manner other than by dismissing them for want of jurisdiction. In re Suhre, No. 03-03-00066-CR, 2003 Tex.App.
LEXIS 1343, at *1 (Tex.App.ÂAustin
Feb. 13, 2003, pet. refÂd).
           Consequently,
the appeals are dismissed for want of jurisdiction.
Â
                                                                                               Mackey
K. Hancock
                                                                                                           Justice
Â
Â
Do
not publish.
          Â
[1] We are aware, as
appellant notes in his notice of appeal, that appellant filed a petition for
writ of mandamus with this Court relating to the trial courtÂs rulings in these
orders on August 9, 2010. However, the filing
of a petition for writ of mandamus within the time in which a direct appeal may
be perfected does not extend the time in which the direct appeal must be
perfected. See id. at 26.2(b).
 | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/8326478/ | Macdonald, D. Lloyd, J.
Before the Court are variously styled motions filed by plaintiffs and defendants in the consolidated actions requesting sanctions against the plaintiff Cheng Lee Co. (“Cheng Lee”) and its attorneys, Richard Goren (“Goren”) and Bodoff & Associates (“Bodoff’). The incident giving rise to the motions (to be more fully described below) involved a solicitation of new clients by Goren to bring additional claims against the defendants as the parties (plaintiffs and defendants) were on the cusp of a global settlement, a settlement that purportedly included Cheng Lee.
Because Goren and, derivatively, Cheng Lee committed an egregious breach of honest dealing that has caused material harm to the parties and to the Court, the Court ALLOWS the substance of the motions.
The Litigation
The consolidated cases involve a complex set of claims that were brought in the wake of the attempted sale of a Boston-based chain of Asian food markets, the defendant Super 88 stores. There are three groups of plaintiffs: (a) the vendors (the “Trade Creditors”) (one of which is Cheng Lee and the others of which include the “Hop Lee” plaintiffs (SUCV2009-03959-E) and the “Tin World” plaintiffs (SUCV2009-03680-E), (b) former employees asserting class action wage claims (the “Workers”) (SUCV2009-04154-H) and (c) aggrieved attempted purchasers of certain of the stores (the “Asset Purchasers”) (SUCV2009-03473-E and SUCV2009-03472-E). The defendants include the Super 88 principals and corporate entities (George Luu et al.), the New York-based prospective purchaser of the stores, the Hong Kong Supermarket defendants (“Hong Kong”) and a group of lender institutions (Wellesley and Haymarket Capital et al.) (the “Lenders”) with historical banking relationships with the Super 88 principals and entities. Collectively, the litigation is referred to as “Super 88.”
At the outset, the cases were drawn randomly to three separate Suffolk Superior Court sessions. However, in June 2010 in order to promote the efficient handling of the cases, they were consolidated by the Regional Administrative Judge. Then in an order of July 13, 2010, the Chief Justice of the Superior Court specially assigned them to the undersigned justice.
Through the summer and the early fall of 2010, there was active motion practice and resulting court orders in all of the consolidated cases. These included requests for injunctions and amendment of the same, discovery disputes, summary judgment, sanctions, amendment of complaints to add parties, dismissals and withdrawal of the same. In mid-October, counsel in the Workers case moved for a Rule 16 conference. Without opposition from the other parties, the Court allowed the motion and ordered that the Rule 16 conference be held in December and be combined with an omnibus hearing on the multiple motions then pending. Pursuant to the Court’s procedural order, counsel cooperated in preparing a comprehensive report and agenda for the Rule 16 conference. The conference was to be held in the Fall River Superior Court, where the undersigned justice was assigned at the time.
On December 10th, counsel for all parties in the consolidated actions appeared in Fall River. In lieu of proceeding directly to the conference, however, counsel (with the approval of the Court) used the occasion to engage in substantive settlement discussions. The latter were fruitful, and after several hours, counsel (including Goren on behalf of Cheng Lee) reported to *276the Court that a potential framework for settlement had been reached. Counsel requested a continuance of the Rule 16 conference and the motions hearing to permit the settlement framework to be further implemented. The Court allowed the continuance and encouraged counsel’s efforts.
Thereafter, the Court further continued the Rule 16 conference and omnibus motions hearing on the representation by counsel that substantial progress was being made toward settlement. After several interim procedural orders, March 18th was set for counsel to report the terms of a final settlement (in lieu of which the Court would proceed to the Rule 16 conference and the omnibus motions hearing).
On March 18th, counsel appeared in New Bedford, where the undersigned justice was sitting, and reported that, just days before, the global settlement to which they were working and as to which all material terms appeared to have been agreed to had foundered. The reason was that Attorney Goren the prior week had made a written solicitation to all known trade creditors of Super 88 informing them of his having achieved a 100 cents on the dollar recovery for Cheng Lee (without naming Cheng Lee) and inviting them to contact him if interested in retaining his and Bodoff s services. Among the creditors to whom Goren wrote were existing clients of counsel for the Tin World and Hop Lee plaintiffs. Because certain of the Trade Creditors had earlier agreed to compromise their claims as part of the settlement structure, the Goren-induced prospect of a better deal caused some to rescind their agreement to settle.
Counsel for all plaintiffs, defendants and the lenders strenuously urged the Court to sanction Goren immediately for his solicitation of other counsel’s clients and causing the collapse of the settlement. In response, the Court issued a procedural order whereby Goren was to communicate his explanation of his conduct to other counsel by March 21st, any motions for sanctions were to be filed by March 29th and a hearing on any sanctions motions and/or on settlement status was to be held on April 8th in the Suffolk E Session (to which the undersigned justice would be returning by that point in the calendar).
Multiple sanctions motions were, in fact, thereafter filed. At the April 8th hearing, settlement was reported as dead and counsel urged various sanction remedies against Goren, Cheng Lee and Bodoff on account of it. The principal of the Bodoff firm appeared at the hearing in defense of Goren’s alleged misconduct.
Nature and Scope of the Court’s Authority to Sanction
“Judges have the inherent power to do whatever may be done under the general principles of jurisprudence to insure [the integrity of the judicial process]. Simply stated, implicit in the constitutional grant of judicial power is ‘authority necessary to the exercise of . . . (that) power.’ ‘(E)veiy judge must exercise his inherent powers as necessary to secure the full and effective administration of justice.’. . . Exercising this power, a judge may impose reasonable court costs on an attorney who . . . delays the adjudication of legitimate claims and defenses, unnecessarily increases clients’ litigation expenses, and squanders limited judicial resources. A judge ‘cannot condone behavior that causes precious time to be wasted away while the court, parties, court personnel, and witnesses [otherwise diligently conduct themselves].’ ” Beit v. Probate and Family Court Dept., 385 Mass. 854, 859-60 (1982) (internal citations omitted). Accord Sommer v. Maharaj, 451 Mass. 615, 621 (2008), and Commonwealth v. Matranga, 455 Mass. 45, 49 (2009).
“A sanction may likewise be imposed for a disobedience of a court order or for conduct which flouts the authority of the court or obstructs and impedes the orderly course of a legal proceeding.” Avelino-Wright v. Wright, 51 Mass.App.Ct. 1, 5 (2001). See also Clark v. Clark, 47 Mass.App.Ct. 737, 743-44 (1999).
“Any monetary award, however, should be tailored to the resources wasted or unnecessarily expended as a result of the misconduct.” Avelino-Wright, 51 Mass.App.Ct. at 5.
The Misconduct
A number of counsel have framed their sanction motions in terms of the Rules of Professional Conduct, SJC Rule 3:07. Bodoff on Goren’s behalf argued that this Court is without jurisdiction to rule on compliance with the canons of the profession. In a technical sense, that is true. Exclusive jurisdiction for discipline lies in the first instance in the hands of the Board of Bar Overseers and ultimately the SJC. Nevertheless, the content of the Rules of Professional Conduct may inform the Court’s assessment of whether Goren acted unreasonably such as to have impeded “the full and effective administration of justice” and “delay[ed] the adjudication of legitimate claims and defenses ... and squandered] limited judicial resources.” Beit, supra
Unquestionably, Goren did so. The Court placed on hold its earlier effort to move the consolidated cases to prompt trial on counsel’s representation in December, joined by Goren, that they had agreed on a settlement framework but that time was needed to finalize it. The Court relied on the good faith of all counsel, as officers of the Court, in representing to the Court that they were engaged diligently in the global settlement effort. It is apparent to the Court that—but for one participant—they were in fact so engaged.
In a case of this complexity (involving workers, creditors, lenders, corporate asset purchasers and a multi-store going concern) there are many moving parts and intersecting planes of interest. Settlement under such circumstances requires imagination and flexibility while counsel remain loyal to their client’s respective interests.
*277The Court has been informed that a critical element in the progress toward settlement was the recognition and acceptance of the circumstance that a finite amount of money was available to fund the settlement, and thus that compromise of claims was necessary. As of mid-March, an accommodation had apparently been reached. The Workers (whose Wage Act claims— on paper—held out the prospect of triple damages, were prepared to accept a partial recovery and to permit the sale of one of the Super 88 stores as a way to generate cash to fund the settlement. The Lenders, who were recently dismissed from the consolidated case (Paper #12 in SUCV2010-04961-F), were, nevertheless, willing to subordinate their secured position with regard to the Super 88 defendants’ assets, to permit the sale of one of the stores as a means to underwrite the settlement. Certain of the Trade Creditors (with the exception of Cheng Lee) also compromised.
All the above was conducted in confidence because of the parties’ awareness that if additional claimants appeared, the finite settlement fund would be further diluted and (if a critical mass of new claims were filed) a bankruptcy petition could be triggered that would have left all the plaintiffs without a practical remedy.
It was into this environment that Goren sent his solicitation to the 110 entities listed as Super 88 creditors on its earlier (unsuccessful) bankruptcy filing. As noted, Goren wrote to the creditors of the prospect of Cheng Lee’s recovering “100 cents on the dollar” and offering his and Bodoff s services to them so they could recover. Also as noted, five of the creditors Goren solicited were already represented by Trade Creditor counsel, a fact that Goren knew or should have known. Goren’s conduct appears to have been a direct violation of Rule 4.2 of the Rules of Professional Conduct. Furthermore, the veiy act of solicitation and its communication of the prospect of a recovery by third parties breached the assumption of confidentiality, which was central to the prospect of achieving settlement. Further, it risked fomenting a new class of claimants whose interests would be adverse necessarily to the settling parties.
As a participant in the settlement negotiation, Goren was subject to Preamble 2 of the Rules of Professional Conduct: “As negotiator, a lawyer seeks a result advantageous to his client but consistent with honest dealing with others.” Goren’s conduct was fundamentally dishonest toward his co-counsel and a breach of his core professional duty of good faith and fair dealing with other counsel. Further, it was a fundamental breach of his duty of candor to the Court. Rule 3.3 of the Rules of Professional Conduct.
The impact of Goren’s conduct on the administration of justice, the Court’s most immediate concern, has been stark. The progression of the consolidated cases to a fair and prompt disposition has been obstructed. Three months of diligent and expensive lawyers’ time has been wasted. And the assumption on which the Court relied in staying the cases has been shown to have been based on a false premise. The Court has been materially prejudiced.
Sanctions
As noted above, any sanctions order must be “tailored to the resources wasted or unnecessarily expended as a result of the misconduct.” Avelino-Wright, 51 Mass.App.Ct. at 5. Further, as the SJC recently stated by citing the Supreme Court of the United States: “(T]he most severe in the spectrum of sanctions . . . must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter putative offenders in future cases.” Sommer v. Maharaj, 451 Mass. at 622, quoting National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976).
With that framework in mind, the Court orders that Goren and Cheng Lee, jointly and severally, reimburse all parties in the consolidated cases their necessary and reasonable attorneys fees and expenses incurred from December 10, 2010 through April 8, 2011 in connection with the effort to settle the litigation. Further, the Court vacates its order, dated August 4,2010 (Paper #27 in SUCV2010-00668-E), denying the Super 88 defendants’ motion for reconsideration of the Court’s entry of summary judgment in Cheng Lee’s favor. The Court sets aside the entry of summary judgment and restores the Cheng Lee case to the pretrial docket on a par with the other plaintiffs in the consolidated cases.
Because of what appears to have been breaches of the Rules of Professional Conduct, a copy of this memorandum and order will be referred to the Board of Bar Overseers for its review.
ORDER
1. The Tin World Plaintiffs’ (SUCV2009-03680-E) and the Hop Lee Plaintiffs’ (SUCV2009-03959-D) Motion for Sanctions, or Alternatively Motion for Equitable Relief is ALLOWED IN PART.
2. The Workers Plaintiffs’ (SUCV2009-04154-H) Motion for Miscellaneous Relief is ALLOWED IN PART.
3. The Hop Lee Plaintiffs’ (SUCV2009-03959-D) Concurrence and Joinder in Plaintiff Worker’s Motion for Miscellaneous Relief is ALLOWED IN PART.
4. The Super 88 Defendants’ Motion for Sanctions is ALLOWED IN PART.
5. Attorney Richard Goren and plaintiff Cheng Lee Co., Inc. shall reimburse all parties in the consolidated cases their necessary and reasonable attorneys fees and expenses incurred from December 10, 2010 through April 8, 2011 in connection with the effort to settle the litigation and respond to the solicitation by Attorney Richard Goren. Their liability in this regard is joint and several.
*2786. Within 14 days of the entry of this order, the parties whose counsel engaged in the settlement effort shall file affidavits of their necessary and reasonable attorneys fees and expenses referenced in numbered paragraph 5. Such filing shall include a specification of tasks performed, personnel who performed such tasks, the time expended and the billing rates charged.
7. Within 14 days of the filing of the parties’ affidavits of fees and expenses, plaintiff Cheng Lee Co., Inc. and Attorney Richard Goren may file a response to such affidavits.
8. The session clerk shall schedule a hearing on legal fees and expenses upon the submission by Cheng Lee Co., Inc. and Attorney Richard Goren of a response that takes issue with any of the affidavits earlier filed.
9. Within 30 days of the entry of the Court’s ruling as to the necessary fees and expenses to be reimbursed, Cheng Lee Co., Inc. and Attorney Richard Goren shall make full payment to the parties to be reimbursed.
10. The Court’s order dated August 4, 2010 (Paper #27 in SUCV2010-00668-E) is VACATED. The Super 88 defendants’ Motion to Reconsider Summary Judgment and/or Motion to Vacate Summary Judgment (Paper #26 in SUCV2010-00668-E) is ALLOWED nunc pro tunc to August 4, 2010. The Court sets aside the entry of summary judgment and restores the Cheng Lee case to the pretrial docket.
11. A copy of this memorandum and order shall be communicated to the Board of Bar Overseers. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4517080/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-7492
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
REGINALD LOVE BROWN, a/k/a Love Brown,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever III, District Judge. (5:10-cr-00322-D-2; 5:16-cv-00344-D)
Submitted: March 12, 2020 Decided: March 17, 2020
Before KING, KEENAN, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Reginald Love Brown, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Reginald Love Brown seeks to appeal the district court’s order denying relief on his
28 U.S.C. § 2255 (2018) motion. The order is not appealable unless a circuit justice or
judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B) (2018). A
certificate of appealability will not issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2018). When the district court denies relief
on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong.
See Buck v. Davis, 137 S. Ct. 759, 773-74 (2017). When the district court denies relief on
procedural grounds, the prisoner must demonstrate both that the dispositive procedural
ruling is debatable and that the motion states a debatable claim of the denial of a
constitutional right. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v.
McDaniel, 529 U.S. 473, 484 (2000)).
We have independently reviewed the record and conclude that Brown has not made
the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the
appeal. 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.
DISMISSED
2 | 01-03-2023 | 03-17-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2984040/ | May 15, 2014
JUDGMENT
The Fourteenth Court of Appeals
ISAAC CARDALE LENSEY, Appellant
NO. 14-12-00745-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/1903519/ | 257 B.R. 884 (2001)
In re FAMILY SNACKS, INC., Debtor.
United Food & Commercial Workers Union, Local 211, Appellant,
v.
Family Snacks, Inc. and Official Unsecured Creditors' Committee, Appellees and Cross-Appellants.
Nos. 00-6076, 00-6077, 00-6078.
United States Bankruptcy Appellate Panel for the Eighth Circuit.
Submitted: November 9, 2000.
Filed: January 31, 2001.
*885 *886 G. Fordon Atcheson, Michael T. Manley, on brief, Kansas City, KS, for appellant/cross-appellee UFCW.
Mark A. Shaiken, Kansas City, MO, Greta A. McMorris, on brief, Kansas City, KS, for appellee/cross-appellant Unsecured Creditors' Committee.
Stephen B. Sutton, David L. Zeiler, on brief, Kansas City, MO, for appellee/cross-appellant Family Snacks.
Before HILL, SCHERMER, and DREHER, Bankruptcy Appellate Panel Judges.
*887 DREHER, Bankruptcy Appellate Panel Judge.
This appeal raises two questions of apparent first impression as to the interpretation of § 1113 of the Bankruptcy Code. The first is whether a debtor in a Chapter 11 case can reject a collective bargaining agreement even after it has sold virtually all of its assets. The bankruptcy court held that § 1113 did not permit rejection following such a sale. The second is whether the court's denial of a debtor's application for leave to reject its collective bargaining agreement results, ipso facto, in an assumption of such agreement. The bankruptcy court held that it does not.
The union appeals from the bankruptcy court's ruling on the second issue. Debtor and the Official Unsecured Creditors' Committee cross-appeal from the bankruptcy court's ruling on the first. We reverse the bankruptcy court decision regarding rejection and remand for further proceedings in accordance with this decision. We affirm the bankruptcy court's decision regarding the effect of a denial of an application for leave to reject.
FACTS and PROCEDURAL HISTORY
Family Snacks, Inc. ("Debtor") produces and distributes potato chips and other snack foods. On August 1, 1998, Debtor entered into a collective bargaining agreement ("CBA") with United Food & Commercial Workers Local 211 ("the union"). The CBA was to remain in effect for five years and provided that Debtor would pay certain of its union employees' medical and dental expenses. In late 1999 and early 2000, Debtor was in serious financial difficulty and fell behind in its payments of these expenses. Shortly before filing for bankruptcy, these unpaid employee medical and dental expenses totaled approximately $491,000.[1]
On February 14, 2000, Debtor filed a Chapter 11 bankruptcy petition. It was clear from the beginning that Debtor could not rehabilitate itself. For over six months, Debtor had been attempting to sell this increasingly financially distressed company, with little success. Matters were so bleak that for a time the company shut down. Nonetheless, one purchaser was willing to sign a letter of intent to purchase, and on February 25, 2000, Debtor moved for expedited hearing and bankruptcy court approval to carry out a sale of virtually all of its assets under § 363 of the Bankruptcy Code. Concurrently therewith, Debtor moved for an order allowing the purchaser to assume or reject executory contracts and leases, including the CBA, as selected by the purchaser. The letter of intent specifically required that the assets would be sold free and clear of certain liabilities, including any arising under union contracts. It was Debtor's position that the value of the assets of the company could be maximized only if its assets were sold on a going concern basis. The bankruptcy court granted expedited hearing and approved a sale pursuant to the letter of intent and set auction procedures, with the auction to occur on March 13.
The union filed an objection to the sale. It also objected to Debtor's motion to assume or reject executory contracts. The union argued that a sale free and clear of Debtor's obligations under the CBA violated § 1113 and that no sale could occur until Debtor had taken steps to bargain with the union. The union sought to delay the sale until such negotiations could take place or to have payment of unpaid prepetition employee medical and dental expenses under the CBA made a condition of *888 the sale. In essence, the union's position was that, no matter how exigent the circumstances, no sale could take place before Debtor dealt with the prepetition claims Debtor had incurred under the CBA. Debtor responded that the court should approve the sale, since failing to do so would dramatically reduce the amount available to pay creditors.
The first purchaser was unable to arrange financing and withdrew its offer. A new purchaser stepped in, however. The new Purchase Agreement continued to specifically provide that the assets would be sold free and clear of Debtor's liabilities under the CBA. On March 22, 2000, over the union's objections, the bankruptcy court issued its order approving the sale to the new purchaser. The court declined to condition the sale on the purchaser's assumption of the CBA. No appeal was taken from that order and the sale closed on March 29, 2000. The next day the purchaser began operations. It did not assume the CBA. Rather, it hired virtually all union members under terms of a new CBA with the new purchaser that were similar (though not identical) to those in the CBA with Debtor. The purchaser also paid all employees' postpetition medical and dental claims. Thus, as a result of the sale and the Debtor's and the purchaser's actions, all postpetition obligations to union members were fully paid. This left the dispute over the unpaid prepetition medical and dental expenses due under the CBA.
The union had made a motion to have the union employees' prepetition medical and dental expenses treated as an administrative expense. On April 5, when that motion came on for hearing, the bankruptcy judge recused himself from deciding it and a second bankruptcy judge stepped in. By way of order dated April 24, that judge held, without ruling on the merits, that Debtor should be allowed time to negotiate with the union. On April 13, in accordance with § 1113(b)(1)(A) of the Bankruptcy Code, the Debtor had already sent a letter to the union in which it purported to modify the CBA by termination. Debtor noted that, having divested itself of substantially all of its assets, it was not possible to assume the CBA and "thus, the only modification of the CBA that is viable is the termination of that agreement...." Debtor further advised that it intended to file a Chapter 11 plan to deal with its remaining assets and liabilities and to make distributions to creditors in accordance with the priorities established in the Bankruptcy Code. Specifically, Debtor committed to treat union members' prepetition medical and dental expenses as fourth priority expenses under § 507(a)(4) in the plan.
The union rejected Debtor's proposal for termination. The parties continued to negotiate, but were unable to reach an agreement. Thus, on May 1, 2000, Debtor filed an application for leave to reject the CBA. The Official Unsecured Creditors' Committee joined in the application. The bankruptcy court heard Debtor's application for leave to reject, along with the union's still pending motion for an order determining that the unpaid prepetition medical and dental expenses be treated as an administrative expense.
In an order dated June 8, 2000, from which this appeal is taken, the bankruptcy court denied Debtor's application to reject the CBA. The court reasoned that Debtor could not comply with § 1113(b)(1)(A) by showing that rejection was "necessary to permit the reorganization of the debtor." The court construed this language as requiring a debtor to show both that it was reorganizing "with a view to the long run success of the debtor's business" and that "it could emerge from its reorganization as an economically viable operation." While the court appeared to accept the proposition that a debtor who is selling its assets as a going concern may take advantage of § 1113, the court confined § 1113 to instances in which the debtor applied for leave to reject under § 1113 before any asset sale:
*889 Since Family Snacks is not reorganizing, and since, in any event, it now has no employees, rejection of the CBA is not necessary for its reorganization. For this reason, Family Snacks' motion to reject must be denied.
Debtor and the Official Unsecured Creditors' Committee ("Appellees") cross-appeal from this portion of the decision.
The bankruptcy court then dealt with the union's arguments that Debtor had impliedly assumed the contract at the point of sale or, alternatively, that the CBA had been assumed as a matter of law as a result of the court's ruling on Debtor's application to reject. The court ruled that the first argument, that assumption occurred at the time of sale, was foreclosed by the March 22 order allowing the sale, from which no appeal had been taken. The union does not explicitly challenge this portion of the bankruptcy court's order.[2] The union does, however, urge that the bankruptcy court erred when it ruled that denial of an application for rejection did not result, ipso facto, in an assumption of the CBA. Here, the court reasoned, in part, that whether covered by § 1113 or § 365, a debtor must take some affirmative action to assume or reject a CBA, and it is only the debtor who can take such action.
In light of its decision that assumption had not yet occurred, the bankruptcy court then determined that the union's motion to treat the unpaid prepetition medical and dental expenses as an administrative expense was still not ripe for decision and denied the union's motion for administrative expense treatment without prejudice.
ISSUES
The parties raise two issues on appeal. First, was the bankruptcy court correct in concluding that rejection was not an option once an asset sale had occurred because there was no longer a "reorganization" to be facilitated by such rejection? The second issue is whether the bankruptcy court correctly held that no assumption occurred ipso facto as a result of the court's order denying Debtor's motion to reject.
STANDARD OF REVIEW
The appellate court reviews a bankruptcy court's conclusions of law de novo and its findings of fact for clear error. See Merchants Nat'l Bank of Winona v. Moen (In re Moen), 238 B.R. 785, 790 (8th Cir. BAP 1999); Bachman v. Laughlin (In re McKeeman), 236 B.R. 667, 670 (8th Cir. BAP 1999). This case involves review of the bankruptcy court's conclusions of law the interpretation of *890 § 1113. See Truck Drivers Local 807 v. Carey Transp. Inc., 816 F.2d 82, 88 (2d Cir.1987) ("The bankruptcy court's interpretation of the statute [11 U.S.C. § 1113], specifically its reading of what the debtor must prove before the court may approve rejection, does constitute a conclusion of law subject to plenary review."). Therefore, this court will review the bankruptcy court's decision de novo.
DISCUSSION
A. Rejection Following an Asset Sale
We first address Appellees' contention that the bankruptcy court erred in its ruling that, as a matter of law, once the asset sale occurred, Debtor could not commence the process of rejection under § 1113. The court reasoned that § 1113 restricts a debtor to modifications that are necessary to the reorganization of the debtor and proposals must be made with a view towards the long term continuation of the business. Because Debtor had closed its doors, the court held it could not meet this threshold requirement. Because Debtor had already sold its assets, it also could not establish that rejection was necessary to facilitate the sale of the business on a going concern basis. Thus, in a liquidating Chapter 11 case, the court found, rejection is not an available alternative unless a debtor complies with § 1113 before it accomplishes a sale of all its assets. We find this reading of the statutory language too narrow, and we reverse.
Generally speaking, § 1113 governs the rejection or modification of a CBA by a Chapter 11 trustee or debtor-in-possession. See 11 U.S.C. § 1113(a) (1994) ("The debtor in possession, or the trustee ... may assume or reject a collective bargaining agreement only in accordance with the provisions of this section."). This section has its roots in the Supreme Court's decision in NLRB v. Bildisco & Bildisco, 465 U.S. 513, 104 S. Ct. 1188, 79 L. Ed. 2d 482 (1984). In Bildisco, the Supreme Court held that a debtor's CBA was an executory contract which could be rejected under § 365 of the Bankruptcy Code so long as it appeared that rejection was necessary to the debtor's reorganization and the equities favored such rejection. See Bildisco, 465 U.S. at 526-27, 104 S. Ct. 1188. The Bildisco Court also ruled that the debtor would have to establish that it had made efforts to negotiate with the union prior to attempting to reject the CBA. See id. at 526, 104 S. Ct. 1188. This portion of the court's decision was noncontroversial. The second portion of the opinion was, however, very controversial. The Court held that a debtor could unilaterally reject a CBA without court approval and not commit an unfair labor practice under § (8)(d) of the NLRA.[3]See id. at 523-27, 104 S. Ct. 1188. Congress swiftly responded to this second portion of the decision by enacting § 1113 of the Bankruptcy Code. See Collier on Bankruptcy ¶ 1113.01 (Lawrence P. King ed., 15th rev. ed.1999). With § 1113, Congress clearly manifested its intent that CBAs be treated differently than other executory contracts with respect to rejection. Section 1113 specifically sets forth the standards and procedure for rejection of a CBA and makes clear that a debtor may not unilaterally reject a CBA. Given this legislative history, it is often said that § 1113 is designed "to prevent [the debtor] from using bankruptcy as a judicial hammer to break the union." New York Typographical Union No. 6 v. Maxwell Newspapers, Inc. (In re Maxwell Newspapers, Inc.), 981 F.2d 85, 89 (2d Cir.1992). See also Jones Truck Lines, Inc. v. Central States, Southeast & Southwest Areas Pension Fund (In re Jones Truck Lines, Inc., 130 F.3d 323, 330 (8th Cir.1997) ("Section 1113(f) was designed to prevent employers `from using bankruptcy as an offensive weapon to rid themselves of burdensome collective bargaining agreements.'") *891 (quoting In re Ionosphere Clubs, Inc., 22 F.3d 403, 408 (2d Cir.1994)).
Section 1113 contains detailed substantive and procedural requirements with which a debtor must comply to modify or reject a CBA. Specifically, § 1113(c)(1) provides the criteria a court must use in evaluating the debtor-in-possession's application to reject a CBA:
(c) The court shall approve an application for rejection of a collective bargaining agreement only if the court finds that
(1) the trustee has, prior to the hearing, made a proposal that fulfills the requirements of subsection (b)(1);
(2) the authorized representative of the employees has refused to accept such proposal without good cause; and
(3) the balance of the equities clearly favors rejection of such agreement.
11 U.S.C. § 1113(c) (1994) (emphasis added). Section 1113(b)(1), which is cross-referenced in Subsection (c)(1), sets out the requirements for making a valid proposal to modify:
(b)(1) Subsequent to filing a petition and prior to filing an application seeking rejection of a collective bargaining agreement, the debtor in possession or trustee ... shall
(A) make a proposal to the authorized representative of the employees covered by such agreement, based on the most complete and reliable information available at the time of such proposal, which provides for those necessary modifications in the employees benefits and protections that are necessary to permit the reorganization of the debtor and assures that all creditors, the debtor and all of the affected parties are treated fairly and equitably; and
(B) provide ... the representative of the employees with such relevant information as is necessary to evaluate the proposal.
11 U.S.C. § 1113(b)(1) (1994) (emphasis added). Nowhere in § 1113 is there any indication as to when a debtor must take action to reject a CBA. Timing is addressed, however, in Subsection (b)(2) which requires the trustee or debtor-in-possession to meet with the union representative and "confer in good faith in attempting to reach mutually satisfactory modifications" of the CBA between the time the debtor makes the proposal and the hearing date. 11 U.S.C. § 1113(b)(2) (1994). Subsection (d) further enumerates timing requirements once such an application is made, providing that a hearing shall be held within fourteen days of the filing of the application and that the bankruptcy court must rule on an application for rejection within thirty days after the hearing. See 11 U.S.C. § 1113(d)(1)-(2) (1994). Subsection (e) allows for interim modifications by court order where "essential to the continuation of the debtor's business, or in order to avoid irreparable damage to the estate...." 11 U.S.C. § 1113(e). And Subsection (f), specifically overruling the controversial portion of Bildisco, provides: "No provision of this title shall be construed to permit a trustee to unilaterally eliminate or alter any provision of a collective bargaining agreement prior to compliance with the provisions of this section." 11 U.S.C. § 1113(f) (1994).
Section 1113 is certainly "not a masterpiece of draftsmanship." In re American Provision, 44 B.R. 907, 909 (Bankr. D.Minn.1984). Courts and scholars alike have commented extensively on how poorly-drafted this statutory provision is. See, e.g., In re Mile Hi Metal Sys., Inc., 899 F.2d 887, 890 (10th Cir.1990); Birmingham Musicians' Protective Ass'n v. Alabama Symphony Ass'n (In re Alabama Symphony Ass'n), 211 B.R. 65, 69 (N.D.Ala.1996) ("The drafters of § 1113, however, were not as clear as they might have been, and the interpretation of the law has not been consistent among the courts that have examined the section." (internal footnote omitted)); In re Moline Corp., 144 B.R. 75, *892 78 (Bankr.N.D.Ill.1992) (noting that Congress' drafting failed to make clear § 1113's relationship to other provisions of the Bankruptcy Code); David Keating, The Continuing Puzzle of Collective Bargaining Agreements in Bankruptcy, 35 WM. & MARY L.REV. 503, 505 (1994) [hereinafter Keating] ("After nearly a decade and dozens of cases, the debate concerning section 1113 is far from settled. Neither the courts nor scholars can agree about what Congress intended to accomplish with section 1113. Similarly, courts still have not arrived at a consensus concerning how they ought to interpret that section's nebulous standards for allowing a Chapter 11 company's rejection of a collective bargaining agreement."); Mitchell Rait, Rejection of Collective Bargaining Agreements Under Section 1113 of the Bankruptcy Code: The Second Circuit Enters the Arena, 63 AM.BANKR.L.J. 355, 357 (Fall 1989) [hereinafter Rait]. In addition, Congress provided courts with no meaningful legislative history to decipher and clarify Congressional intent or to interpret and apply the statute's substantive, often ambiguous, terms. See generally United Food & Commercial Workers Union, Local 770 v. Official Unsecured Creditors' Commit. (In re Hoffman Bros. Packing Co., Inc.), 173 B.R. 177, 182 (9th Cir. BAP 1994) ("[Enactment of § 1113 in response to Bildisco] was not a tidy process. Passage of § 1113 was not accompanied by a committee report, and there is no dependable legislative history."); Collier on Bankruptcy ¶ 1113.LH (Lawrence P. King ed., 15th rev. ed.1999) (noting absence of co-sponsor statements and committee reports on § 1113); In re Mile Hi Metal Sys., Inc., 899 F.2d at 890 ("When legislative history is scant and capable of differing interpretations, we are hesitant to consider it a reliable indicator of [Congressional] intent." (internal citations omitted) (alterations in original)); Rait, Rejection of Collective Bargaining Agreements, 63 AM. BANKR.L.J. at 356 (commenting that because "legislative history is sparse and provides no guidance in interpreting the provisions," courts have been left to ferret out § 1113's meaning and reached widely divergent results in doing so).
As a consequence, courts differ in their application and interpretation of § 1113. They do, however, seem to agree that an application to reject a CBA under § 1113 is judged against a nine factor test first articulated in In re American Provision Co., 44 B.R. 907, 909 (Bankr.D.Minn. 1984). See generally Keating, 35 WM. & MARY L.REV. at 511-12 ("Virtually every court that is faced with the issue of whether a Chapter 11 debtor may reject its collective bargaining agreement utilizes a nine-part test that was first set down by the bankruptcy court in In re American Provision Co."). Under § 1113(b), the American Provision test requires that: (1) the debtor make a proposal to modify the CBA; (2) the proposal be based on the most complete and reliable information available at the time of the proposal; (3) the proposed modifications are necessary to permit reorganization of the debtor; (4) the modifications assure that all creditors, the debtor, and all other affected parties are treated fairly and equitably; (5) the debtor provides to the union such relevant information as is necessary to evaluate the proposal; (6) the debtor meets at reasonable times with the union between the time of the proposal and the time of the hearing on the proposal; (7) the debtor negotiates with the union in good faith at these meetings; (8) the union refuses to accept the debtor's proposal without good cause; and (9) the balance of equities clearly favors rejection of the agreement. See American Provision, 44 B.R. at 909. In term of burdens, the "debtor bears the burden of persuasion by the preponderance of the evidence on all nine elements," although "assignment of the initial burden of production depends on the circumstances." Id.
The third factor, "necessary to permit the reorganization of the debtor," which was central to the bankruptcy court's decision, has been at the root of numerous *893 disputes as to interpretation. The primary dispute arises in the context of how to interpret the word "necessary." Basically, courts differ as to whether "necessary" is synonymous with "essential" or has a more flexible meaning.
On the one side is the Third Circuit and its decision in Wheeling-Pittsburgh Steel Corp. v. United Steelworkers of America, 791 F.2d 1074 (3d Cir.1986). There, the court defined "necessary" as synonymous with "essential." Id. at 1088-94. See also In re Royal Composing Room, Inc., 62 B.R. 403, 417-18 (Bankr.S.D.N.Y.1986) (discussing Third Circuit's strict "necessary" standard); In re Pierce Terminal Warehouse, Inc., 133 B.R. 639, 646-47 (Bankr.N.D.Iowa 1991) (adopting strict construction of "necessary to permit reorganization"). Interpreting "necessary" strictly, the Third Circuit "claimed that Congress intended the word `necessary' to focus on the somewhat shorter-term goal of preventing the debtor's liquidation rather than on the far-sighted goal of ensuring a long-term reorganization." Keating, 35 Wm. & Mary L.Rev. at 527 (citing Wheeling-Pittsburgh, 791 F.2d at 1089).
On the other side is the Second Circuit and its decision in Truck Drivers Local 807 v. Carey Transportation, Inc., 816 F.2d 82 (2d Cir.1987). There, the Second Circuit defined "necessary" more broadly. See id. at 90. Rejecting the Third Circuit's strict interpretation, the Second Circuit concluded that "the necessity requirement places on the debtor the burden of proving that its proposal is made in good faith, and that it contains necessary, but not absolutely minimal, changes that will enable the debtor to complete the reorganization process successfully." Id. Thus, this more flexible Carey standard "focuse[s] on changes that w[ill] ensure the long-term health of the debtor rather than on changes that would simply stave off a liquidation in the short term." Keating, 35 WM. & MARY L.REV. at 527-28. See also United Food and Commercial Workers Union, Local 328 v. Almac's, Inc., 90 F.3d 1, 5, 6 (1st Cir.1996) (differentiating between the standard for interim changes in § 1113(e) and rejection in § 1113(b) and pointing out that the latter involves substantive "modifications proposed with a view to the long-run success of the debtor's business"). This more flexible standard is often paired with the requirement of § 1129(a)(11) that a plan of reorganization be confirmed only if confirmation is not likely to be followed by the liquidation of, or the need for further financial reorganization of, the debtor. See 11 U.S.C. § 1129(a)(11); see also Almac's, 90 F.3d at 6.
However, each court that has addressed the meaning of the phrase "reorganization of the debtor," as found in § 1113(b)(1)(A), has held or assumed that § 1113 applies in a case where the debtor will not be engaged in business because it is selling its assets. Initially this might seem questionable since, overall, the language and scheme of things suggests Congress was concentrating on the classic form of reorganization where the debtor restructures its debts and continues in business. See In re Ionosphere Clubs, Inc., 134 B.R. 515, 517 (Bankr.S.D.N.Y.1991) (discussing problematic application of § 1114's "necessary to permit the reorganization of the debtor" language to liquidating Chapter 11 cases). But nonetheless, the courts have applied § 1113 in a liquidation scenario. See In re Maxwell Newspapers, Inc., 981 F.2d at 91 ("The union ... contends that the debtor has not shown that a collective bargaining agreement may be rejected to serve the interests of a purchaser of assets. The two lower courts believed that 11 U.S.C. § 1113 applied to this transaction because what is to emerge, if the sale is consummated, is the Daily News reorganized as an ongoing business. We agree."); In re Hoffman Bros. Packing, 173 B.R. at 186-87 ("[T]he distinction between reorganization of a debtor and the sale of a going concern asset to a third party ... [is] irrelevant to considerations under § 1113, based on Chapter 11's goal of continuing *894 the enterprise, regardless of the ownership."); In re The Lady H Coal Co., 193 B.R. 233, 240-43 (Bankr.S.D.W.Va.1996) (denying a debtor's application for rejection on equitable grounds but assuming that rejection may occur to facilitate a sale); In re Buhrke Indus., Inc., No. 94-B-1671, 1996 WL 520771, at *1 (Bankr. N.D.Ill. Sept. 13, 1996) (allowing a debtor to reject a CBA while the debtor was in the process of liquidation); see also Collier on Bankruptcy ¶ 1113.02[1] (Lawrence P. King ed., 15th rev. ed.1996) (stating that § 1113 "applies to chapter 11 cases whether the proposed plan is a liquidating one or not") (citing In re Moline Corp., 144 B.R. 75 (Bankr.N.D.Ill.1992)).[4]
The bankruptcy court never reached the question of which standard to apply when deciding whether rejection was "necessary" because it interpreted "reorganization" narrowly. The court provided little guidance for its decision, but did reference In re Mile Hi Metal Systems, Inc., 899 F.2d at 893 (placing on the debtor the burden of proving that it could emerge from its reorganization as an economically viable operation to permit modification or rejection of the CBA), and Almac's, 90 F.3d at 6 (stating that proposals to modify or terminate a CBA "must be made with a view to the long run success of the debtor's business").[5] Since Debtor had already sold its assets before it sought court approval for its rejection, the bankruptcy court held that rejection was not an available remedy.
We begin by noting that this precise question, whether a debtor must comply with § 1113 before it sells its assets, appears to be one of first impression. We find no case directly on point as to this issue of timing under § 1113.[6] The bankruptcy *895 court's reliance on Almac's and Mile Hi, therefore, was misplaced. Those cases dealt with the meaning of "necessary," not the meaning of "reorganization of the debtor." When they used language regarding the long term future of the business, they did so to make clear that they were not adopting the more narrow, minimally needed to avoid liquidation, test adopted in Wheeling-Pittsburgh. Neither case involved a debtor who was liquidating.[7] For the reasons set forth below, we find that the court, based on apparent misreading of inapplicable cases, too narrowly read the word "reorganization" and erred when it equated reorganization as used in § 1113 with rehabilitation of the debtor.
As a threshold matter, Congress used the word "reorganization," not the more narrow term "rehabilitation," in § 1113(b)(1)(A). While "reorganization" is not a statutorily defined term, it is generally understood to include all types of debt adjustment, including a sale of assets, piecemeal or on a going concern basis, under § 363 followed by a plan of reorganization which distributes the proceeds of the sale to creditors in accordance with the Bankruptcy Code's priority scheme. See, e.g., 11 U.S.C. § 1123(b)(4) (1994) (stating that a plan may "provide for the sale of all or substantially all of the property of the estate, and the distribution of the proceeds of such sale among holders of claims or interests"); In re Timbers of Inwood Forest Assocs., Ltd., 808 F.2d 363, 371 n. 14 (5th Cir.1987) (finding that § 362(d)(2) "necessary to an effective reorganization" includes liquidation), aff'd, 484 U.S. 365, 108 S. Ct. 626, 98 L. Ed. 2d 740 (1988); In re Bloomingdale Partners, 155 B.R. 961, 988 (Bankr.N.D.Ill.1993); In re Independence Village, Inc., 52 B.R. 715, 723 (Bankr. E.D.Mich.1985); In re W.S. Sheppley & Co., 45 B.R. 473, 480 (Bankr.N.D.Iowa 1984). Indeed, elsewhere in the Bankruptcy Code, Congress has distinguished the narrower concept of rehabilitation from the broader concept of reorganization. See In re Economy Cab & Tool Co., Inc., 44 B.R. 721, 724 n. 2 (Bankr.D.Minn.1984) ("It is well established that the `rehabilitation' of the second element under Section 1112(b)(1) means something more than `reorganization' as `reorganization' may include orderly liquidation under control of debtor."); see also 11 U.S.C. § 1113(e) (providing for interim modification of a CBA "if essential to the continuation of the debtor's business, or in order to avoid irreparable damage to the estate"); Almac's, 90 F.3d at 6 ("The scope of `interim changes' [in § 1113(e) which speaks of `essential to the continuation of the debtor's business'] is more limited than the modifications `necessary for reorganization.'").
In addition, we note that the bankruptcy court's conclusion that there is a time limit on when in the reorganization process a debtor must reject a CBA (i.e., it must be made before rather than after an asset sale) is not supported by any language found in § 1113. As previously noted, *896 there is nothing in the language of § 1113 that dictates when an application to reject must be made. See generally In re Moline Corp., 144 B.R. 75, 77-78 (Bankr. N.D.Ill.1992). Accordingly, for reasons discussed infra, the timing of such action is governed, not by § 1113, but by § 365(d)(2), which allows a debtor to defer such a decision until confirmation of a plan.[8]Id.
Moreover, and most importantly, identical wording in § 1114 of the Bankruptcy Code has been interpreted to include a situation where the debtor first seeks to reject after it has sold its assets. Section 1114 was enacted in 1988 and deals with retiree benefits, including those found in a union bargaining agreement. It allows a Chapter 11 debtor to modify retiree benefits under the same test set forth in § 1113: if "necessary to permit the reorganization of the debtor." 11 U.S.C. § 1114(g)(3) (1994). In In re Ionosphere Clubs, Inc., 134 B.R. 515, 517 (Bankr. S.D.N.Y.1991), the bankruptcy court rejected an argument that "once a company gives up hope of reorganizing as a viable entity, retiree benefits can no longer be modified." Eastern Airlines was well into a liquidation of all of its assets before it sought to modify its obligations of providing benefits for retirees. The bankruptcy court reasoned:
If the motion to modify or terminate the benefits is not heard before any possibility of reorganization is lost, then according to the Retiree Committee, the trustee would be unable to meet this "necessary to" test and would, thereafter, have forfeited any opportunity to modify retiree benefits in any way. This Court cannot find that Congress intended such an anomalous result. Under the circumstances of this case, the only meaningful interpretation of "necessary to permit the reorganization" that is consistent with fair and equitable treatment of retirees and all other creditors is one that does not encourage the Trustee or the Creditors' Committee to seek to convert the case from Chapter 11 to Chapter 7 solely to preserve the possibility of some recovery for general unsecured creditors. In other words, in this liquidating case, "necessary to permit the reorganization" must be interpreted to mean "necessary to accommodate confirmation of a Chapter 11 plan."
Ionosphere, 134 B.R. at 524-25. While Ionosphere deals with a different statutory section, we are persuaded by these arguments and find them equally applicable to the same wording found in § 1113. See S.REP. No. 1119, at 6 (1988), reprinted in 1988 U.S.C.C.A.N. 687-88 ("These standards [§ 1114(e) and (g)] are intended to be identical to those contained in Section 1113. In adopting this standard the Committee believes that it is important to use a standard with which the courts are already familiar."); Ionosphere, 134 B.R. at 519 ("When Congress enacted § 1114 it used the same procedures and standards as existed for modification or rejection of collective *897 bargaining agreements under § 1113. Compare 11 U.S.C. §§ 1113(b) and (c) with 11 U.S.C. § 1114(e) and (g) respectively.").[9]
The union seeks to confine Ionosphere to its facts, i.e., to a case where the debtor was selling its assets off piecemeal. When a debtor is selling on a going concern basis, the union urges, Ionosphere should not apply because the only meaningful time the court can make a decision on rejection is prior to the sale. We see no basis for such a distinction, unless it is to give the union veto power over a going concern sale which, as we know from experience, is often the best way to reap the greatest benefit for all creditors. Section 1113 was never intended to give unions such power. Its sole purpose is to keep a debtor from unilaterally rejecting a CBA and to plainly articulate the rules for going about rejection. If, as Ionosphere concluded, a debtor who is liquidating piecemeal should not be forced into Chapter 7 in order to preserve its assets for equitable distribution to all creditors, the same is true for a debtor who is selling its assets on a going concern basis.
We further note that there are practical problems with the union's position that negotiations for rejection must occur before a sale. Many times § 363 asset sales occur on a very expedited basis in Chapter 11, and, at times, the court authorizes a sale by auction. Purchasers often are willing to purchase only if the sale can be closed with lightning speed. In an auction setting, for sure, negotiations for rejection would be virtually impossible. In certain factual settings, the union's position would make it impossible for a debtor to accept the highest and best offer for its assets and would precipitate the loss of potential purchasers to the detriment of all other creditors. It is difficult to accept the argument that § 1113 was designed to give a union the power to so strangle a debtor's attempts to reorganize through liquidation.
Thus, while we find no case directly on point, we conclude that "necessary to permit the reorganization of the debtor" means necessary to accommodate confirmation of a Chapter 11 plan. We see no principled reason to limit a debtor's right to reject a CBA to a case where the application to reject comes before an asset sale. Certainly, if it is appropriate to permit rejection in the context of a § 363 asset sale when the debtor will no longer be in business, as the cases uniformly hold and the union appears to concede, it ought not matter when the decision on rejection is made.
The union's argument-that the asset sale constitutes the debtor's "reorganization" too narrowly reads the language of § 1113(b)(1)(A). The union cites several cases for the proposition that because an asset sale effectively represents a plan of reorganization, the debtor must satisfy the requirements of § 1113 at the time of or in conjunction with that asset sale. See, e.g., In re Maxwell Newspapers, 981 F.2d at 91; Hoffman Bros. Packing, 173 B.R. at 186-87; Lady H, 193 B.R. at 240-41. Admittedly, depending on the facts in a case and the specifics of the arrangement with the prospective purchaser, the asset sale, as these cases suggest, may represent the appropriate time for the debtor to comply with § 1113's requirements and seek rejection of the CBA. However, these cases are at odds with the accepted principle that an asset sale does not always constitute a plan of reorganization and distribution, see Pension Benefit Guar. Corp. v. *898 Braniff Airways, Inc. (In re Braniff Airways, Inc.), 700 F.2d 935, 940 (5th Cir. 1983), and none of these cases holds that § 1113's requirements may not be satisfied post-asset sale.
The Debtor was not required to reject the CBA prior to or in conjunction with the asset sale under § 1113. That is to say, exactly when a debtor satisfies the "necessary to permit the reorganization" element does not hinge on the consummation of the asset sale but rather on the confirmation of the actual plan of reorganization to distribute the proceeds of that asset sale. In this case, at the time the sale closed, Debtor had not yet proposed its plan of reorganization. Under the terms of the statute, Debtor will still ultimately have to show that rejection of the CBA is necessary to obtain a confirmable Chapter 11 plan. Because the Debtor can make that showing before, at, or after the asset sale, and thereby satisfy the requirements for rejection of the CBA, § 1113 should not be read to preclude the Debtor from doing so after the § 363 asset sale in this case.
Finally, we reject the union's contention that our construction of the statute renders meaningless the protections provided union members in § 1113. According to the union, our construction of § 1113(b)(1)(A) allows a debtor undertaking a going concern sale to ignore its obligations under § 1113 until after it has sold its assets. We disagree. In order to reject a CBA a debtor must prove that it has met each of the nine American Provision factors, including specifically that it is acting in good faith and that the balance of equities favors rejection. See Lady H, 193 B.R. at 242 (denying rejection following sale of assets upon finding that debtor made no effort to find a buyer who would negotiate with the union, appeared to have ignored a potential purchaser who was willing to negotiate with the union, and obligated itself to a "sweetheart" deal for the benefit of insiders). Thus, if a debtor has acted in bad faith in failing to seek rejection of its CBA before a sale, it will not be able to make a threshold showing necessary to obtain the right to modify or reject. If, following the sale, the balance of equities does not favor rejection, the debtor will not be able to reject. But, that does not mean that, as a matter of law, the debtor must apply for rejection of a CBA prior to a sale of its assets.
Accordingly, we reverse and remand to allow the bankruptcy court to make the findings necessary to determine whether Debtor is entitled to reject its CBA.[10]See Buhrke, 1996 WL 131698, at **9-10 (remanding to bankruptcy court for consideration of American Provision factors); see also In re Buhrke Indus., Inc., No. 94-B-1671, 1996 WL 520771, at *1 (Bankr. N.D.Ill.1996) (decision on remand).
B. Automatic Assumption Upon Denial of the Application to Reject
The second issue on appeal, which we also find to be one of apparent first impression,[11] is whether the bankruptcy court correctly held that no assumption occurred automatically upon the bankruptcy court's denial of Debtor's application to reject. The bankruptcy court rejected the union's *899 argument that assumption occurs upon the bankruptcy court's denial of a debtor's motion to reject, reasoning that assumption may not be implied and that, instead, assumption of the CBA by a debtor required affirmative action by way of a motion seeking assumption. The issue is important because the parties seem to agree that, if assumption occurred, the union employees' claims for prepetition medical and dental expenses will be elevated from unsecured prepetition claims, subject at most to fourth priority under § 507(a)(4), to first priority administrative expenses under §§ 365(b)(1), 365(g)(1), 503(b)(1), and 507(a)(1). In that case, the Debtor is unlikely to have enough money to pay administrative expenses and will not be able to confirm a plan. Given the importance of this issue, which may arise once again on remand, we reach it on appeal.
1. Incorporation of § 365 Into § 1113
Section 1113 provides the "debtor in possession, or the trustee ... may assume or reject a collective bargaining agreement only in accordance with the provisions of this section." 11 U.S.C. § 1113(a) (1994). The union asserts this plainly means that § 1113 trumps all other Bankruptcy Code sections with respect to both assumption and rejection and that Congress could have, and indeed would have, specifically incorporated other Code sections into § 1113 by reference had it wanted them to apply. However, aside from this single use of the word "assume," § 1113 provides no guidance for what procedure is to be used to assume a CBA, nor against what standards a debtor's attempt to assume should be judged. Rather, § 1113 is entitled "Rejection of Collective Bargaining Agreements" and sets forth detailed requirements relating solely to a debtor's rejection action.
We recognize that as a general rule, fundamental rules of statutory construction require us to adhere to the plain meaning of the statute and give meaning to every word in the statutory provision. See, e.g., Negonsott v. Samuels, 507 U.S. 99, 104, 113 S. Ct. 1119, 122 L. Ed. 2d 457 (1993); United States v. Ron Pair Enter., Inc., 489 U.S. 235, 243, 109 S. Ct. 1026, 103 L. Ed. 2d 290 (1989); Jasa v. Millard Public Sch. Dist. No. 17, 206 F.3d 813, 815 (8th Cir.2000). Yet, we find the use of the word "assume" in § 1113, without any additional instruction or reference, far from plain. We are not alone. See, e.g., Massachusetts Air Conditioning & Heating Corp. v. McCoy, 196 B.R. 659, 662 (D.Mass.1996) ("I find that the use of the term assumption in § 1113(a) was at most sloppy legislative drafting.").
Given the lack of clarity in this specific provision, we must look to other provisions in the Bankruptcy Code for clarification. See United Sav. Ass'n v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371, 108 S. Ct. 626, 98 L. Ed. 2d 740 (1988) ("Statutory construction, however, is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme because the same terminology is used elsewhere in a context that makes its meaning clear[.]"); Jewel Recovery, L.P. v. Gordon, 196 B.R. 348, 352 (N.D.Tex.1996); Davis v. Fechtel, 150 F.3d 486, 488 (5th Cir.1998) ("When interpreting a statute, we first look to its plain language. Specific words within a statute, however, may not be read in isolation of the remainder of that section or the entire statutory scheme." (internal quotes and citations omitted)); Finney v. Smith, 141 B.R. 94, 103 (E.D.Va.1992) ("Title 11's various provisions should not be viewed in isolation. Instead, their interpretation should reflect the interplay between all of its different parts, so that the Bankruptcy Code can operate as a coherent whole."); see also Molitor v. Eidson, 76 F.3d 218, 220 (8th Cir.1996); In re Hasse, 246 B.R. 247, 253 (Bankr.E.D.Va.2000) ("Statutes sometimes speak in generalities or contradictions, and when they do, it is unavoidable that courts will have to fill in gaps in such a way as seem consistent with the *900 overall framework of the statute."). Moreover, in light of Bildisco's direction, not disturbed by the enactment of § 1113, that CBAs are executory contracts, the better reading is that § 365 covers assumption and rejection of CBAs, except as specifically modified with regard to rejection in § 1113. See Massachusetts Air Conditioning, 196 B.R. at 663 ("Section 1113 is designed to provide additional procedural requirements for rejection or modification of collective bargaining agreements, and only to that degree supersedes and supplements the provisions in § 365.") (citing Norfolk & Western Ry. Co. v. American Train Dispatchers Ass'n, 499 U.S. 117, 136 n. 2, 111 S. Ct. 1156, 113 L. Ed. 2d 95 (Stephens, J., dissenting); Wien Air Alaska, Inc. v. Bachner, 865 F.2d 1106, 1111 n. 5, 1112 (9th Cir.1989)).
We conclude that given the ambiguity in § 1113, § 365(b), coupled with Fed. R.Bankr.P. 6006[12] which provides that a proceeding to require a debtor to assume an executory contract is governed by Fed. R.Bankr.P. 9014,[13] governs the procedure for assumption of a CBA.[14] In comparable settings, the courts have so held.
For example, in American Flint Glass Workers Union v. Anchor Resolution Corp., 197 F.3d 76, 82 (3d Cir.1999), the debtor attempted to assume and assign a CBA. The union urged that § 365(k), which provides that a debtor may be relieved of its obligations under an executory contract if the contract has been assumed and assigned to another, did not apply. The Third Circuit disagreed, holding that § 365(k) applied to relieve the debtor of its obligations under the CBA:
*901 there remains the argument that Anchor's non-adherence to the Code § 1113 route as to the AFU CBAs leaves it liable despite Code § 365(k)'s plain language. Code § 1113(a) reads:
The debtor in possession ... may assume or reject a collective bargaining agreement only in accordance with the provisions of this section.
Accordingly, the argument goes, Code § 1113 and not § 365 is the governing provision here. That contention rests on an extraordinarily thin reed: that the mere presence of the word "assume" in Code § 1113(a) requires the application of that provision even where no modification or rejection of a CBA has occurred. But that argument is at odds with the plain reading of Code § 1113, which (like the specific prohibition in Code § 1113(f)) speaks only to what must be done by a party in bankruptcy to change or to free itself entirely from the terms of a CBA.... It is surely no accident that Code § 1113 is entitled "Rejection of Collective Bargaining Agreements," although we of course recognize that such legislative captions are not part of the statute itself. We are persuaded that Code § 365 and not Code § 1113 is the applicable provision in the circumstances here.
Id. at 82 (internal citations omitted).
Similarly, in Massachusetts Air Conditioning and Heating Corp. v. McCoy, 196 B.R. 659, 663 (D.Mass.1996), the debtor moved to assume its CBA under § 365 and Fed.R.Bankr.P. 6006(a). The bankruptcy court applied § 365, not § 1113, to the assumption of a CBA and the administrative expense treatment of claims thereunder as required by § 365(a)(1)(A). The district court affirmed:
Thus, given the plain language of § 1113(b)-(f) (directed in operation solely to termination or alteration of collective bargaining agreements), and the remedial purpose behind its enactment (directed to securing special procedures before a collective bargaining agreement may be rejected or modified), I find that the use of the term assumption in § 1113(a) was at most sloppy legislative drafting. The reference to assumption appears simply to call out the character of rejection by identifying it with its opposite. Otherwise, assumption plays no part in the purpose or operation of § 1113. Section 1113 is designed to provide additional procedural requirements for rejection or modification of collective bargaining agreements, and only to that degree supercedes and supplements the provisions in § 365.
By contrast, assumption of collective bargaining agreements continues to be governed by the provisions for executory contracts under § 365. Nothing in § 1113's plain language or legislative history indicates that Congress intended to alter Bildisco's holding that collective bargaining agreements are executory contracts. Because § 1113 speaks only to rejection, assumption of a collective bargaining agreement like any other executory contract remains within the province of § 365.
Id. at 663 (internal citations omitted). See also Adventure Resources, Inc. v. Holland, 137 F.3d 786, 798 (4th Cir.1998) (reasoning that § 1113 has no application to assumption of CBAs; rather § 365 applies); In re Typocraft Co., 229 B.R. 685, 688 (Bankr. E.D.Mich.1999) ("Given the language of almost all cases that have dealt with this issue to the effect that § 365 must be held to govern executory contracts including CBAs, except to the extent modified by § 1113, one must necessarily conclude that the process of `assumption' of CBAs continues to be governed by the general provisions of statute and rule under § 365.").
This line of authority, which looks to § 365 as the provision governing assumption of a CBA, best makes sense of the ambiguities regarding assumption in § 1113.[15] If a debtor seeks to assume a *902 CBA, it must comply with the dictates of § 365. See In re Gateway Apparel, Inc., 238 B.R. 162, 164 (Bankr.E.D.Mo.1999) (finding that under § 365, debtor's assumption of employee severance agreements requires affirmative action in the form of expression of clear intent by the debtor-in-possession, notice of the debtor-in-possession intention's to interested parties, and court approval of the debtor-in-possession's actions). In particular, the debtor must make a motion to do so as required by § 365(a) and Fed.R.Bank.P. 9006(a) and 9014, effectively providing creditors and other affected parties with notice and an opportunity to be heard.[16] In addition, § 365 clearly requires the debtor to cure any default under the contract and provide adequate assurance of future performance of the contract. See 11 U.S.C. § 365(b)(1)(A) & (C) (1994). The other procedural safeguards contained in § 365 also apply, thus ensuring that assumption is an orderly, predictable court-controlled process.
2. Assumption by Inaction or Denial of a Motion to Reject
The union disagrees and suggests that a CBA can be assumed impliedly under both § 1113 and § 365 when a debtor fails to act or, alternatively, that a debtor automatically assumes the CBA upon the court's denial of its motion to reject. This argument is flawed for two reasons. First, with rare exception, the case authorities referenced by the union deal with a wholly different legal question, one the union specifically disclaims relying upon. Second, to suggest that failed rejection ipso facto amounts to assumption severely misconstrues the nature of rejection of an executory contract.
a. Assumption by Inaction
We first consider the cases cited by the union for the proposition that assumption may be implied from a debtor's failure to apply for rejection coupled with continuation of the business. Almost all of these cases discuss the issue of whether § 1113(f), which prohibits a debtor's unilateral rejection of the CBA, entitles unpaid union employees' expenses to superpriority treatment. See 11 U.S.C. § 1113(f) ("No provision of this title shall be construed to permit a trustee to unilaterally terminate or alter any provisions of a collective bargaining agreement prior to compliance with the provisions of this section."). Two lines of authority have developed on this issue.
The first stems from the Sixth Circuit's decision in In re Unimet Corp., 842 F.2d 879, 882-83 (6th Cir.1988), cert. denied, 488 U.S. 828, 109 S. Ct. 81, 102 L. Ed. 2d 57 (1988). There, the court held that a debtor-in-possession which has not rejected a CBA is obligated to pay retiree benefits that have accrued post-petition. See id. at 882. Unimet was followed by a long line of cases essentially holding that § 1113 was enacted to protect against a debtor's unilateral rejection of a CBA, including a debtor's failure to fulfill its obligations to *903 pay union employees' benefits under the CBA. See, e.g., Acorn Bldg. Components, Inc., 170 B.R. 317, 320-21 (E.D.Mich.1994); United Steelworkers of America v. The Ohio Corrugating Co., No. 4:90 CV 0810, 1991 WL 213850, at **3-4 (N.D.Ohio Jan. 3, 1991); In re Arlene's Sportswear, 140 B.R. 25, 27-28 (Bankr.D.Mass.1992). More specifically, these cases stand for the proposition that a debtor's failure to pay employee benefits without first complying with the rejection procedures set forth in § 1113 represents a constructive assumption of the CBA. See Massachusetts Air Conditioning, 196 B.R. at 664 n. 13. Section 1113(f) thus ensures that "§ 1113 shall trump all other sections of the Bankruptcy Code, including the priority provisions in § 507." Id.
In what has become the majority position, the second line, by contrast, reasons that § 1113 meshes with the priority scheme in § 507. In re Ionosphere Clubs, Inc., 22 F.3d 403, 407-408 (2d Cir.1994) (Ionosphere II); In re Roth American, 975 F.2d 949, 956 (3d Cir.1992); In re Moline, 144 B.R. 75, 78-79 (Bankr.N.D.Ill.1992); In re Typocraft Co., 229 B.R. 685, 689 (Bankr. E.D.Mich.1999); In re Spirit Holding Co., Inc., 157 B.R. 879, 882 (Bankr.E.D.Mo. 1993). The rationale under these cases is that the silence in § 1113 regarding how claims for unilateral rejection are to be treated requires use of other Bankruptcy Code sections, namely § 507. See Massachusetts Air Conditioning, 196 B.R. at 664 n. 13.
Neither line of cases is relevant to our decision here. We do not even need to reach this issue of priority treatment of the union employees' unpaid medical and dental expenses because the union has specifically disclaimed resting its argument on § 1113(f). It has not suggested Debtor unilaterally modified the CBA, nor has it asserted any claim to superpriority treatment of its claims under § 1113(f). Presumably it has not done so because it likely could not establish the elements for unilateral rejection[17] or because it believed that we were unlikely to follow the older, now minority, Unimet view. In short, its citation to this line of authorities is not helpful.
Rather, the union maintains that we should follow the Fourth Circuit's decision in Adventure Resources, Inc. v. Holland, 137 F.3d 786 (4th Cir.1998).[18] In Adventure Resources, a group of coal mining companies systematically, both before and after filing bankruptcy petitions, defaulted on obligations to provide certain pension benefits as required by a CBA. See id. at 791. The issue as framed by the court was whether "a debtor in bankruptcy operating under the aegis of Chapter 11 may, with regard to an executory contract in effect at *904 the time of the filing of the petition for reorganization, continue to reap the benefits of its bargain without concern that the nondebtor party will be made whole for the debtor's unfulfilled prepetition obligations." Id. at 790. During the forty-three month duration of the Chapter 11 case, the debtors continued to operate using union employees, but failed to pay pension benefits as required under the terms of the CBA. See id. at 791. Expressly invoking § 365, not § 1113, the court held the debtors had assumed the CBA as a result of their "failure to reject it in accordance with § 1113." Id. at 798. Moreover, upon assumption of the CBA, the court reasoned, the prepetition pension claims of the union employees were entitled to administrative expense priority. See id. at 798-99.
As a threshold matter, we think the concept of implied assumption of an executory contract is fatally flawed. A debtor may breach a contract by inaction, namely by failing to abide by its terms, or unilaterally modify or terminate a CBA under Section 1113, namely by failing to reject while taking advantage of workers (under one line of authority), but it cannot assume an executory contract by inaction. Implied assumption has no place in the law of executory contracts. Indeed, Section 365(d) presumes nonassumption by inaction, except in certain specified cases, such as nonresidential real property leases. See 11 U.S.C. § 365(d)(4) (1994). We find the Adventure Resources decision inconsistent with the explicit requirement under § 365 that a debtor may assume an executory contract only upon a motion. See U.S. on Behalf of Postal Serv. v. Dewey Freight Sys., Inc., 31 F.3d 620, 624 (8th Cir.1994) (making clear that under § 365(a), rejection is "subject to the court's approval," and that a debtor seeking such approval must proceed by motion upon reasonable notice and opportunity for hearing); In re Gateway Apparel, Inc., 238 B.R. 162, 164 (Bankr.E.D.Mo.1999) ("To be approved by the Court, the intention to assume must be clearly declared by the Debtor In Possession or Operating Trustee; and notice of this intention must be given to the necessary parties."); In re 1 Potato 2, Inc., 182 B.R. 540, 542 (Bankr. D.Minn.1995) ("Bankruptcy Rule 6006(a) provides that a proceeding to assume or reject an unexpired lease is governed by Bankruptcy Rule 9014 which in turn states that such relief shall be requested by motion with reasonable notice and opportunity for hearing."); In re National Gypsum Co., 208 F.3d 498, 511 (5th Cir.2000) (describing procedure for assumption of executory contract); In re United Nesco Container Corp., 47 B.R. 230, 233 (Bankr. E.D.Pa.1985) (stating that proceeding to reject unexpired lease, other than as part of plan, is "contested matter," in which relief is requested by motion); In re GP Express Airlines, Inc., 200 B.R. 222, 230 (Bankr.D.Neb.1996) (suggesting that only debtor-in-possession may seek assumption of executory contract).
Moreover, regardless of whether the court in Adventure Resources correctly determined that assumption may occur without the requisite motion by the debtor, the case is factually distinguishable from the facts this case. Unlike the debtors in Adventure Resources, the Debtor here did not "continue to reap the benefits of its bargain without concern that the nondebtor party will be made whole for the debtor's unfulfilled prepetition obligations." Adventure Resources, 137 F.3d at 790. Instead, recognizing its dire financial situation, Debtor actively sought a purchaser and moved quickly to liquidate its assets. It never indicated that it had any intention of remaining in business at the expense of its employees. It initiated the rejection process almost immediately after the asset sale took place and arranged for the purchaser to assume or pay, or itself assumed and paid, the Debtor's post-petition obligations under the CBA. Almost all of the Debtor's employees, both union and nonunion, were rehired by the purchaser under terms and conditions nearly as favorable as those under the CBA. Thus, to *905 the extent Adventure Resources stands for the proposition that there is a concept of assumption by inaction under § 365, the facts in that case are so disparate as to make it inapplicable to this case.
b. Assumption as a Result of Denial of a Motion to Reject
Next we address the union's contention that even if assumption by inaction is not permissible, then certainly assumption follows ipso facto when a debtor applies to reject the CBA and the bankruptcy court denies that application. More precisely, the union's argument here is that because assumption represents the flip-side of rejection, if a debtor tries to reject and loses, the end result must be assumption. To support its argument, the union cites the Lady H Coal and In re Moline cases.
In Lady H, the court considered the debtor's application to reject its CBA in conjunction with a sale of substantially all of its assets. See Lady H, 193 B.R. at 235. The court denied the debtor's application to reject, reasoning that rejection was not in the best interests of all affected parties under one of the American Provision factors. See id. at 241. But the court did approve the asset sale and permitted the union employees to amend their proofs of claim to assert administrative expense priority for the debtor's breach of the CBA. See id. at 242. The court did not, however, discuss the issue of assumption of the CBA upon the court's denial of the debtor's application to reject, nor did the court find that the debtor assumed the CBA upon denial of the application to reject. In that regard, the Lady H case is not helpful and neither explicitly, nor implicitly, seems to support the union's position. As for In re Moline, the court admittedly provided language to support the union's argument: "because of the more rigorous standards [of § 1113], most collective bargaining agreements would be assumed either by inaction or denials of motions to reject." 144 B.R. at 78. But we find this rather cursory reference about assumption upon denial of an application to reject to be mere dicta and, therefore, not controlling or substantive.
Finding no case law directly on point, we treat this second issue as one of first impression. We begin with the widely-accepted premise that rejection represents "a bankruptcy estate's decision not to assume." Michael T. Andrew, Executory Contracts in Bankruptcy: Understanding "Rejection," 59 U.COLO.L.REV. 845, 848 (1988) [hereinafter Andrew]. The debtor's decision to reject (or not to assume) "giv[es] rise to a presumption that the debtor has `breached'" or "will not perform its obligations." Andrew, 59 U.COLO. L.REV. at 881, 931 ("`Rejection,' although it requires a formal act and court approval in a reorganization case, is still the same concept: it is the estate's (formal) determination not to assume the contract or lease, and its occurrence triggers the ancillary rule that a `breach' of the debtor's obligations will be deemed to have occurred as of the commencement of bankruptcy, thus permitting a claim by the non-debtor."). Accordingly, it logically follows that the debtor's failure to take affirmative steps to assume or to reject an executory contract or unexpired lease in a reorganization case results in that contract or lease "rid[ing] through" the bankruptcy case unaffected. Andrew, 59 U.COLO.L.REV. at 881. See generally In re Texaco, Inc., 254 B.R. 536, 557-58 (Bankr.S.D.N.Y.2000) (citing, inter alia, In re Cajun Elec. Power Co-op., Inc., 230 B.R. 715, 734 (Bankr.M.D.La.1999)) (executory contracts which are neither assumed nor rejected during a Chapter 11 proceeding flow through the proceeding "without alteration"); In re Nevada Emergency Servs., Inc., 39 B.R. 859, 861 n. 1 (Bankr.D.Nev.1984) ("[C]ase law developed under past and current law supports the conclusion that such contracts pass through the reorganization proceedings unaffected and become an obligation of the reorganized debtor.")). Moreover, we again reiterate that "[t]he decision to assume or reject a contract or lease [under *906 section 365] must be approved by the court." Collier on Bankruptcy ¶ 365.03 (Lawrence P. King ed., 15th rev. ed.1999) (citing Thinking Machines Corp. v. Mellon Fin. Servs. Corp. (In re Thinking Machs. Corp.), 67 F.3d 1021, 1025 (1st Cir.1995) ("court approval is a condition precedent to the effectiveness of a trustee's rejection of a nonresidential lease"). See also Elliott v. Four Seasons Props. (In re Frontier Props., Inc.), 979 F.2d 1358 (9th Cir. 1992) (court approval of stipulation providing for the assumption of a lease satisfies the requirement that an assumption or rejection be approved by the court)); In re Price Chopper Supermarkets, Inc., 19 B.R. 462, 466-67 (Bankr.S.D.Cal.1982) ("Since there is no automatic assumption or rejection in a Chapter 11 proceeding, then any action must be presented for court approval." (citing Collier on Bankruptcy ¶ 365.03 (15th ed.1982)); Sealy Uptown, L.P. v. Kelly Lyn Franchise Co., Inc. (In re Kelly Lyn Franchise Co., Inc.), 26 B.R. 441, 444, 445 (Bankr.M.D.Tenn.1983) (noting that § 365(a) makes clear assumption of an executory contract can only occur upon express order of the court).
Accordingly, accepting Andrew's definition, a request to reject is the antithesis of a request for assumption, not merely its flip-side. In seeking to reject, or actually rejecting, the CBA, a debtor makes clear its intention not to assume. Coupled with well-established case law that a debtor must seek assumption by court order, this understanding of the meaning of rejection undermines the union's argument that denial of a debtor's motion to reject results in assumption. In short, we reject the union's argument. A debtor who seeks one form of relief rejection of the CBA should not end up with precisely the opposite assumption of the CBA.
The union's argument also carries with it a litany of practical problems. For example, automatic assumption would yield unpredictably; creditors and other interested parties would not know whether to support or oppose the debtor's motion to reject. Moreover, because none of the procedural rules governing when a debtor may or must seek assumption or when a creditor may force a debtor's decision to assume or reject would apply, a debtor would likely put off dealing with the CBA entirely, leaving union employees hanging. Further, the parties seem to agree that in this case the Debtor cannot cure prepetition defaults so as to meet a threshold requirement for assumption.
We agree with the bankruptcy court that when a court denies a motion to reject, the inevitable result is not assumption. There is a fundamental difference under § 1113 between the CBA remaining in effect upon denial of a debtor's motion to reject and the debtor's actual assumption of the CBA. Section 1113(f), as construed by the cases arising under that provision, clearly provides that the CBA remains in effect until rejected. See, e.g., In re Manor Oak Skilled Nursing Facilities, 201 B.R. 348, 350 (Bankr.W.D.N.Y. 1996) (stating that "all aspects of a collective bargaining agreement remain in effect and binding until rejection occurs").[19] But *907 the notion that the CBA remains operative during the course of the bankruptcy prior to rejection is wholly separate and distinct from the notion that the debtor has affirmatively assumed the CBA and undertaken all of the obligations that accompany such a decision under § 365. The debtor alone determines whether and when within the course of the bankruptcy case to seek assumption of the CBA under § 365 or rejection of that agreement under § 1113. Moreover, it seems that a denial of a rejection application could no doubt be followed, not by assumption, but by a renewed motion to reject under changed circumstances. And, finally, as the bankruptcy court correctly pointed out, there may be good reason for a liquidating debtor to defer making a decision about the CBA until after the asset sale, because assuming a CBA before conversion to a Chapter 7 may seriously disadvantage other unsecured creditors. See In re Rufener, 53 F.3d at 1066 (noting that § 1113 does not apply in a Chapter 11 case which is later converted to a Chapter 7 case).
ACCORDINGLY, we reverse the decision of the bankruptcy court on the issue of whether the debtor can reject the CBA after the § 363 asset sale and remand for further action consistent with this opinion. We affirm on the issue of whether assumption occurred as a result of the bankruptcy court's denial of the application to reject.
NOTES
[1] This number represents an estimate by the union. In addition, on the date of filing, Debtor was in arrears in paying approximately $600,000 in medical and dental expenses for employees represented by other unions and for non-union employees. The parties agree that if the union's claim to administrative expense status for its members' prepetition medical and dental expenses succeeds, the claims of Debtor's other employees, as well as the claims of all other prepetition unsecured creditors, will almost certainly receive no distribution at all.
[2] The union does make reference to this issue at several points in its appellate briefs but it nowhere addresses the question of whether the March 22 order created the law of the case on this specific question. Such passing references without more substantial development and argument do not bring the issue properly before the appellate court. See, e.g., United States v. Panet-Collazo, 960 F.2d 256, 261 n. 3 (1st Cir.1992) ("It is the `settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation are deemed waived.'") (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990), cert. denied, 494 U.S. 1082, 110 S. Ct. 1814, 108 L. Ed. 2d 944 (1990)); Larson v. Nutt, 34 F.3d 647, 648 (8th Cir.1994) ("In any event, Larson's skeletal assertion that `there were no circumstantial guarantees of trustworthiness surrounding the making of the statements,' buried in a brief point discussing the benefits of cross-examination, does not raise the issue on appeal." (citing United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991)); Branch v. Turner, 37 F.3d 371, 374 (8th Cir.1994) (citing Laborers' International Union of North Am. v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.1994) (passing reference to issue without discussion does not bring issue before court). Thus, we decline to address this argument. And, while we do not reach the issue because it has been waived on appeal, we note that the Memorandum Opinion of April 4, 2000, which supported the March 22, 2000 order, referenced "the union's premise ... that a sale of substantially all of the debtor's assets as a going concern to an entity who does not intend to honor the CBA constitutes a de facto rejection of the CBA and, therefore, the requirements of section 1113 must be met before a sale under those terms can be permitted." In allowing the sale, the court thus appeared to have rejected this argument.
[3] Section 8(d) of the NLRA, 29 U.S.C. § 158(d) (1994), prohibits either party to a labor contract from unilaterally changing its terms and conditions during the life of the agreement.
[4] The bankruptcy court in In re Ionosphere Clubs, Inc., 134 B.R. 515, 516-17 (Bankr. S.D.N.Y.1991), grappled with the application of similar language in § 1114 to a liquidation case. See 11 U.S.C. § 1114(f)(1)(A). There, the court noted that "it is evident from the statute itself that Congress glossed over the fact that while Chapter 11 cases are usually nonliquidating rehabilitative reorganizations, this is not always, or necessarily, the case. Where a moribund debtor ... is liquidating under Chapter 11, `necessary to permit the reorganization of the debtor,' construed literally, does not provide a meaningful standard for this Court to apply." Id. at 522. Nonetheless, the court applied § 1114 in a case where the debtor had liquidated.
[5] The court also cited Carpenters Health & Welfare Trust Funds for California v. Robertson (In re Rufener Construction, Inc.), 53 F.3d 1064 (9th Cir.1995) which deals solely with the question of whether § 1113 is available to a debtor whose Chapter 11 case has been converted to Chapter 7.
[6] The courts in two cases assume a debtor may proceed with the requirements of § 1113 for modification of the CBA post-asset sale. See In re The Lady H Coal Co., Inc., 193 B.R. 233, 240-41 (Bankr.S.D.W.Va.1996); Tool & Die Makers Local Lodge 113 v. Buhrke Inds., Inc., No. 94-C-5728, 1996 WL 131698, at *4, *6 n. 12 (D.N.D.Ill.1996). However, neither case addresses the precise timing issue raised in this case. In Buhrke, for example, over the union's objection, the debtor sold the assets of its tool and die division and closed its doors. Buhrke, 1996 WL 131698, at *2. The debtor proposed a plan of reorganization under which union employees' unpaid pre-petition vacation benefits would be treated as third priority allowed unsecured claims under § 507(a)(3)(A). See id. at **2-3. The union objected, arguing that benefits should be given administrative expense priority and that the failure to treat them as such constituted a prohibited unilateral modification of the CBA under § 1113(f). The district court rejected the union's argument. See id. at **4-6. More relevant to the issue in this case, however, the bankruptcy court below had held that the debtor had not assumed the CBA when the company's assets were sold and rejected the union's argument that once an asset sale had occurred, rejection of the CBA was not an option. See id. at *7. Finding that the bankruptcy court failed to address all factors of the American Provision test, the district court never reached this issue but did not seem bothered by the idea that rejection of the CBA could occur post-sale: "[T]he debtor no longer employs any members of Local 113, and therefore assumption of the CBA (the logical opposite of rejection) would serve no business purpose." Id. at *10 n. 11.
Likewise, in Lady H, the debtor sought to reject its CBA and proceed with a sale of substantially all of its assets free and clear of any interest or liabilities under that CBA. See Lady H, 193 B.R. at 236. The court rejected the debtor's application to reject, finding that the debtor had failed to comply with some of the American Provision factors. See Lady H, 193 B.R. at 242-43. However, the court approved the asset sale. See id. at 245. Thus, the court's decision in Lady H implicitly suggests that the debtor could satisfy the requirements of § 1113 after an asset sale but prior to confirmation of a plan. But, as in Buhrke, the Lady H court never explicitly addressed or discussed that issue.
[7] The union refers us to a number of additional cases for the proposition that "reorganization" as used in § 1113(b)(1)(A) has been interpreted to mean emergence from bankruptcy as a viable, ongoing enterprise. See Truck Drivers Local 807 v. Carey Transp., Inc., 816 F.2d 82 (2d Cir.1987); United Food & Commercial Workers v. Appletree Markets (In re Appletree Markets, Inc.), 155 B.R. 431 (S.D.Tex.1993); In re Valley Steel Prod., Inc., 142 B.R. 337 (Bankr.E.D.Mo.1992). Again, these cases are inapposite for they deal with the separate question of the standard to be used when determining the meaning of the word "necessary" as used in § 1113(b)(1)(A). None of them discusses the meaning of the word "reorganization" and none was decided in a factual context in which the debtor was liquidating its assets.
[8] A debtor may not, however, fail to take steps to reject the CBA under § 1113 and, at the same time, fail to comply with the terms of the CBA. A debtor remains bound by the terms of the CBA until it takes affirmative steps to reject that agreement. See In re Manor Oak Skilled Nursing Facilities, 201 B.R. 348, 350 (Bankr.W.D.N.Y.1996) ["[A]ll aspects of a collective bargaining agreement remain in effect until rejection occurs, including the duty to cure pre-petition arrears or suffer the consequences. The Debtor here wants both the benefits of rejection (the ability to impair the pre-petition arrears) and benefits of assumption (labor peace) at the same time. It may not have its cake and eat it too."] (citing In re Golden Distrib., Ltd., 134 B.R. 760, 762 (Bankr.S.D.N.Y.1991)). In addition, a debtor may not unilaterally modify or reject a CBA; rather, under the terms of § 1113, it must, inter alia, negotiate such modifications with the union representative and ultimately seek court approval for such modifications. See 11 U.S.C. § 1113(f) ("No provision of this title shall be construed to permit a trustee to unilaterally terminate or alter any provisions of a collective bargaining agreement prior to compliance with the provisions of this section.").
[9] The union has suggested that the decision in Maxwell Newspapers overruled Ionosphere. Compare In re Maxwell Newspapers, Inc., 981 F.2d 85 (2d Cir. 1992), with In re Ionosphere Clubs, Inc., 134 B.R. 515 (Bankr.S.D.N.Y. 1991). On the contrary, Maxwell Newspapers did not explicitly or implicitly overrule or limit the Ionosphere decision. The two cases are factually and legally dissimilar. In addition, in In re Ames Department Stores, Inc., 76 F.3d 66, 68 (2d Cir.1996), the Second Circuit cited the Ionosphere decision, specifically Chief Bankruptcy Judge Lifland's take on courts' conflicting interpretations of § 1114, favorably.
[10] We reject Appellees' argument that remand is not necessary because the union conceded all other issues. Appellees point to the transcript of the May 11, 2000 hearing on the Debtor's Application for Leave to Reject. While the subject was touched upon, there was no unequivocal waiver with respect to the other eight American Provision factors. In fact, Appellant has provided us with a memorandum it filed with the bankruptcy court in which it argued that several of the other eight factors had not been established.
[11] We acknowledge that in Lady H, the court denied the debtor's application to reject the CBA and proceeded to grant the union employees' benefit claims administrative expense status. See Lady H, 193 B.R. at 249. The court seemed to assume that automatic assumption upon the court's denial of the debtor's application to reject was the correct result, and the parties in that case do not appear to have argued otherwise. But because the court never addressed this precise issue, we treat it as one of first impression.
[12] Federal Rule of Bankruptcy Procedure 6006 provides in relevant part that a "proceeding to assume, reject, or assign an executory contract or unexpired lease, other than as part of a plan, is governed by Rule 9014." Fed.R.Bankr.P. 6006(a).
[13] Federal Rule of Bankruptcy Procedure 9014 provides in relevant part that "[i]n a contested matter in a case under the Code not otherwise governed by these rules, relief shall be requested by motion, and reasonable notice and opportunity for hearing shall be afforded the party against whom relief is sought." Fed.R.Bankr.P. 9014.
[14] The union argues that § 1113 governs the procedure for assumption of a CBA, while § 365 governs the effect of that assumption, specifically claiming that § 365 requires union employees' unpaid medical and dental expenses to be treated as administrative expenses upon the debtor's assumption of the CBA. As discussed infra in this opinion, this particular argument finds no support in the wording of § 1113 or § 365, or in the case law.
In addition, we underscore that the extent of our decision here is only that § 365(b) governs the debtor's assumption of the CBA. We do not take up the issue of whether other pieces of § 365 are imported in to § 1113 as well, though we acknowledge that courts have struggled with such issues. For example, courts disagree as to whether § 1113 displaces § 365(g), in other words, whether the debtor's rejection of the CBA gives the union employees a claim for damages. See Keating, 35 WM. & MARY L.REV. at 534-35 ("Some courts hold that because section 1113, unlike section 365, does not specifically provide that rejection gives rise to a claim then no claim for rejection exists. Further, these courts contend that allowing union workers a claim based on the rejection of their labor contract would defeat the purpose of section 1113 .... Other courts have held that section 1113 was not meant to displace completely the provisions of section 365 as applied to collective bargaining agreements, but merely to supplement the Code's more general rules on the assumption or rejection of executory contracts. Accordingly, these courts hold that the rules of sections 365(g) and 502(g), which applied before the enactment of section 1113, should continue to govern these rejection cases, because the rules of section 365(g) and 502(g) are not inconsistent with the provisions of section 1113."). Compare In re Blue Diamond Coal Co., 147 B.R. 720, 729-30 (Bankr.E.D.Tenn.1992); In re Armstrong Store Fixtures Corp., 139 B.R. 347, 350 (Bankr. W.D.Pa.1992), with In re Texas Sheet Metals, Inc., 90 B.R. 260, 264 (Bankr.S.D.Tex.1988); In re Garofalo's Finer Foods, Inc., 117 B.R. 363, 371 (Bankr.N.D.Ill.1990).
More generally, courts have also found § 1113's relationship with other Bankruptcy Code provisions unclear. See, e.g., Jones Truck Lines, Inc. v. Central States, Southeast & Southwest Areas Pension Fund (In re Jones Truck Lines, Inc.), 130 F.3d 323, 330 (8th Cir.1997) (discussing interplay between § 1113(f) and the Bankruptcy Code's preference provisions, specifically § 547).
[15] As the Appellees correctly point out, Congress could have expressly indicated, as it has done in other Code provisions, that § 1113 was not to be read in conjunction with or subject to the provisions of § 365. See 11 U.S.C. § 1167 (1994) ("Notwithstanding section 365 of this title, neither the court nor the trustee may change the wages or working conditions of employees of the debtor established by a collective bargaining agreement that is subject to the Railway Labor Act except in accordance with section 6 of such Act.") (emphasis added).
[16] The union asserts that since the parties can modify the CBA consensually under the provisions of the NLRA, they should be able to agree to the debtor's assumption of the CBA consensually. This assumes that the assumption of the CBA affects only the debtor and the union employees covered by the CBA and overlooks the very important fact that assumption of a CBA in the bankruptcy context dramatically affects other parties as well, namely, creditors and non-union employees. Indeed, the union acknowledges that the Debtor's actions with respect to assumption or rejection of the CBA and the accompanying treatment of the union employees' unpaid pre-petition medical and dental expenses bear directly on the final distributions to creditors under the plan.
[17] The union surely recognizes that Debtor acted promptly to reject the CBA and either paid its post-petition obligations under the CBA or ensured that such payments would be made by the asset purchaser.
[18] As support for its reading of Adventure Resources, the union also refers us to the following language in In re Moline Corp., 144 B.R. 75, 78 (Bankr.N.D.Ill.1992): "[B]ecause of the more rigorous standards [of § 1113], most collective bargaining agreements would be assumed either by inaction or denials of motions to reject." Like many of the other cases the union cites, In re Moline is a § 1113(f) case and, therefore, irrelevant to the resolution of the issues in this case. In addition, a close reading of the case evidences that the court's comment about assumption is dicta. The union also cites In re Roth American, Inc., 975 F.2d 949 (3d Cir.1992). In Roth, the court did, in passing, state that a debtor may assume a CBA by failing to act to reject. See id. at 954. The issue in Roth was whether prepetition vacation and severance benefits owed to union employees would be entitled to administrative expense treatment. See id. at 953. While the court agreed with the union's argument that by failing to reject the debtor could be deemed to have "assumed," the court denied the union's request for administrative expense treatment. See id. at 957-58. Thus, the "assumption" of the CBA the court deemed could take place cannot be an assumption in the normal sense of the word, either under § 1113 (if that is what the court was referring to) or under § 365, because in order to assume a contract a debtor must, as a matter of law, cure all prepetition defaults.
[19] Of course, a debtor does not escape its liabilities and obligations under the CBA simply by failing to take steps to assume or reject that contract during the course of the bankruptcy case. As discussed supra, if a debtor fails to assume or reject the CBA or delays in making such a decision and the CBA effectively "rides through" the bankruptcy process, there are several possible consequences. For example, the CBA will be treated as an executory contract under § 365, rather than § 1113, in a Chapter 11 case which is converted to a Chapter 7 case. See, e.g., Carpenters Health & Welfare Trust Funds for California v. Robertson (In re Rufener Constr., Inc.), 53 F.3d 1064, 1066 (9th Cir.1995) (noting that § 1113 is inapplicable to case converted from Chapter 11 to Chapter 7). In addition, the debtor may be found to have unilaterally modified or altered the CBA in violation of § 1113(f). See Massachusetts Air Conditioning, 196 B.R. at 664 n. 13; In re Ionosphere Clubs, Inc., 22 F.3d 403, 407-408 (2d Cir. 1994); In re Arlene's Sportswear, 140 B.R. 25, 27-28 (Bankr.D.Mass.1992). This last scenario, in turn, raises all kinds of issues about how the union's claims for unpaid pre-petition claims should be treated, specifically whether such claims are entitled to priority treatment as administrative expenses or whether they are treated like other claims under the priority scheme of § 507. See Massachusetts Air Conditioning, 196 B.R. at 664 n. 13 (discussing the split of authority on this issue); see also Keating, 35 WM. & MARY L.REV. at 539-548 (discussing courts' differing views on the priority treatment of pre-petition claims). We decline to address such issues because they are not before us in this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876281/ | 247 S.W.3d 593 (2008)
Eric BETZOLD, Claimant/Appellant,
v.
The RENAISSANCE GUILD, LLC, Employer/Respondent.
No. ED 90115.
Missouri Court of Appeals, Eastern District, Division One.
March 18, 2008.
*594 Brian Stokes, The Stokes Law Office, St. Louis, MO, for appellant.
Renee Martin, St. Louis, MO, Respondent Acting Pro Se.
Before KATHIANNE, KNAUP CRANE, P.J., ROBERT G. DOWD, JR., J., and KENNETH M. ROMINES, J.
ORDER
PER CURIAM.
Claimant appeals from the final award of the Labor and Industrial Relations Commission affirming the award of the Administrative Law Judge. We affirm. The findings and conclusions of the Commission are supported by competent and substantial evidence on the whole record. No error of law appears, and an extended opinion would have no precedential value. The parties have been furnished, for their information only, with a memorandum setting forth the reasons for our order affirming the judgment pursuant to Rule 84.16(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610068/ | 12 Ariz. App. 51 (1970)
467 P.2d 763
M. Taylor LAWRENCE, Jr., and Bettie A. Lawrence, his wife, and Arthur J. Stegall, Jr., and Rosann Stegall, his wife, Appellants,
v.
VALLEY NATIONAL BANK, a national banking association, Appellee. ARIZONA-COLORADO LAND & CATTLE COMPANY, a corporation, Cross-Appellant,
v.
M. Taylor LAWRENCE, Jr., and Bettie A. Lawrence, his wife, and Arthur L. Stegall, Jr., and Rosann Stegall, his wife, Cross-Appellees.
Nos. I CA-CIV 1000, I CA-CIV 931.
Court of Appeals of Arizona, Division 1.
April 8, 1970.
Rehearing Denied May 29, 1970.
Review Denied July 7, 1970.
Review Granted November 10, 1970.
Jennings, Strouss & Salmon, by O.M. Trask, Thomas C. Kleinschmidt, Rex H. Moore and T.J. Trimble, Phoenix, for appellants and cross-appellees.
Rawlins, Ellis, Burrus & Kiewit, by Chester J. Peterson and Dennis M. Balint, Phoenix, for appellee.
Snell & Wilmer by Mark Wilmer, Phoenix, for cross-appellant.
*52 HOWARD, Chief Judge.
A civil action was instituted by plaintiff-appellee, Valley National Bank, hereinafter referred to as the "Bank," to recover the unpaid balance on a promissory note. The defendants-appellants are Lawrence, Stegall, Brown and their wives, individually and as co-partners d/b/a Lawrence, Stegall and Brown. The note was in the sum of $496,834.41 and the unpaid balance was $84,527.04 plus interest and attorneys' fees. Brown and his wife defaulted in the action. The appellants filed a third party complaint against Arizona-Colorado Cattle Co., Inc., hereinafter called the "Cattle Co.," claiming that the "Cattle Co." was either liable directly to the "Bank" on the indebtedness or was liable by way of indemnity to the appellants. The "Cattle Co." filed an answer setting up the execution of certain instruments by way of defense.
Lawrence and Stegall as partners started a ranching and cattle business in 1956. In 1957, Jack Cooke joined them and they operated as Lawrence, Stegall and Cooke to furnish lands and Brown to locate cattle which they were to buy. The written agreement was entitled Joint Venture Agreement and the profits and losses were to be shared on a two-thirds for Lawrence, Stegall and Cooke and one-third for Brown basis.
Later Lawrence, Stegall and Cooke incorporated but continued the joint venture under the same terms. Then the corporation was dissolved and Lawrence and Stegall as partners continued the joint venture with Brown. In 1961, Lawrence, Stegall and Brown and their wives signed a "Certificate of Partnership" for the "Bank." It authorized any partner to bind the partnership and the partners jointly and severally for any amounts, and the partners agreed to remain bound until the "Bank" was given sixty days written notice of the revocation of authority.
On February 1, 1963 the partnership assets of Lawrence and Stegall were transferred to a new corporation, Lawrence & Stegall Ranches, Inc., hereinafter referred to as the "Corp." which was formed by Lawrence, Stegall, Wray and two others. On June 3, 1963 the corporation borrowed approximately five million dollars secured by a mortgage and trust agreement, the trustee of which was the "Bank." The Trust Agreement stated that the "Corp.," Lawrence & Stegall Ranches, Inc., now owned all real and personal properties and assets of the partnership except for certain incidental property not pertinent to our inquiry.
Thereafter, the corporation operated on an enlarged scale. Brown would buy cattle and issue drafts through the "Bank" on the Lawrence, Stegall and Brown account. The "Bank" would honor the drafts and when the draft account, based upon a line of credit, reached a certain size, a promissory note would be signed.
On September 2, 1964 the promissory note sued upon herein, was prepared as a partnership note. At the bottom thereof was typed "ARTHUR J. STEGALL, JR., M. TAYLOR LAWRENCE, JR., AND V.D. BROWN, A PARTNERSHIP DBA STEGALL, LAWRENCE & BROWN BY:" and it was signed by M.T. Lawrence, Jr. It was secured by a chattel mortgage on Lawrence, Stegall and Brown cattle and by cattle owned by the "Corp." Appellants claim that the "Bank" was kept closely advised of the changing membership of the joint venture.
Financial reports prepared by the "Corp.'s" accountants were supplied to the "Bank." One of the reports contained, for example, a note to Financial Statement of December 31, 1963, page 7, stating:
"Included with the accounts of Lawrence & Stegall Ranches, Inc. are the Company's interests in two joint ventures Stegall, Lawrence & Brown Joint Venture (two-thirds). * * *"
There was testimony that an officer of the "Bank," Mr. Jacobson, was advised by an officer of the "Corp." in September, 1964 that the promissory note recently signed by Lawrence on behalf of the Lawrence, Stegall and Brown partnership, *53 should have been signed on behalf of the joint venture consisting of the "Corp." and Brown.
Proceeds from the sale of joint venture cattle in the inventory of the "Corp." were deposited in the "Corp.'s" bank account and checks were drawn thereon in payment or reduction of the Lawrence, Stegall and Brown debt to the "Bank." The joint venture did not have a bank account. The "Corp." shared the profits and losses of the joint venture. Lawrence and Stegall did not participate in either the profits or losses of the joint venture after the transfer of the partnership assets to the "Corp." on February 1, 1963.
In 1964 the cattle market became depressed and remained so for a long time. Heavy losses ensued and Lawrence and Stegall entered into an agreement to sell all of their capital stock in the "Corp." to others, among whom was Wray, one of the founders of the "Corp.," who had resigned as an officer and director shortly before the sale.
The sale was evidenced by an agreement dated February 27, 1965 together with subsidiary and supporting documents and mutual releases. The new management took over and changed the name of the corporation to Arizona-Colorado Cattle Co., Inc. The Lawrence, Stegall and Brown cattle in the inventory of the "Corp." were sold by the cattle company and the proceeds were used to reduce the debt of the joint venture to the "Bank." The cattle company thereafter paid to the "Bank" $185,000.00 representing approximately two-thirds of their existing joint venture debt due the "Bank." It did not pay the one-third attributable to Brown. Thereafter, the "Bank" filed this lawsuit.
The complaint alleges that the partnership and the partners individually, are responsible for the balance due on the promissory note signed by Lawrence on behalf of the partnership.
The answer admits Lawrence signed the note sued upon. It is alleged that with the knowledge and approval of the "Bank," Lawrence and Stegall sold their two-thirds interest to the "Corp." That in consideration of the sale, the "Corp." assumed and agreed to pay all of the debts of the partners, including their direct liability and any contingent obligations which might arise from the failure of Brown to pay his one-third share. The answer further asserts that this transaction constituted a dissolution of the original joint venture and created a new joint venture with the "Corp." in the place and stead of Lawrence and Stegall. That the "Bank" engaged in a course of dealings with the new joint venture and, by reason thereof, Lawrence and Stegall as individuals had been discharged of their liabilities and that the "Corp.," having assumed the debt, is the obligor.
The trial court found in favor of the plaintiff-"Bank" against the defendants-partners, making findings of fact and conclusions of law. Judgment was also rendered in favor of the third party plaintiffs-partners and against the third party defendant-"Cattle Co."
Defendants appeal from the judgment and claim first that Findings of Fact numbered 3, 4, 5, 6, 7, 11 and 12 are not supported by the evidence.
The "Bank" contends that the Findings of Fact are not so "clearly erroneous" as to be set aside. The Findings of Fact in dispute are as follows:
"3. None of the individuals signing said Certificate of Partnership ever revoked the authorities granted by said Certificate, as required by the terms set forth therein.
4. The Plaintiff never at any time, after the time of execution of said Certificate of Partnership on June 21, 1961, either orally, in writing or in any other manner, acknowledged or consented to any change in the partnership of STEGALL, LAWRENCE & BROWN, a co-partnership.
5. After the execution of the partnership agreement on June 21, 1961, through September 2, 1964, both of the Defendants, M. TAYLOR LAWRENCE, *54 JR. and ARTHUR J. STEGALL, executed various notes, chattel mortgages and other agreements on behalf of the partnership, STEGALL, LAWRENCE & BROWN, a co-partnership, which were delivered to the Plaintiff, each of which continued to reflect the existence of the partnership, known as STEGALL, LAWRENCE & BROWN, a co-partnership, as evidenced by the Certificate of Partnership of June 21, 1961.
6. On September 2, 1964, the partnership STEGALL, LAWRENCE & BROWN, a co-partnership, being justly indebted to the Plaintiff, executed the promissory note, which is the subject of this litigation, through Defendant, M. TAYLOR LAWRENCE, JR., acting for and on behalf of said partnership, he having been authorized so to do.
7. Plaintiff received and accepted said promissory note pursuant to and in reliance upon the Certificate of Partnership dated June 21, 1961, which had not been revoked and was still in effect.
* * * * * *
11. The Plaintiff, THE VALLEY NATIONAL BANK OF ARIZONA, at no time relevant to this litigation, consented or agreed to a dissolution of the partnership reflected in the Certificate of Partnership dated June 21, 1961, or to the formation of any new partnership known as STEGALL, LAWRENCE & BROWN, a co-partnership, either in writing or by its action or inaction, or by any course of dealing with the Defendants herein.
12. The Plaintiff, THE VALLEY NATIONAL BANK OF ARIZONA, never had knowledge of any dissolution of the partnership of STEGALL, LAWRENCE & BROWN, a co-partnership, nor did it ever consent to a material alteration in the nature or time of payment of the obligation, of said partnership, which is the subject matter of this litigation."
All of the Findings of Fact questioned by appellant revolve about one point, namely, did the appellee have actual or constructive knowledge of the metamorphosis of the partnership from the time the certificate of partnership was executed in 1961 to the date of the signing of the promissory note on September 2, 1964. No evidence was presented showing that actual notice of the revocation of the partnership was given to the "Bank"; that the "Bank" actually and clearly, either orally or in writing, consented to a change in the original partnership; or that the "Bank" had written notice of the dissolution of the original partnership. There being no actual notice of the above facts, we must now turn to the consideration of whether or not the "Bank" had constructive notice.
One significant document, with regard thereto, is the Mortgage and Trust Agreement dated June 3, 1963 between Lawrence & Stegall Ranches, Inc. and the "Bank." This agreement was to secure the borrowing by the "Corp." of some four or five million dollars from eastern institutional investors. On page 3 (par. 4.5) of Exhibit 1 to said Mortgage and Trust Agreement is the following statement:
"* * * The Company now owns all real and personal properties and assets held by the Partnership at December 31, 1962 or thereafter acquired by it other than (a) cattle sold in the ordinary course of business by the Partnership subsequent to December 31, 1962 and other assets consumed or disposed of by the Partnership in the ordinary course of business since such date, (b) approximately ten deeded acres in downtown Scottsdale, Arizona, and (c) a residence occupied by one of the Company's officers in Phoenix."
The partnership referred to was Lawrence & Stegall Ranches. What is stated in the Trust Agreement, however, does not set forth in any manner whatsoever that the specific partnership or joint venture of Lawrence, Stegall and Brown was involved *55 therein. Nowhere has appellant shown that the "Bank" as creditor of the original partnership agreed to relieve the withdrawing partnership from liability. White v. Brown, 110 U.S.App.D.C. 232, 292 F.2d 725 (1961). Appellee contends that it cannot be inferred, from the course of dealings between the "Bank" and the partnership, that the "Bank" knew of the dissolution of the original partnership and consented to it. An examination of the evidence presented at the trial, including the testimony, exhibits and depositions reveals that questions of fact were raised and were properly submitted to the court for its determination.
Let us consider the cross-appeal by the "Cattle Co." from the judgment entered against it and in favor of the individual partners Lawrence and Stegall and their wives.
The "Cattle Co." claims that the trial court erred in admitting parol evidence to vary the terms of the contract of February 27, 1965 and of the Mutual Releases dated March 4, 1965. Said contract for the purchase of the stock of Lawrence & Stegall Ranches, Inc. consists of twenty-four typewritten pages plus seventeen pages of schedules annexed thereto. Nowhere in all of this welter of covenants, restrictions and conditions is there a specific reference to the contingent liability of Lawrence and Stegall for the possible default of Brown resulting from the partnership or joint venture operations of Lawrence and Stegall, or Lawrence and Stegall Ranches, or Lawrence & Stegall Ranches, Inc. with Brown. There is no dispute that the "Cattle Co." was to become liable and had agreed to indemnify Lawrence and Stegall for any losses resulting from the operation of the partnership or join venture with Brown.
The only question that remains is whether they agreed and contracted to be liable for the one-third interest of Brown, in the event that he would be unable to pay his share of any losses sustained by the partnership or the joint venture. The cross-appellant says "no," basing same upon the following statements in its opening brief: that schedule C of the February 27, 1965 agreement was to contain a list of all defaults under any indenture or contract or agreement to which it is a party; that the agreement was signed February 27, 1965 and the closing was to take place originally on March 2nd, but actually did not take place until March 4, 1965; that the note sued upon by the "Bank" and claimed to be the obligation of the "Corp." was dated September 2, 1964 and was due on March 1, 1965.
Thus, since the note was not paid, there was a default on the closing date of March 2, 1965. This obligation is not set forth in schedule C.
Lawrence and Stegall each warranted and represented in paragraphs 4 and 4.1 of the February 27, 1965 contract, that he:
"* * * has not obligated the Company or any subsidiary to any contract not reflected on the Company books or referred to in this Agreement or Exhibits hereto; that he has not obligaged the Company or any subsidiary for any liability which is not reflected or reserved against in the Company's Balance Sheet of December 31, 1964, except (i) obligations incurred in the normal course of the Company's business subsequent to December 31, 1964, and (ii) liabilities not in excess of the aggregate sum of $25,000.00. * * *"
The Balance Sheet of December 31, 1964, Exhibit 35 in evidence, page 1, reflected:
"Cattle inventories at cost not in excess of market $5,265,636.26."
At the bottom of page 1 appears Note 1 which reads as follows:
"The cattle inventory and liability thereon includes only 2/3rds of the Stegall, Lawrence & Brown Joint Venture cattle inventory and liability." (Emphasis added.)
Paragraph 3.3 of the Purchase Agreement incorporates by reference the statements *56 of income and deficit for the year ending October 31, 1964 certified by an independent accounting firm. An examination of pages 7 and 8 of the accounting firm's statement shows a deficit of $294,880.00 with regard to the Lawrence, Stegall and Brown joint venture. The footnote on page 12 of the said statement says that the company, Lawrence & Stegall Ranches, Inc., is a party to a joint venture and contingently liable as guarantor on chattel mortgages and unsecured bills of the joint venture aggregating approximately $250,000.00.
It is the cross-appellees-partners' contention that the above two footnotes are contradictory and create an ambiguity. They say the note on page 12 of the accountant's statement states that there is a contingent liability on the part of the "Corp." as guarantor of the obligations of the joint venture including the liability of Brown. The note at the bottom of the unaudited statement refers to two-thirds of the Lawrence, Stegall and Brown cattle and to only a two-third liability. Nothing is said about the contingent liability of Brown or that it is or is not excluded from the terms of the agreement or whether or not Lawrence and Stegall assume and agree to pay Brown's contingent liability if he does not pay same.
Cross-appellees further claim that the extrinsic evidence was to the effect that the contingent liability of the "Corp." for Brown's one-third was discussed; that it was not spelled out more particularly at the request of the "Cattle Co.," the latter hoping to prevail upon the "Bank" to look solely to Brown for that debt and not to the "Corp."; that if this was not successful, the one-third would be paid by the "Corp." They also allege that this evidence is consistent with the terms of the agreement as written and is consistent with the indemnification clause therein protecting Lawrence and Stegall from all company obligations. The indemnification clause of the agreement states:
"11. Purchaser agrees to cause the Company to enter into an agreement to indemnify and hold Lawrence and Stegall and each of them harmless against any liability arising by virtue of their execution of personal guaranties with respect to bank loans of the Company, and any and all other personal guaranties of Company obligations."
The Mutual Release, Item 28, Exhibit 30 in Evidence states: (Second Party refers to Lawrence and Stegall and their respective wives, Harry Cavanagh and Sherwood Johnson. First Party refers to Lufkin and Wray and Company refers to Cattle Company.)
"2. Second Party hereby releases First Party and Company and each of them of and from any and all claims, demands, actions or causes of actions of any sort or type which they or any of them may have against First Party or Company or either of them on account of any matter or thing arising out of any act, transaction, condition, occurrence, contract or agreement prior to the date of this agreement, provided, however, that this release is not intended to and it shall not release First Party or Company or either of them of and from any and all covenants, obligations or liabilities arising out of the Agreement, nor is this release intended to and it shall not discharge First Party or Company or either of them of and from any and all obligations, covenants or liabilities arising out of any document executed pursuant to the terms of the Agreement." (Emphasis added.)
The mutual release is one of many supporting documents called for by the terms of the agreement and signed by the parties. It was intended to operate as a general release of any unknown or extraneous claims of either party against the other. It states that it does not release the company from any obligations or liabilities arising out of the agreement. The cross-appellees argue that if a purchaser acquires the stock of a *57 corporation, it acquires the corporation with all of its debts. They further contend that if the corporation is a party to a joint venture, the joint and several liability of the corporation to pay the obligations of the other venturer is a part of its obligation and that this is an obligation arising out of the agreement.
The trial court held that the aforesaid documents were ambiguous in that there is no clear indication of the intent of the parties as to whom would be responsible for Brown's one-third contingent liability in the event that Brown was unable to pay his share of any losses incurred by the partnership or joint venture. Parol evidence was not admitted to contradict or change the terms of the agreement. Our holding in Aztec Film Productions v. Tucson Gas & Electric Co., 11 Ariz. App. 241, 463 P.2d 547 (1969) is in point, namely:
"Our decision is further buttressed by the well-recognized exception to the parol evidence rule that if the terms and provisions of a contract are ambiguous, or if the writing is capable of more than one construction, parol evidence is admissible to explain and ascertain what the parties intended."
Even if the trial court erred in allowing the introduction of parol evidence, we believe that the documents hereinabove referred to are sufficient, in and of themselves, for the trial court to have come to the same conclusions without the parol evidence. The proceedings in the trial court involved a complex trial with voluminous exhibits and numerous depositions of witnesses with regard to the principal and the third party action. The trial court saw and heard the witnesses whereas we only have before us a cold transcript. In matters of factual dispute, we defer to the trial court. All inferences supported by the evidence will be taken in favor of appellee. Contractor & Mining Service & Supply, Inc. v. H & M Tractor & Bearing Corp., 4 Ariz. App. 29, 417 P.2d 542 (1966).
The judgment of the superior court is presumed correct if there is reasonable evidence in the record to sustain it and the reviewing court will not substitute its own discretion for that exercised by the court below. Tucson Warehouse and Transfer Company v. Arizona Corporation Commission, 2 Ariz. App. 565, 410 P.2d 683 (1966).
The reviewing court must affirm the judgment if possible on any theory framed by the pleadings and supported by the evidence. Minderman v. Perry, 103 Ariz. 91, 437 P.2d 407 (1968); Nicholas v. Giles, 102 Ariz. 130, 426 P.2d 398 (1967); Oney v. Barnes, 5 Ariz. App. 460, 428 P.2d 124 (1967); Moeur v. City of Tempe, 3 Ariz. App. 196, 412 P.2d 878 (1966); Ensign v. Bohn, 1 Ariz. App. 386, 403 P.2d 321 (1965).
On appeal, appellant has the burden of demonstrating that error was committed below, and upon failure to do so, the Court of Appeals has no alternative but to affirm. Zuniga v. City of Tucson, 5 Ariz. App. 220, 425 P.2d 122 (1967). Neither the appellant nor the cross-appellant has sustained this burden.
Judgments affirmed.
KRUCKER and HATHAWAY, JJ., concur.
NOTE: This cause was decided by the Judges of Division Two as authorized by A.R.S. § 12-120, subsec. E. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1241733/ | 552 F.3d 686 (2009)
UNITED STATES of America, Appellee,
v.
Brandon K. HILL, Appellant.
No. 08-1364.
United States Court of Appeals, Eighth Circuit.
Submitted: September 25, 2008.
Filed: January 12, 2009.
*688 John Michael Lynch, argued, St. Charles, MO, for appellant.
Howard J. Marcus, AUSA, argued, St. Louis, MO, for appellee.
Before RILEY, BRIGHT, and MELLOY, Circuit Judges.
RILEY, Circuit Judge.
Brandon K. Hill (Hill) pled guilty to one count of knowingly and willingly enticing an adult female to travel in interstate commerce for purposes of prostitution, in violation of 18 U.S.C. § 2422(a). Hill's advisory Guidelines range was 15-21 months. The district court[1] found the Guidelines range was insufficient to achieve an appropriate sentence, and an upward variance was warranted. The district court sentenced Hill to 51 months imprisonment, to run consecutively to a 174-month sentence Hill was already serving in the Western District of Oklahoma. Hill appeals, arguing the district court procedurally erred by failing to explain adequately the basis for its sentencing decision and by comparing Hill's offense to other sex crimes. Hill also argues the 51-month sentence was substantively unreasonable. We affirm.
I. BACKGROUND
Hill met the 19-year-old victim, S.S., at a gas station in Hazelwood, Missouri, in December of 2004. Some months later, Hill bought a plane ticket so S.S. could fly to Dallas, Texas, to meet Hill. Hill told S.S. he was a pimp. S.S. left Dallas, but returned to Dallas in March of 2005 and began to work as a prostitute for Hill. S.S. traveled to Philadelphia, Pennsylvania; San Antonio, Texas; Austin, Texas; Raleigh, North Carolina; Milwaukee, Wisconsin; Kansas City, Missouri; Kansas City, Kansas; and St. Louis, Missouri, to work as a prostitute for Hill. S.S. turned over all of her prostitution proceeds to Hill.
Between August 2, 2005, and August 10, 2005, Hill induced S.S. to travel to Overland Park, Kansas, to work as a prostitute. Hill then induced S.S. to travel from Overland Park, Kansas, to St. Louis, Missouri, to work as a prostitute. S.S. was arrested in St. Louis, Missouri, for possession of marijuana by Maryland Heights Police. Police officers searched S.S.'s cell phone memory and found numbers, photos of Hill, and extensive text messages between S.S. and Hill. These messages discussed travel, prostitution, and the proceeds of the prostitution. Hill was charged with a single count of knowingly and willingly enticing an adult female to travel in interstate commerce for purposes of prostitution. See 18 U.S.C. § 2422(a). Hill admitted his involvement and pled guilty.[2]
The court and the parties agreed Hill had a total offense level of 12 and a criminal history category of III, resulting in an advisory Guidelines range of 15 to 21 months. At Hill's sentencing hearing, the court considered Guideline departures under §§ 5K2.3 (extreme psychological injury) and 5K2.8 (extreme conduct), but determined there was no evidence to support *689 either of these departures. However, the district court disagreed with the Guidelines range for Hill's offense and found the factors set forth in 18 U.S.C. § 3553(a) warranted an upward variance. The district court declared:
I do find, under 18 U.S.C. 3553(a), when I look at deterrence, the repetition of the activity and the fear that it will be repeated, and to protect the public from future crimes, and to avoid unwanted [sic] sentencing disparities, that a sentence of 51 months is an appropriate sentence to satisfy the statutory purposes of sentencing.
... The sentence is to run consecutive to the sentence he's currently serving in the Western District of Oklahoma[.]
At Hill's sentencing, the district court acknowledged, "I have to be candid. I probably came as close to falling out of my chair as I ever have as a federal judge when I saw the recommended range of punishment on Mr. Hill's case for a violation of the Mann Act for moving a woman across multiple state lines for the purpose of prostitution." The district court compared and contrasted Hill's offense and Guidelines range with sentences the court had imposed on other defendants for possession of child pornography, declaring,
I've given out sentences for possessionnot manufacturing, not distribution, not transportationof child pornography of up to 237 months.
Here is an actual person being used in prostitution by [Hill], being moved across state lines for the purposes of prostitution, and the guidelines recommend a sentence of 15 to 21 months? I'm having a hard time putting that in context under unwanted [sic] sentencing disparities.
I know they're not the same, but here we're dealing with a real person who's in prostitution. [Hill] is keeping the proceeds of that money.
Shortly thereafter, the district court reiterated:
So I have on one hand a series of sentences that happen much more frequently where we sentence someone to prison for downloading pictures off the internet. As awful as they are, they're downloading photographs. Here we have an individual who actually had a woman in essence in servitude serving as a prostitute for his monetary benefit. And I need some help in where to put this in context of the nature of federal sentencing.
I think the whole panoply of 3553(a) is open for discussion, and I would like to hear that discussion so I can best determine what to do today.
The court clarified that it recognized Hill's victim was not a juvenile, and the purpose of the court's comparison between child pornography and Hill's offense was because "we don't see many Mann Act cases in federal court[,]" and child pornography is "the most common sex-related crime that the federal courts deal with." The court explained, "[s]o I was trying to put [Hill's offense] in context and calibrate it appropriately."
The court later compared Hill's Guidelines range to financial crimes, stating, "This is the kind of guideline range I would typically see from a credit card scam, and I don't think I can compare the two," and "[Hill's Guidelines range] looks more like a credit card identity theft case than it does a Mann Act, you know, subjecting a woman to prostitution across state lines type of case." The court also compared Hill's Guidelines range to that of a drug offender, saying, "You know, 5 grams of crack cocaine gets you an automatic 60 months in the federal penitentiary."
*690 Ultimately, the court found "that under 3553(a) the guideline range here that is recommended is not appropriate given the total circumstances of this case when I compare and contrast them to all these other cases." The court explained, "I'm just convinced that the guidelines are wrong here, given the human effects here of a woman in prostitution exposed to health risk, sexually transmitted diseases, and she's turning over her proceeds to another person. And those aren't just common sense. I don't think we can argue about those facts."
Hill argues the district court procedurally erred in imposing the 51-month sentence because the district court (1) did not adequately explain the reason for the variance, and (2) improperly compared Hill's crime with other crimes, primarily child pornography. Hill also argues the 51-month sentence was substantively unreasonable.
II. DISCUSSION
A. Standard of Review
The first step in reviewing a sentence is to "ensure that the district court committed no significant procedural error." Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). Examples of procedural error include: "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentenceincluding an explanation for any deviation from the Guidelines range." Id.
Hill failed to object at sentencing to any alleged procedural sentencing error. "If a defendant fails to object timely to a procedural sentencing error, the error is forfeited and may only be reviewed for plain error." United States v. Vaughn, 519 F.3d 802, 804 (8th Cir.2008) (citing United States v. Pirani, 406 F.3d 543, 549 (8th Cir.2005) (en banc); United States v. Guarino, 517 F.3d 1067, 1068-69 (8th Cir. 2008)). "Under plain error review, the defendant must show: (1) an error; (2) that is plain; and (3) that affects substantial rights." Id. (citing Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); Fed. R.Crim.P. 52(b)). Even if the defendant shows these three conditions are met, we "may exercise [our] discretion to correct a forfeited error only if it `seriously affects the fairness, integrity, or public reputation of judicial proceedings.'" Id. at 804-05 (quoting Johnson, 520 U.S. at 467, 117 S.Ct. 1544, in turn quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).
If we determine the district court committed no plain procedural error that affected Hill's substantial rights and seriously affected the fairness, integrity, or public reputation of Hill's sentencing, we will "then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard ..., tak[ing] into account the totality of the circumstances, including the extent of any variance from the Guidelines range." See Gall, 128 S.Ct. at 597. "In contrast to procedural errors, a defendant does not forfeit an attack on the substantive reasonableness of a sentence by failing to object in the district court." Vaughn, 519 F.3d at 805 (citation omitted).
Although "[we] may consider the extent of the deviation, [we] must give due deference to the district court's decision that the § 3553(a) factors, on the whole, justify the extent of the variance." Gall, 128 S.Ct. at 597. "The sentencing judge is in a superior position to find facts and judge their import under § 3553(a) in the *691 individual case." Id. (quotation and citation omitted). Therefore, "[t]he fact that [we] might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court." Id.
B. Sentencing Procedure
1. Explanation of Hill's Sentence
Hill first contends the district court committed procedural error by failing adequately to explain the chosen sentence. Gall sets forth the procedure to be followed in sentencing a criminal defendant. The district court should begin "by correctly calculating the applicable Guidelines range." Gall, 128 S.Ct. at 596 (citing Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)). "[T]he Guidelines should be the starting point and the initial benchmark [, but] [t]he Guidelines are not the only consideration[.]" Id. The district judge should allow "both parties an opportunity to argue for whatever sentence they deem appropriate," and then should "consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party." Id. The district judge
must make an individualized assessment based on the facts presented. If he decides that an outside-Guidelines sentence is warranted, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance. [It is] uncontroversial that a major departure should be supported by a more significant justification than a minor one. After settling on the appropriate sentence, he must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.
Id. at 597 (citing Rita, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203).
In explaining the chosen sentence and analyzing the relevant § 3553(a) factors, "a district court is not required to provide `a full opinion in every case,' but must `set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority." United States v. Robinson, 516 F.3d 716, 718 (8th Cir.2008) (quoting Rita, 127 S.Ct. at 2468).
The district court in Hill's case provided ample explanation of its rationale for the sentence imposed. The court focused directly on the facts of Hill's case and the harm caused by Hill's conduct, making the following statements at sentencing: (1) "[Hill's victim] is a real person, subjected to prostitution, controlled by [Hill], moving at least from Kansas to Missouri"; (2) "That begs the question about the amount and level of psychological control one must have in order for a woman to submit to prostitution and give you the money she receives from that conduct"; (3) "This woman [] is real. She's not a photograph. She's not something that was downloaded from the internet and just saved on a hard drive, as horrible as that is ..."; and (4) "I'm just convinced that the guidelines are wrong here, given the human effects here of a woman in prostitution exposed to health risk, sexually transmitted diseases, and she's turning over her proceeds to [Hill]." The district court further explained, "under 18 U.S.C. [§ ] 3553(a), when I look at deterrence, the repetition of the activity and the fear that it will be repeated, and to protect the public from future crimes, and to avoid unwanted [sic] sentencing disparities, that a sentence of 51 months is an appropriate sentence to satisfy the statutory purpose of sentencing." The district court's explanation was more than "enough to satisfy *692 [this court] that he ha[d] considered the parties' arguments and ha[d] a reasoned basis for exercising his own legal decisionmaking authority." Robinson, 516 F.3d at 718 (quoting Rita, 127 S.Ct. at 2468). The district court did not commit significant procedural error, much less plain error, in explaining Hill's sentence.
2. Comparison of Hill's Offense to Other Offenses
Hill also contends the district court procedurally erred by comparing Hill's prostitution offense to other offenses, namely possession of child pornography. There is no evidence the district court mistakenly conflated Hill's offense with a child pornography offense or any other offense or made erroneous factual findings with respect to Hill's conduct. See Gall, 128 S.Ct. at 597 (declaring it is procedural error to "select[] a sentence based on clearly erroneous facts"). On the contrary, the sentencing transcript clearly reflects the district court's awareness the two offenses are "not the same" and Hill's victim was not a juvenile. The purpose of the court's comparison between child pornography and Hill's offense was because "we don't see many Mann Act cases in federal court[,]" and child pornography is "the most common sex-related crime that the federal courts deal with." The court explained, "[s]o I was trying to put [Hill's offense] in context and calibrate it appropriately." The court later compared Hill's Guidelines range to sentences typically imposed in credit card identity theft cases. The court also commented, "You know, 5 grams of crack cocaine gets you an automatic 60 months in the federal penitentiary."
The district court was not required to sentence Hill in a vacuum or disregard its substantial sentencing experience. Cf. Gall, 128 S.Ct. at 597-98 (observing district courts are in a better position to find facts, judge their import under § 3553(a), and make credibility determinations because district courts "see so many more Guidelines sentences than appellate courts do") (citation omitted). Hill cites no authority prohibiting a district court from comparing a defendant's crime to other types of crimes in an attempt to calibrate the relative severity of a defendant's conduct and impose an appropriate sentence. Our search discloses no such authority. We therefore conclude the district court did not procedurally err, and certainly did not commit plain error, by comparing and contrasting Hill's crime and Guidelines range to other types of offenses.
3. District Court's Disagreement with Hill's Guidelines Range
Finally, the district court did not err in concluding the Guidelines range in this case was insufficient to accomplish the purpose of sentencing set forth in § 3553(a). In Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), the Supreme Court recognized a district court does not abuse its discretion by determining the applicable Guidelines range results in a sentence "greater than necessary" to achieve § 3553(a)'s sentencing objectives in a particular case. Id. at 575. Hill's sentence presents the inverse of the situation in Kimbrough. The district court in Kimbrough determined the applicable Guidelines range resulted in a sentence "greater than necessary" to achieve § 3553(a)'s sentencing objectives, id. at 565. The district court in Hill's case determined the applicable Guidelines range resulted in a sentence insufficient to achieve § 3553(a)'s sentencing objectives.
The district court's disagreement with the Guidelines range in Hill's case was clearly the product of considered and careful *693 analysis. The sentencing transcript indicates the sentencing court thoughtfully grappled with the appropriate sentence, taking account of the facts of Hill's case, the impact of Hill's crime on the victim, the need to protect society, the concern Hill would repeat his crime and the need for deterrence, and the relative severity of Hill's crime in the overall scheme of federal sentencing. The district court determined, "I find that under 3553(a) the guideline range here that is recommended is not appropriate given the total circumstances of this case when I compare and contrast them to all these other cases." Shortly thereafter, the court stated, "I'm just convinced that the guidelines are wrong here, given the human effects here of a woman in prostitution exposed to health risk, sexually transmitted diseases, and she's turning over her proceeds to another person." Just as the district court in Kimbrough was within its discretion to determine the applicable Guidelines range was "greater than necessary," we conclude the district court in Hill's case was within its discretion to determine Hill's Guidelines range was insufficient to achieve an appropriate sentence. The district court's sentencing calculation, selection, and explanation do not represent any significant procedural error.
C. Substantive Reasonableness
Hill contends his 51-month sentence was substantively unreasonable. "[T]ak[ing] into account the totality of the circumstances, including the extent of [the] variance from the Guidelines range" and "giv[ing] due deference to the district court's decision that the § 3553(a) factors, on the whole, justify the extent of the variance," Gall, 128 S.Ct. at 597, our review of Hill's sentence reveals no abuse of the district court's considerable discretion and no basis for concluding the sentence is substantively unreasonable.
III. CONCLUSION
We affirm Hill's sentence.
BRIGHT, Circuit Judge, dissenting.
I dissent. Here the guidelines range was 15 to 21 months. The guidelines already take into account the 18 U.S.C. § 3553(a) factors. The district court did not think that the guidelines were proper, but gave no valid reason for raising the 15-21 months to 51 months, a raise of about 150%.
The comparison to other sex crimes as noted by the majority is not convincing. The district court imposed what I call a sentence without support. That is inappropriate. We require good reason for a judge to depart below the guidelines. The same approach should be followed for a sentence above the guidelines.
This defendant deserves no special consideration from any judge, but he is entitled to equal treatment with other offenders similarly situated.
This defendant is otherwise getting his just deserts. See footnote 2 in majority's opinion. Hill will serve 174 months (14.5 years) for his other sex-related crimes.
NOTES
[1] The Honorable Rodney W. Sippel, United States District Judge for the Eastern District of Missouri.
[2] In separate proceedings in the Western District of Oklahoma, a jury found Hill guilty of various other charges arising from Hill's involvement in prostitution offenses. The Oklahoma charges did not involve S.S., but did involve minor victims, one 17 years old and another under 14 years old. The Oklahoma district court sentenced Hill to 174 months imprisonment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610055/ | 1 Wash. App. 1033 (1970)
467 P.2d 344
WILLIAM H. SINCLAIR, Appellant,
v.
ROY A. BETLACH et al., Respondents.
No. 122-40171-2.
The Court of Appeals of Washington, Division Two.
March 2, 1970.
Leslie L. Woods, for appellant.
Quackenbush, Dean & Smith and Jack R. Dean, for respondents.
PER CURIAM:
The plaintiff appeals from a summary judgment entered in favor of the defendants and dated June 2, 1967.
The plaintiff has filed a transcript certified by the clerk of the Spokane County Superior Court, which contains a summons, complaint, notice of claim of lien, interrogatories to plaintiff (with copy of an agreement executed by and between the parties on June 20, 1966), answers to interrogatories, motion for summary judgment (with affidavit of defendant attached thereto), and plaintiff's affidavit in opposition to motion for summary judgment; but has not filed a statement of facts certified by the trial judge as provided for in CAROA 34 and 37. The trial court's order granting defendant's motion for summary judgment does not specifically identify the documents or record relied upon by the trial court to support the decision granting defendant's motion for summary judgment.
The defendant (respondent) has, however, filed a supplemental transcript, also certified by the clerk of the Spokane *1034 County Superior Court, which contains a document dated August 25, 1967, signed by the trial court after the notice of appeal was filed, and entitled "Findings of Fact and Conclusions of Law." Defendant has filed a motion and brief to dismiss the appeal and has renewed the motion at oral hearings, basing his motion on prior decisions of the Supreme Court. American Universal Ins. Co. v. Ranson, 59 Wash. 2d 811, 370 P.2d 867 (1962); Kataisto v. Low, 73 Wash. 2d 341, 438 P.2d 623 (1968). Plaintiff acknowledges the shortcomings within the normal rules, but contends the findings of fact signed by the trial court constitute an acceptable alternative presentation to this court of the factual basis upon which the trial court acted. We cannot agree.
[1-3] In the first place, entry of findings of fact in a motion for summary judgment is superfluous. Washington Optometric Ass'n Inc. v. County of Pierce, 73 Wash. 2d 445, 438 P.2d 861 (1968). Furthermore, they were entered long after the trial court lost jurisdiction of this cause, and therefore were a nullity. Sanwick v. Puget Sound Title Ins. Co., 70 Wash. 2d 438, 423 P.2d 624 (1967). Finally, the findings merely identify, on the face of the document, two but not all of the documents which the clerk has certified to us in the transcript filed by the plaintiff. We are at a loss to know what was considered by the trial court in granting the motion for summary judgment. The rule in such cases has been unmistakably articulated. Kataisto v. Low, supra.
The appeal is dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1191806/ | 187 Ariz. 223 (1996)
928 P.2d 647
The STATE of Arizona, Appellee,
v.
Jerry Dean McCOY, Appellant.
No. 2 CA-CR 94-0510.
Court of Appeals of Arizona, Division 2, Department A.
February 13, 1996.
Review Denied November 19, 1996.
*224 Grant Woods, Attorney General by Paul J. McMurdie and Dawn M. Northup, Phoenix, for Appellee.
Law Offices of Thomas Jacobs by Thomas Jacobs, Tucson, for Appellant.
OPINION
PELANDER, Judge.
Appellant was convicted by a jury of participating in a criminal street gang, a class two felony. A.R.S. § 13-2308(A) and (G). The trial court imposed an aggravated, fifteen-year sentence, enhanced by one prior conviction and appellant's commission of the offense while he was on parole. Appellant raises three issues on appeal, none of which requires reversal.
Viewed in the light most favorable to sustaining the jury's verdict, State v. Atwood, 171 Ariz. 576, 832 P.2d 593 (1992), cert. denied, 506 U.S. 1084, 113 S. Ct. 1058, 122 L. Ed. 2d 364 (1993), the relevant facts are as follows. Appellant moved to Tucson from California, where he had been a member of a gang since the 1980s. In Tucson, he became acquainted with his girlfriend's son and a number of his friends who belonged to a gang called the "Bratz." Several Bratz members testified that appellant was present at a barbecue at the son's house attended by a number of Bratz members and that he spoke to them about his experiences in the California gang. He advised them to formalize their gang by electing officers, collecting money to establish a bail fund for members, and spray painting more gang graffiti to make their presence known in their territory. He also advised them to "jump in" more loyal members and "jump out" those who were not loyal. There was testimony explaining that "jumping" or "courting" meant initiating a new member or removing a current member by means of a group beating in which a number of members participated in beating or kicking the person "jumped" or "courted." Finally, he advised them to establish friendly relations with other gangs who would support them.
Several witnesses also testified about three violent incidents involving Bratz members. First, C.C. and several members testified about their participation when C.C. was "jumped out" because she was allegedly disloyal to the gang. This was accomplished by four or more of the female members beating her and then kicking her when she fell to the ground. As a consequence, at least two of the participants were convicted of or adjudicated delinquent on charges of aggravated assault. Other witnesses testified about a similar beating of a male member, and a photograph was introduced into evidence showing his "jumping in" as appellant stood nearby. Finally, several witnesses testified about a drive-by shooting by a male Bratz member aimed at members of another gang who were "flashing" gang signals at him.
The statutes under which appellant was charged provided, at the time of this offense,[1] as follows:
§ 13-2301. Definitions
A. For purposes of §§ 13-2302 through 13-2304:
* * * * * *
*225 2. "Criminal street gang" means a criminal syndicate which is composed of three or more persons and which engages in or has as its purpose engaging in felony offenses included in chapter 34 of this title or felony offenses involving physical injury or threats of physical injury.[2]
* * * * * *
C. For the purposes of this chapter:
* * * * * *
2. "Criminal syndicate" means any combination of persons or enterprises engaging, or having the purpose of engaging, on a continuing basis in conduct which violates any one or more provisions of any felony statute of this state.
§ 13-2308. Participating in or assisting a criminal syndicate; leading or participating in a criminal street gang
A. A person commits participating in a criminal syndicate by:
3. Furnishing advice or direction in the conduct, financing or management of a criminal syndicate's affairs with the intent to promote or further the criminal objectives of a criminal syndicate....
* * * * * *
G. A person who violates subsection A, paragraph 1, 2, 3 or 4 of this section for the benefit of, at the direction of or in association with any criminal street gang, with the intent to promote, further or assist any criminal conduct by the gang, is guilty of a class 2 felony.
Appellant first contends that § 13-2308 is unconstitutionally overbroad because it regulates constitutionally protected free speech. Further, he argues, even if his "speech" were not protected because of its content, the statute is unconstitutionally vague "in its limits and proscriptions." As to the first point, it is clear that the statute does not criminalize constitutionally protected speech but, rather, proscribes criminal conduct evidenced by speech. Contrary to appellant's contention, his conviction was not predicated simply on his act of advising or counseling the gang as to noncriminal matters. The statute proscribes such advice only when it is given "with the intent to promote or further the criminal objectives of a criminal syndicate." A.R.S. § 13-2308(A)(3).[3] Words spoken with the intent to cause the commission of a criminal act are not protected by the First Amendment. State v. Crisp, 175 Ariz. 281, 855 P.2d 795 (App. 1993); State v. Padilla, 169 Ariz. 70, 817 P.2d 15 (App. 1991). And, because the statute clearly applies to appellant's conduct, assuming that the state could prove the requisite intent, he has no standing to complain that its asserted vagueness infringes the rights of others. Parker v. Levy, 417 U.S. 733, 94 S. Ct. 2547, 41 L. Ed. 2d 439 (1974); State v. Tocco, 156 Ariz. 116, 750 P.2d 874 (1988).
Appellant next argues that the trial court erred in denying his motion for directed verdict of acquittal, made pursuant to Ariz.R.Crim.P. 20, 17 A.R.S., because the state had failed to prove that the Bratz was a criminal syndicate or criminal street gang or that appellant's advice to the Bratz was intended to further the gang's criminal objectives. A defendant is entitled to a judgment of acquittal only if there is no substantial evidence to warrant a conviction. State v. Hallman, 137 Ariz. 31, 668 P.2d 874 (1983). The test is whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
Appellant apparently argues that the Bratz was merely a group of teenagers who wanted to be in a gang, that they committed only misdemeanors, and that they neither *226 committed nor intended to commit felonies. The record belies this contention. Specifically, the evidence showed the Bratz committed at least three felony offenses involving physical injury or the threat thereof, one of which was committed in appellant's presence. Moreover, the evidence supported a finding that the Bratz committed aggravated assaults on an ongoing basis as part of their ritual for initiating new members and ousting disloyal members. Thus, the evidence was more than sufficient to permit the jury to find that the Bratz was both a criminal syndicate and a criminal street gang within the meaning of the applicable statutes.
The same is true with respect to the element of intent. Contrary to appellant's assertions, the evidence showed that he did more than merely recount episodes from his California gang days and provide innocent advice on how best to organize the group. He also advised its members to continue their initiation practices, albeit on a more moderate level, and to increase their "tagging," or graffiti activities, both criminal offenses. From this, from his prior affiliation and experience in another gang, and from his presence at least one "jumping in," the jury could reasonably infer both his knowledge of this gang's felony criminal activity and his intent to promote the same. The trial court properly denied the motion for directed verdict.
Finally, appellant contends that the trial court erred in admitting certain notes, letters, photographs, and a "roll call," all with gang logos and insignia on them, which were seized from the homes of several of the gang members. He argues that they were inadmissible hearsay and that they were admitted without proper foundation as to who had authored the writing found on them. We reject both arguments. The writing on these exhibits was not offered to prove the truth of any of the words contained therein, but rather as evidence of the knowledge and participation of the possessor. For that reason, they were not hearsay, and the identity of their author was irrelevant. See generally M. Udall, et al., Arizona Practice: Law of Evidence § 122 (3d ed. 1991); see also United States v. Jaramillo-Suarez, 950 F.2d 1378 (9th Cir.1991).
We have reviewed the entire record for fundamental error and have found none. We therefore affirm appellant's conviction.
LIVERMORE, P.J., and FERNANDEZ, J., concur.
NOTES
[1] Both appellant and the state have based their arguments about the constitutionality of the statutes on their current version, which is the result of amendments that became effective after this offense occurred. Our decision is based on the statutes as they read prior to the 1994 amendments. See 1994 Ariz. Sess. Laws, ch. 200, §§ 13 and 14.
[2] We are aware that this definition was not made expressly applicable to § 13-2308. The jury was instructed based on this definition, however, and appellant does not appear to have objected to this instruction.
[3] This provision of the statute also answers appellant's complaint that it contains no requirement that the defendant be aware that the group to which he is speaking is a criminal street gang or criminal syndicate. Such knowledge is unnecessary; what is required is that the defendant know of the criminal objectives of the group and intend to promote or further them. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2984175/ | April 29, 2014
JUDGMENT
The Fourteenth Court of Appeals
MELVIN TAYLOR, JR., Appellant
NO. 14-12-01041-CR
NO. 14-12-01042-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/1876046/ | 84 N.W.2d 891 (1957)
CITY OF MINOT, Plaintiff and Respondent,
v.
Saul DAVIS, Defendant and Appellant.
Cr. No. 275.
Supreme Court of North Dakota.
August 30, 1957.
Rehearing Denied September 24, 1957.
Paul Campbell, Minot, for plaintiff and respondent.
Ella Van Berkom, Minot, for defendant and appellant.
BURKE, Judge.
The defendant was found guilty in Police Magistrate's Court of the City of Minot, of violating a city ordinance. He appealed from the judgment of the Police Magistrate to the District Court of Ward County. Upon motion of the city this appeal was dismissed by the district court and defendant has appealed to this court from the order of dismissal.
The motion to dismiss and the district court's order of dismissal were based upon the ground that the only appeal from police magistrate's court provided by the legislature *892 requires a complete new trial in district court; that this new trial is an exercise of original and not appellate jurisdiction; that under Section 113 of the North Dakota Constitution the police magistrate has exclusive original jurisdiction of all cases arising under city ordinances; that an appeal by the method granted violates Section 113 of the Constitution and there being no other appellate procedure provided for with respect to police magistrate's court, no constitutional right of appeal from a judgment of that court exists.
Section 114 of the North Dakota Constitution provides:
"Appeals shall lie from the county court, final decisions of justices of the peace and police magistrates in such cases and pursuant to such regulations as may be prescribed by law."
Section 40-1819, NDRC 1943, as amended by Chapter 266, Laws of N.D. 1955, provides for appeals from police magistrate's court. Section 33-1240, NDRC 1943, provides that such an appeal transfers the action to the district court for trial anew. The question before us here is whether such a trial, upon appeal, by the district court is an exercise of original jurisdiction and therefore, in a case arising under a municipal ordinance, in violation of Section 113 of the Constitution which vests exclusive original jurisdiction in such matters in police magistrate's court.
Recently, in the Matter of the Estate of Nystuen, N.D., 80 N.W.2d 671, we had occasion to consider this precise question. In the Nystuen case, the question arose in connection with a trial anew in the district court upon an appeal from county court in a probate matter of which, by Section 111 of the Constitution, the county court has exclusive original jurisdiction. In that case we gave the question extended consideration and reaffirmed the decision of this court in the Matter of Peterson's Estate, 22 N.D. 480, 134 N.W. 751, which held that a trial anew in district court, by virtue of a right of appeal and a statute directing the procedure upon appeal, is not the exercise by the district court of original jurisdiction. This is the settled law of this state. It follows that the order of the district court dismissing defendant's appeal was in error. The order is therefore reversed.
GRIMSON, C. J., and JOHNSON, SATHRE and MORRIS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2223428/ | 905 N.E.2d 67 (2009)
JOHNSON
v.
STATE.
No. 01A05-0808-CR-508.
Court of Appeals of Indiana.
April 14, 2009.
BAKER, C.J.
Disposition of case by unpublished memorandum decision. Affirmed.
MAY, J. Concurs.
BARNES, J. Concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2231535/ | 893 N.E.2d 981 (2008)
CHICAGO'S PIZZA, INC., Chicago's Best, Inc., and Flovig, Inc., Plaintiffs-Appellants,
v.
CHICAGO'S PIZZA FRANCHISE LIMITED USA, f/k/a Pizza USA, Inc., and Irfanullah Muhammed, Defendants-Appellees.
No. 1-07-0679.
Appellate Court of Illinois, First District, Fourth Division.
August 7, 2008.
Rehearing Denied September 8, 2008.
*985 Craig D. Tobin, Tomas Petkus, Tobin, Petkus & Munoz LLC, Chicago, IL, for appellants.
Steven J. Hampton, Ronald A. DiCerbo, Michael J. Krautner, McAndrews, Held & Malloy, Ltd., Chicago, IL, for appellees.
Justice MURPHY delivered the opinion of the court:
Plaintiffs, Chicago's Pizza, Inc., Chicago's Best, Inc., and Flovig, Inc., filed a complaint against defendants, Chicago's Pizza Franchise Limited and Irfanullah Muhammed, alleging that defendants used the Chicago's Pizza name to mislead consumers, benefit from plaintiffs' investment in the Chicago's Pizza name, and divert sales from plaintiffs' restaurants to defendants'. After a bench trial, the trial court found that plaintiffs did not meet their burden of proving that defendants' actions caused plaintiffs to lose revenue.
I. BACKGROUND
Martin Flores and his wife opened their first Chicago's Pizza restaurant in 1991. By 2002, they had three Chicago's Pizza locations in Chicago: 3114 North Lincoln Avenue, 3006 North Sheffield, and 1919 West Montrose. From 2002 until 2006, Muhammed ran an unaffiliated Chicago's Pizza pizzeria, with its sole location at 5062 North Sheridan Road. Although Muhammed had only one store, his ads listed multiple "locations," some of which corresponded with plaintiffs' locations. The ads also described worldwide locations and claimed that defendants' restaurant had been in existence since 1970, even though Muhammed did not open the restaurant until 2002.
Certain of plaintiffs' restaurants were called Chicago's Pizza, while others went by Chicago's Pizza & Pasta. Plaintiffs' logo was a red oval with the word "Chicago's" written inside, with either "Pizza" and "Pizza & Pasta" under the oval. Defendants' logo was a red, white, and blue pizza with "Chicago's Pizza" written in the bottom, blue portion and "Pizzeria" written in green in the middle.
Plaintiffs filed a 10-count complaint alleging that defendants used the Chicago's Pizza name in an effort to mislead the public into thinking that it was a franchised business affiliated with plaintiffs. Plaintiff Chicago's Pizza, Inc., the Lincoln Avenue location, alleged tortious interference with business expectancy and violations of the Uniform Deceptive Trade Practices Act (Deceptive Trade Practices Act) (815 ILCS 510/1 et seq. (West 2004)) *986 and the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2004)). Chicago's Best, the Montrose Avenue location, and Flovig, the Sheffield Avenue location, alleged violations of the Deceptive Trade Practices Act against both defendants.
In 2006, the case proceeded to trial, where the following evidence was presented.
A. Martin and Patricia Flores
Martin Flores testified that he owns four locations of Chicago's Pizza: North Lincoln, North Sheffield, West Montrose, and West Irving Park. At the time of trial, the Irving Park location had just been opened, and his West Wilson store relocated to Montrose two years before. The Lincoln store opened in 2001.
Chicago's Pizza was incorporated in 1992 and started as a two-person operation. Sales increased every year, and at the time of the trial, the business had 160 employees. However, at the end of 2002 or 2003, Flores saw a decrease in sales, especially in the Wrigley Field area. Until that time, other competitors opened in the area, but they did not affect his business. He believed that the decrease in business was a result of the opening of a Chicago's Pizza on Sheridan Road, which was not affiliated with his restaurants. He received hundreds of complaints from customers about the quality of the Sheridan restaurant's food.
Furthermore, in February and March 2006, people began complaining that plaintiff was fraudulently charging their credit cards; however, plaintiffs did not charge their credit cards, and the alleged customers were not in plaintiffs' computer system.
Plaintiffs' tax records showed that gross sales for the Lincoln location was $1.9 million for the 2000 tax year; $2.3 million for 2001; $2,078,765 for 2002; $1.8 million for 2003; and $2,296,000 for 2004. During the time frame when he noticed a decrease in sales, he increased his advertising to recover some of the customers he had lost. Sales increased when defendants' restaurant closed in 2006.
In 2000, Flores changed the name of the restaurant on his menus and the Internet to Chicago's Pizza & Pasta. When he opened his first full-service restaurant in Lincoln in 2001, the name on the sign was Chicago's Pizza & Pasta. The signs at the Wilson and Sheffield locations have always been Chicago's Pizza, and the sign on Montrose was Chicago's Pizza & Pasta beginning in 2003.
Patricia Flores, Martin's niece, testified that until the year before, she worked at the Chicago's Pizza location on Montrose. At one point, a customer presented a coupon for what purported to be Chicago's Pizza, which listed one phone number for "downtown area, Lincoln area" and "Lincoln Park, Sheffield area" and another number for "Wilson area, Montrose location" and "Rogers Park, Sheridan area." Patricia testified that this coupon was not for plaintiffs' Chicago Pizza. After receiving additional complaints, she called the phone number that the customer gave her for a Chicago's Pizza located on Sheridan. Patricia asked the person who answered the phone whether the restaurant was affiliated with the Chicago's Pizza on Montrose, and he said yes.
Patricia testified that when the Montrose store was opened in 2002, the sign placed outside said Chicago's Pizza & Pasta, as did the menus. However, they always answered the phone "Chicago Pizza."
B. Defendant Irfanullah Muhammed
Irfanullah Muhammed testified that he bought the goodwill of an existing pizzeria *987 named Paisan's Pizza for $87,000 and changed the name. He did not examine the books and records for the business before purchasing it, and his only experience with the pizza business was observing his friend's pizza business in Japan for three or four months.
At the time he incorporated his business in 2002, Muhammed told the State that he would be doing business under the name Chicago Pizza Inn U.S.A. However, he never opened a business named Chicago Pizza Inn U.S.A. When he opened his business under the name Chicago's Pizza, he did not look in the phone book to determine whether any other businesses were already using that name. For a short time in 2004 the business was dissolved for failure to pay the franchise fee, but he continued to run it. When he reincorporated in 2004, he learned that he could not use the name Pizza U.S.A. and instead tried to use the name Chicago Pizza & Pasta. He ultimately closed the business in February or March 2006.
Defendants' ads had either a "circle R" next to "Chicago's Pizza," as if it were registered, or the "TM" designation. Muhammed never obtained a registration; he abandoned his application with the United State Patent and Trademark Office.
Although defendants only had one location, on Sheridan Road, their ads included multiple "locations," with different phone numbers for each. For example, defendants' phone book ad and one of their menus[1] showed locations for Lincoln/Sheffield, Downtown/Loop, Montrose/Wilson, and Lakefront/Sheridan/Loyola, and urged customers to "call for your nearest location." In a Yellow Book coupon, defendants listed one phone number for "Downtown Area, Lincoln Area, Lincoln Park, Sheffield Area" and a second number for "Wilson Area, Montrose Location, Rogers Park, Sheridan Area." Another ad had six phone numbers for different areas that were not labeled "locations": Lincoln Park, Sheffield area, Montrose/Wilson, Downtown, UIC & Loop, and Sheridan & Loyola. Muhammed testified that his ads had different phone numbers for different "locations" to avoid overwhelming one phone line and so that the order could be assigned to drivers who delivered in particular areas. He denied that he was trying to create the impression that his restaurant had multiple locations.
Several of defendants' ads or menus listed worldwide locations, including Dubai, Frankfurt, Rome, and New York. Muhammed admitted that these locations did not exist, but he wanted to open franchises in New York and Tokyo. His friend was going to open a location in San Francisco and his brother was going to open one in Washington, D.C.
Certain ads or menus also made reference to "Established 1970" and "Since 1970" or provided, "Thanks to all Wonderful Customers for their Continued Support towards the Prosperity of Chicago's Pizza Since 1970." As Muhammed did not open the restaurant until 2002, the restaurant was not established in 1970. He testified that the year 1970 refers to when a restaurant called Strawberry Pizza, located in Japan, began using a particular crust recipe.
Certain ads also state that defendants' restaurant is open until 5 a.m. Muhammed testified that the restaurant's closing time was 5 a.m. but was changed to 3 a.m. During the time when a 5 a.m. closing time was advertised, sometimes he closed earlier.
Muhammed testified that he first learned of plaintiffs' restaurants after this *988 lawsuit was filed. In response, he put up a sign visible to both the public and the employees that answered the phone saying that the restaurant was not affiliated with any other locations or companies. Employees answered the phone "Chicago's Pizza Sheridan," and he instructed them that if any customers asked about Chicago's Pizza & Pasta, "tell them to call different numbers."
Muhammed testified that plaintiffs' and defendants' restaurants carry different items. For example, Muhammed testified that his pizzeria did not carry 40% of the appetizers listed on plaintiffs' menu, and he did not sell any of plaintiffs' salads, chicken dishes, wraps, or gourmet sandwiches. They sold different desserts, and defendants carried Pepsi products, while plaintiffs carried Coke products. In addition, halal food, which plaintiffs do not sell, constituted 20 to 30% of defendants' gross sales.
Muhammed testified that after this litigation ends, he plans to reopen his business under the name "Chicago's Pizza."
C. Customers
1. Wolf Stern
Wolf Stern testified that he ordered pizzas about once a month from plaintiffs' Lincoln Avenue location. In December 2003, he decided to order a pizza and looked in the Yellow Pages for the Chicago's Pizza on Lincoln Avenue. When he could not find it, he called the Chicago's Pizza on Sheridan and asked for the phone number of the Lincoln Avenue location. The person Stern spoke to asked him for his address and said they could deliver from the Sheridan location, so Stern placed an order. Stern's understanding was that he was ordering from an affiliate of the Chicago's Pizza on Lincoln. When the pizza did not arrive within the agreed-upon period of time, Stern called the location two or three times and was told that the driver was right around the corner. He had to wait almost two hours for the delivery to arrive, and the pizza he bought was "terrible." Stern called the store again to express his dissatisfaction, and the man he talked to offered him a discount on his next order, which would be placed in the computer system and honored at all of their locations, including Lincoln Avenue.
In 2004, Stern met Martin Flores when Flores threw a party for their sons' baseball team at Chicago's Pizza. Flores told him about issues he was having with another store with a similar name, and Stern explained the problem he had in December 2003. In the meantime, Stern had stopped ordering from Chicago's Pizza and had told his friends of his negative experience. After speaking to Flores, Stern again began patronizing the Chicago's Pizza on Lincoln Avenue.
2. Travis Cohen
Travis Cohen testified that for two years until February 2006, he ordered pizza from the Sheffield location of Chicago's Pizza at least once a week. In February 2006, he looked in the phone book, which had multiple locations for Chicago's Pizza. Because he knew that Sheffield turned into Sheridan, he thought that the Sheridan location was the same as the Sheffield location. Therefore, he ordered a pizza from the Sheridan location. He testified that Chicago's Pizza charged his debit card $22.12 for this order, but another charge for $55 appeared on his account two days later. Cohen called the Sheridan location regarding the extra charge and was advised to call Maria, the area manager for Chicago's Pizza. Cohen called Maria at the number that the person at the Sheridan location gave him and discovered that the two locations were not affiliated. Cohen filed a police report and filed a grievance with his *989 bank. After this incident, he is ordering pizzas again from the Sheffield location.
3. Anthony Poole
Anthony Poole testified that in February 2005, he saw an ad for Chicago's Pizza and called the number listed to order a pizza. He had ordered from the Montrose and Wilson locations of Chicago's Pizza at least 12 times. When the pizza arrived, the quality was different, but he assumed there was a new person in plaintiffs' kitchen. A few weeks later, he ordered another pizza by using the phone number from the same ad. He asked the employee on the phone whether this was the location on Wilson, and the employee responded that it was. When the pizza arrived, the packaging and aroma were different from normal, so he asked the deliveryman what location it came from. The deliveryman said the Chicago's Pizza on Sheridan. Poole told him to take the pizza back and called the Sheridan location. He spoke to the same person as before and questioned him on the discrepancy between locations. The employee responded that he told Poole earlier that they deliver to the Wilson area, not that the location was on Wilson Avenue. After this incident, he is ordering pizzas again from the Montrose and Wilson locations.
4. Joseph Bitterman
Joseph Bitterman testified that he was a customer of the Chicago's Pizza on Sheffield beginning in late 2004. In July 2005, he looked in the phone book and saw an ad for Chicago's Pizza, with different phone numbers for each of its four locations: Lincoln/Sheffield, Downtown/Loop, Montrose/Wilson, and Lakefront/Sheridan/Loyola. The ad listed a toll-free number to call "for your nearest location" and represented that the pizzerias were open until 5 a.m. Bitterman called the Sheffield location believing he was calling the Chicago's Pizza he had done business with on Lincoln and Sheffield. The food he received was "disgusting to say the least," but when he called the store at 4 a.m. to complain, it was closed. The following day, he returned the food to the Chicago's Pizza on Sheffield, from which he thought he had ordered, but did not believe the employees when they told him that they had not made the sandwich. He disparaged the store to 20 or 30 people before he learned that he had ordered from a Chicago's Pizza on Sheridan.
5. Judith Levine
Judith Levine testified that she has been patronizing the Wilson and Montrose locations of plaintiffs' Chicago's Pizza for 15 years. In April 2005, she clipped a Yellow Book coupon for Chicago's Pizza with three phone numbers one for "Lincoln Park and Sheffield areas," one for "Wilson and Montrose areas," and a third for "Sheridan and Broadway areas." She believed that the coupon was for plaintiffs' restaurants, since it had the same name and the locations listed on the coupon were similar to plaintiffs' locations, so she attempted to use it at plaintiffs' Montrose location. Plaintiffs' Montrose location informed her that the coupon was not theirs but still honored it.
6. Mary DeArmond
Mary DeArmond testified that she was referred to the Chicago's Pizza on Montrose. In the summer of 2005, her friend searched in his cell phone for the nearest Chicago's Pizza. A number of Chicago's Pizza locations came up, but her friend called the location on Sheridan because it was the closest to his house. Her friend placed an order, and when she went to pick it up, she asked whether the restaurant was affiliated with the Chicago's Pizza on Montrose. The employee said that it was. Since then, she has not ordered from the Sheridan location, but she has ordered from the Montrose location several times.
*990 D. Accountant Sam Remer
Sam Remer, an accountant, testified that he was retained by Martin Flores to determine whether defendants' actions damaged plaintiffs' business and the amount of lost revenue. He reviewed Chicago's Pizza, Inc.'s (the Lincoln location) tax returns for 2000 through 2004 and spoke to Martin Flores, his assistant, and his accountant. Remer did not review any other financial records of plaintiffs'. He concluded that the Lincoln location's sales declined in 2002 and 2003 but increased somewhat in 2004. He estimated that lost sales for 2002 and 2003 were $830,000 and its lost profits were $500,000. The carry-out and delivery portions of the business sustained the majority of the losses. Flores told him that a number of delivery drivers had to be laid off.
Although the Lincoln Avenue dining room opened in 2001, Remer testified that Martin Flores told him that it did not open until 2002. Believing that the Lincoln Avenue's dining room was an extra source of income in 2002 that the business did not have in 2001, Remer added $250,000 to the difference between the numbers for 2001 and 2002. Therefore, of the $830,000 he estimated in lost sales for those two years, $250,000 was attributable to the dining room income that he believed plaintiffs had in 2002 but not in 2001. Remer agreed that if there was a dining room operating in 2001, his numbers "would have to be changed." Remer testified that before he learned that the dining room revenue needed to be added to the damages calculation, he had concluded that plaintiffs' lost sales "appeared to be minimal."
Remer opined that defendants' actions caused these losses. Based on his research, the depositions of Muhammed, his brother, and a driver, Remer concluded that there was a concerted effort to cause confusion between the two establishments.
Defendants' tax return for 2002 showed sales of $30,000 a year, or approximately $100 a day. Remer discounted the tax return, however, because it contradicted the deposition testimony of Muhammed, his brother, and a driver, who stated that the daily sales were between $2,000 and $4,000 a day. He also identified mathematical errors in the return and stated that the gross profit ratio was understated. No employees were shown on the tax returns for 2002 and 2003; apparently defendants' employees were paid in cash. Defendants' business records were not provided to Remer, who considered the tax returns to be fraudulent.
Remer did not know the geographic area that plaintiffs' Lincoln Avenue store delivered to, nor did he know how many other business had a pizza delivery business within the same area. He discounted other area businesses' contribution to any decrease in plaintiffs' sales based on what Martin Flores told him. He also relied on Pizza Today Magazine's conclusion that national pizza consumption had not changed much in the last 15 years.
E. Trial Court's Decision
At the close of plaintiffs' case, defendants moved for a directed finding, which the trial court denied. The trial resumed; defendants did not call any witnesses but did present exhibits. The trial court found that Muhammed was not truthful in his advertising, including his use of the trademark designation and his claims of being established in 1970 and having restaurants in foreign countries; however, the trial court "fails to see how this false advertisement hurt Plaintiff's business." Furthermore, although Martin Flores testified that his business was injured because defendants had "such an inferior product," "if Muhammed had a better product, he may have been more serious competition. Bad pizza will not survive in Chicago; there is *991 too much competition. Flores apparently does have a very good product and have very loyal customers at each of his restaurants. However, in the very competitive food business, he could lose them for any number of reasons." The trial court concluded that plaintiffs failed to meet their burden of proving that defendants interfered with the business in such a manner as to cause lost revenue. Therefore, it found for defendants on all counts.
Plaintiffs' motion for new trial was denied, and this appeal followed.
II. ANALYSIS
A. Manifest Weight of the Evidence
The standard of review in a bench trial is whether the judgment is against the manifest weight of the evidence. Dargis v. Paradise Park, Inc., 354 Ill.App.3d 171, 177, 289 Ill.Dec. 420, 819 N.E.2d 1220 (2004). A reviewing court will not substitute its judgment for that of the trial court in a bench trial unless the judgment is against the manifest weight of the evidence. First Baptist Church of Lombard v. Toll Highway Authority, 301 Ill.App.3d 533, 542, 234 Ill.Dec. 878, 703 N.E.2d 978 (1998). "A judgment is against the manifest weight of the evidence only when the opposite conclusion is apparent or when findings appear to be unreasonable, arbitrary, or not based on evidence." Judgment Services Corp. v. Sullivan, 321 Ill.App.3d 151, 154, 254 Ill.Dec. 70, 746 N.E.2d 827 (2001).
As the trier of fact, the trial judge was in a superior position to judge the credibility of the witnesses and determine the weight to be given to their testimony. Buckner v. Causey, 311 Ill.App.3d 139, 144, 243 Ill.Dec. 786, 724 N.E.2d 95 (1999). When contradictory testimony that could support conflicting conclusions is given at a bench trial, an appellate court will not disturb the trial court's factual findings based on that testimony unless a contrary finding is clearly apparent. Buckner, 311 Ill.App.3d at 144, 243 Ill.Dec. 786, 724 N.E.2d 95.
1. Denial of directed finding
Plaintiffs first contend that the trial court erred by entering judgment in favor of defendants when it denied their motion for directed finding pursuant to section 2-1110 of the Code of Civil Procedure (735 ILCS 5/2-1110 (West 2004)) and defendants did not present any evidence during their case. Defendants argue that the evidentiary record before the trial court at the time of the motion for directed finding was not the same as the record before the court after trial because at the close of trial, the court considered all of the evidence, "including the testimony of Defendants' witnesses, Defendants' exhibits, and the written findings of fact and conclusions of law presented by both parties." As plaintiffs point out, defendants did not present any witnesses, and the exhibits they submitted duplicated plaintiffs' trial exhibits, with the exception of defendants' exhibits 7, 8,[2] and 9, which were substantially similar but not the same.
Plaintiffs cite Geske v. Geske, 343 Ill. App.3d 881, 279 Ill.Dec. 26, 799 N.E.2d 829 (2003), in support of their argument. In Geske, at the close of the plaintiff's case, the defendant presented a motion for directed finding, which the trial court denied. The defendant rested without presenting any evidence, and the trial court found for the defendant. On the first appeal, *992 the court found in an unpublished order pursuant to Supreme Court Rule 23 (166 Ill.2d R. 23) that the trial court erred by entering judgment in the defendant's favor because when the defendant rested without offering any additional evidence, the initial determination that the plaintiff had satisfied his required burden of proof was unchallenged. Geske, 343 Ill.App.3d at 883, 279 Ill.Dec. 26, 799 N.E.2d 829. On remand, the trial court, citing its previous application of an incorrect standard, denied the plaintiff's motion for entry of judgment in her favor and ruled in favor of the defendant. On a second appeal, the court affirmed the trial court's decision to reopen the motion and correct its prior ruling. Geske, 343 Ill.App.3d at 885, 279 Ill.Dec. 26, 799 N.E.2d 829.
Unlike the defendant in Geske, who did not present any evidence, defendants here submitted their trial exhibits, even if most were the same as plaintiffs'. Therefore, the trial court's initial determination that plaintiffs satisfied their burden of proof was not "unchallenged," as it was in Geske. See Geske, 343 Ill.App.3d at 883, 279 Ill.Dec. 26, 799 N.E.2d 829. Furthermore, defendants' exhibits 7 and 9, while similar to plaintiffs' exhibits, are not identical to them. Although plaintiffs claim that defendants' exhibit 8 duplicates their exhibits, that exhibit is missing from the record, and the omission must be construed against plaintiffs. Foutch v. O'Bryant, 99 Ill.2d 389, 392, 76 Ill.Dec. 823, 459 N.E.2d 958 (1984) (an appellant has the burden of presenting a sufficiently complete record of proceedings at the trial court level to support a claim of error, and a reviewing court will resolve any doubts arising from the incompleteness of the record against the appellant).
Bruss v. Klein, 210 Ill.App.3d 72, 154 Ill.Dec. 683, 568 N.E.2d 904 (1991), is instructive. In Bruss, the defendants presented a motion for directed finding at the close of the plaintiff's case, which the trial court denied. The defendants called one witness to the stand, and following the trial, the trial court entered judgment for the defendants. On appeal, the plaintiff argued that the trial court's ruling in favor of the defendants was against the manifest weight of the evidence because by denying the motion for directed finding, the trial court found that he met his burden of proof. The court noted that, in ruling on a defendant's motion for directed finding, a trial court must first determine whether the plaintiff made out a prima facie case. Bruss, 210 Ill.App.3d at 77-78, 154 Ill.Dec. 683, 568 N.E.2d 904, citing Kokinis v. Kotrich, 81 Ill.2d 151, 155, 40 Ill.Dec. 812, 407 N.E.2d 43 (1980). If a prima facie case exists, then the trial judge must consider all the evidence, pass on the credibility of witnesses, draw reasonable inferences from the testimony, and consider the weight and quality of the evidence. Bruss, 210 Ill.App.3d at 78, 154 Ill.Dec. 683, 568 N.E.2d 904. If the weighing process results in the negation of some of the evidence necessary to the plaintiff's prima facie case, the court should grant the defendant's motion and dismiss the action. Bruss, 210 Ill.App.3d at 78, 154 Ill.Dec. 683, 568 N.E.2d 904.
"We do not agree with plaintiff's argument, however, that the court's ruling in the motion for a directed finding must be considered a determination that plaintiff's testimony was credible and that his case was thus proved, precluding a judgment for defendants at the conclusion of the trial." Bruss, 210 Ill.App.3d at 78, 154 Ill.Dec. 683, 568 N.E.2d 904. The court noted that if a defendant's motion is denied, the court should continue as if the motion had not been made and proceed with trial. Bruss, 210 Ill.App.3d at 78, 154 Ill.Dec. 683, 568 N.E.2d 904, citing Kokinis, *993 81 Ill.2d at 155, 40 Ill.Dec. 812, 407 N.E.2d 43. "The fact that the trial court did not grant either of defendants' motions does not mean that the court could not rule for defendants at the conclusion of the trial, even based on a ground raised in the motions." Bruss, 210 Ill.App.3d at 78, 154 Ill.Dec. 683, 568 N.E.2d 904.
Therefore, we find that the trial court's denial of the motion for directed finding did not cause its final judgment to be against the manifest weight of the evidence.
2. Tortious interference with business expectancy
Plaintiffs also contend that the trial court's finding that Chicago's Pizza, Inc. failed to prove tortious interference with business expectancy was against the manifest weight of the evidence. This tort recognizes that a person's business relationships constitute a property interest and, as such, are entitled to protection from unjustified tampering by another. Miller v. Lockport Realty Group, Inc., 377 Ill.App.3d 369, 373, 315 Ill.Dec. 945, 878 N.E.2d 171 (2007). The elements of the tort of intentional interference with a business expectancy include (1) a reasonable expectancy of entering into a valid business relationship; (2) the defendant's knowledge of the expectancy; (3) the defendant's intentional and unjustified interference that prevents the realization of the business expectancy; and (4) damages resulting from the interference. Mannion v. Stallings & Company, Inc., 204 Ill.App.3d 179, 188, 149 Ill.Dec. 438, 561 N.E.2d 1134 (1990). A cause of action for intentional interference with a business expectancy need not be based on an enforceable contract that is interfered with; rather, it is the interference with the relationship that creates the actionable tort. Lusher v. Becker Brothers, Inc., 155 Ill.App.3d 866, 869-70, 108 Ill.Dec. 748, 509 N.E.2d 444 (1987).
Plaintiffs first argue that they proved a reasonable expectancy of maintaining and entering into business relationships with existing and new customers. Specifically, they had a reasonable expectancy of maintaining business relationships with Stern, Poole, Cohen, and other customers deceived by defendants, and of entering into a new business relationship with DeArmond.
The trial court found that while Flores apparently had a good product and loyal customers, "in the very competitive food business, he could lose any of them for any number of reasons." Similarly, defendants, citing Intervisual Communications, Inc. v. Volkert, 975 F.Supp. 1092 (N.D.Ill. 1997), argue that offering proof of a past customer relationship is not sufficient to prove a reasonable expectation of a future business relationship. In Intervisual, the court stated that the first element requires the plaintiff to "specifically identify [third] parties who actually contemplated entering into a business relationship with him." Intervisual, 975 F.Supp. at 1103. If a plaintiff were not required to specifically identify parties who actually contemplated entering into a business relationship with him, "`liability under a theory of tortious interference with prospective business expectancies would be virtually without limit and impossible to calculate.'" Intervisual, 975 F.Supp. at 1103, quoting Celex Group, Inc. v. Executive Gallery, 877 F.Supp. 1114, 1125-26 n. 19 (N.D.Ill.1995).
It is clear that Wolf Stern contemplated a business relationship with plaintiffs, as he called defendants' store and asked for the phone number of the Lincoln Avenue location. The person Stern spoke to asked for his address and said they could deliver from the "Sheridan location." When he ordered from defendants, he believed he *994 was doing business with plaintiffs. Jason Bitterman also ordered from defendants, believing he was doing business with the Chicago's Pizza on Lincoln and Sheffield. Furthermore, this court has previously ruled that "the opportunity to obtain customers is an expectancy protected by the tort of interference with a business expectancy." Downers Grove Volkswagen, Inc. v. Wigglesworth Imports, Inc., 190 Ill. App.3d 524, 529, 137 Ill.Dec. 409, 546 N.E.2d 33 (1989), citing North Broadway Motors, Inc. v. Fiat Motors of North America, Inc., 622 F.Supp. 466, 469 (N.D.Ill.1984). See also Restatement (Second) of Torts § 766B, Comment c, at 22 (1979) (one type of protected relation is "interference with a continuing business or other customary relationship not amounting to a formal contract").
Second, the name of defendants' restaurant and their advertising campaign suggest the defendants' knowledge of the expectancy. Also, defendants deceived customers Stern, DeArmond, Poole, and Cohen into thinking they were an affiliate of plaintiffs'.
Plaintiffs contend that they satisfied the third element, the defendant's intentional and unjustified interference that prevents the realization of the business expectancy. To prevail, it is insufficient for a plaintiff to merely show that the defendant interfered with a business expectancy. Rather, "[t]he element of `purposeful' or `intentional' interference refers to some impropriety committed by the defendant in interfering with the plaintiff's expectancy." Romanek v. Connelly, 324 Ill.App.3d 393, 406, 257 Ill.Dec. 436, 753 N.E.2d 1062 (2001); Restatement (Second) of Torts § 766B, Comment a, at 20 (1979). Plaintiffs must prove that defendants acted "intentionally with the aim of injuring" plaintiffs' expectancy. Romanek, 324 Ill. App.3d at 406, 257 Ill.Dec. 436, 753 N.E.2d 1062. While "one may not simply sue any competitor who lures away customers, * * * the privilege of competition is not available to those who use wrongful means to interfere." Downers Grove Volkswagen, 190 Ill.App.3d at 528, 137 Ill.Dec. 409, 546 N.E.2d 33.
Plaintiffs argue that defendants intentionally and unjustifiably prevented plaintiffs' realization of doing business with Stern, DeArmond, Poole, and Cohen by allowing them to place orders with defendants and then lying to Poole and DeArmond about the affiliation. While the trial court found that defendants used a distinctive logo on their advertising, we disagree with their argument that Bitterman and Cohen simply mistook defendants' ad for plaintiffs'. Defendants' ads represented that they had numerous locations when they only had one. Two of the four locations (Downtown/Loop, Lakefront/Sheridan/Loyola) described in several of defendants' ads did not match plaintiffs'; however, two others (Lincoln/Sheffield, Montrose/Wilson) corresponded with plaintiffs' Lincoln, Sheffield, and Montrose stores.
The fourth element is damages resulting from the interference. Mannion, 204 Ill.App.3d at 188, 149 Ill.Dec. 438, 561 N.E.2d 1134. "Although the amount of an award of lost profits need not be proven with absolute certainty, the plaintiff bears the burden of proving such damages with reasonable certainty." SK Hand Tool Corp. v. Dresser Industries, Inc., 284 Ill. App.3d 417, 426-27, 219 Ill.Dec. 833, 672 N.E.2d 341 (1996). Plaintiffs contend that they suffered damages because defendants diverted four specific orders, and Stern refused to do his usual weekly business with plaintiffs for one year. They also cite Remer's testimony that plaintiffs' lost sales for 2002 and 2003 exceeded $730,000 and their lost profits were $500,000. Significantly, *995 plaintiffs do not challenge any of the trial court's specific findings as to damages. The trial court concluded that plaintiffs did not meet their burden of proving that defendants interfered with their business in such a manner to cause them to lose revenue.
Regarding the diversion of specific orders, as the trial court found, each witness testified that he or she returned to ordering from plaintiffs. Furthermore, the only customer to testify as to defendants' actions during 2002 and 2003, the time when plaintiffs alleged, and their expert testified to, diminished sales, was Stern.
Furthermore, the trial court rejected Remer's testimony because he did not conduct an independent investigation as to changes in the industry, the area of the city, or of people's eating habits at the time of the alleged decline in revenue. In addition, Remer accepted Flores's explanation as to lost revenues. While Remer testified that defendants' records were inaccurate and that his gross sales must have been $800,000 a year, the trial court doubted whether defendants earned that much if the food was as bad as plaintiffs' witnesses testified it was.
In addition, Remer's initial figures were based on erroneous assumption that Lincoln dining room did not open until 2002, when in fact it opened in 2001. Remer agreed that if there was a dining room operating in 2001, his numbers "would have to be changed," but he did not testify as to what that change would be. He also testified that before he learned that the dining room revenue needed to be added to the damages calculation, he had concluded that plaintiffs' lost sales "appeared to be minimal." We find that the trial court's conclusion as to damages was not against the manifest weight of the evidence.
Therefore, we conclude that plaintiffs failed to demonstrate that the trial court's findings as to tortious interference with business expectancy were against the manifest weight of the evidence.
3. Deceptive Trade Practices Act
Plaintiffs argue that they are entitled to injunctive relief and attorney fees because defendants violated the Deceptive Trade Practices Act. The purpose of the Deceptive Trade Practices Act is to prohibit unfair competition, and it is primarily directed toward acts that unreasonably interfere with another's conduct of his or her business. Phillips v. Cox, 261 Ill. App.3d 78, 81, 198 Ill.Dec. 338, 632 N.E.2d 668 (1994). "Unfair competition is a broader concept than trademark infringement and depends upon likelihood of confusion as to the source of plaintiff's goods when the whole product, rather than just the service mark, is considered." Thompson v. Spring-Green Lawn Care Corp., 126 Ill.App.3d 99, 113, 81 Ill.Dec. 202, 466 N.E.2d 1004 (1984); Phillips, 261 Ill. App.3d at 81, 198 Ill.Dec. 338, 632 N.E.2d 668. A plaintiff may be granted relief under the theory of unfair competition regardless of whether his product or service is in direct competition with the defendant's product or service. Thompson, 126 Ill.App.3d at 113, 81 Ill.Dec. 202, 466 N.E.2d 1004.
In relevant part, section 2 of the Deceptive Trade Practices Act provides:
"A person engages in a deceptive trade practice when, in the course of his or her business, vocation, or occupation, the person:
(1) passes off goods or services as those of another;
(2) causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services;
*996 (3) causes likelihood of confusion or of misunderstanding as to affiliation, connection, or association with or certification by another;
(4) uses deceptive representations or designations of geographic origin in connection with goods and services;
(5) represents that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that he or she does not have;
* * *
(8) disparages the goods, services, or business of another by false or misleading representation of fact;
(9) advertises goods with intent not to sell them as advertised;
* * *
(12) engages in any other conduct which similarly creates a likelihood of confusion or misunderstanding." 815 ILCS 510/2(a) (West 2004). In order to prevail under section 2, "a plaintiff need not prove * * * actual confusion or misunderstanding." 815 ILCS 510/2(b) (West 2004).
The trial court found that plaintiffs did not prove that defendants' conduct caused their lost revenue, a finding that we concluded is not against the manifest weight of the evidence. However, the Deceptive Trade Practices Act does not require proof of "monetary damages, loss of profit, or intent to deceive" to merit injunctive relief. 815 ILCS 510/3 (West 2004). In fact, plaintiffs cannot seek damages under the Deceptive Trade Practices Act. Empire Home Services, 274 Ill.App.3d at 671, 210 Ill.Dec. 657, 653 N.E.2d 852; Greenberg v. United Airlines, 206 Ill. App.3d 40, 46, 150 Ill.Dec. 904, 563 N.E.2d 1031 (1990). Rather, a "person likely to be damaged by a deceptive trade practice of another may be granted injunctive relief upon terms that the court considers reasonable." 815 ILCS 510/3 (West 2004); Greenberg, 206 Ill.App.3d at 47, 150 Ill. Dec. 904, 563 N.E.2d 1031. See Disc Jockey Referral Network, Ltd. v. Ameritech Publishing of Illinois, 230 Ill.App.3d 908, 915, 172 Ill.Dec. 725, 596 N.E.2d 4 (1992) ("Private suits for injunctive relief may be brought in situations where one competitor is harmed or may be harmed by the unfair trade practices of another"). In Bingham v. Inter-Track Partners, 234 Ill.App.3d 615, 621, 175 Ill.Dec. 447, 600 N.E.2d 70 (1992), the court held that "injunctive relief is warranted when a party's trade practice creates a likelihood of confusion of misunderstanding."
Defendants argue that they did not "pass off" their goods and services as those of plaintiffs because the words "Chicago's Pizza" are generic and descriptive of the parties' location and goods. They also point out that they prominently display their distinctive logo on their advertising, menus, and telephone book listings.
We disagree with defendants and conclude that plaintiffs demonstrated that defendants' trade practices created a likelihood of confusion or misunderstanding. Specifically, defendants' trade practices (1) cause the likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods and services, in violation of subsection 2(a)(2); (2) cause the likelihood of confusion or of misunderstanding as to affiliation, connection, or association with or certification by another, in violation of subsection 2(a)(3); and (3) use deceptive representations or designations of geographic origin in connection with goods and services, in violation of subsection 2(a)(4). See Multiut *997 Corp. v. Draiman, 359 Ill.App.3d 527, 537 295 Ill.Dec. 818, 834 N.E.2d 43 (2005). Defendants have also engaged in "any other conduct which similarly creates a likelihood of confusion or misunderstanding," in violation of subsection 2(a)(12). 815 ILCS 510/2(a)(12) (West 2004).
In addition to the similar name, defendants' menus, coupons, and ads falsely advertised numerous locations, even though they only had one. The ads urged customers to "call for your nearest location" and had different numbers for the different "locations." These phone numbers corresponded to each of the phony locations, so defendants appeared to have locations in different parts of the city. Two of defendants' "locations" (Lincoln/Sheffield, Montrose/Wilson) corresponded to plaintiffs' locations on Lincoln, Sheffield, and Montrose/Wilson. Adding to the confusion, many of the ads and coupons that touted multiple "locations" did not have defendants' own address on them.
While defendants blame the customers for their own alleged "mistakes," it was defendants' ads that caused their confusion. Indeed, plaintiffs proved not only a likelihood of confusion or misunderstanding as a result of defendants' ads and coupons, as required by the Deceptive Trade Practices Act, but also actual confusion by customers. See Thompson, 126 Ill.App.3d at 113, 81 Ill.Dec. 202, 466 N.E.2d 1004. For example, Anthony Poole, an established customer of plaintiffs', testified that defendants' employee told him he was ordering from the Wilson "location," when plaintiffs, not defendants, had a restaurant on Wilson. Similarly, Wolf Stern, also a regular customer of plaintiffs', called defendants because he wanted the phone number for the Lincoln Avenue location. Stern specifically testified that when he ordered a pizza, he believed he was doing business with an affiliate of plaintiffs'. When he called defendants to complain about the poor quality of the food, an employee offered him a discount, which would be good at the Lincoln Avenue "location," even though plaintiffs, not defendants, had a restaurant on Lincoln Avenue. Mary DeArmond also testified that one of defendants' employees told her that their restaurant was affiliated with the Chicago's Pizza on Montrose.
Similarly, Joseph Bitterman saw an ad for Chicago's Pizza with different phone numbers for different locations. Bitterman called the number for the Sheffield "location" believing he was calling plaintiffs' restaurant on Sheffield and placed an order. Judith Levine, a customer of plaintiffs' for 15 years, believed that defendants' coupon, which listed three "locations," was for plaintiffs' restaurants until she attempted to use it. Finally, Patricia Flores testified that she called a phone number on one of defendants' ads and was advised that it was affiliated with the Chicago's Pizza on Montrose. Martin and Patricia Flores also testified that they received a number of customer complaints regarding defendants' products, even though they were not plaintiffs'.
In Phillips, the plaintiffs bought the defendant's sign-making business, which included both real and personal property and the right to use the name "David Cox Signs." Six years later, the defendant opened a sign-making business next door to the plaintiffs and named his business "David R. Cox d/b/a Sign Design and Construction." The plaintiffs filed a complaint for injunctive relief, claiming that the defendant diverted the plaintiffs' customers, thereby depriving them of sales and revenue. The complaint was dismissed. On appeal, the court applied the "broad language" of subsection 2(12) of the Deceptive Trade Practices Act and noted that any conduct that creates a likelihood of consumer *998 confusion or misunderstanding is potentially actionable under subsection 2(12), even if the conduct is not specifically covered by other sections of the act. Phillips, 261 Ill.App.3d at 81-82, 198 Ill.Dec. 338, 632 N.E.2d 668. The court held that the plaintiff alleged facts sufficient to state a cause of action because (1) the defendant located his sign-making business next door to the plaintiffs' business, (2) both parties were engaged in the same type of business, and (3) the defendant was operating his business under a name that is "very similar" to the name used by the plaintiffs. Phillips, 261 Ill.App.3d at 83, 198 Ill.Dec. 338, 632 N.E.2d 668.
Similarly, in Empire Home Services, the plaintiff's advertising emphasized a telephone number, 588-2300, which generated more than 1,000 responses a day. The defendant began using the phone number 588-3200, and when some potential Empire customers mistakenly phoned the defendant, told the customers that they reached Empire, or a company "just like Empire." The defendant referred the customers to Carpet America, which contacted the caller and claimed to be Empire, using a sales presentation and purchase orders similar to Empire's. The court ruled that the complaint stated a claim under subsections 2(1), (2), and (3) of the Deceptive Trade Practices Act. Empire Home Services, 274 Ill.App.3d at 670, 210 Ill.Dec. 657, 653 N.E.2d 852.
While Phillips and Empire involved the sufficiency of complaints rather than the sufficiency of the proof at trial, they demonstrate the type of conduct that this court has found violative of the Deceptive Trade Practices Act. Defendants used a similar name, and their ads advertised numerous locations, some of which corresponded to plaintiffs' locations on Lincoln, Sheffield, and Montrose/Wilson. In light of the evidence of defendants' ads, menus, and coupons, and the potential for customer confusion, we find that plaintiffs demonstrated that defendants violated section 2 of the Deceptive Trade Practices Act. Furthermore, although defendants' restaurant is currently closed, Muhammed testified that after this litigation ends, he plans to reopen his business he plans to reopen his business under the name "Chicago's Pizza," thus perpetuating the potential for confusion. Therefore, we find that plaintiffs are entitled to injunctive relief. 815 ILCS 510/3 (West 2004); Empire Home Services, 274 Ill.App.3d at 671, 210 Ill.Dec. 657, 653 N.E.2d 852; Greenberg, 206 Ill. App.3d at 46, 150 Ill.Dec. 904, 563 N.E.2d 1031.
In addition, costs or attorney fees may be assessed against a defendant "only if the court finds that he has wilfully engaged in a deceptive trade practice." 815 ILCS 510/3 (West 2004). "Willful" is defined as "voluntary and intentional, but not necessarily malicious." Black's Law Dictionary (8th ed.2004). Muhammed denied knowing about plaintiffs' restaurants until this lawsuit was filed in 2003. Even assuming that to be the case, the uncontroverted customer testimony was that defendants continued to mislead consumers about their association with plaintiffs' restaurants after the complaint was filed. Therefore, we find because defendants "wilfully engaged in a deceptive trade practice," plaintiffs are entitled to reasonable attorney fees.
4. Consumer Fraud Act
Plaintiff Chicago's Pizza, Inc., also alleged a violation of the Consumer Fraud Act. Section 2 of the Consumer Fraud Act provides that the use of any practice described in section 2 of the Deceptive Trade Practices Act also constitutes a violation of the Consumer Fraud Act. 815 ILCS 505/2 (West 2004). While plaintiffs are entitled *999 to injunctive relief under the Deceptive Trade Practices Act, the same does not apply for Chicago's Pizza, Inc.'s claim for violation of the Consumer Fraud Act.
Section 10a(c) of the Consumer Fraud Act provides that "in any action brought by a person under this Section, the Court may grant injunctive relief where appropriate." 815 ILCS 505/10a(c) (West 2004). We have previously held that the "Consumer Fraud Act provides a private cause of action only where a plaintiff can show that he suffered damage as a result of unlawful conduct proscribed by the statute." Smith v. Prime Cable of Chicago, 276 Ill.App.3d 843, 859, 213 Ill. Dec. 304, 658 N.E.2d 1325 (1995). Although "a violation of the Consumer Fraud Act may occur in the absence of damages, a private cause of action does not arise absent a showing of both a violation and resultant damages." (Emphasis in original.) Tarin v. Pellonari, 253 Ill. App.3d 542, 554, 192 Ill.Dec. 584, 625 N.E.2d 739 (1993). We find that Chicago's Pizza, Inc.'s failure to prove actual damages, as described above, precludes damages or injunctive relief under the Consumer Fraud Act.
B. Discovery
Finally, plaintiffs contend that the trial court precluded them from engaging in complete discovery concerning defendants' financial and business records and the identity of their customers. A trial court has great latitude in ruling on discovery matters. Mutlu v. State Farm Fire & Casualty Co., 337 Ill.App.3d 420, 434, 271 Ill.Dec. 757, 785 N.E.2d 951 (2003). A trial court's rulings on such matters will not be disturbed absent a manifest abuse of discretion. Mutlu, 337 Ill.App.3d at 434, 271 Ill.Dec. 757, 785 N.E.2d 951.
Plaintiffs argue that the trial court erred when it denied them access to defendants' "financial and business records" and computer-based customer lists. Plaintiffs do not, however, cite to pages of the record for their requests or the trial court's denial. Indeed, it is unclear what requests plaintiffs are referring to. Therefore, we consider this argument waived. 210 Ill.2d R. 341(h)(7); Feret v. Schillerstrom, 363 Ill.App.3d 534, 541, 300 Ill.Dec. 449, 844 N.E.2d 447 (2006).
III. CONCLUSION
Plaintiffs have failed to demonstrate that the trial court's findings as to their claims for tortious interference and consumer fraud are against the manifest weight of the evidence. However, we find that plaintiffs are entitled to injunctive relief and attorney fees pursuant to the Deceptive Trade Practices Act. Therefore, we reverse in part and remand for entry of injunctive relief and a determination as to reasonable attorney fees.
Affirmed in part and reversed in part; cause remanded.
CAMPBELL and O'BRIEN, JJ., concur.
NOTES
[1] Two other menus included in the record do not list the multiple "locations."
[2] While plaintiffs argue that defendants' exhibit 8 corresponds to plaintiffs' exhibits 4 and 5, exhibit 8 is missing from the record. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610086/ | 105 Ariz. 488 (1970)
467 P.2d 238
STATE of Arizona, Appellee,
v.
John Martin LINSNER, Appellant.
Nos. 1804, 1805.
Supreme Court of Arizona, In Banc.
April 2, 1970.
*489 Gary K. Nelson, Atty. Gen., Darrell F. Smith, Former Atty. Gen., by Carl Waag Phoenix, Asst. Atty. Gen., for plaintiff.
Vernon B. Croaff, Public Defender, by Lou Zussman, deceased, Chief Trial Deputy, Stephen L. Cox, Robert Grygiel, Lewis, Roca, Beauchamp & Linton by John J. Flynn, Phoenix, for defendant.
John Martin Linsner, in pro. per.
STRUCKMEYER, Vice Chief Justice.
These consolidated causes are before this Court on appeal from the judgments and sentences imposed upon pleas of guilty to the crimes of robbery and assault with intent to commit murder.
On February 17, 1967, an information was filed in the Superior Court of Maricopa County charging the defendant, John Martin Linsner, with the crime of robbery, a felony, being Superior Court No. 51075. Defendant was arraigned on February 24, 1967, and entered a plea of not guilty. On March 22, 1967, an information was filed charging the defendant with the crime of assault with intent to commit murder, being Superior Court No. 51416. On March 23, 1967, the defendant withdrew his pleas of not guilty to both charges and entered pleas of guilty. The trial court, Division 2, accepted the pleas of guilty and ordered Superior Court criminal cases numbered 51051, 51040, 51005 and 51414 dismissed at the time of defendant's sentencing.
In Division 3 after probationary violation defendant was sentenced in causes numbered 48146 and 50172 for a period of not less than nine (9) nor more than ten (10) years, said sentences to run concurrently. On April 20, 1967, defendant was sentenced by the trial court in Division 2 for a term of not less than forty (40) nor more than fifty (50) years in the state penitentiary for robbery, the sentence to run consecutive to the sentences in Division 3, and for a term of not less than forty (40) nor more than fifty (50) years for the crime of assault with intent to commit murder, the sentences to run consecutively to the robbery sentence. Simply stated, defendant is serving two (2) concurrent sentences of nine (9) to ten (10) years to be followed by a sentence of forty (40) to fifty (50) years, then to be followed by another sentence of forty (40) to fifty (50) years.
Defendant urges that the trial court greatly abused its discretion in making both sentences of forty (40) to fifty (50) years run consecutively with the two concurrent sentences of nine (9) to ten (10) years, and consecutively with each other.
Defendant contends that the penalties would not have been as severe had it not been for allegedly highly inflammatory and prejudicial publicity by the newspapers, radio and television broadcasts, discussions by courthouse attaches, law enforcement people and other throughout the courthouse in Phoenix up to the time of the pronouncement of the sentences. It is argued that the defendant's sentence was aggravated by pre-trial publicity reflecting defendant was involved in the burglary and "great escape" from the Juvenile Detention Home in January 1967, and that the charge of assault with intent to commit murder had as its victim a deputy sheriff in the Maricopa County Jail whom defendant stabbed in the throat with a sharpened spoon while in custody. The essence of his argument is that his sentences are excessive and, consequently, constitute cruel and unusual punishment.
A.R.S. § 13-1717 deals with the power of this Court to correct and reduce a *490 sentence upon appeal by a defendant. It provides:
"B. Upon an appeal from the judgment or from the sentence on the ground that it is excessive, the court shall have the power to reduce the extent or duration of the punishment imposed, if, in its opinion, the conviction is proper, but the punishment imposed is greater than under the circumstances of the case ought to be inflicted. In such a case, the supreme court shall impose any legal sentence, not more severe than that originally imposed, which in its opinion is proper. Such sentence shall be enforced by the court from which the appeal was taken."
The policy behind the application of this statute was stated in State v. Maberry, 93 Ariz. 306, 309, 380 P.2d 604, 606:
"Because a defendant appears in person before the trial judge, the trial judge is, in most instances, better able than we to evaluate him and to determine what is necessary to rehabilitate him to constructive activity. It is for this reason that the legislature has given the trial court wide discretion to sentence a defendant for a period somewhere between a statutory minimum and a statutory maximum. * * * We have traditionally been prone to uphold a sentence declared by a trial judge when it is in conformity with the statute and there is no clear evidence that he had abused his power in the particular case." (Citations omitted.)
We have repeatedly held that the imposition of a sentence which is within the statutory limit does not constitute cruel and unusual punishment if the statute prescribing the punishment for such offense is constitutional. State v. Smith, 103 Ariz. 490, 446 P.2d 4; State v. Howland, 103 Ariz. 250, 439 P.2d 821. We have also held that the power to revise and reduce sentences imposed by the trial court should be used with great caution and exercised only when it clearly appears that a sentence is too severe. State v. Valenzuela, 98 Ariz. 189, 403 P.2d 286. And see State v. Smith, supra.
It is apparent that the trial judge sentenced the defendant for a term of years greater than his life expectancy. We do not think this necessarily constitutes an abuse of discretion considering the defendant's past criminal activities, the nature of the offenses here involved, and his consistent antisocial attitudes. c.f. State v. Cuzick, 97 Ariz. 130, 397 P.2d 629.
Defendant urges that his pleas of guilty were involuntary because they were not intelligently made. As stated, defendant had been sentenced to imprisonment in the Arizona State Penitentiary for terms of 9 to 10 years after probation violation. The trial judge, the Honorable Donald Daughton, was aware of this and emphasized the possibility of lengthy sentences by personally interrogating the defendant at the time of his pleas of guilty in this manner:
"THE COURT: You understand the consequences of pleading guilty to a felony?
MR. LINSNER: Yes, I do.
THE COURT: Do you understand that if the Court allows you to enter a plea of guilty to a robbery and a separate plea of guilty to assault to commit murder that it would be within the power of the Court to sentence you to two consecutive life sentences which would run consecutive to the sentence that you have now been given by Judge McCarthy?
MR. LINSNER: Yes, I understand that."
And:
"THE COURT: What I am trying to say is that do you understand that upon these two pleas of guilty it may well be that you will spend the rest of your natural life in prison?
MR. LINSNER: Yes, sir."
*491 The court adequately apprised Linsner of the possible sentencing consequences on the robbery charge:
"THE COURT: Are you guilty of this robbery, 51075?
MR. LINSNER: Yes, I am.
* * * * * *
THE COURT: This question may seem rather difficult but do you know you may end up spending the rest of your life
MR. LINSNER: I am guilty, Your Honor."
He thoroughly apprised defendant of the possible sentence on a plea of assault with intent to commit murder:
"THE COURT: Cause 51416, State of Arizona vs. John Linsner, you are accused of assaulting one Jim Arleth with intent to commit murder. Do you recall that?
MR. LINSNER: Yes, I do.
THE COURT: It is your desire to enter a plea of guilty on that offense?
MR. LINSNER: Yes, it is.
THE COURT: What did you assault Mr. Arleth with?
MR. LINSNER: It was a sharpened end of a spoon.
THE COURT: Did you intend at that time to kill him?
MR. LINSNER: Yes, sir.
THE COURT: Where was that?
MR. LINSNER: In the county jail.
THE COURT: Do you understand that should you plead guilty on that charge it would be within the power of the Court to sentence you to life imprisonment?
MR. LINSNER: Yes, sir."
The record of defendant's arraignment on the charges herein establishes that both counsel and the trial judge had advised Linsner of the consequences of his plea. We think the language of the sentencing judge cannot be misunderstood. It conclusively established that Linsner intelligently entered his pleas of guilty to robbery and assault with intent to commit murder. State v. Griswold, 105 Ariz. 1, 457 P.2d 331. Defendant is not an illiterate. His education included one semester of college. It is difficult to imagine how an accused could have been more clearly apprised of the possible consequences of pleas of guilty.
Defendant asserts that his pleas of guilty were otherwise involuntary. Current law on guilty pleas places almost exclusive emphasis upon the need that guilty pleas be in every respect voluntary. The reason for this is clear for a guilty plea differs in purpose and effect from an extra-judicial confession or admission because the plea is itself a conviction and like a jury verdict is conclusive. Machibroda v. United States, 368 U.S. 487, 82 S. Ct. 510, 7 L. Ed. 2d 473; c.f. State v. Anderson, 96 Ariz. 123, 392 P.2d 784; Cuzick v. State, 4 Ariz. App. 455, 421 P.2d 537.
A defendant must enter a guilty plea freely and voluntarily with understanding of the nature and consequences of the plea. State v. Willard, 102 Ariz. 271, 428 P.2d 423; Machibroda v. United States, supra; Kercheval v. United States, 274 U.S. 220, 47 S. Ct. 582, 71 L. Ed. 1009. That is, a plea must not be "induced by promises or threats which deprive it of the character of a voluntary act." Machibroda v. United States, supra. But since a plea of guilty waives production of all evidence of guilt, State v. Lopez, 99 Ariz. 11, 405 P.2d 892, more is required in the acceptance of such a plea for the court has thereafter nothing to do but give judgment and sentence. What is required is the certainty that the plea was intelligently and voluntarily made. Kercheval v. U.S., supra; Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274.
Petitioner contends that his guilty pleas were involuntary because the circumstances surrounding his incarceration in the Maricopa County Jail were such that he was coerced into pleading guilty out of fear for his life. When the thrust of defendant's contention became apparent, this Court *492 entered an order returning the matter to the Superior Court of Maricopa County for the limited purpose of determining whether Linsner was coerced into pleading guilty in accordance with his assertions.
On July 31, 1969 and August 1, 1969, the trial court held a hearing on the issue of coercion. The evidence received established that defendant had suffered a gunshot wound prior to his confinement in the Maricopa County Jail. Evidence was also received on the mental and physical pain and the persecution which he allegedly was subjected to in the Maricopa County Jail which might have influenced the entrance of a plea of guilty in order to get out of jail. Such a hearing was held to be the appropriate procedure in State v. Griswold, supra.
The trial court concluded as a matter of law that the defendant was not coerced into pleading guilty by reason of any mental or physical pain which he was subjected to in the County Jail. It made the following findings of fact:
"After considering all of the evidence and giving consideration to the credibility of the witnesses, the Court finds as follows:
The defendant had suffered a voluntary infliction of a gunshot wound prior to being jailed.
The Court further finds that the selfinflicted gunshot wound of the defendant was treated at the County Hospital originally, and he was taken back there several times for further treatment after he was jailed.
Dr. Taber, jail doctor, treated the Petitioner several times. Dr. Taber stated he discontinued any treatment for the gunshot wound on or about February 1, 1967, as the wound had healed.
Doctor Taber thereafter treated the Petitioner for other ailments up to March 24, 1967.
The defendant never complained of any mistreatment to Doctor Taber. Doctor Taber saw him in jail sixteen or seventeen times for treatment of various complaints of Petitioner. These visits are in addition to the visits the defendant made at the County Hospital for treatment to the wound.
The defendant was subjected to punishment in the County Jail by the deputies, but same was done as a disciplinary procedure, when this defendant constantly caused trouble and disturbed the other prisoners and violated prison rules.
The defendant was not persecuted by the jailers or deputies, but their actions were disciplinary in nature.
After the defendant once settled down and quit his disturbances, he had no further difficulty with the deputies and jailers.
On March 23, 1967, the date the defendant entered the pleas of guilty before Honorable Donald Daughton, he wrote a lengthy letter to Judge Daughton (in evidence at the hearing as State's Exhibit No. 2) in which he said in part as follows:
`I plead guilty today in your court to two charges, ones that I am in no way proud of. I guess you wonder sometimes what makes a youngster like myself `go off of the deep end'. You know, I wonder myself. I committed some very serious crimes and now I am going to have to do a long term in prison, I understand that and I understand why.'
These do not sound like the words from the pen of a man who was coerced into pleading guilty. Nowhere in the long letter is there the slightest indication that this defendant harbored the slightest idea that he was coerced into pleading guilty as he now claims in his petition filed in the Supreme Court.
Unquestionably, after the long sentence handed down by Judge Daughton and after a period behind the bars at the State Penitentiary, the defendant now has some different reflections on his past. He stated at this hearing that he probably would lie to get out of the *493 pen, however, he stated he was not lying on the stand."
The defendant in propria persona states his position as follows:
"It is the position of the defendant that, if nothing else, the hearing on coercion held before Judge Glenn brought out many strong points which tend to show an overall picture that could all too likely or even just possibly show a network of events whether `punitive' or purposfull (sic); entirely true or partially true; blameful or non blameful created circumstances that would cause the average person enough stress to succumb to those circumstances merely for mental relief at finding a compromise of which could at least be appealed should it (the compromise) not be fulfilled."
The defendant claims that he was promised by his counsel that a lesser sentence would be imposed ten minutes before he plead guilty. He testified on direct examination:
"Q.: Why did you enter pleas of guilty on March 23rd to charges in Cause Number 51075 and C.R. 51416?
A.: Because I was promised two 10 to 12 terms to run concurrently with the 9 to 10 that I already had; and because I wanted to get out of the Maricopa County Jail."
But thereafter Linsner invoked the attorney-client privilege when it was proposed that his former defense counsel testify as to whether he had promised defendant his sentences would run concurrently. Defendant would now have us accept his unsupported statement that he was induced to plead guilty because he was promised a lighter sentence. The trial judge did not believe defendant and this Court will not re-try that issue. State v. Hughes, 104 Ariz. 535, 456 P.2d 393.
Pleas arising from a bargain or alleged bargain with the prosecutor often find their way into litigation. This case illustrates a frequent situation involving plea bargaining where the prosecutor promises to make some concession other than a sentencing recommendation, such as dismissal of certain counts in the indictment to which the plea is made. In the instant case, four other charges were dismissed.
In Cortez v. United States, 337 F.2d 699 (9th Cir., 1964), page 701, it was stated:
"We take judicial notice of the fact that the vast majority of those who are indicted for federal crimes plead guilty. We know, too, that in many of the cases where this occurs the plea will be to one count, or less than all counts, of a multicount indictment, or to a lesser offense than that originally charged. In a sense, it can be said that most guilty pleas are the result of a `bargain' with the prosecutor. But this, standing alone, does not vitiate such pleas. A guilty defendant must always weigh the possibility of his conviction on all counts, and the possibility of his getting the maximum sentence, against the possibility that he can plead to fewer, or lesser, offenses, and perhaps receive a lighter sentence. The latter possibility exists if he pleads guilty, as Cortez did, to the whole charge against him." (Emphasis supplied.)
The defendant did not receive the lighter sentence he was hoping for, but this does not render his plea involuntary. See, Silver v. State, 37 Ariz. 418, 295 P. 311.
We next come to the issue of whether the defendant was coerced into pleading guilty for fear of his life or of physical abuse. Defendant asserts that he was physically abused in the Maricopa County Jail and that "I advised Mr. Zussman (attorney for the Public Defender's Office) but he did nothing about it." When asked by the prosecution whether defendant had directly complained to defense counsel of ill-treatment, Zussman stated defendant had never directly complained to him nor could he recall that Linsner had written complaining of mistreatment in any of his numerous letters to the Public Defender's Office. Nor did he complain of mistreatment *494 in a letter written to the sentencing judge.
We express no opinion as to defendant's claims of cruel and unusual punishments in the light of defendant's obvious need for disciplinary action, and no opinions as to what conditions qualitatively must exist to constitute violations of constitutional standards. As a general rule, prison authorities are given wide discretion as to the treatment of prisoners. Snow v. Gladden, 338 F.2d 999 (9th Cir.1964). This does not mean that discretion in this area is incapable of abuse, but the extent of the defendant's punishment for violation of jail discipline is collateral to this inquiry except insofar as it relates to his charge of coerced pleas of guilty.
The important point, we think, is that between the time of the alleged mistreatment and the pleas of guilty nearly one month elapsed during which defendant was in no way abused. Moreover, four weeks then elapsed before sentence was imposed.
Defendant testified on cross examination that no incidents took place because he and the jailers had agreed to a mutual peace:
"Q You just testified on direct examination that after February 25th or 26th you received no further mistreatment in the Maricopa County Jail from the deputy jailers.
Isn't that your testimony?
A Towards the first of March.
Q After that period of time you were treated like any of the other men who were incarcerated in our County Jail?
You were fed, clothed, you had visitors as you testified before?
A Yes.
This was under an agreement between myself of myself and the officers verbally.
Q And you entered your plea on March 23rd, 1967.
Do you recall that particular date? That's the date you mention in the Pleadings.
So, that's almost a month after the last time you testified to of these incidents that took place.
Is that correct?
You will have to speak audibly so she can take it down.
A Yes.
Q Then after your sentencing on the time you plead guilty on March 23rd to the date of April 20th, I take it there were no incidences that took place in the jail during that period of time before you were sentenced.
You have not testified to anything concerning any incidences that took place.
A Because no incidents took place." (Emphasis added.)
In light of this testimony and the length of time between the alleged mistreatment and the pleas and the subsequent sentences, the finding of fact of the court below that defendant was not in fear for his physical safety to the extent that it had a compelling influence on his decision finds ample support.
Where there is reasonable evidence to support the factual finding of the trial court, we will not disturb that finding on appeal. See State v. Sherron, 105 Ariz. 277, 463 P.2d 533. The weight given to the testimony of the witnesses is for the trial court and we do not re-try the issues determined below lacking obvious error. State v. Sanders, 101 Ariz. 410, 420 P.2d 281.
Inasmuch as there is substantial evidence to support the trial court's findings of voluntariness, the judgments are affirmed. c.f. State v. Denton, 101 Ariz. 455, 420 P.2d 930.
Judgments affirmed.
UDALL, McFARLAND, and HAYS, JJ., concur.
LOCKWOOD, C.J., did not participate in the determination of this matter. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610090/ | 467 P.2d 395 (1970)
RUIDOSO STATE BANK, Petitioner-Appellant,
v.
Grant O. BRUMLOW, Commissioner of Banking of the State of New Mexico, T.A. Bonnell, Dan W. King, Kenneth C. Bonnell, C.H. Wood, T.B. Hood, Maurice Hobson, Dan D. Swearingen, Ronald L. Annala, M.D., Judd P. McKnight, Alice O. Cullen, Fletcher A. Hall, Jr., L.F. Jennings, Robert Scribner, Charles Findley and Security Band of Ruidoso, New Mexico, Respondents-Appellees.
No. 8919.
Supreme Court of New Mexico.
March 16, 1970.
*396 Modrall, Seymour, Sperling, Roehl & Harris, John R. Cooney, Albuquerque, for appellant.
James A. Maloney, Atty. Gen., Ray H. Shollenbarger, Jr., Asst. Atty. Gen., Santa Fe, for Grant O. Brumlow.
Otto & Schauer, Alamogordo, for appellees.
OPINION
TACKETT, Justice.
This is an appeal filed in the District Court of Lincoln County, New Mexico, to review an order of the Commissioner of Banking, which approved the application of the Security Bank of Ruidoso to file corporate papers. The district court dismissed the petition on the grounds that the Santa Fe County District Court had exclusive jurisdiction. Petitioner appeals.
Petitioner is hereinafter designated "Ruidoso" and the Commissioner of Banking as "Brumlow."
Security Bank of Ruidoso, in an effort to establish a new bank in Ruidoso, New Mexico, made application to Brumlow for permission to file corporate papers with the State Corporation Commission. Permission was granted and Brumlow endorsed his approval on the articles of incorporation.
Ruidoso filed identical petitions in the District Court of both Lincoln and Santa Fe Counties on the same date. It is interesting to note that the filing in Santa Fe County was prior in time by twenty-four minutes to the filing in Lincoln County.
Security Bank of Ruidoso and Brumlow filed motions to dismiss the appeal. After hearing, the motions were granted on the ground of lack of jurisdiction of the Lincoln County court. Thereafter, the matter was heard in the Santa Fe County District Court and judgment was entered on February 21, 1970, affirming the action of Brumlow and overruling, denying and dismissing the petition with prejudice.
Even though a jurisdictional and other questions have been raised on this appeal, we deem it unnecessary to decide that issue and other questions in this opinion as, in our view, the principal issue here is whether Ruidoso had proper standing, or was a proper party, or was a person aggrieved and directly affected, to allow appeal from the decision of Brumlow.
The statute relied on by Ruidoso is § 48-22-34, N.M.S.A., 1953 Comp. (Repl. 1966), which is in part as follows:
"A. Any person aggrieved and directly affected by an order of the commissioner may appeal to the district court in the county in which said person resides or maintains his principal office within thirty [30] days after issuance of the order. * * *" (Emphasis added.)
Ruidoso claims to have standing to appeal Brumlow's decision because it is a competing bank. This claim is without merit, as the fact that it is a competing bank does not mean that it is a "person aggrieved and directly affected" under the statute. Ruidoso did not have proper standing to appeal Brumlow's decision, since the action complained of does not affect its rights, property or authority to continue in the banking business, as the reduction of competition in a business is not such effect as to allow Ruidoso to submit the matter to this court. Padilla v. Franklin, 70 N.M. 243, 372 P.2d 820 (1962).
One enjoying an advantage over his competititors has been held to have no standing to seek review of an administrative order which destroys this advantage. Chapman v. Sheridan-Wyoming Coal Co., 338 U.S. 621, 70 S. Ct. 392, 94 L. Ed. 393 (1950); Baltimore Retail Liquor Package Stores Ass'n v. Kerngood, 171 Md. 426, 189 A. 209, *397 109 A.L.R. 1253 (1937); Annot. 109 A.L.R. 1259.
One whose only injury will result from lawful competition suffers no legal wrong. Kansas City Power & Light Company v. McKay, 96 App.D.C. 273, 225 F.2d 924 (1955), cert. denied 350 U.S. 884, 76 S. Ct. 137, 100 L. Ed. 780 (1955); Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S. Ct. 300, 82 L. Ed. 374 (1938); 2 Am.Jur.2d Administrative Law, § 576 at 400.
The right to appellate review of a judgment or order exists only in one who is aggrieved or prejudiced thereby. Home Fire and Marine Insurance Co. v. Pan American Petroleum Corp., 72 N.M. 163, 381 P.2d 675 (1963); Galvan v. Miller, 79 N.M. 540, 445 P.2d 961 (1968); see also, In re Deseret Mortuary Co., 78 Utah 393, 3 P.2d 267 (1931). Appeals are ordinarily not allowed for the purpose of settling abstract questions, however interesting or important to the public generally, but only to correct error injuriously affecting appellant. Massengill v. Massengill, 36 Tenn. App. 385, 255 S.W.2d 1018 (1953); Huggins v. Nichols, 440 S.W.2d 618 (Tenn. App. 1968); 4 Am.Jur.2d Appeal and Error, § 182 at 691.
An aggrieved party, within the meaning of the rule governing appeals, is one having an interest recognized by law in the subject matter which is injuriously affected by the judgment, or one whose property rights or personal interests are directly affected by the operation of the judgment. This does not include all those who may happen to entertain desires on the subject, but only those who have rights which may be enforced at law and whose pecuniary interests might be established in whole, or in part, by the decree. The true test is whether appellant's legal rights have been invaded, not merely whether he has suffered any actual pecuniary loss or been deprived of any actual pecuniary benefit. He must be aggrieved in a legal sense. Padilla v. Franklin, supra; Alabama Power Co. v. Ickes, supra; In re Michigan-Ohio Bldg. Corporation, 117 F.2d 191 (7th Cir.1941); Sarbach v. Fidelity & Deposit Co. of Maryland, 99 Kan. 29, 160 P. 990, L.R.A. 1917B, 1043 (1916); Howard Savings Institution of Newark, New Jersey v. Peep, 34 N.J. 494, 170 A.2d 39 (1961); State ex rel. Simeon v. Superior Court for King County, 20 Wash.2d 88, 145 P.2d 1017 (1944); Farmers Insurance Group v. Worth Insurance Co., 8 Ariz. App. 69, 443 P.2d 431 (1968); 4 Am.Jur.2d Appeal and Error, § 183 at 692.
This court has held that parties may appeal only if they have a real and substantial interest in the subject matter before the court, and are aggrieved or prejudiced by the decision. To be aggrieved, a party must have a personal or pecuniary interest or property right adversely affected by the judgment. Padilla v. Franklin, supra; Home Fire and Marine Insurance Co. v. Pan American Petroleum Corp., supra; Galvan v. Miller, supra. See also, In re Appeal of Town of Greenfield, etc., 271 Wis. 442, 73 N.W.2d 580 (1955).
In Schreiber v. Baca, 58 N.M. 766, 276 P.2d 902 (1954), we held that profits or commercial advantages, which the holder of a retail liquor license might gain by elimination of competition of another holder of a license, were too illusive and uncertain to entitle it to maintain mandamus proceedings, as a person enforcing special interest or private right, to compel revocation of the license of another. Even though Schreiber was a mandamus action, the law applies equally to the case before us. See also, Baker v. State ex rel. Hi-Hat Liquors, 159 Fla. 286, 31 So. 2d 275 (1947); Turner v. City of Miami, 160 Fla. 317, 34 So. 2d 551 (1948).
We have considered the other issues involved in this appeal and do not comment thereon. The case is determined by what we have here said. Ruidoso had no standing and was not a proper party or a person aggrieved and directly affected, as contemplated under the statute. Section 48-22-34, supra.
*398 The motion to dismiss is disposed of through this opinion.
The decision is affirmed.
It is so ordered.
COMPTON and WATSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610097/ | 2 Wash. App. 215 (1970)
467 P.2d 204
JOHN ROGNRUST et al., Respondents,
v.
DON L. SETO et al., Appellants.
No. 131-40969-1.
The Court of Appeals of Washington, Division One, Panel 2.
March 30, 1970.
*216 Trethewey, Brink & Wilson, Daniel Brink, and Robert Earl Smith, for appellants.
Mullavey, Hageman & Treece and Richard L. Prout, for respondents.
HOROWITZ, A.C.J.
Plaintiffs Rognrust recovered judgment against the defendants Seto fixing the boundary line between their adjoining tracts of land in accordance with a written survey and granting incidental relief. The trial court rejected Setos' contention that by adverse possession they were entitled to an approximate 2-foot strip of the plaintiffs' property so adjudged. Setos appeal, their assignments of error raising the common question as to whether there is substantial evidence to support the court's findings rejecting their claim of adverse possession.
Lot 21 is located immediately north of lot 20. Each lot is approximately 50 feet by 100 feet located in block 60, Denny & Hoyt's Addition to the city of Seattle. The common unmarked easterly-westerly boundary line as established by survey between lots 21 and 20, extends for approximately 100 feet along the defendants' southern boundary of lot 21, which boundary at the same time is the northern boundary of plaintiff's lot 20. The eastern boundary of each lot is a city street.
On October 1, 1953, Mrs. Bertha L. Reid contracted to purchase lot 21 from one Minnie Osburg. The purchaser went into immediate possession. At that time there was a board fence located on lot 20 about 2 feet south of the easterly-westerly boundary line of lot 21. Mrs. Reid testified that she knew nothing about the fence other than that it was there. She did not know who had built it. She kept the fence in repair and utilized the entire area of her lot 21 property and the 2-foot strip on lot 20 up to the old board fence as a vegetable and flower garden. She treated the line of the old fence as the southerly boundary line of her property. She at no time testified that during the period of *217 her possession she claimed to be the owner of the property to the line of the old fence whether or not that line represented the true boundary line.
In March, 1961, she contracted to sell lot 21 to the Setos who thereupon went into possession. The descriptions of lot 21 in the real estate contract from Minnie Osburg to Bertha L. Reid and in the real estate contract of Bertha L. Reid to the Setos, her successor, are identical. Don L. Seto testified that he went into possession immediately after executing his contract of purchase; that at that time there was an old fence (to the existence of which Bertha L. Reid testified) on the property with fence posts about 8 feet apart with a wire on part of the fence; that the fence remained standing until the plaintiff personally tore it down after July, 1966; that he, Seto, had always been told from the time he first saw the property, that the old fence was on the boundary line of lot 21; that he understood and accepted it as such at all times since and continued to use the area as a vegetable and flower garden up to the line of the old fence. Mr. Seto likewise did not testify that during the period of his possession he claimed the property as owner to the line of the old fence whether or not it represented the true boundary line. In 1964 the Setos constructed a new fence running in an easterly-westerly direction approximately 2 feet north of the old fence. The new fence, according to a survey made in 1966, or thereafter, encroached on lot 20 by as much as 9 inches at the westerly end of the easterly-westerly boundary line. Dona Seto, defendants' daughter, who was 13 years of age when the Setos moved into the house on lot 21, testified that the old fence was about 25 inches to the south of the new fence, and that she and her mother helped maintain the flower garden and a parking strip, helped mow the lawn and did some weeding and other work by the old fence.
Plaintiffs purchased lot 20, then unimproved, in July, 1966, and went into possession intending to build a 6-unit apartment on the lot. Plaintiff Rognrust testified that the lot was overgrown by weeds and blackberry bushes; that *218 there was then a fence (the 1964 fence) on the boundary line between lots 21 and 20, but that he didn't see any other fence; that when he started to clear the lot he discovered some parts of an old fence but it was lying down, partly leaning up against the new fence; that one could not see the parts of the old fence from the street or sidewalk if one were looking at the lot; that one couldn't determine where the old fence had been by the boards that were left there; and that one could not determine where the stake holes for the posts were because they were rotted out by the ground. A neighbor, Earl Benedict, testified with reference to the old fence that "it was down and you hardly knew there was the fence there."; that the old fence couldn't be seen because the brush was about 10 feet high; and that there was an old fence but he had no recollection of the location of the older fence, "You couldn't tell where it was at."
In due course, plaintiffs made demand upon the Setos to move the 1964 fence to the true boundary line in accordance with the legal description of the lots as confirmed by the plaintiffs' survey. The defendant Don Seto testified to certain conversations he had with the plaintiff Rognrust but there was a sharp disagreement in their testimony concerning the content of the conversations and in their testimony concerning the location of or ability to locate the line of the old fence. Neither the plaintiff Rognrust nor the neighbor Benedict testified to the condition or location of the old fence or the use made of the land by either Bertha L. Reid or the Setos prior to July, 1966.
The Setos having refused to move the 1964 fence, plaintiffs brought suit to adjudicate the true boundary lines of lots 21 and 20 and to require the Setos to move the 1964 fence off of plaintiffs' lot 20. The trial court rejected Setos' claim of adverse possession finding that "the defendants and their predecessors in interest have not occupied in an open, hostile, notorious, and adverse manner any property described in paragraph 2 above herein, and in fact there is no adverse possession; ..." and pursuant to its conclusion of law "that there is no adverse possession by the *219 defendants on any property currently or previously owned by the plaintiff ..." entered a decree dismissing the defendants' claim to the 2-foot strip claimed which was bounded on the south by the line of the old fence. In its oral opinion, to which we resort for the purpose of clarifying the findings (Heikkinen v. Hansen, 57 Wash. 2d 840, 360 P.2d 147 (1961); Ferree v. Doric Co., 62 Wash. 2d 561, 383 P.2d 900 (1963)), the court said: "Nobody is getting a fifty-two foot lot when they bought fifty, not on evidence like this."
The question presented is whether there is substantial evidence to support the court's findings on which the decree disallowing the claim of adverse possession is based. Mesher v. Connolly, 63 Wash. 2d 552, 388 P.2d 144 (1964).
[1-3] Under RCW 4.16.020 title may be acquired by adverse possession for the 10-year statutory period. Successive periods of possession may be tacked to each other to make up the required 10-year statutory period when "there is privity between successive occupants holding adversely to the holder of the true title continuously ..." Faubion v. Elder, 49 Wash. 2d 300, 301 P.2d 153 (1956). Mere possession by an occupant of the real property is not enough, however, to permit the acquisition of title by adverse possession. The possession must be accompanied and characterized by a certain state of mind described and summarized in Krona v. Brett, 72 Wash. 2d 535, 433 P.2d 858 (1967) as follows:
[T]o constitute adverse possession, there must be actual possession which is uninterrupted, open and notorious, hostile and exclusive, and under a claim of right made in good faith for the statutory period. Skansi v. Novak, 84 Wash. 39, 146 P. 160 (1915). The nature of possession and attendant acts necessary to constitute adverse use as to a residential parcel or property are deemed sufficient if a person pleading the statute takes and maintains such possession and exercises such open dominion as ordinarily marks the conduct of owners in general, in holding, managing, and caring for property of like nature and condition. Mesher v. Connolly, [63 Wash. 2d 552, 388 P.2d 144 (1964)].
*220 The fact of possession and the existence of the requisite elements making up the state of mind that must exist before adverse possession can be said to ripen into title, raise questions of fact. As stated in Mugaas v. Smith, 33 Wash. 2d 429, 206 P.2d 332, 9 A.L.R. 2d 846 (1949):
The character of ... possession over the statutory period is one of fact, and the trial court's finding in that regard is to be given great weight and will not be overturned unless this court is convinced that the evidence preponderates against that finding.
See also El Cerrito, Inc. v. Ryndak, 60 Wash. 2d 847, 376 P.2d 528 (1962); Scott v. Slater, 42 Wash. 2d 366, 255 P.2d 377 (1953).
The party claiming title by adverse possession has the burden of proving the existence of each of the elements constituting adverse possession. Woehler v. George, 65 Wash. 2d 519, 398 P.2d 167 (1965); Brown v. Hubbard, 42 Wash. 2d 867, 259 P.2d 391 (1953); Scott v. Slater, supra; Skansi v. Novak, 84 Wash. 39, 146 P. 160 (1915). The burden of proof includes proving the intention with which the possession is held; that is, that the possession is "hostile" and "under claim of right." That burden is upon the claimant. As stated in Brown v. Hubbard, supra, at 869:
Where the intention is not to hold to the visible boundary, unless it is in fact the true line, the possession is not hostile; it is not under a claim of right; it is not adverse.
See also Preble v. Maine Central R.R., 85 Me. 260, 27 A. 149 (1893); Annot., 97 A.L.R. 14, 21 (1935). The claimant's burden of proof also includes the burden of proving the boundary line of the property claimed by adverse possession for the 10-year statutory period. Scott v. Slater, supra. The matter of the intention with which the property is held is one within the knowledge of the adverse claimant and it is not unreasonable to require him to prove that intention whether by direct testimony or by circumstantial evidence. Accordingly, if he, or the person in privity with him whose possession is sought to be tacked to his own, fails to testify to that intention or to facts within his knowledge from *221 which the intention may be inferred, the trial court may itself infer that had such testimony been given, it would not have aided the claimant. Harold v. Toomey, 92 Wash. 297, 158 P. 986 (1916).
[4] We cannot determine from the findings or the trial court's opinion whether the court accepted the testimony on behalf of the defendants, but held it legally insufficient to discharge the burden of proof (See O'Brien v. Schultz, 45 Wash. 2d 769, 278 P.2d 322 (1954)) or whether he rejected that testimony in whole or in part, thereby determining that there was not sufficient credible evidence to establish adverse possession. See Mourik v. Adams, 47 Wash. 2d 278, 287 P.2d 320 (1955). In passing upon the appellants' claim that the court's findings are not supported by substantial evidence, we must not ignore the possibility that those findings were entered after weighing the evidence and determining the issues of credibility adversely to the Setos. In N. Fiorito Co. v. State, 69 Wash. 2d 616, 419 P.2d 586 (1966) the Supreme Court pointed out that in weighing the evidence
the trial court, as the trier of the facts, is not required to accept all of plaintiff's evidence as true or accord to plaintiff the most favorable inferences that may be drawn from the evidence. On the contrary, in reaching its decision as to the viability of plaintiff's case, the trial court necessarily must appraise the credibility of the testimony and the force of any exhibits, and may believe or disbelieve plaintiff's evidence, resolve testimonial conflicts, evaluate circumstantial evidence, draw reasonable and allowable inferences, and otherwise appropriately determine, as a trier of the facts, the facts revealed and sustainable by the evidence then before the court.
See also Cuillier v. Coffin, 57 Wash. 2d 624, 358 P.2d 958 (1961).
[5, 6] The evidence of adverse possession came from the testimony of Mrs. Reid, the defendant husband Seto, and his daughter. These witnesses were not disinterested. Mrs. Reid, as contract vendor, could potentially benefit from a decree in favor of the defendants Seto. See McAuliff v. Parker, 10 Wash. 141, 38 P. 744 (1894). Furthermore, the defendants Seto owed her an unpaid balance under their *222 real estate contract. The defendant Don Seto was an interested party. His daughter was a member of his family. In addition, the testimony of the defendant Don Seto was contradicted in various material respects including the matter of the precise location of the old fence claimed by the defendant Seto to be the true boundary line. The court was not required to accept the testimony of these witnesses. N. Fiorito Co. v. State, supra; Hunter v. Wethington, 205 Mo. 284, 103 S.W. 543 (1907); See Terwilliger v. Marion, 222 S.C. 185, 72 S.E.2d 165 (1952); Keene v. Behan, 40 Wash. 505, 512, 82 P. 884 (1905); Gibson v. Chicago, M.&P.S.Ry., 61 Wash. 639, 112 P. 919 (1911); Carson v. Mills, 49 Wash. 2d 597, 304 P.2d 712 (1956); Hoyt v. Hoyt, 46 Wash. 2d 373, 281 P.2d 856 (1955). When a trial court's determination of an issue hinges primarily upon the credibility of the evidence, the trial court's determination will not be disturbed on appeal. Carson v. Mills, supra; N. Fiorito Co. v. State, supra. At best, on the issue of whether the possession of Mrs. Reid and the defendant Don Seto were each hostile and under claim of right in good faith, the evidence permitted alternative inferences; namely, that the respective intentions of Mrs. Reid and of the defendant Don Seto, were to claim as owner to the line of the old fence even if it did not represent the true boundary line; or that the respective intentions were to claim as owner only if it represented the true boundary line. See Brown v. Hubbard, supra, and Taylor v. Talmadge, 45 Wash. 2d 144, 273 P.2d 506 (1954). The trial court was not required to draw inferences favorable to the defendants Seto. As stated in Wickwire v. Reard, 37 Wash. 2d 748, 759, 226 P.2d 192, 23 A.L.R. 323 (1951): "the statute of limitations, although not an unconscionable defense, is not such a meritorious defense that either the law or the facts should be strained in aid of it." The trial court could have believed that the plaintiff did not sustain his burden of proof "on evidence like this." We cannot hold that the trial court erred.
The judgment is affirmed.
UTTER and WILLIAMS, JJ., concur.
Petition for rehearing denied May 11, 1970. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1903548/ | 807 So. 2d 567 (2001)
Tommy GARRISON and Carolyn Norris
v.
ALABAMA POWER COMPANY.
2000164.
Court of Civil Appeals of Alabama.
July 13, 2001.
*569 Sam L. Sullivan, Jr., Jasper, for appellants.
N. DeWayne Pope of Balch & Bingham, L.L.P., Birmingham, for appellee.
MURDOCK, Judge.
Tommy Garrison and Carolyn Norris ("the purchasers") appeal from a summary judgment entered by the Walker County Circuit Court in favor of Alabama Power Company ("APCo") on their trespass claims. We reverse and remand.
In March 2000, the purchasers sued APCo, asserting, among other things, that APCo had erected and maintained electricity-transmission wires and supporting guy wires and structures on land owned by the purchasers, that APCo had caused the removal of approximately 30 trees from their land, and that those actions amounted to trespasses to their land. The purchasers sought a damages award of $5,000, as well as ancillary injunctive relief. APCo filed a motion for a summary judgment, supported by the affidavit of APCo's senior division real estate agent and by the affidavit of a co-owner of Paden & Young Holdings, the company from whom the purchasers were buying their land through a lease-sale contract; APCo later filed an affidavit given by the president of Blue Creek Land Company ("Blue Creek"), Paden & Young's contractual predecessor. The purchasers filed a response in opposition to APCo's motion, relying upon their own affidavits, and filed an amended complaint that more particularly specified the nature of their interests in the subject land. APCo filed a reply to the purchasers' response, but did not adduce any further evidence. The trial court subsequently entered a summary judgment in favor of APCo as to all claims, prompting the purchasers' appeal to this court.[1]
It is well settled under Alabama law, that the party moving for a summary judgment "has the burden of showing the absence of any genuine issue as to all material facts, which, under the applicable principles of substantive law, [entitle] it to a judgment as a matter of law." Fox v. Title Guar. & Abstract Co., 337 So. 2d 1300, 1303 (Ala.1976). In Cremeens v. City of Montgomery, 779 So. 2d 1190, 1191 (Ala.2000), our Supreme Court recently summarized the standard of review applicable to a ruling on a motion for a summary judgment:
"When a party moving for a summary judgment makes a prima facie showing that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Substantial evidence is evidence of such weight and *570 quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved. In reviewing a ruling on a motion for a summary judgment, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Moreover, a court may not determine the credibility of witnesses on a summary judgment motion." (Citations and internal quotation marks omitted.)
Before we apply these principles of appellate review, it is appropriate to review the applicable substantive law. We note that "[t]respass has been defined as any entry on the land of another without express or implied authority, and a structure maintained on another's property is a continuing trespass." Cove Props., Inc. v. Walter Trent Marina, Inc., 796 So. 2d 322, 326 (Ala.Civ.App.1999) (citations and internal quotation marks omitted), aff'd in pertinent part, 796 So. 2d 331 (Ala.2000). Of course, authority to enter lands titled to another may arise from an easement. E.g., Louis Pizitz Dry Goods Co. v. Penney, 241 Ala. 602, 4 So. 2d 167 (1941). In the specific area of utility easements, our Supreme Court has stated:
"It is settled law that the right of easement carries with it the right of a utility company to construct and maintain its facilities upon and over the property within the confines of the easement, unless the exercise of this right is so arbitrary as to unnecessarily and unreasonably interfere with the owner's right of reasonable use of his own property."
M & M Inv. Co. v. Regency Oaks Apts., 517 So. 2d 591, 596 (Ala.1987).
According to the exhibits attached to the two affidavits submitted by APCo in support of its summary-judgment motion, the purchasers entered into a lease-sale agreement with Blue Creek on June 22, 1994, whereby the purchasers agreed to make a down payment of $1,500 and 72 monthly payments of $120.44 in exchange for the right to occupy a particular parcel of land in Walker County; upon fulfillment of the payment terms, Blue Creek agreed to deed the property to the purchasers.[2] By an instrument dated February 9, 1994, Blue Creek had conveyed to APCo "the right to construct, operate and maintain its lines of poles and appliances necessary in connection therewith, as located by the final location drawing heretofore made by [APCo] ... upon, over, under and across" a parcel of property identified on a particular attached "Exhibit A." Although APCo's senior division real estate agent testified in his affidavit that the easement was "for the property made the basis of the" purchasers' lawsuit, "Exhibit A" to the instrument conveying an easement to APCo was a copy of an entirely different lease-sale agreement that contained a legal description of the parcel that adjoined the purchasers' parcel on the west.
The purchasers, in their affidavits, testified that APCo did not have a written easement across the purchasers' property, that the instrument relied upon by APCo conveyed an easement across land other than their parcel, that the purchasers had not agreed to allow APCo to use any portion of their property to place or maintain power poles, and that the president of Blue Creek had given them a survey that he said "listed any easements" on the property. The survey, which is dated June 20, *571 1994 (two days before the purchasers' lease-sale contract), and which was attached as an exhibit to the purchasers' affidavits, shows no power poles or lines, yet contains the licensed surveyor's statement that
"there are no right of ways, easements o[r] joint driveways over or across said lands visible on the surface except as shown, that there are no electric or telephone wires (excluding those ... on the premises only) or structures or supports thereof, including poles, anchor or guy wires on or over said property, except as shown."
According to the purchasers' affidavits, and the exhibits thereto, APCo placed three power poles on the purchasers' property, alongside their private driveway, by mistake.
APCo first contends that the power poles are not located on the purchasers' property. APCo contends that the express easement conveyed to APCo by Blue Creek gives APCo an easement across the parcel adjacent to the purchasers' parcel and that that adjacent parcel is where the power poles are, in fact, located. To support this argument, APCo contends that the survey, which was dated June 20, 1994, two days before the purchasers executed their lease-sale contract, and which states the absence of any visible rights-of-way, electric wires, or power poles on that date, was prepared after the installation of the power poles complained of by the purchasers. In this regard, APCo also relies upon the allegation in the plaintiffs' complaint that APCo's "trespass was initiated on or about June 15, 1994." Although there is no evidence concerning precisely when APCo's power poles were installed,[3] APCo argues, based on the foregoing, that it is undisputed that the power poles were installed prior to the preparation of the survey and that, therefore, the survey conclusively illustrates that the power poles are not located on the purchasers' property.
While the complaint states that the trespass was "initiated" on or about June 15, 1994, there is no allegation as to what "initiated" means. Other than the survey itself, there is no evidence of the condition of the subject property at the time the purchasers entered into their lease-sale contract. There may be any number of "initial" steps preliminary to the preparation or use of an easement (i.e., short of actual installation of poles) that would not necessarily make such an easement apparent or "visible" to a surveyor completing his field work on or before June 20, 1994. Moreover, the purchasers introduced affidavits and attached exhibits indicating that three APCo power poles currently are located on the purchasers' property.[4] The finder of fact could conclude that the purchasers' evidence, including the survey, collectively stands for the proposition that the three APCo power poles (or other evidence of an APCo easement that would be visible to a surveyor) were first placed on the purchasers' parcel after the survey was performed in June *572 1994, but before this action was commenced in March 2000. Thus, we cannot affirm the summary judgment on the basis that no genuine issue remains as to whether the power poles are located on the purchasers' land.
APCo also contends that the purchasers' claims are barred as a matter of law, because, APCo says, the purchasers' lease-sale contract stated that they would take the property "subject to the right of way granted to [APCo]" and subject "to all reservations, restrictions and easements of record or in evidence through use." While we agree that this language from the purchasers' lease-sale contract would be sufficient to put the purchasers on notice of an easement, if one existed, such language obviously does not, itself, create such an easement. Rather, this language merely begs the underlying factual issue: did an easement exist? In Camp v. Milam, 291 Ala. 12, 277 So. 2d 95 (1973), our Supreme Court explained that "an easement can be created in only three ways: by deed; by prescription; or by adverse use for the statutory period." 291 Ala. at 17, 277 So.2d at 98. See David Lee Boykin Family Trust v. Boykin, 661 So. 2d 245, 250-51 (Ala.Civ.App.1995).[5] There is no allegation that APCo has obtained an easement by prescription or adverse use in this case. Nor is there any evidence of a deed granting an easement to APCo across the land in question. We also note that an easement is an interest in land:
"`The term "easement" connotes an incorporeal right "imposed on corporeal property." ... "An easement, although an incorporeal right, ... is yet properly denominated an interest in land, ... and the expression "estate or interest in land" is broad enough to include such rights; for an easement must be an interest in or over the soil.'"
Boykin, 661 So.2d at 250 (quoting West Town Plaza Assocs. v. Wal-Mart Stores, Inc., 619 So. 2d 1290, 1295 (Ala.1993) (citations omitted)). Accordingly, any agreement to convey an easement must comply with the Statute of Frauds. Ala.Code 1975, § 8-9-2(5). See also Ala.Code 1975, § 35-4-20. The purchasers testified in their respective affidavits that APCo was never conveyed an easement across their parcel; the only evidence of a conveyance was a deed from Blue Creek to APCo conveying an easement across the parcel of land adjoining the purchasers' land.
APCo particularly emphasizes the exception in the purchasers' lease-sale contract for easements "in evidence through use" and argues that the easement in question was evident. Again, before an easement can be "in evidence through use," there first must be an easement.[6] For the reasons discussed immediately above, a genuine issue of fact remains in this case with regard to whether such an *573 easement exists. Likewise, as previously discussed, there also remains a genuine issue of fact as to whether there was any easement "in evidence through use" at the time purchasers entered into their lease-sale contract.
Having reviewed the facts and the pertinent legal authorities, we reverse the summary judgment in favor of APCo, and we remand the cause for further proceedings.
REVERSED AND REMANDED.
YATES, P.J., and CRAWLEY and PITTMAN, JJ., concur.
THOMPSON, J., concurs in the result.
NOTES
[1] The parties' Alabama Litigation Accountability Act cost and attorney-fee requests were denied sub silentio by the trial court. See Donnell Trucking Co. v. Shows, 659 So. 2d 667, 669 (Ala.Civ.App.1995).
[2] Paden & Young succeeded to Blue Creek's interest in the lease-sale contract in January 1995.
[3] In their respective affidavits, executed on May 25, 2000, the purchasers testify only that the power poles have been on their property "for less than 7 years."
[4] We reject the proposition advanced by APCo that the purchasers' affidavits and exhibits concerning the location of the power poles on their property are "unsupported and conclusory statements" that cannot be considered in reviewing the summary judgment, because (1) APCo did not file a motion in the trial court to strike those affidavits (see Golson v. Montgomery Coca-Cola Bottling Co., 680 So. 2d 304, 306 (Ala.Civ.App.1996)), and (2) declarations of owners and possessors of land are competent evidence under Alabama law concerning the location of land boundaries (see Aiken v. McMillan, 213 Ala. 494, 503, 106 So. 150, 159 (1925)).
[5] Citing R. Powell, Powell on Real Property ¶¶ 407-13 (abr. ed.1968), as authority, our Supreme Court stated in Helms v. Tullis, 398 So. 2d 253, 255 (Ala.1981), that several other possible methods of establishing easements have been recognized, including: (1) by express conveyance, (2) by reservation or exception, (3) by implication, (4) by necessity, (5) by contract, and (6) by reference to boundaries and maps. Most of these additional methods contemplate a grant and/or reservation by deed of an interest in the property upon which an easement is claimed; however, none of these additional methods are at issue in this case.
[6] We note that this is not a case involving an easement reserved to the grantor by implication. See, e.g., Polhemus v. Cobb, 653 So. 2d 964, 966-67 (Ala.1995) (explaining that easements by implication require original unity of ownership and the elements of apparentness, continuity, and necessity such that the grantee, having seen the use the grantor made of the property, reasonably can expect a continuance of that use). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3346435/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION ON CROSS MOTIONS FOR SUMMARY JUDGMENT
This is a case of first impression in Connecticut as to the interpretation of the Uniform Commercial Code relative to this factual situation.
FACTS
This case arises out of the payment by the defendant (also known as "Fleet") of a check issued by the plaintiff, Coregis Insurance Company (hereinafter also "Coregis") in settlement of a personal injury claim made by Joseph Walton. On October 5, 1995, Walton, who was then a minor, suffered serious injuries at West Feliciana High School in Baton Rouge, Louisiana where he was a student. Subsequently, Walton's mother, Delores Carpenter, retained Trudy Avants as counsel to represent her and her son in CT Page 10126 connection with their claim against the West Feliciana School Board and its insurer, the plaintiff, Coregis.
In August or September of 1996, one of the plaintiff's adjusters reached an agreement with Avants to settle the claim for $50,000. On September 11, 1996, Avants and two unknown persons claiming to be Carpenter and Walton signed settlement documents before a notary, forging the names of Walton and Carpenter. The settlement check issued by the plaintiff was made payable to the order of:
"TRUDY AVANTS ATTORNEY FOR MINOR CHILD JOSEPH WALTON, MOTHER DELORES CARPENTER 11762 S. HARRELLS FERRY ROAD # E
BATON ROUGE LA 70816."
Avants endorsed the check along with two unknown individuals who forged the names of Carpenter and Walton. The check was later presented for payment to Fleet which became the drawee bank. The defendant accepted the settlement check and charged the plaintiffs account in the amount of $50,000.
There is no dispute that the signatures of Walton and Carpenter were forged by others unknown on both the settlement agreement and as endorsers of the check.
The plaintiff filed its complaint on May 19, 1998, claiming that the settlement check was not properly payable under General Statutes § 42a-4-401. The defendant filed a motion for summary judgment, accompanied by a memorandum of law, on August 28, 1998. The plaintiff filed a cross-motion for summary judgment on January 25, 1999, along with a memorandum of law in opposition to the defendant's motion for summary judgment and in support of its cross-motion. The defendant supplied a memorandum of law in opposition to the plaintiffs cross-motion dated February 5, 1999. The court heard oral argument on May 3, 1999.
STANDARD OF REVIEW
Pursuant to Practice Book § 17-49, formerly § 384, "[s]ummary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party CT Page 10127 is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Department of Social Services v. Saunders,247 Conn. 686 696, 724 A.2d 1093 (1999). Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp. ,233 Conn. 732, 751, 660 A.2d 810 (1995). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, ___ A.2d ___ (1999). "Although the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue. Haesche v.Kissner, 229 Conn. 213, 217, 640 A.2d 89 (1994).
ISSUES
The defendant argues that it is entitled to summary judgment because the settlement check was properly payable to Avants, and her signature was the only one necessary to negotiate the check. The defendant contends that the court should ignore the two forgeries on the back of the check. The defendant insists that the check was payable to Avants as a single payee, and as the attorney for both Carpenter and Walton. According to the defendant, even if there exists an ambiguity concerning whether the check required one or more endorsements, the check was still properly payable to a single payee. The defendant argues that since there is no issue of fact concerning whether Avants was a payee, then her signature was the only one necessary to negotiate the check. The plaintiff contends, however, that the check was payable both to Avants and Carpenter and required both of their signatures. The plaintiff also argues that the settlement check was not properly payable because the check contained two forged endorsements. Therefore, the plaintiff insists that the defendant is liable for the loss created by the forgeries.
I
According to General Statutes § 42a-4-401 (a), "[A] bank may charge against the account of a customer an item that is properly payable from that account even though the charge creates an overdraft. An item is properly payable if it is authorized by the customer and is in accordance with any agreement between the customer and bank." Official Comment 1 to § 4-401 of the Uniform Commercial Code (and to C.G.S. Sec. 42a-4-401) states in CT Page 10128 pertinent part: "An item containing a forged drawer's signatureor forged indorsement is not properly payable." Emphasis added. A.L.I. Uniform Commercial Code (14th Ed. 1995) § 4-401, official comment 1; C.G.S. Sec. 42a-4-401 UCO Comment 1.
II
General Statutes § 42a-3-110 (d) states: "If an instrument is payable to two or more persons alternatively, it is payable to any of them and may be negotiated, discharged, or enforced by any or all of them in possession of the instrument. If an instrument is payable to two or more persons not alternatively, it is payable to all of them and may be negotiated, discharged, or enforced only by all of them. If aninstrument payable to two or more persons is ambiguous as towhether it is payable to the persons alternatively, theinstrument is payable to the persons alternatively. Emphasis added. The settlement check issued by the plaintiff was made payable to the order of:
"TRUDY AVANTS ATTORNEY FOR MINOR CHILD JOSEPH WALTON, MOTHER DELORES CARPENTER 11762S. HARRELLS FERRY ROAD # E
BATON ROUGE LA 70816."
The plaintiff argues that this language unambiguously indicates that the check was made payable jointly to Avants in her representative capacity, and Carpenter. Thus, the plaintiff contends that both signatures were required to negotiate the check. The defendant argues that it is payable only to Avants since the plaintiff has admitted that she served as the attorney for both Walton and Carpenter.
This court finds that the language concerning the payee(s) of the settlement check is ambiguous. One could reasonably conclude that Avants was the only payee or that there were multiple payees on the check. The evidence presented to the court indicates that the address on the check was Avants' address. However, the check easily could have included the words "both" and "and" in order to explicitly indicate that Avants acted as the sole payee. Instead, the check includes a comma, and adds Avants' address, thereby creating an ambiguity. Even if this court interpreted the language on the check as payable to two payees, there still CT Page 10129 exists an uncertainty as to whether the settlement check was payable alternatively or not alternatively. With an ambiguity concerning to whom and how the check was payable, Avants' signature was the only one necessary to negotiate the check under General Statutes § 42a-3-110(d).
III
Even though Avants' signature was the only one necessary to negotiate the settlement check under General Statutes §42a-3-110(d), the forged signatures on the back of the check constituted endorsements, and therefore, the check was not properly payable. The inclusion of forgeries on the check made an instrument that was properly payable to Avants no longer properly payable.
An "endorsement" is "a signature, other than that of a signer as maker, drawer, or acceptor1, that alone or accompanied by other words is made on an instrument for the purpose of (i) negotiating the instrument, (ii) restricting payment of the instrument, or (iii) incurring endorser's liability on the instrument, but regardless of the intent of the signer, a signature and its accompanying words is an endorsement unless the accompanying words, terms of the instrument, place of the signature, or other circumstances unambiguously indicate that the signature was made for a purpose other than endorsement." General Statutes § 42a-3-204(a).
In this case, Avants and two unknown parties signed the back of the settlement check in the area generally used for an endorsement. The defendant argues that there is an issue of fact concerning the intent of the persons who forged Carpenter's and Walton's signatures. However, the signer's intent is irrelevant because the defendant fails to demonstrate how the forged signatures were for any other purpose than endorsement. General Statutes § 42a-3-204 (a) clearly indicates that the court must assume such signatures are endorsements regardless of the signer's intent when there are no unambiguous circumstances that indicate otherwise.
The defendant also argues that the forgeries constitute "anomalous endorsements" under General Statutes § 42a-3-205
(d), and, therefore, should be ignored. An "anomalous endorsement' means an endorsement made by a person who is not the holder of the instrument. An anomalous endorsement does not CT Page 10130 affect the manner in which the instrument may be negotiated." General Statutes § 42a-3-205 (d). While the two unknown parties were not "holders" of the settlement check, they were acting as holders "to negotiate the instrument", and Hibernia Bank took them as endorsers2. Further, even if they were anomalous, it didn't affect the manner in which the instrument was negotiated. Certainly the statute was not intended to address endorsements that were forged.
IV
There is an ambiguity concerning the number of payees that were necessary to endorse the settlement check. However, this ambiguity is irrelevant since the check was not properly payable because of the existence of forged endorsements. There is no genuine issue of material fact, and the plaintiff is entitled to judgment as a matter of law. The defendant is not. Accordingly, the defendant's motion for summary judgment is denied, and the plaintiffs motion for summary judgment is granted3. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3346437/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION de MOTION FOR MODIFICATION OF CHILD SUPPORT (246)
The defendant mother seeks to increase the child support orders entered pursuant to a stipulation of the parties dated January 12, 1998 which was approved and ordered on said day. The stipulation provided that physical custody of their son Robert be transferred to the father and for termination of child support previously paid for Robert by his father. Payment for private schooling for their children for future school years was deleted from the support obligation of both parents. It also provided CT Page 2122 that all other provisions of their Stipulation dated November 1, 1995 which was incorporated in the dissolution judgment entered on that day remain in full force and effect. The original child support mosaic was modified by the 1998 orders and the circumstances existing when the modified mosaic was approved must be contrasted with the current circumstances.
The motion is dated September 25, 1998, was partially heard in 1999 resulting in a mistrial being declared, and has now been heard in the hearing just completed.
The party moving for modification of child support must demonstrate that a change in circumstances has occurred since the entry of the current orders. Increases in the children's expenses can furnish the basis for a finding that there has been a change in circumstances, Kelepecz v. Kelepecz, 187 Conn. 537, 538 (1982). When the current order was entered the court had the plaintiff's financial affidavit dated November 18, 1997 before it on which the plaintiff had listed total monthly net income of $40,759.66. The plaintiff's current financial affidavit dated January 29, 2001 lists total monthly net income of $36,664. The Connecticut Child Support and Arrearage Guidelines, effective August 1, 1999 provide that child support awards shall be determined on a case-by-case basis when the parties' combined net weekly income level exceeds $2500 with the provision that the prescribed child support for that level shall be the minimum presumptive amount. The defendant's current financial affidavit dated January 16, 2001 lists total net monthly income of $4786 without including $5000 monthly child support. The defendant testified in support of her current motion that she had earned $18,000 in 1997 and $2000 in the 1998. This court does not find an affidavit in the file for her that was current when the present orders were entered.
The present child support order provides that commencing on November 1, 2000 and continuing until August 31, 2006 the plaintiff shall pay to the defendant $1666.67 per child as child support for each child in her care and physical custody as originally established in the parties' separation agreement and as affirmed as part of the first modification. The presumptive minimum for three children is $684 weekly or $2941 monthly. Although a split custody situation exists it is not necessary to apply the formula found in Section 46b-215a-2a-(d) since the guidelines do not apply to the present case, Battersby v. Battersby, 218 Conn. 467, 470
(1991). The defendant has listed children's expenses, excluding tuition, of approximately $2000 monthly and the court cannot find that there are any unmet child needs that are not being covered by the current monthly child support payments. The defendant has not demonstrated a substantial CT Page 2123 change in circumstances of either party that would warrant an upward revision of the current child support order nor has she demonstrated a substantial change in the needs of the children or that they have expenses that cannot be met by utilizing the child support payments presently being made
The defendant's motion is denied.
HARRIGAN, J.T.R. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2609934/ | 2 Wash. App. 338 (1970)
467 P.2d 884
NORTHERN PACIFIC RAILWAY COMPANY, Respondent,
v.
NATIONAL CYLINDER GAS DIVISION OF CHEMETRON CORPORATION, Appellant.
No. 124-40870-1.
The Court of Appeals of Washington, Division One, Panel 2.
April 13, 1970.
*339 Martin, Shorts & Bever and Edward C. Burch, for appellant.
Roger J. Crosby and Owen J. Wales, for respondent.
UTTER, J.
Northern Pacific Railway Co. brought an action for indemnification under the terms of a contract entered into between it and National Cylinder Gas.[1] The indemnification sought was for payments made in settlement by Northern Pacific to an employee of theirs for injuries sustained while working on a project under the alleged control of National.
The court held for Northern Pacific, finding National had breached the indemnification provision of the contract. National appeals and urges the court on appeal to consider the matter de novo. They also assign as error the certain findings of fact entered by the trial court and the court's conclusion that the contract does not require the showing of negligence fault or liability of any party to impose an obligation on National to save Northern Pacific harmless from the claim of its injured workman.
National and Northern Pacific entered into a "CONTRACT FOR WELDING RAIL" on April 15, 1964. (The issues in the appeal concern sections 3 and 10 of this contract.)[2]
*340 Rails were welded together in the welding car and then passed into the grinder car where the newly welded sections were ground to a smooth finish. The rail was then moved onto rail-carrying flat cars and moved over roller-racks to the end of the cars.
Earl W. Sisk, Jr., a railroad employee, was the "point man." His job was to see that the rails entered on the proper rollers as they moved along. While the welding contract was in effect, Earl W. Sisk, Jr. lost his right leg when it was crushed by a moving rail. The accident occurred on Northern Pacific's railroad site at a point about 1,365 feet from the car where the rails were being welded together by employees of National.
Pursuant to the obligation of National to defend, Northern Pacific tendered the claim of Sisk to National. The tender was refused and thereafter, with court approval, Northern Pacific settled the claim. Northern Pacific then brought suit claiming that under the terms of the welding contract National agreed to indemnify Northern Pacific for the loss in question.
National first argues that inasmuch as all the facts and exhibits were agreed upon by counsel and there were no witnesses whose credibility was at issue, this court should consider the case de novo. Although no live testimony was taken, certain agreed facts were before the court as was a statement of the injured workman from which conflicting conclusions could be drawn. It is argued that inasmuch as the factual determinations depend upon proper conclusions to be drawn from practically indisputed evidence, the appellate court has the duty to try the case de novo. We disagree.
*341 [1] In Thorndike v. Hesperian Orchards, Inc., 54 Wash. 2d 570, 343 P.2d 183 (1959) the court pointed out appellate jurisdiction on review is limited by RCW 4.44.060 which provides:
The finding of the court upon the facts shall be deemed a verdict, and may be set aside in the same manner and for the same reason as far as applicable, and a new trial granted.
It concluded that where the findings are amply sustained by the proofs, the constitution does not authorize an appellate court to substitute its findings for those of the trial court.
In support of its position, National cites four cases decided prior to Thorndike. These cases will not be discussed. Two cases, In re Estate of Coates, 55 Wash. 2d 250, 347 P.2d 875 (1959) and Smith v. Skagit County, 75 Wash. 2d 715, 453 P.2d 832 (1969) decided subsequent to Thorndike were also cited.
Coates is not authority for a position contrary to Thorndike. Although it contains some contradictory language, that language is dicta inasmuch as the court held the criticized finding of the trial court was without evidentiary support.
The Smith case and the cases cited therein decided subsequent to Thorndike were rezoning appeals involving review of writs of certiorari, mandamus or prohibition.
The trial court in Smith was reviewing action of a planning commission and board of commissioners and was acting in an appellate capacity. In these circumstances its review is generally limited to question of "law." The trial court is concerned with determining whether the administrative action of the zoning authorities was arbitrary and capricious. This determination is a question of law. 4 K. Davis, Administrative Law Treatise 114 (1958); 2 Am.Jur.2d Administrative Law § 650. The superior court's examination of administrative findings of fact is limited to determination of whether they are supported by substantial evidence. Questions of fact, policy or discretion are determined *342 by the administrative agency. 2 Am.Jur.2d Administrative Law § 555. If the findings are supported by substantial evidence, they are accepted as final on appeal. Northern Pac. Ry. v. State Util. & Transp. Comm'n, 68 Wash. 2d 915, 416 P.2d 337 (1966).
The determination by the trial court of the question of whether findings of a planning commission and board of commissioners are supported by substantial evidence is a question of law, not of fact. The review of this determination by an appellate court is likewise based upon a determination of the question as a matter of law, not of fact. The determination by a trial court of a question as a matter of law is not subject to the same statutory protection as is its determination of a question of fact. The Smith case does not stand for a different rule than that announced in Thorndike.
[2] The remaining questions focus on the wording and meaning of the indemnity agreement. In Continental Cas. Co. v. Municipality of Metropolitan Seattle, 66 Wash. 2d 831, 405 P.2d 581 (1965), our court stated as a general policy regarding indemnity agreements that:
indemnity clauses of ... contracts are to be viewed realistically as efforts by business men to allocate as between them the cost or expense of the risk of accidents apt to arise out of construction projects on a fairly predictable basis, rather than upon the generally debatable and indeterminate criteria as to whose negligence, if any, the accident was caused by, and to what degree.
....
Causation, not negligence, is the touchstone.
In that same case it was also emphasized that contracts of indemnity must receive a reasonable construction so as to carry out, rather than defeat, the purpose for which they were executed. To this end they should neither be so narrowly or technically interpreted as to frustrate their obvious design, nor, on the other hand, so loosely or inartificially as to relieve the obligor from liability within the scope or spirit of their terms.
*343 [3] The trial court commented in its oral opinion it was significant the agreement at no point mentioned the word "negligent" or any concept of fault. It noted the language used concerned itself solely with the occurrence of an incident which would later give rise to a claim or lawsuit. The trial court further stated the language of section 10 of the agreement did not contemplate the process of welding be isolated into a separate operation under the indemnity agreement. To the contrary, it found the broad language of section 10 indicated the indemnity agreement applied not only to the welding, but to any activity in any manner performed under the contract.
The trial court concluded the agreement was a clear undertaking based upon causation rather than negligence or fault and had the intention of the parties been otherwise, they could clearly and simply have provided in the agreement that the obligation to indemnify would be subject to fault on the part of National in connection with some phase of the welding operation. It could also have easily been limited to the welding operation itself rather than specifically including anything in any manner connected with any work performed under the contract. We reach the same conclusion as the trial court.
National argues that inasmuch as the trial court did not find negligence on its part, it cannot be required to indemnify Northern Pacific. Under the terms of the indemnity provision of the contract, the trial court's finding that National's activities caused the injuries out of which the claim arose is sufficient to establish liability. Continental Cas. Co. v. Municipality of Metropolitan Seattle, supra.
National argues it is contrary to public policy to permit one solely responsible for an injury to indemnify himself against that sole negligence, citing RCW 4.24.115.[3] The trial *344 court did not find the cause of the accident was the sole negligence of Northern Pacific and this argument is thus without foundation.
National further argues that inasmuch as the injury occurred away from the welding car in the process of rail placement, it had no liability as the injury was outside of the scope of the welding contract. Section 3 of the welding contract heretofore quoted places with National the responsibility for the "complete operation." The trial court's findings, which are supported by substantial evidence, state specifically:
Earl W. Sisk, Jr., was injured by operations or activities within the scope of the operations performed by defendant, National Cylinder Gas ..., pursuant to its contract with the plaintiff, Northern Pacific Railway Company, to weld rail, executed April 1, 1964.
These findings dispose of the issue of causation within the terms of the contractual liability.
The trial court found the injury to Earl W. Sisk, Jr. was not caused by any negligence of Northern Pacific. Based on this finding, National argues the payment by Northern Pacific to Sisk was as a volunteer and not based on any liability and therefore they could not recover from National. National cites Continental Cas. Co. v. Municipality of Metropolitan Seattle, supra, and Nelson v. Sponberg, 51 Wash. 2d 371, 318 P.2d 951 (1957) to sustain this contention. The Nelson case does not apply. In that case the court was discussing the liability of joint tort-feasors whose obligations were not based on a contract between the parties.
The trial court's opinion, with which we agree, indicated the undertaking was to indemnify the railroad for any *345 claim that arose out of any activity connected with the welding operation, irrespective of fault leading to that claim. Considering Northern Pacific's lack of control of the actual physical operation of the welding and the speed of the movement of the welded rail to its storage area, this provision appears to us to be a realistic effort by the parties to allocate as between them the cost and expense of the risk of accidents apt to arise. Although this interpretation of the indemnity clause of the contract makes it substantially equivalent to an agreement to insure the railroad against claims, this does not strike us as an unreasonable construction in light of the circumstances we have already indicated.
[4] Under the terms of the contract between the parties, Northern Pacific's payment to Sisk did not make it a volunteer. At the time they paid Sisk they had tendered the defense of the claim to National who refused to defend. No determination of who was or was not negligent had been made by the court. National does not argue and from the record we find no reason to suspect the settlement was unreasonable or that it was made in bad faith without a belief by Northern Pacific that, at the time they settled, they might face some liability to Sisk. Under these circumstances, the failure of the indemnitor to defend the action when the subject matter of the suit is within the scope of the indemnity agreement is itself a breach of contract and entitles the indemnitee to recover from the indemnitor the amount of any reasonable settlement made in good faith. Bosko v. Pitts & Still, Inc., 75 Wash. 2d 856, 454 P.2d 229 (1969); Clow v. National Indem. Co., 54 Wash. 2d 198, 339 P.2d 82 (1959); Hering v. St. Paul-Mercury Indem. Co., 50 Wash. 2d 321, 311 P.2d 673 (1957); Evans v. Continental Cas. Co., 40 Wash. 2d 614, 245 P.2d 470 (1952); Dowell, Inc. v. United Pac. Cas. Ins. Co., 191 Wash. 666, 72 P.2d 296 (1937); 28 Wash. L. Rev. 239 (1948); see also Annot. 49 A.L.R. 2d 694 (1956) and 44 Am.Jur.2d Insurance § 1525.
The above-cited cases all involve indemnity provisions of insurance contracts. However, in light of the wording of *346 this indemnity provision, we see no reason why the rule stated should not apply to the indemnity provisions of the contract between National and Northern Pacific.
National's contention that liability of Northern Pacific to Sisk must exist for Northern Pacific to collect from them is not supported by the Washington cases.
The cornerstone case in this field is Oregon-Wash. R.R. & Nav. Co. v. Washington Tire & Rubber Co., 126 Wash. 565, 219 P. 9 (1923). There the court found that in the absence of "legal liability" on the part of the indemnitee, payments made in settlement of the claim could not be recovered from the indemnitor, as the indemnitee had acted as a mere volunteer in making the payments. The court based its decision on an interpretation of the indemnification agreement which provided the indemnitor "`shall indemnify and save harmless the railroad from all liability for ...'" (Italics ours.) The word "liability" was found to mean "legal liability." There was no tender of the defense of the claim to the indemnitor.
In State ex rel. Macri v. Bremerton, 2 Wash. 2d 243, 97 P.2d 1066 (1940) an indemnification agreement provided that "The contractor ... agrees to indemnify and hold harmless the City from any and all claims for damages ..." The court, citing Oregon-Wash., found the covenant to indemnify and hold harmless the city against "any and all claims for damages" must be construed to have reference to damages arising from "legal liability." In doing so, the court, perhaps unintentionally, extended the rule of the Oregon-Wash. case far beyond the limits originally defined in that case. In any event, Macri is not applicable in the current case. The indemnification agreement contained no covenant to defend and the indemnitee did not demand the indemnitor make settlement until a default judgment had already been entered against the indemnitee without the knowledge of the indemnitor.
In Continental Cas. Co. v. Municipality of Metropolitan Seattle, supra, the indemnification agreement did contain a covenant to defend and the indemnitee did tender the defense *347 of the claim to the indemnitor, which defense was refused. The claim, however, was not compromised and settled, but was reduced to judgment. There was therefore no question of the indemnitee's legal liability and the sole question in the case was whether, under the terms of the indemnification agreement, the indemnitor was liable only for those damages arising from its own negligent conduct. The court noted the duties and obligations of the parties must be determined and measured by the language of the agreement and concluded the language of the indemnification agent was clear and unambiguous and did not qualify the indemnitor's liability. The court did include in its opinion a statement that "legal liability for damages caused by an act of General Construction is, of course, an element necessary to implement the indemnity provision of the contract." Inasmuch as the question of liability was not an issue in the case, that statement was not necessary to the holding and does not establish an inflexible rule requiring establishment of liability as a condition precedent for indemnification, regardless of the wording of the agreement.
The parties can, as noted in Oregon-Wash., specifically provide by their contract that "legal liability" of the indemnitee is a condition precedent to the obligation of the indemnitor to indemnify the indemnitee. The parties may also provide, by the wording of their contract, for a result such as that obtained in this case. They may specify that the obligation to indemnify is determined by causation, not negligence or liability in the technical legal sense. As noted in Continental Cas. Co. v. Municipality of Metropolitan Seattle, supra, they may do so in an effort "to allocate as between them the cost or expense of the risk of accidents apt to arise out of construction projects on a fairly predictable basis, rather than upon the generally debatable and indeterminate criteria as to whose negligence, if any, the accident was caused by, and to what degree."
The judgment of the trial court is affirmed.
JAMES, C.J., and WILLIAMS, J., concur.
NOTES
[1] National Cylinder Gas will hereafter be referred to as National and Northern Pacific Railway Co. as Northern Pacific.
[2] Section 3. "All necessary equipment and the housing therefore [sic] and the complete operation shall be provided by NCG ...
Section 10. "NCG shall indemnify and save harmless the RAILROAD from any and all claims, suits, losses, damages or expenses on account of injuries to or death of any and all persons whomsoever, including NCG, subcontractors, employees of NCG, subcontractors and of the RAILROAD, and any and all property damage, arising or growing out of, or in any manner connected with the work performed under this contract, or caused or occasioned in whole or in part by reason of the presence of the person or of the property of NCG, subcontractors, their employees or agents, upon or in proximity to the property of the RAILROAD, except when such claims, suits, etc., arise out of the sole negligence of the RAILROAD.
"NCG further agrees that it will defend, at its own expense, in the name and on behalf of the RAILROAD, all claims or suits for injuries to persons or damage to property arising or growing out of the work carried on under this contract, except when such claims or suits arise out of the sole negligence of the RAILROAD."
[3] RCW 4.24.115 "Validity of agreement to indemnify against liability for negligence relative to construction, alteration, improvement, etc. of structure or improvement attached to real estate. A covenant, promise, agreement or understanding in, or in connection with or collateral to, a contract or agreement relative to the construction, alteration, repair, addition to, subtraction from, improvement to, or maintenance of, any building, highway, road, railroad, excavation, or other structure, project, development, or improvement attached to real estate, including moving and demolition in connection therewith, purporting to indemnify against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the indemnitee, his agents or employees is against public policy and is void and unenforceable." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609935/ | 467 P.2d 464 (1970)
J.T. BROWN, Building Superintendent, Plaintiff in Error,
v.
Russell FRASER, Defendant in Error.
No. 42389.
Supreme Court of Oklahoma.
March 24, 1970.
Roy H. Semtner, Municipal Counselor, Irving L. Faught, Asst. Municipal Counselor, Oklahoma City, for plaintiff in error.
McClelland, Collins, Sheehan, Bailey & Bailey, by H.B. Scoggins, Jr., Oklahoma City, for defendant in error.
*466 LAVENDER, Justice.
This is an appeal from the District Court of Oklahoma County, Oklahoma. The proceeding in the district court was an appeal, by the defendant in error herein, Russell Fraser, from an order of the Board of Adjustment of the City of Oklahoma City, Oklahoma. That order denied his request for a 3,000-square-foot variance from the "Intensity of Use" provision of that city's 1947 zoning ordinance (No. 5936) as applied to his separately-owned 3,000-square-foot tract of vacant land in an "`A' Single Family Dwelling District" established by that ordinance. The district court found, ordered and adjudged that such order of the Board of Adjustment should be overruled, vacated and set aside, and that the requested variance should be granted so that Fraser could be permitted to construct a single-family dwelling upon such tract of land.
J.T. Brown, as Building Superintendent of the City of Oklahoma City, appeals to this court, contending, among other things, that Fraser had failed to sustain the burden of proof imposed upon him by pertinent legal principles. We agree with that contention.
The tract of land involved herein is described in the request for such variance as the South 60 feet of Lots 17 and 18 in Block 16 of Military Park Addition. Fraser had acquired the title to all of said Lots 17 and 18 on October 8, 1963, and the separately-owned tract involved herein resulted from Fraser's conveyance, on January 29, 1965, of the North 120 feet of those platted lots.
Then, in June of 1965, Fraser applied to the office of the city's Building Superintendent for a building permit to construct, on this 3,000-square-foot tract of land, a building to be occupied as a single-family dwelling. The Building Superintendent denied the building permit, in writing, on the stated ground that the same would be in violation of the zoning ordinance in that the described tract did not have the required land area.
As authorized by the zoning ordinance, Fraser appealed to the Board of Adjustment from that order and, in connection therewith, requested the variance involved herein. After notice and hearing thereon, that Board entered its order denying the variance and building permit, and Fraser appealed to the district court.
The ordinance provision directly involved herein (which later appears as paragraph 4 of Section 5.04 of Title 13, "Revised Ordinances, 1960, of the City of Oklahoma City") applied to, and only to, "`A' Single Family Dwelling Districts." It reads as follows:
"Intensity of Use. There shall be a lot area of not less than six thousand (6,000) square feet, except that where a lot has less area than herein required and all the boundary lines of that lot touched lands under other ownership on the effective date of the ordinance that *467 lot may be used for any of the uses permitted by this section." (Emphasis supplied)
Concerning such use, the same section of the ordinance provides (insofar as pertinent herein) that:
"A building or premises in the `A' Single Family Dwelling District shall be used only for the following purposes:
"1. Single Family Dwelling.
"* * *
"6. Accessory buildings which are not a part of the main building, including a private garage, and including one living unit, which living unit shall not exceed one floor level of living space, nor exceed five hundred square feet (500 sq. ft.) of floor area, * * *; provided, that no permit shall be issued for the construction of such a living unit and no living unit shall be constructed unless the application for such building permit shall be accompanied by the written consent properly signed by at least sixty (60%) of all persons owning property in the block in which the property covered by the application is located; and, provided further, that the construction of such a structure does not violate any other zoning restriction relating to height, yard space, set back, or other requirements. * * *."
Apparently, Oklahoma City's power concerning zoning is derived from the Oklahoma statutes now appearing as 11 Ohio St. 1961, § 401 and following, rather than from the city's charter. As authorized by one of those statutes (11 Ohio St. 1961, § 407), and in harmony therewith, Oklahoma City's zoning ordinance creates a Board of Adjustment, and, insofar as pertinent herein, provides (in Section 19.65 of Title 13) that:
"The Board of Adjustment shall have the following powers:
"(a) To hear and decide appeals where it is alleged there is an error in any order, requirement, decision, in the enforcement of this ordinance.
"(b) Powers Relative to Variations. Where, by reason of exceptional narrowness, shallowness, or shape of a specific piece of property at the time of the original adoption of the regulations, or by reason of exceptional topographical conditions or other extraordinary or exceptional or situation or condition of a specific piece of property, which condition is not generally prevalent in the neighborhood, the strict application of this ordinance would result in peculiar and exceptional practical difficulties to or exceptional and undue hardship upon the owner of such property, the Board is hereby empowered to authorize upon an appeal relating to such property, a variation from such strict application so as to relieve such difficulties or hardship.
"* * *."
Before a board of adjustment, or a district court on appeal therefrom, has authority to grant an exception to, or a variance from, the provisions of a zoning ordinance, the person claiming the exception or variance has the burden of showing (a) that the granting of the exception or variance will not be contrary to the public interest, and (b) that the literal enforcement of the ordinance will result in unnecessary hardship to the applicant, and (c) that by granting the exception or variance the spirit of the ordinance will be observed, and (d) that by granting the exception or variance substantial justice will be done. Board of Adjustment of Oklahoma City et al. v. Shanbour (1967), Okl., 435 P.2d 569; Twist et al. v. Kay (1967), Okl., 434 P.2d 180.
In Van Meter et al. v. H.F. Wilcox Oil & Gas Company et al. (1935), 170 Okl. 604, 41 P.2d 904, 910, this court quoted, with approval, from the case of Heffernan v. Zoning Board of Review, 50 R.I. 26, 144 A. 674, 676, as follows:
"`The expressions "contrary to the public interest" and "unnecessary hardship" must be given a reasonable interpretation. As the provisions of the ordinance *468 represent a declaration of public interest, any variance would in some measure be contrary thereto. In this connection, the words "contrary to the public interest" should be interpreted to mean what in the judgment of a reasonable man would unduly, and in a marked degree, conflict with the ordinance provisions. As to the words, "unnecessary hardship" it may be said that each of the restrictions of the ordinance upon what would otherwise be a lawful use of one's property might be termed a "hardship" to the owner. We regard the term "hardship," as used in the ordinance, to have some reference to the degree of interference with ordinary legal property rights, and to the loss or hardship which would arise therefrom. We think the expression should be interpreted to refer to a "hardship" peculiar to the situation of the applicant, which is of such a degree of severity that its imposition is not necessary to carry out the spirit of the ordinance, and amounts to a substantial and unnecessary injustice to the applicant. * * *.'"
As we understand it, the granting or refusal of a requested variance from a provision of a zoning ordinance, on the ground of unnecessary hardship resulting to the applicant from a strict application of such provision of the ordinance to his particular situation, is basically and primarily a matter of doing substantial justice as between the applicant and the public interest as declared in the zoning ordinance. And, as we understand the above-cited cases, all of the factors mentioned above are so interwoven that there is no showing of "unnecessary hardship" requiring, or even justifying, the granting of the requested variance from a provision of a zoning ordinance unless the applicant for such variance shows that, as applied to him, such provision interferes with his ordinary legal property rights in a way that is peculiar to his situation and in such a degree of severity that its application to him is not necessary to carry out the spirit of the ordinance, so that, by granting the requested variance, substantial justice will be done without unduly, or in a marked degree, conflicting with the public interest, as declared in the ordinance.
We have not been favored with the definition, if any, of the term "lot," as used in the Oklahoma City zoning ordinance, but the parties hereto seem to assume that the separately-owned plot of land for which the variance is sought in this case would constitute a "lot" within the contemplation of the provisions of such ordinance, including the "density of use" regulation from which such variance is sought.
Fraser does not base his request for a variance upon exceptional narrowness, shallowness, or shape of this piece of property at the time of the original adoption of this ordinance, or upon exceptional topographical conditions affecting this piece of property but not generally prevalent in the neighborhood. Apparently, Fraser would experience no practical difficulties in constructing his proposed building on this piece of property in compliance with the openspace (front yard, side yard, and rear yard) requirements of the ordinance, and his only practical difficulty is that he has a lot area of only 3,000 square feet instead of the lot area of not less than 6,000 square feet which is required by the ordinance except where all the boundary lines of the lot involved touched lands under other ownership on the effective date of the ordinance.
In an attempt to prove his allegation, in his notice of appeal to the district court, that refusing the requested variance and permit puts a restriction upon this piece of property which is not prevalent in the immediate neighborhood, and apparently to show that he was not seeking to create a new and different situation in the neighborhood, Fraser introduced evidence that, in Block 16 and the blocks adjoining Block 16, there was one "apartment," at least two store buildings, and a number of duplexes, located upon pairs of lots similar to Lots 17 and 18 in Block 16, and at least nine instances in which two structures are *469 located upon such a pair of lots, four instances in which three structures are located upon such a pair of lots, and one instance in which four structures are located upon such a pair of lots. However, he testified on cross-examination that, with few exceptions (the number thereof not specified), that same situation existed prior to 1947. A witness for the other side, who had owned and resided in a single-family dwelling in Block 16 since some time in 1947, testified that he knew of only one instance in which any structural change had been made in any building, or on any property, in the neighborhood since he moved there.
At any rate, there is nothing in the record to indicate that there was a single instance in which any structure of any kind in that neighborhood was located upon a separately-owned plot of less than 6,000 square feet in area.
Fraser also attempted to show that he had been misled by two employees of the city's Building Superintendent, but the conversations upon which he relied occurred long before Fraser sold the North 120 feet of these two lots and involved an entirely different situation.
There is nothing in the record to show that any "hardship" imposed upon this applicant as the owner of a 3,000-square-foot "lot" in an "`A' Single Family Dwelling District" is any different than that imposed upon any other owner of a 3,000-square-foot "lot" in the same, or any other, "`A' Single Family Dwelling District" in the city, so that such "hardship" would be peculiar to him in any way. Unquestionably, the requested variance from the "Intensity of Use" requirement that there shall be a lot area of not less than 6,000 square feet except where all the boundary lines of the lot involved touched lands under other ownership on the effective date of the ordinance, so that this applicant might use this separately-owned 3,000-square-foot lot for single-family dwelling purposes, would unduly, and in a very marked degree, conflict with that specific provision of the ordinance, and would be against the public interest as declared therein, as well as contrary to the spirit of the ordinance as indicated by the provisions thereof, including the provisions for the granting of variances therefrom. In these circumstances, the granting of the requested variance from the ordinance provision involved herein is not necessary in order to do substantial justice as between this applicant and the public interest.
We think it is clear that any "hardship" imposed upon this applicant by this zoning ordinance is not an "unnecessary hardship" within the meaning of that term as used in the above-cited cases, and this applicant clearly failed to sustain the burden of proof imposed upon him under those cases.
This view makes it unnecessary for us to consider or pass upon the applicability, or the inapplicability, in cases involving a requested variance from a zoning regulation similar to the one involved herein, of the principle stated, discussed, and applied in the Appeal of John L. Pierce from Ruling of Board of Adjustment of City of Tulsa (1959), Okl., 347 P.2d 790, and Board of Adjustment of City of Oklahoma City et al. v. Puckett (1960), Okl., 353 P.2d 4, that "Generally, a hardship created by an owner of premises constitutes no valid basis for his application for a variance of, or exception to, zoning ordinances applicable to his premises."
This court has characterized the proceedings in district courts on appeal from boards of adjustment in zoning matters as being in the nature of equitable proceedings, and that the question on review to be determined is whether the judgment of the trial court is consonant with, or is against, the clear weight of the evidence. Twist et al. v. Kay (1967), Okl., 434 P.2d 180, 186. There is no conflicting, material evidence in this case to be weighed. The applicant for the variance involved herein simply failed to sustain the burden of proof imposed upon him.
Judgment reversed.
All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609945/ | 77 Wash. 2d 828 (1970)
467 P.2d 307
DOROTHY MILES, Individually and as Administratrix, Respondent,
v.
ST. REGIS PAPER COMPANY, INC., Defendant, NORTHERN PACIFIC RAILROAD COMPANY, INC., et al., Appellants.[*]
No. 39487.
The Supreme Court of Washington, En Banc.
April 9, 1970.
Dean H. Eastman, Robert J. Allerdice, Roger J. Crosby, and John J. Majeres, for appellants.
*829 F.G. Enslow (of Griffin, Boyle & Enslow), for respondent.
FINLEY, J.
This lawsuit was brought by Dorothy Miles individually as the surviving wife and as the administratrix of the estate of Claud Miles, Sr., the deceased. Negligence was alleged on the part of the St. Regis Paper Company, Inc., the Northern Pacific Railroad Company, Inc., and certain employees of both entities.
A motion by St. Regis challenging the sufficiency of the evidence at the end of the plaintiff's case was granted and St. Regis is not involved in this appeal. Similar motions by Northern Pacific Railroad at the end of plaintiff's case and at the end of all of the evidence were denied. The jury returned a verdict of $35,000 for the plaintiff. A motion for a judgment n.o.v. or for a new trial was denied and this appeal followed.
Claud Miles, Sr., was crushed and instantly killed by one of three logs which rolled from the top of a flatcar loaded with logs. The flatcar and its load of logs were in a logging train in the process of being unloaded at the premises of the "D" Street Rafting Company, Inc., of Tacoma, Washington.
The logging train was loaded with logs by employees of St. Regis at Lake Kapowsin. Much testimony was introduced tending to show that due care was exercised by St. Regis employees in loading the logs on the flatcars at Lake Kapowsin; furthermore, that subsequent repetitive inspections of the log loads were made both by St. Regis and Northern Pacific to insure safe transportation and safe unloading. After arrival of the log train at the railroad yards in Tacoma, a Northern Pacific switch engine was coupled to it and moved the train from the railroad yards to the premises of the "D" Street Rafting Company. There is a conflict in the evidence as to what happened there. The employees of the railroad testified that the train did not move after the last car in the string was positioned under the crane of the "D" Street Rafting Company in preparation for unloading. *830 They stated that no logs had been unloaded prior to the accident. But, in direct conflict there is the testimony of the operator of the crane at the time of the accident, a Mr. Keblek, who was an employee of "D" Street Rafting Company. He testified that some logs had been unloaded and that the train was moved just 15 or 20 seconds prior to the time he heard the locomotive whistle blow, indicating an accident had occurred.
The testimony of witnesses for the railroad indicated that movement of the train in positioning the cars for unloading was under the control of members of the unloading crew of the "D" Street Rafting Company who relayed signals to the train crew. In conflict, other testimony indicated that movement of the train was subject to control and authority of the train crew, principally the engineer or fireman on duty in the locomotive engine. As will be seen later, this question of control has become the primary issue in this appeal.
Two cables with fasteners or "binders" were placed around each end of each load of logs on the railroad flatcars. Apparently the cables and binders were used at the behest of the railroad as a safety measure and had the capacity to provide some stability for the log loads. The cables were not of sufficient strength to hold if an entire log load shifted significantly. They would resist and contain some shifting as to a load or as to one log, depending upon the size and weight of logs and the shifting involved. Normally the cables would hang somewhat loosely at the bottom of each log load. One method of ascertaining stability and safety of the log loads at the time of unloading was to inspect and determine whether each of the cables and the binders were intact and whether the cables were hanging somewhat loosely beneath each log load. On the day of the accident, Mr. Miles, the deceased, was a member of the unloading crew of the "D" Street Rafting Company. He was assigned the duty of releasing the binders encircling the loads of logs on the flatcars. After releasing the binders, it was part of his work to return to the crane and to assist *831 in handling two slings which were attached to the crane and utilized in unloading logs. These were passed under and around the loads of logs, then attached to the crane. When each end was secured, the crane was then used to pull the slings tight, and then to lift and unload the logs. At the time of the accident Mr. Miles had not returned to the crane to work with the slings. After the accident it was ascertained that except for the flatcar immediately in front of the switch engine, the binders had been released. One of the binders on the fatal load of logs had been released by hand, ostensibly by Mr. Miles. The other binder had not been released but the cable was broken.
The engineer, Mr. Casey, had changed places in the cab of the switch engine with the fireman and was eating his lunch, sitting with his back to the log load on the flatcar immediately in front of the switch engine. He did not see the three logs roll off the top of the load and did not see Mr. Miles until after the accident when he looked and saw him under one of the logs. The fireman seated by the throttle on the opposite side of the engine cab could not see Mr. Miles. He did see the top or "peaker" log and the other two logs begin to roll from the railroad flatcar. The foreman of the railroad switching crew, Mr. Harper, was on a platform adjacent to the crane, several car lengths distance from the switch engine, and on the side of the train opposite from where Mr. Miles was killed. From his location at the time of the accident, Mr. Harper could not see Mr. Miles. Two other members of the railroad switching crew had temporarily left the log train and had gone to have coffee after the train was initially positioned on the premises of the "D" Street Rafting Company. Obviously they could not see and evaluate the situation of Mr. Miles just prior to the accident. Mr. Keblbek testified that from his position operating the crane he could not see Mr. Miles alongside the fatal load of logs.
There was very positive testimony on the part of members of the railroad switching crew that the train had not been handled roughly in its movement from the railroad *832 yard to the "D" Street Rafting Company premises; furthermore, that two of these employees had walked the train observing the condition of the binders and carefully inspecting each of the log loads on the several flatcars of the train. There was positive testimony that if an inspection of the binders and the logs showed a possibility that any load of logs was unstable, the suspect loads would be tagged with a white card and the binders and cables would not be released by hand. Such loads would be moved to the crane site and the slings placed around the logs as a safety precaution before the binders would be released.
The appellant assigns error: (1) to the denial of motions attacking the sufficiency of the evidence, (2) to the failure of the trial court to give several jury instructions offered by the appellant, and (3) to the giving of an instruction submitting the doctrine res ipsa loquitur to the jury. We are convinced there was sufficient evidence that the trial court did not err in denying appellant's motions in this regard. We agree with the trial court that it was not error to refuse to give the instructions offered by appellant. The essence of these was adequately covered in other instructions given to the jury. This appeal focuses essentially on whether it was error for the trial court to instruct the jury on the doctrine of res ipsa loquitur.
A common statement of the doctrine of res ipsa loquitur appears in Kind v. Seattle, 50 Wash. 2d 485, 489, 312 P.2d 811 (1957):
Where a plaintiff's evidence establishes that an instrumentality under the exclusive control of the defendants caused an injurious occurrence, which ordinarily does not happen if those in control of the instrumentality use ordinary care, there is an inference, permissible from the occurrence itself, that it was caused by the defendant's want of care.
[1] The three prerequisites to application of the doctrine are: (1) an event which ordinarily does not occur unless someone is negligent; (2) the agency or instrumentality causing the event must be within the exclusive control of the defendant; and (3) there must be no voluntary *833 action or contribution to the event on the part of the plaintiff. Douglas v. Bussabarger, 73 Wash. 2d 476, 438 P.2d 829 (1968); Emerick v. Mayr, 39 Wash. 2d 23, 234 P.2d 1079 (1951); W. Prosser, Torts § 42, at 208 (2d ed. 1955). It is a well known fact that great quantities of logs are loaded, transported, and unloaded every day throughout the state by truck and rail facilities. It is also well known that in most substantial part logs are loaded, transported, and unloaded properly, safely, and without accidents. So, despite the occurrence of some accidents, as in the instant case, we are convinced it can be said that they do not happen unless there has been some negligence on the part of someone involved in loading, transporting, or unloading the logs.
[2] The question of control poses a close and difficult problem. Appellant makes a strong argument that employees of "D" Street Rafting Company had exclusive control of not only the unloading of the logs involving the use of the crane, but also other operations, including positioning of the cars and movement of the train. There is conflicting testimony, and the hand on the throttle of the switch engine was obviously the hand of the engineer or the fireman (employees of the railroad). Furthermore, any movement of the train ultimately was the responsibility and within the exclusive control of such employees. It is not denied that movement of the train and positioning of the railroad flatcars loaded with logs occurred in accordance with the unloading plans and desires of employees of "D" Street Rafting Company, communicated by hand signal or otherwise to the foreman of the railroad switching crew and relayed by him to the engine crew. We believe that the ultimate decision to move the train was made by employees of the railroad. Thus, in terms of the requisites for application of res ipsa loquitur in this case, we are convinced that at the time of the accident the train of flatcars loaded with logs was in the "exclusive control" of the railroad.
It is not of crucial consequence that Mr. Miles apparently released the binder at one end of the load of logs shortly before the accident. There was evidence that a load of logs *834 could be stable at one end and not at the other end. The jury could have inferred from this evidence that the fatal log load was unstable at the end where the cable had snapped, but stable at the end where the binder had been released. There was evidence that a binder could not be released by hand when the weight of a log put tension on a cable and binder. In this respect there was evidence tending to show that a load of logs could be made unstable by rough or jerky movement of the train either before or after a binder had been released. In addition, this lack of stability apparently would not always be shown by a taut or snapped binder until it was too late. We are convinced that the evidence supports the conclusion that Mr. Miles did not contribute to the log's fall.
Without Mr. Keblbek's testimony that the train was moved 15 to 20 seconds prior to the time that the three logs spilled or rolled off of the flatcar, there would indeed be a more difficult question as to any possible inference of negligence on the part of the railroad. However, on the basis of the evidence brought out at the trial, we cannot say that the instruction on res ipsa loquitur was error.
[3] Indeed this case seems to us to have a classic similarity to Byrne v. Boadle, 159 Eng. Rep. 299 (1863), which originated application of the doctrine of res ipsa loquitur. There it was a barrel of flour which mysteriously fell on plaintiff; here it was a log. In that case the learned judge stated "the plaintiff who was injured by [the falling barrel] is not bound to shew that it could not fall without negligence, but if there are any facts inconsistent with negligence it is for the defendant to prove them." Byrne v. Boadle, supra. We have continually adhered to this approach. Horner v. Northern Pac. Beneficial Ass'n Hosps., Inc., 62 Wash. 2d 351, 382 P.2d 518 (1963). We believe the doctrine is applicable under the circumstances in this case.
The judgment of the trial court should be affirmed. It is so ordered.
HUNTER, C.J., ROSELLINI, HAMILTON, and HALE, JJ., concur.
*835 NEILL, J. (dissenting)
I am in disagreement with the majority on its conclusion that the res ipsa loquitur instruction (No. 5) was properly given. There was insufficient evidence to support the instruction and the instruction was not a correct statement of the doctrine.
It is uncontested that, absent res ipsa loquitur, the plaintiff's evidence is insufficient to establish a prima facie case. One of the prerequisites to application of the doctrine of res ipsa loquitur is that the instrumentality causing the event must be within the exclusive control of the defendant. The majority finds sufficient evidence of exclusive control to justify application of the doctrine. I disagree.
Three members of the train crew, the "D" Street crew foreman and the resident manager of "D" Street Rafting Company all substantially agreed in their testimony on the normal practices followed in these unloading operations. The switch engine would spot the first car under the unloading crane. No further movement of the train would occur until directed by employees of the rafting company. Instructions to move the cars would be given to the switchman standing at the end of the train near the unloading platform, who would relay them by hand signals to the engineer at the other end of the train.
The three railroad company employees who were present at the time of the accident all testified that the train was originally positioned so that the car farthest from the engine was under the crane. The train was not moved and none of the cars were unloaded until after the accident, which occurred 5 to 10 minutes after they had positioned the first car. However, Mr. Keblbek, a boom man for the rafting company, testified that one car had been unloaded and that the train had been moved immediately prior to the accident. He also testified, contrary to the later testimony of his manager, Mr. Reid, that sometimes the railroad crew was aware of the sequence in which the cars were to be unloaded and that each movement of the train might not be in direct response to individual commands given by rafting company employees. In this specific instance, Mr. Keblbek *836 could not say who gave the instructions to move the train.
"Control" does not necessarily mean actual physical control, but can include the present ability to exercise a right of control. See Hogland v. Klein, 49 Wash. 2d 216, 298 P.2d 1099 (1956); Edwards v. A.F.J. Distributors, Inc., 58 Wash. 2d 789, 364 P.2d 952 (1961). All the witnesses agreed that once the train arrived at "D" Street Rafting Company, the unloading process was essentially directed by employees of that company. While it is true that the hand on the throttle of the switch engine remained that of a railroad employee, and while it may also be true that the engineer had a legal right to refuse to follow any instructions from employees of the rafting company, it does not follow that the railroad so controlled the unloading process that any negligence occurring therein may be automatically attributible to it. Even Mr. Keblbek, who testified that the engine moved immediately before the accident, cannot say who ordered this movement; and he specifically admitted that the engine may have moved under instructions from him or Mr. Reid, both employees of the rafting company. Under these circumstances, I see no basis for the majority's conclusion that the train was in the "exclusive control" of the railroad at the time of the accident. See Morner v. Union Pac. R.R., 31 Wash. 2d 282, 196 P.2d 744 (1948).
As we noted in Vogreg v. Shepard Ambulance Serv., Inc., 47 Wash. 2d 659, 289 P.2d 350 (1955), no special witchcraft is invoked by murmuring the Latin phrase, "res ipsa loquitur." The doctrine is nothing more than a legal formulation of the common sense conclusion that if an instrumentality for which defendant is responsible injures somebody, and this injury would not normally occur without negligence, then defendant is responsible for the injury. But when, as here, the evidence does not establish exclusive control in the defendant, and the possible causes include negligence by others as well as the defendant, or causes involving no negligence at all, then the doctrine does not apply. Therefore, it was error to instruct the jury on the doctrine of res ipsa loquitur. The case should have been dismissed upon defendant's motion at the close of the evidence.
*837 Instruction No. 5, to which defendant took exception, reads in relevant part:
[Y]ou are instructed that it is for you to determine whether the manner of occurrence of the death of Claud Miles and the attendant circumstances connected therewith are of such character as would, in your judgment, warrant an inference that the injury would not have occurred had due diligence and care been exercised by the defendant's employees.
The rule is that when an agency or instrumentality which produces injury is under the control of a defendant or its employees, and the injury which occurred would ordinarily not have resulted if those in control had used proper care, then, in the absence of satisfactory explanation, you are at liberty to infer though you are not required to infer that the defendant, or its employees, were at some point negligent and that such negligence produced the death of Claud Miles.
My concern is with the words "under the control of a defendant or its employees." These words do not specify for the jury the degree of control (exclusive) that is necessary before res ipsa can be applied. As instructed, the jury could have subjected defendant to the effects of the doctrine upon a finding that defendant had partial control, potential partial control, or any of the other myriad degrees of control ranging from the almost exclusive to the almost nil. If such an instruction is to be given at all,[1] it should be given accurately. Here, the instruction is deficient in that it allows the jury to apply the doctrine upon a finding that defendant had any degree of control over the instrumentality. The instruction is plainly erroneous.
*838 I would reverse and dismiss.
WEAVER and McGOVERN, JJ., concur with NEILL, J.
May 27, 1970. Petition for rehearing denied.
NOTES
[*] Reported in 467 P.2d 307.
[1] A strong argument may be posited against the giving of res ipsa instructions in any case. Since the function of the doctrine is to surmount a nonsuit, the purpose is fulfilled when the matter is given over to the jury. To add a special instruction on the res ipsa inference is to give that possible inference an unfair advantage over other possible inferences in the case. See Provins v. Bevis, 70 Wash. 2d 131, 140, 422 P.2d 505 (1967). The Washington Supreme Court Committee on Jury Instructions has accepted this view, and recommends that no instruction be given on res ipsa loquitur. 6 Wash. Prac., WPI 22.01, at 131 (1967). I do not reach the question of the continuing validity of such instructions as that issue has not been raised in this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609965/ | 467 P.2d 100 (1970)
CHECKER, INCORPORATED, Appellant,
v.
I.M. ZEMAN, S.A. Tuller, E. Boyer, D. Goldberg, A. Landman, C. Chazen, R.D. Gruber, A.L. Lipkin, D.A. Messing, H.W. Brotman, and D. Lembark, a co-partnership, doing business under the firm name and style of Zeman, Tuller, Boyer & Goldberg, Respondents.
No. 5991.
Supreme Court of Nevada.
March 26, 1970.
Rehearing Denied April 20, 1970.
*101 E.M. Gunderson, Las Vegas, for appellant.
Lionel, Sawyer & Wartman, and Stephen L. Morris, Las Vegas, for respondents.
OPINION
ZENOFF, Justice.
Respondents are a public accounting firm which brought suit for $1,150 against Checker, Inc., a taxicab company in Las Vegas, for services rendered.
The complainants were hired in 1961 or 1962 by Checker, Inc., to perform certain periodic auditing which were from that time performed. A Mr. Woxberg who did the hiring was the president of Checker. The firm was paid after each audit until the period ending March 31, 1964. In the examination for that period the accountants discovered a substantial discrepancy in money taken in but not deposited. Woxberg was notified by David Messing, a member of the firm, and conversations concerning what to do about the findings were held between them. The actual auditing in question had been done by a Mr. Copeland who died before the case came to trial.
Messing testified on behalf of the respondents from the books and records of the firm, plus his own supervisory participation. A few days after the cab company was billed he learned that a sale of the company was pending so he called Woxberg to insure payment. Woxberg not only acknowledged the bill but he also promised to pay it. Before doing so, he sold his stock in the company and the new operators refused to pay the bill contending that the work was unsatisfactory and without value.
*102 Only one witness testified on the taxicab company's behalf. He was an accountant who was made an officer in the corporation after Woxberg left. He complained that the discrepancies turned out to be substantial defalcations. He also acknowledged that the company was reimbursed for the losses from insurance.
The trial court ruled that the accounting services and rates charged were proper and entered judgment for the accountants for $1,150, plus attorney's fees, costs and interest. The cab company appeals from that judgment, claiming failure of proof of value of the accounting services, that interest should not have been imposed and that some evidence was excluded that should have been allowed.
1. The respondents were hired to do certain services and they were performed. The principal of the corporation, Woxberg, was satisfied with all of the services rendered and paid for them except for the last period of time and as to those services he did not dispute the amount or the value. Only the new owners attempted to show that the accountants should have done more than they did or what they did do was wrong. Theirs was a reconstruction and interpretation because they were not present when the job was done.
The accounting services and rates charged conformed to a pattern since the early relationship between the parties. Where one performs services for another at the latter's request and there is no express agreement as to compensation a promise to pay the reasonable value thereof will be implied. Whiteman v. Brandis, 78 Nev. 320, 372 P.2d 468 (1962). Where services are requested a presumption or inference arises that the beneficiary promises to pay. Willard v. Buck, 85 Nev. 34, 449 P.2d 471 (1969). In this case the appellant tried to show that the services were of absolutely no value, not of mere lesser value, and the trial court made its findings upon the evidence presented. The evidence is sufficiently substantial to support the findings. Wilkins v. Capurro, 72 Nev. 49, 293 P.2d 427 (1956); Briggs v. Zamalloa, 83 Nev. 400, 432 P.2d 672 (1967); Lawry v. Devine, 82 Nev. 65, 410 P.2d 761 (1966); Harvey v. Streeter, 81 Nev. 177, 400 P.2d 761 (1965).
2. NRS 99.040 allows interest on express or implied contracts from the time the money becomes due. This has been interpreted to mean that the interest may be calculated from a date prior to judgment. Paradise Homes, Inc. v. Central Surety & Ins. Corp., 84 Nev. 109, 437 P.2d 78 (1968). The taxicab company contests here that the contract (for accounting services) comes within the exception to NRS 99.040(1) * * * book accounts. A book account is taken to mean the same as an open account and appellant relies on Flannery v. Anderson, 4 Nev. 437 (1868), which held that no interest could be awarded on an open account. Here there was no running account with a changing balance but only one bill given at the end of a period when the work had been performed. Therefore, the services performed by the accountants cannot be labeled a "book account" which would preclude any interest award for respondent.
3. The cab company also claims that the accountants are not entitled to interest because they made no claim for it in their prayer for relief. NRCP 54(c) allows relief to be granted in favor of a party who is entitled to it "even if the party has not demanded such relief in his pleadings." Paradise Homes, Inc. v. Central Surety & Ins. Corp., supra, holds that interest is recoverable as a matter of right in actions of contract express or implied upon all money from the time it becomes due. We are satisfied that interest should be awarded upon the authority of NRCP 54(c) and the cited case.
4. Appellant's allegations that certain material evidence was excluded is without merit.
Affirmed.
COLLINS, C.J., and BATJER, MOWBRAY and THOMPSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609973/ | 467 P.2d 1002 (1970)
STATE of New Mexico, Plaintiff-Appellee,
v.
James Ellis HARDISON, J.B. Jackson and Louella Jackson, Defendants-Appellants.
No. 415.
Court of Appeals of New Mexico.
March 27, 1970.
Norman E. Runyan, Tucumcari, for defendants-appellants.
James A. Maloney, Atty. Gen., Santa Fe, James V. Noble, Asst. Atty. Gen., for appellee.
OPINION
WOOD, Judge.
Defendants were convicted of violating § 40A-16-1, N.M.S.A. 1953 (Repl.Vol. 6). The 1969 amendment to this section is not applicable. Their crime was stealing insulated copper wire strung between poles north of and parallel to railroad tracks and used by the railroad for signaling. Their appeal raises three issues: (1) sufficiency of the circumstantial evidence; (2) identification of an exhibit; and (3) relevancy and materiality of another exhibit.
Circumstantial evidence.
Defendants were convicted on circumstantial evidence. To support a conviction, circumstantial evidence "* * * must be inconsistent with any reasonable hypothesis of defendant's innocence. * * *" State v. Seal, 75 N.M. 608, 409 P.2d 128 (1965); State v. Hovey, 80 N.M. 373, 456 P.2d 206 (Ct.App. 1969) and cases therein cited. Defendants claim the evidence does no more than raise a suspicion as to their guilt; that the evidence fails to "* * * exclude every reasonable hypothesis other than the guilt of the defendant. * * *" State v. Easterwood, 68 N.M. 464, 362 P.2d 997 (1961).
Defendants rely on State v. Seal, supra. In that case Seal was in Hobbs at the time of the crime and in Eagle Pass, where the stolen property was recovered, at the time the property was recovered. Footprints at the scene of the crime and at the motel where Seal was staying were "* * * made by the same shoe and were similar in every detail. * * *" Tracks, made by the same kind of tire as those on Seal's vehicle, were found at the scene, at the place where the goods were recovered and at the motel. Seal attempted to elude the police when taken into custody. The foregoing created a suspicion of Seal's guilt but did not exclude every reasonable hypothesis other than guilt because the footprints were never linked to Seal and there was no showing that the tire tracks were made by the tires on Seal's car.
The area from which the signal wire was stolen is 69 feet north of the railroad tracks and approximately 190 feet from the north end of a public roadside park. The park is approximately four miles east of Logan, New Mexico and on the north side of the highway. Sometime between 2:00 A.M. and 3:30 A.M., the car driven by Hardison was found parked on a gravel road at the north end of the park behind some trees.
We are concerned with footprints leading from the car to where the wire was cut.
Smooth soled tracks went from the car to an area where some of the cut wire was found. Another set of smooth soled tracks was found in a portion of the wire cutting area and went back to the car. Louella Jackson was discovered sitting in the car. She was wearing smooth soled moccasins.
Do the circumstances of Louella's smooth soled moccasins and the smooth soled tracks exclude every reasonable hypothesis other than her guilt? No. There is no evidence comparing a track made by Louella's moccasins with the smooth soled prints observed by the officer. Were they the same length or width? We do not know. Was there anything indicating the prints were made by a woman? We do not know. The officer assumed the smooth soled tracks were made by Louella, but no attempt was made to see if her moccasins matched these tracks. We have Louella's presence, her smooth soled moccasins and smooth soled tracks, but we have nothing connecting the smooth soled prints to Louella other than her presence. See State v. Seal, supra. In our opinion, it is reasonable to hypothesize that some unidentified occupant of the car made the smooth soled tracks. We reverse Louella's conviction. Compare State v. Campos, 79 N.M. 611, 447 P.2d 20 (1968).
It is different as to the two men. Two sets of tracks went from the trunk of the car to the area where the wire had been cut. Both sets of tracks (they were different in size) showed ridges through them; the track impressions indicated they were *1004 made by a shoe or boot with cleats across the sole and the heel. Tracks of this nature were observed throughout the length of the line where the wire had been cut. They were also observed crossing an area serving as a fire guard and into a pasture.
Both men were discovered and arrested after daylight. J.B. Jackson was on a railroad track west of Nara Visa. We do not know how far west of Nara Visa Jackson was discovered. Hardison was 10 or 12 miles "this side" (southwesterly) of Nara Visa, or approximately ten miles from the scene of the crime. There being no explanation of the flight of the two men, the jury may draw an inference of guilt from the unexplained flight. State v. Rodriguez, 23 N.M. 156, 167 P. 426, L.R.A. 1918A, at 1016 (1917).
Both men were wearing boots when arrested. Both sets of boots had cleats matching the description of the cleats in the tracks observed by the officer. The boots of the men were taken to the scene. The boots matched the tracks at the scene, both in length and width, "Just exactly the size of the track."
Some of the wire had been moved from the area where cut and was found south of the railroad tracks forty-four feet from the gravel road on which the car was parked.
The tracks from the car and along the line of the cut wire are connected to the two men. Their flight from the scene is unexplained. Some of the wire had been moved from the area of the cutting and in the direction of the car more than a hundred feet. These circumstances exclude every reasonable hypothesis other than guilt.
The two men present three arguments for an opposite conclusion. First, they attack the credibility of the evidence to the effect that the boots of the two men matched tracks at the scene. The attack is based on the fact that ridges would be left by a track from the boots of the two men and the evidence is undisputed that when the officer matched the boots with the tracks, there was no match as to these ridges.
This argument is without merit. It ignores testimony as to physical conditions. The area was very sandy, thus any tracks would tend to crumble. This sandy condition made it impossible to make a cast from the tracks. During the night, and the investigation, the weather was such that the crust of the sand froze. This preserved the general outline of some of the tracks although, because of the crust when the matching occurred, no match could be made as to ridges left by the cleats. This argument also ignores the officer's testimony that he observed tracks with the ridges before the freeze occurred.
Second, an empty whiskey bottle was found in the car. The men assert that it is a reasonable hypothesis that they fled from the scene to escape arrest for drunkenness. Such a hypothesis is not reasonable in the light of the testimony as to the tracks and their location.
Third, the men claim nothing "* * * negates the reasonable hypothesis that the wire was being cut or had been cut before the defendants arrived at the public park. It is equally reasonable that the arrival of the defendants in the area interrupted the work of the thieves and not the arrival of the police officers." The location of the tracks along the area of the cut wire and the flight of the two men render these hypotheses unreasonable.
Evidence identification of exhibit.
Ten rolls of wire were admitted as exhibits. The evidence shows wire in the amount of ten rolls was stolen. Defendants assert the evidence shows seventeen rolls of wire were recovered at the scene; a surplus of seven rolls. They contend the exhibits were not identified as the wire actually stolen or the surplus wire; that the exhibits were admitted "* * * without identification as the particular wire allegedly stolen. * * *" This claim is material because the degree of the offense depends on the value of the wire that was stolen. Section 40A-16-1, supra. Testimony as to value was based on the wire admitted as exhibits. Thus, if some of the rolls of wire *1005 were not actually stolen wire, they should not have been admitted over defendants' objection.
This contention is based on the assertion that seventeen rolls of wire were recovered. The witness identified the places where seven of the rolls were recovered, testified that ten rolls of wire had been cut and that "* * * we were three rolls of wire short." The witness testified that ten rolls of wire were eventually recovered from the area but never identified the precise point of recovery of three of them. Defendants' claim of seventeen rolls recovered results from confusing the total rolls recovered with testimony as to the precise location of seven of them. The rolls of wire, admitted as exhibits, were identified not only as the wire recovered at the scene, but as the wire that was cut. The evidence does not show any surplus wire. This contention is without merit because it lacks a factual basis.
Evidence relevancy and materiality of an exhibit.
Hardison's car was searched with his consent. A fifty foot cotton rope with two pipe T's tied on one end was found in the car. A witness testified: "It can be used to throw the heavy end, the pipe T's, up over a wire and it will wrap around the wire and you can pull the wire down to where you can reach and cut it." The exhibit was admitted for a limited purpose "* * * that it can be used for what the witness said. * * *"
On cross-examination, the witness reiterated the exhibit's possible use, but also testified that from its looks, it hadn't been so used. Defendants assert that admission of the exhibit was error because there was no evidence that the exhibit had been used in any crime and no evidence connecting the exhibit to the crime with which defendants were charged.
In State v. Everitt, 80 N.M. 41, 450 P.2d 927 (Ct.App. 1969), the defendant's car was searched and two loaded revolvers were seized. An issue on the appeal was the admissibility of the revolvers in a burglary prosecution. We held the revolvers to have been properly admitted as "* * * relevant and material to the question of defendant's intent and his preparation in connection with the three burglary charges * * *."
Here, the connection with the exhibit is established; the exhibit was taken from Hardison's car. See State v. Gray, 79 N.M. 424, 444 P.2d 609 (Ct.App. 1968). Further, the exhibit was connected with the crime. The exhibit was identified as a device capable of being used in committing the crime with which defendants were charged larceny of the signal wire. See State v. Grissom, 35 N.M. 323, 298 P. 666 (1930). Since the exhibit could have been so used, it was relevant and material to the preparation and intent of defendants, even though there is no evidence that, in fact, the exhibit was so used. Sanders v. United States, 238 F.2d 145 (10th Cir.1956); State v. Everitt, supra.
The admission of the exhibit, to show it could be used in committing the larceny, was not error.
The convictions and sentences of Hardison and J.B. Jackson are affirmed. Louella's conviction and sentence is reversed. The cause is remanded with instructions to discharge Louella Jackson.
It is so ordered.
OMAN and HENDLEY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609893/ | 866 P.2d 581 (1993)
Bruce GOODMANSEN and Wilma Goodmansen, Plaintiffs and Appellees,
v.
LIBERTY VENDING SYSTEMS, INC.; Howard Abrams; Cascade Industries, Inc.; and Douglass Goff, Defendants and Appellants.
No. 920156-CA.
Court of Appeals of Utah.
December 7, 1993.
William B. Parsons, III, Salt Lake City, for defendants and appellants.
Bruce Goodmansen, pro se.
Before BILLINGS, DAVIS and GREENWOOD, JJ.
OPINION
BILLINGS, Presiding Judge:
Defendants/appellants Liberty Vending Systems, Inc. and Howard Abrams appeal *582 the trial court's order enforcing a settlement agreement with plaintiffs/appellees Bruce and Wilma Goodmansen. We affirm.
FACTS
In October of 1989, Bruce Goodmansen and his mother Wilma Goodmansen entered into an agreement with Liberty Vending Systems, Inc. to purchase vending machines. In June of 1990, the Goodmansens brought suit against Liberty Vending and Howard Abrams, its president, alleging breach of implied and express warranties, fraud, and misrepresentation. The Goodmansens claimed that nine months after the agreement, most of the machines had not been delivered, and of those machines received, many were nonconforming and defective. A jury trial was set for March 26, 1991.
Between March 7 and March 22, 1991, the parties engaged in settlement negotiations. These negotiations are evidenced by a series of letters between Barry Lawrence, counsel for the Goodmansens, and Dean Becker, counsel for Liberty Vending and Abrams. A pretrial conference was held on March 18, 1991.[1]
By March 21, 1991, the settlement negotiations seemed in jeopardy. That day Lawrence had a letter hand delivered to Becker which stated: "As we have been unable to agree to a settlement in this case ... [w]e fully intend to be ready, willing and able to go ahead with the trial in this matter this Tuesday." That same day Lawrence also sent a letter to Judge Sawaya indicating they were preparing for trial on Tuesday, March 26, 1991.
However, three subsequent letters between Lawrence and Becker, all dated March 22, 1991, corroborate the Goodmansens' contention that the parties reached a settlement agreement. The first letter bearing that date was from Lawrence to Becker. It set forth the general terms of their agreement and was signed by both Lawrence and Becker. The letter stated:
This letter is to reflect the settlement that we seemed to have reached in the above-referenced case. It is my understanding that we have agreed to the following general terms:
1. Howard Abrams will sign a $55,000 Promissory Note both as the President of Liberty Vending and in his individual capacity made payable to my client, Bruce Goodmansen. That Note is to be paid starting with a $1,000 payment on April 1, 1991, a $1,500 payment on May 1, 1991, a $2,5000 [sic] payment on July 1, 1991, and $3,000 payments on the first day of each month for the sixteen (16) months thereafter followed by a final payment of $2,000 due on November 1, 1992.
2. As we agreed, if your client defaults in making any monthly payment, the entire amount remaining on that $55,000 Note becomes due at once againt [sic] Howard and Libery [sic] Vending.
3. If your client makes timely payments for each of the next nineteen (19) months as agreed above, we will then execute a Satisfaction of Judgement of the $81,000 judgment against Doug Goff and Cascade Industries. If your clients default on their $55,000 Note, we will be able to execute on that judgment at once.
Based upon our telephone conversations over the past few days, this is my understanding of the agreement we have reached in this case. If I have in any way misunderstood the agreement that we reached, contact me at once. I have left a place below for you to approve these general settlement terms. Once I have received your written consent as to this settlement, I will contact the court and let them know that we have agreed to a settlement in this case and that the Tuesday trial date will not be necessary. If I do *583 not hear back from you, in writing, by 4:00 p.m. today, I will assume that these general terms are as we have agreed, and that we have thus effectuated a settlement on these general terms. Once again, if I have in any way misstated our settlement, contact me at once.
Becker replied to Lawrence with a letter hand delivered that same day, March 22, 1991, in which Becker stated:
Your settlement letter of March 22, 1991 is acceptable with the following exceptions:
1. The April 1, 1991 payment is changed to April 20, 1991.
2. The provisions of paragraph 2 are modified to reflect that the payment is late after the 1st of the month and in default after the 10th, but that no judgment may be rendered without notice and hearing.
With the above changes, the settlement is acceptable.
In response, Lawrence had a second letter hand delivered to Becker, dated March 22, 1991. In this letter Lawrence stated:
After speaking with my client, we basically agree to those terms, as follows:
1. That in the event that payment is late (i.e., after the first of the month), a 5% interest charge will be placed on that payment. Default occurs if your client fails to pay within ten (10) days after payment is due.
2. We will agree that no judgment will be entered without notice to either Howard Abrams, Liberty Vending, or yourself. We cannot agree that a hearing will take place, particularly because the local rules do not provide for hearings in many circumstances.
3. We are willing to take the first payment (of $1,000) on April 20, 1991, in the form of a Cashier's Check. Thus, the Promissory Note will be for $54,000, the first payment being due thereunder on May 1, 1991 and continuing, as we previously agreed, through November 1, 1992.
I believe that these terms are agreeable with you and your client from our telephone conversations this morning. Please approve these terms where provided for below and I will tell the court that the scheduled trial date will not be necessary.
Becker signed this letter on the signature line Lawrence provided for Becker's approval. Lawrence thereafter cancelled the scheduled trial date.
Lawrence drafted a promissory note and a general release and settlement agreement pursuant to the terms agreed upon in the March 22, 1991 correspondence. Lawrence had those documents hand delivered to Becker, with a cover letter, on March 25, 1991. This letter stated:
Pursuant to the agreement we reached last week, enclosed is a General Release and Settlement Agreement, and a Promissory Note for your review and your clients' execution in this matter. I believe that I have incorporated all of the terms we agreed per last week, however, if you have any questions or concerns regarding this settlement, please contact me at once. If I have not heard back from you by the end of this week, I will assume that you are trying to get your clients to sign the documents. I will be out of town the latter part of this week, so if I do not hear from you I will give you a call early next week. In any event, it is my hope to have this wrapped up by April 20, 1991 so that we are in accordance with the payment procedures we have agreed upon.
Thanks for your cooperation in this matter and give me a call if you have any questions concerning these documents.
However, Becker neither contacted Lawrence nor signed and returned the documents. On April 11, 1991, Lawrence had a letter hand delivered to Becker to ensure that appellants would comply with the settlement before April 20, 1991.
It has been over two weeks since I forwarded our proposed Settlement and Release Agreement, and Promissory Note to you for your approval and for your clients' signatures. I have made numerous telephone calls to you over the last two weeks, but have not heard back from you. I am assuming that the forms of our proposals are acceptable and that you are now obtaining the appropriate signatures. In any event, under the settlement agreement *584 we reached, we are expecting a $1,000 Cashier's Check from your clients on or before April 20, 1991. Please contact me at once if you have any questions or concerns over this matter.
By April 19, 1991, Lawrence had not heard from Becker or appellants regarding the settlement. Lawrence had another letter hand delivered to Becker that same day, which stated that he expected to receive a signed promissory note and settlement agreement, along with a $1000 check, by April 20, 1991. In that letter, Lawrence stated that "[i]f I have not received the documents and check by Monday, April 22, 1991, I will make a motion to the court to compel our settlement agreement and will seek the appropriate fees and costs."
Lawrence never received a check for $1000 or a signed promissory note and settlement agreement. According to Lawrence, he did not learn of appellants' intent not to abide by the settlement agreement until a telephone conversation with Becker on April 22, 1991. On April 22, 1991, Becker withdrew as counsel for appellants and was replaced by Edwin F. Guyon.
Lawrence requested the court to enforce the settlement agreement, and a hearing was held on May 20, 1991. The court granted the motion to enforce the settlement agreement and entered judgment "on the terms and conditions of the Settlement Agreement reached on March 22, 1991 between the parties."[2] The court also awarded fees and costs incurred in enforcing the agreement. It is from this order and judgment appellants appeal. They argue that (1) a settlement agreement was not reached between the parties, and even if it was (2) the Code of Judicial Administration precludes enforcement of this agreement.
STANDARD OF REVIEW
"`The decision of a trial court to summarily enforce a settlement agreement will not be reversed on appeal unless it is shown that there was an abuse of discretion.'" Zions First Nat'l Bank v. Barbara Jensen Interiors, Inc., 781 P.2d 478, 479 (Utah App.1989) (quoting Mascaro v. Davis, 741 P.2d 938, 942 n. 11 (Utah 1987)).
I. BINDING SETTLEMENT AGREEMENT
Appellants first argue that under controlling authority a legally binding settlement agreement was not reached between the parties. Specifically, appellants claim they cannot be bound because they did not sign a written settlement agreement. We note that appellants do not contend Becker exceeded the scope of his authority in assenting to the terms of settlement, but rather concede they are bound by his acts under the doctrine of apparent authority. See Luddington v. Bodenvest Ltd., 855 P.2d 204, 208-09 (Utah 1993); Zions First Nat'l Bank v. Clark Clinic Corp., 762 P.2d 1090, 1094 (Utah 1988).
The trial court has the power to enter a judgment enforcing a settlement agreement if it is an enforceable contract.
It is a basic rule that the law favors the settlement of disputes. Such agreements under the proper circumstances may be summarily enforced. However, whether a court should enforce such an agreement does not turn merely on the character of the agreement. An agreement of compromise and settlement constitutes an executory accord. Since an executory accord "constitutes a valid enforceable contract," basic contract principles affect the determination of when a settlement agreement should be so enforced.
Mascaro v. Davis, 741 P.2d 938, 942 (Utah 1987) (footnotes omitted) (quoting Lawrence Constr. Co. v. Holmquist, 642 P.2d 382, 384 (Utah 1982)).
It is of no legal consequence that the parties have not signed a settlement agreement. Mascaro, 741 P.2d at 941 n. 2; accord Murray v. State, 737 P.2d 1000, 1001 (Utah *585 1987). Likewise, "[i]f a written agreement is intended to memorialize an oral contract, a subsequent failure to execute the written document does not nullify the oral contract." Lawrence, 642 P.2d at 384. "It is a basic and long-established principle of contract law that agreements are enforceable even though there is neither a written memoralization of that agreement nor the signatures of the parties, unless specifically required by the statute of frauds." Murray, 737 P.2d at 1001. "Parties have no right to welch on a settlement deal during the sometimes substantial period between when the deal is struck and when all necessary signatures can be garnered on a stipulation." Brown v. Brown, 744 P.2d 333, 336 (Utah App.1987) (Orme, J., dissenting).
The three letters between Lawrence and Becker dated March 22, 1991 constitute a binding settlement agreement between the parties. The first letter from Lawrence to Becker stated, "This letter is to reflect the settlement that we seemed to have reached." Lawrence then set forth the general terms of the agreement, which delineated amounts owed and a clear payment schedule. Becker signed this letter, approving the general settlement terms. In this letter, Lawrence asked twice for Becker to contact him if he had in any way misunderstood the agreement they had reached. Lawrence stated, "If I do not hear back from you, in writing, by 4:00 p.m. today, I will assume that these general terms are as we have agreed, and that we have thus effectuated a settlement on these general terms." (Emphasis omitted). Lawrence also said he would contact the court to cancel the trial "[o]nce I have received your [Becker's] written consent as to this settlement."
Becker clearly accepted the settlement in his reply letter to Lawrence on March 22, 1991. Becker stated, "Your settlement letter of March 22, 1991 is acceptable with the following exceptions." The changes he specified did not affect the substance of the agreement; he merely changed the first payment date from April 1, 1991 until April 20, 1991, and defined a late payment. Becker concluded, "With the above changes, the settlement is acceptable."
Lawrence indicated his belief that a settlement agreement had been reached in his second letter dated March 22, 1991, in which he stated, "After speaking with my client, we basically agree to those terms...." Lawrence then set forth four changes which did not alter the substance of the agreement. He stated the interest charge, defined default, agreed to notice before entry of judgment, and required the first payment to be a cashier's check. Neither the amount nor terms of the agreement were changed. Lawrence further stated, "I believe that these terms are agreeable with you and your client from our telephone conversations this morning. Please approve these terms where provided for below and I will tell the court that the scheduled trial date will not be necessary." Becker signed this letter on the signature line Lawrence provided for Becker's approval.
Moreover, the conduct of the parties indicates that both parties believed a settlement agreement had been reached. Lawrence stated repeatedly that he would cancel the trial date once a settlement of the case had been reached. After Becker signed the settlement letters, Lawrence cancelled the trial set for March 26, 1991, an act consistent with a settlement having been reached. Thus, the conduct of the parties supports the conclusion that the correspondence between Lawrence and Becker, dated March 22, 1991, constitutes a binding settlement agreement.
II. RULE 4-504(8)
Appellants next argue that Rule 4-504(8) of the Code of Judicial Administration precludes enforcement of this agreement. This Rule provides: "No orders, judgments, or decrees based upon stipulation shall be signed or entered unless the stipulation is in writing, signed by the attorneys of record for the respective parties and filed with the clerk or the stipulation was made on the record."
However, Rule 4-504 was amended, effective April 15, 1991, to include two new provisions relevant to the resolution of this issue. The following was added to the Intent paragraph: "This rule is not intended to change existing law with respect to the enforceability *586 of unwritten agreements." Subsection (10) was also added, which provides that "[n]othing in this rule shall be construed to limit the power of any court, upon a proper showing, to enforce a settlement agreement or any other agreement which has not been reduced to writing." Utah Code Jud.Admin. R4-504(10).
These amendments clarify the disagreement among panels of this court interpreting the impact of Rule 4-504 on the common law power of the court to enforce an otherwise legally enforceable settlement agreement.[3] The addition of subsection (10) indicates that Rule 4-504 was never intended to preempt the power of the court to enforce settlement agreements that meet common law requirements. Thus, Rule 4-504 does not preclude enforcement of the settlement agreement at issue.
CONCLUSION
The correspondence between Lawrence and Becker dated March 22, 1991 constitutes a binding settlement agreement. The conduct of both parties supports this conclusion. The trial court has the power to enforce this agreement pursuant to basic contract principles, and Rule 4-504 of the Code of Judicial Administration does not preclude its enforcement. Accordingly, we affirm.
DAVIS and GREENWOOD, JJ., concur.
NOTES
[1] The record contains no information concerning the pretrial conference, other than it was ordered to be held on March 18, 1991. Appellants claim that Lawrence, Bruce Goodmansen, and Becker were present at the conference, and that Abrams did not attend. They claim that Becker called Abrams before the close of the conference and presented the settlement offer to him, and that Abrams indicated he agreed in substance with the settlement. However, without support in the record, we do not rely on this assertion.
[2] Settlement agreements may be summarily enforced without an evidentiary hearing. Tracy-Collins Bank & Trust Co. v. Travelstead, 592 P.2d 605, 609 (Utah 1979) (affirming trial court's order to enforce settlement agreement without an evidentiary hearing); accord Robinson v. Department of Natural Resources, 620 P.2d 519, 520 (Utah 1980) (noting settlement agreements are enforceable without evidentiary hearing).
[3] Prior to the 1991 amendments, there was conflict within this court concerning whether all settlement agreements were "stipulations" covered by Rule 4-504(8), and whether a settlement agreement must be in writing to be enforceable, thus meeting the procedural requirements of Rule 4-504(8). Compare Zions First Nat'l Bank v. Barbara Jensen Interiors, Inc., 781 P.2d 478, 480 n. 1 (Utah App.1989) (plurality decision) (affirming order to compel settlement and holding that settlement agreements need not be in writing to be enforceable) with Brown v. Brown, 744 P.2d 333, 335 (Utah App.1987) (finding stipulations must be in writing or submitted in open court to be enforceable, relying in part on predecessor to Rule 4-504(8)) and Bagshaw v. Bagshaw, 788 P.2d 1057, 1059 n. 1 (Utah App.1990) (recognizing disagreement that settlement agreements must meet procedural requirements of Rule 4-504(8) to be enforceable). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609896/ | 73 Wn. App. 471 (1994)
866 P.2d 60
SEAFIRST CENTER LIMITED PARTNERSHIP, Appellant,
v.
KARGIANIS, AUSTIN & ERICKSON, ET AL, Defendants, RONALD P. ERICKSON, ET AL, Respondents.
No. 30847-5-I.
The Court of Appeals of Washington, Division One.
January 31, 1994.
Bradley D. Fresia and Eisenhower & Carlson; Richard R. Beresford and Beresford, Booth & Demaray, Inc., P.S., for appellant.
Jonathan T. Zackey, for respondents.
FORREST, J.[*]
Seafirst Center Limited Partnership (Seafirst) appeals the summary judgment granted to Ronald P. *472 Erickson, a partner of the dissolved Washington general partnership Kargianis, Austin & Erickson, contending the effect of Seafirst's covenants not to sue five of Erickson's former partners did not release Erickson from liability. Seafirst also requests attorney fees.
Kargianis and Austin, a Washington general partnership, entered into a lease on March 8, 1985, with Martin Selig for space on the 47th floor of the Columbia Seafirst Center. The lease was for 120 months, beginning June 1, 1985. However, due to construction delays, the space was not available until August 1, 1985, and the parties agreed the lease would commence that date, and extend through July 31, 1995.
Kargianis and Austin consisted of George Kargianis, P.S., Russell A. Austin, Jr., John I. Weston, Ronald P. Erickson, Bruce A. Wolf and Anthony W. Dougherty, according to a footnote on page 1 of the lease. All the partners signed the lease except Weston, who left the partnership prior to execution of the lease.[1]
In 1989, Martin Selig sold Columbia Seafirst Center to Seafirst Center Limited Partnership, including assigning his interest in the building's leases. Seafirst is therefore Selig's successor in interest with respect to the Kargianis and Austin lease. Kargianis and Austin changed its name to Kargianis, Austin & Erickson (hereafter, the Partnership) sometime after execution of the lease.
On July 1, 1990, Seafirst served a 3-day notice to pay or vacate on the Partnership because of its failure to pay approximately $203,500 rent. Seafirst rescinded the notice based on a letter agreement with the Partnership to pay the arrearage on a fixed schedule. On October 1, 1990, Seafirst served a second 3-day notice to pay or vacate based on the *473 Partnership's continuing failure to timely pay rent and rent arrearages. Seafirst filed a complaint against the Partnership the following day seeking $218,460.82, the amount of rental arrearages, rent due to accrue for the remainder of the lease, interest, and attorney fees.
Seafirst and the Partnership subsequently negotiated a settlement; the agreement provided the Partnership would pay all rent due through October 31, 1990, and granted Seafirst a security interest in the Partnership's assets. The Partnership has paid all amounts due on the lease for the term prior to November 1, 1990, and that portion of the parties' lease is not at issue here.
After the parties signed the settlement agreement, George Kargianis, P.S., and Russell A. Austin, Jr., moved for dismissal based on a lease term exempting them from personal liability after the fifth year of the lease.[2] The trial court granted the motion, which Seafirst appealed. Eventually, Seafirst entered into covenants not to sue with George Kargianis, P.S., Russell A. Austin, Jr., Anthony Dougherty and Bruce Wolf, and their respective marital communities. Ronald P. Erickson is the only partner of the Partnership with whom Seafirst did not reach agreement.
Although the Partnership vacated the premises prior to November 1, 1990, Seafirst did not re-let the space until January 1, 1992. The Partnership paid approximately $30,000 per month for the space; Seafirst re-let the space to its general partner, Seattle-First National Bank (the Bank), for $27,360 per month, beginning January 1, 1992. Moreover, Seafirst claims that a condition of its lease with the Bank required it to make approximately $310,000 of improvements to the space. A copy of the remodeling budget is included in the record, as is a copy of Seafirst's lease with the Bank.[3]
*474 In his motion for summary judgment, Erickson sought to be dismissed based on Seafirst's covenants not to sue his former partners. In its motion for summary judgment against Erickson, Seafirst sought past-due rent payments from the Partnership from November 1, 1990, to December 31, 1991; prejudgment interest on each rental payment due; the difference between the Partnership's rent and the Bank's rent from January 1, 1992, through July 31, 1995; tenant improvement expenses; and attorney fees.
The trial judge granted Erickson's motion and denied Seafirst's motion, and awarded attorney fees to Erickson. Seafirst timely appealed to this court.
JOINT LIABILITY
The parties agree that the effect on the liability of one joint obligor of a covenant not to sue given to another joint obligor is a question of first impression in Washington.[4] The parties also agree that Erickson's liability on the lease is joint, not joint and several.[5] The Washington version of the uniform partnership act expressly recognizes the distinction between joint and several liability.[6] Erickson urges that the release of one joint obligor releases the other joint obligors, citing J.E. Pinkham Lumber Co. v. Woodland State Bank[7] and Restatement (Second) of Torts.[8] Additionally, the *475 Restatement (Second) of Contracts affirms the longstanding common law rule, as follows:
(1) Except as stated in § 295, where the obligee of promises of the same performance discharges one promisor by release, rescission or accord and satisfaction,
(a) co-promisors who are bound only by a joint duty are discharged unless the discharged promisor is a surety for the co-promisor[.]
Restatement (Second) of Contracts § 294 (1981). We agree, but only when the release contains no reservation of rights against the other obligors. However, the issue before us is: when a creditor enters into a covenant not to sue with one joint obligor, which as a practical matter acts as a release, is the other joint obligor released as a matter of law?
[1] While the Washington Supreme Court has not expressly ruled on this issue, it has clearly indicated its view that a covenant not to sue as to one joint obligor will not release other joint obligors. Johnson v. Stewart, 1 Wn.2d 439, 96 P.2d 473 (1939). Although the underlying obligation in that case was joint and several, the following statements make the court's views clear:
The doctrine that one joint contract debtor is released from all obligations by the release of his co-debtor, even though the debt is not fully paid, is rather technical, and unless the interests of the unreleased debtor have somehow been prejudiced, is a principle which should not be extended.
Johnson v. Stewart, 1 Wn.2d at 450. The court went on to say:
We are convinced that the release which was filed herein, by its express terms, operated only to release the defendants Courtney from the judgment, and that the intent to limit the function of the release to this purpose clearly appears from the document itself.
....
We are in accord with the trend of modern authority, which tends to modify the strict common law rule by which joint contract obligors were often released from the burden of their contract by an inadvertent or ill advised release of one of their number. In connection with such questions as this, the modern rule that the intent of the parties, as expressed by their acts, and particularly by their writings, should receive a greater *476 measure of consideration in determining contract rights, is clearly expressed in standard texts and judicial decisions. This principle tends to accomplish just and equitable results to a greater extent than did the strict rule of the common law.
Johnson v. Stewart, supra at 452-53.
These statements, although technically dicta, gain added force because they were expressly approved 30 years later:[9]
Some years ago we drew a distinction between situations involving the release of one of many joint contract debtors as distinguished from those involving the release of one of several joint tort-feasors. In Johnson v. Stewart, 1 Wn.2d 439, 96 P.2d 473 (1939) we said:
The doctrine that one joint contract debtor is released from all obligations by the release of his codebtor, even though the debt is not fully paid, is rather technical, and unless the interests of the unreleased debtor have somehow been prejudiced, is a principle which should not be extended.
We declare that the intention of the parties should be the controlling factor and we still adhere to that theory.
United Pac. Ins. Co. v. Lundstrom, 77 Wn.2d 162, 168, 459 P.2d 930 (1969). Strong policy considerations support this view. Allowing the obligee to accept partial satisfaction promotes settlement, which the law strongly favors.[10] Indeed, if Erickson's view is correct, one recalcitrant obligor could force a trial regardless of the desires of the other parties. There is no unfairness to the nonsettling debtor. Prior to the settlement Erickson was liable for the full amount of the Partnership's obligation. Because the law does not sanction a double recovery, his obligation is discharged pro tanto by the amount of the settlement. Contrary to the tort rule,[11] any contribution rights Erickson may have are not eliminated.
*477 This is also the view taken by the Washington Partnership Law and Practice Handbook published by the Washington State Bar Association.[12] Finally, this is the view taken by the Restatement (Second) of Contracts.
While recognizing the common law rule that a release of one joint obligor releases the others, Restatement (Second) of Contracts enunciates the rule that a covenant not to sue does not release the other joint obligors.
(1) Where the obligee of promises of the same performance contracts not to sue one promisor, the other promisors are not discharged except to the extent required by the law of suretyship.
(2) Words which purport to release or discharge a promisor and also to reserve rights against other promisors of the same performance have the effect of a contract not to sue rather than a release or discharge.
(3) Any consideration received by the obligee for a contract not to sue one promisor discharges the duty of each other promisor of the same performance to the extent of the amount or value received.
Restatement (Second) of Contracts § 295 (1981), in part. The same rule is approved in 2 S. Williston, Contracts § 338 (3d ed. 1959):
Accordingly, such a covenant [not to sue] given to one joint obligor does not have the effect of a release: The debt is not discharged; and the other joint obligors remain bound.
The same effect is given to a release by the creditor which contains an express reservation of his rights against the other joint debtors.
(Footnotes omitted.) In consonance with the views stated by the Washington Supreme Court, we adopt section 295 of the Restatement as the applicable rule. The agreements involved here are covenants not to sue which expressly reserve rights against the other joint obligors. They fall squarely within section 295.[13]
*478 The trial court erred in granting summary judgment dismissing the suit as to Erickson and in denying Seafirst's motion for summary judgment insofar as liability is concerned.
DAMAGES
In the trial court, Seafirst moved for summary judgment as to liability and as to damages. The motion was denied and Seafirst has appealed. In the statement of issues pertaining to assignments of error, Seafirst did not identify the summary judgment denial of damages as an issue although it did proceed to argue the matter in the opening brief. Denials of summary judgment are rarely appealable,[14] particularly when factual issues as to damages are involved.
Because the issue may arise on remand, we note that the declaration of expert witness Rebecca Riesen is sufficient to generate material issues of fact as to the time it took to rent the premises, the reasonableness of the rent (particularly because Seafirst rented the space to its own general partner, Seattle-First National Bank), and the appropriateness and reasonableness of the leasehold improvements. Additionally, we note there may be an issue regarding an offset due to another law firm's partial occupancy of the premises for a short period of time.
REMAND
The court's summary judgment dismissing the case as to Erickson is reversed and the award of attorney fees based on that dismissal at the trial level is vacated. Seafirst, having substantially prevailed on appeal, is entitled to attorney fees pursuant to the terms of the lease. The matter is *479 remanded for trial on the issue of damages and an award of attorney fees for both trial and appeal to be established by the trial court.
GROSSE and BAKER, JJ., concur.
Reconsideration denied May 5, 1994.
Affirmed at 127 Wn.2d 355.
NOTES
[*] Judge Marshall Forrest was a member of the Court of Appeals at the time oral argument was heard on this matter. He is now serving as a judge pro tempore of the court pursuant to CAR 21(c).
[1] Erickson contends that the failure to name the individual partners as parties to the lease somehow prevents individual liability from attaching to the partners. The law does not support his position. RCW 25.04.150 provides that each partner is jointly liable for the partnership's contract liabilities, and each partner is bound by each other partner's actions on behalf of the partnership. Nuttal v. Dowell, 31 Wn. App. 98, 113, 639 P.2d 832, review denied, 97 Wn.2d 1015 (1982); Holman v. Coie, 11 Wn. App. 195, 201, 522 P.2d 515, 72 A.L.R.3d 1209, review denied, 84 Wn.2d 1011 (1974), cert. denied, 420 U.S. 984 (1975).
[2] The provision, in paragraph 51 of the Partnership lease, released Kargianis and Austin on August 1, 1990.
[3] The lease between Seafirst and Seattle-First National Bank provides:
"2.4 Condition of 47th Floor Space. Tenant hereby agrees to accept the 47th Floor Space in its existing condition on an `AS-IS, WHERE-IS' basis. Tenant acknowledges that Landlord has fulfilled all tenant improvement obligations with regard to the 47th Floor Space." Nor do any other provisions of the lease require improvements to the leasehold.
[4] We use obligor to denote an obligation arising from contract as distinct from tort.
[5] "All partners are liable:
"(1) Jointly and severally for everything chargeable to the partnership under RCW 25.04.130 [partner's wrongful act] and 25.04.140 [partner's breach of trust]; and
"(2) Jointly for all other debts and obligations of the partnership; but any partner may enter into a separate obligation to perform a partnership contract[.]" RCW 25.04.150(1), (2).
[6] See RCW 25.04.150.
[7] 156 Wash. 117, 286 P. 95 (1930).
[8] The Restatement (Second) of Contracts is the appropriate guide, not the Restatement (Second) of Torts.
[9] Again, the obligation at issue was joint and several so the language is technically dicta.
[10] Haller v. Wallis, 89 Wn.2d 539, 544, 573 P.2d 1302 (1978); Stottlemyre v. Reed, 35 Wn. App. 169, 173, 665 P.2d 1383, review denied, 100 Wn.2d 1015 (1983).
[11] RCW 4.22.040.
[12] See Washington State Bar Ass'n, Partnership Law and Practice Handbook § 5.4.5 (1984).
[13] We note that as to George Kargianis and Russell A. Austin, liability is terminated by the terms of the lease after the first 5 years. Pursuant to such provision the court entered summary judgment orders of dismissal prior to the execution of the covenant not to sue. That was not the case as to partners Wolf and Dougherty. Erickson did not argue to the trial court or in his briefs to this court that this circumstance affects the validity of the covenant not to sue or Erickson's liability on the lease. Accordingly, we do not address the issue. However, nothing in the record suggests that these facts would require a different result.
[14] RAP 2.2(a); Sea-Pac Co. v. United Food & Comm'l Workers Local Union 44, 103 Wn.2d 800, 801-02, 699 P.2d 217 (1985). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1737901/ | 548 So. 2d 920 (1989)
STATE of Louisiana
v.
Dewayne E. ARNOLD.
No. 88-K-2603.
Supreme Court of Louisiana.
September 12, 1989.
*921 William J. Guste, Jr., Atty. Gen., James Norris, Jr., Dist. Atty., Kathy McCoy, Asst. Dist. Atty., for applicant.
Elijah Young, for respondent.
COLE, Justice.
Defendant Dewayne Arnold was found guilty by a jury of attempted aggravated rape, aggravated crime against nature, attempted second degree murder and aggravated kidnapping. He was sentenced to twenty years at hard labor for the attempted aggravated rape, fifteen years at hard labor for the aggravated crime against nature, twenty years at hard labor for the attempted second degree murder, and life imprisonment for the aggravated kidnapping. The sentences were ordered served without the benefit of probation, parole or suspension, and all the sentences were to be served concurrently, except for the aggravated kidnapping sentence, which was to be served consecutively to the others.
Defendant appealed, arguing the evidence did not support his conviction for aggravated kidnapping and further contending that his sentence was excessive. The court of appeal found the evidence insufficient to support a conviction for aggravated kidnapping. However, the court found the evidence supported a conviction for simple kidnapping and remanded for resentencing. The court affirmed all other convictions and sentences. 535 So. 2d 937 (La.App. 2d Cir.1988).
We granted the state's application for writs in order to consider the correctness of this decision. 538 So. 2d 580 (La.1989). For the reasons hereafter set forth, we affirm in part and reverse in part.
FACTS
In the early evening hours of February 24, 1987, defendant approached the twenty year old female victim in a grocery store parking lot in Monroe, Louisiana. As the victim attempted to unlock the door of her truck, defendant grabbed her by the hair, ordered her into the truck and got in on the driver's side. The victim attempted to exit from the passenger door, but defendant pulled her back by the hair and warned her not to try to escape again. Defendant continued to hold the victim by the hair, and ordered her to lean down on the seat so no one would see her. As defendant drove away from the parking lot the victim cried out for help, but to no avail. The victim asked defendant why he had kidnapped her, and he replied that he was taking her to a drug dealer who would apparently not sell to defendant, but who would sell to women. When the victim again asked why defendant would not let her go, he responded "he was just in town for a few days and he wanted to have some fun." During the entire drive, defendant held a knife on the victim and told her if she "didn't do what he said, he would use the knife."
Defendant stopped in the parking lot of a nearby apartment complex and ordered the victim to remove her pants and underwear. Upon seeing another vehicle enter the parking lot, defendant started the truck, drove a short distance down the street, then returned to the parking lot. Defendant attempted three times to vaginally rape the *922 victim, but was unable to achieve penetration. Then, defendant made the victim perform fellatio on him, threatening her with the knife if she bit or hurt him and coercing her performance by keeping the knife against her body and scratching her buttocks with it. After completion of the act, defendant wiped out the interior of the truck with a towel in an apparent effort to remove fingerprints. Defendant stuck the towel in the victim's mouth and told her to leave the truck. However, as she attempted to leave, defendant grabbed her hair, pulled her sideways and stabbed her in the neck. Although bleeding profusely, the victim managed to pull the knife from her neck and began struggling with defendant. Defendant finally threw her from the truck, and she ran toward the nearby apartment complex.
The victim was taken by ambulance to a hospital, where she gave police a description of defendant. Residents of the apartment complex who witnessed the struggle corroborated her description. Defendant was apprehended shortly thereafter as he walked back to the grocery store parking lot to retrieve his car.
ISSUE
The legal issue before us is whether a person who forcibly seizes and carries away another person with intent to rape her can be found guilty of aggravated kidnapping, where there is no explicit communication by the kidnapper to the victim that she will only be released if she complies with his demands for sexual gratification, but the circumstances are such that a reasonable person would implicitly understand submission is the price for safe release.
ANALYSIS
La.R.S. 14:44 provides:
Aggravated kidnapping is the doing of any of the following acts with the intent thereby to force the victim, or some other person, to give up anything of apparent present or prospective value, or to grant any advantage or immunity, in order to secure a release of the person under the offender's actual or apparent control:
(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person.
Whoever commits the crime of aggravated kidnapping shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.
The present definition of aggravated kidnapping evolved from an early law first enacted in 1855. At that time, kidnapping was not necessarily classified as a felony and was limited to unlawful confinement and transportation of "any free person" out of the state or from one part of the state to another. The statute was in accord with the common law, which had classified kidnapping as a misdeameanor and limited the offense to unlawful confinement and transportation of another out of the country and beyond the protection of its laws. Following the Civil War, the statute was changed to read "any person," but otherwise remained the same. The statute was substantially altered in 1910 to prohibit the forcible taking of children under age fourteen (male) or twelve (female). The penalty was increased from a maximum of five years to a mandatory penalty of death. In 1914, the penalty was reduced to a maximum of twenty years. By 1932, the statute was extended to cover the forcible seizing and carrying of "any person or persons," although the penalty remained the same. After the nationwide furor surrounding the kidnapping of the Lindberg baby in 1932, the legislature in 1938 again increased the penalty to death. In 1942, the legislature enacted the crime of aggravated kidnapping and provided for a penalty of death. This statute, unlike previous kidnapping statutes, embodied an intent requirement on the part of the kidnapper. The reporter's comments to the article noted this change:
*923 Louisiana statute comparedintent to extort:
The former Louisiana kidnapping statute provides for the death penalty and apparently applies to all cases, regardless of the kidnapper's intent. The aggravated kidnapping article also carries the death penalty, but is limited to cases of kidnapping for ransom (with intent to extort). Other kidnappings will be punishable as simple kidnapping. [Citations omitted].
Thus, from its inception, the critical distinction between the crime of aggravated kidnapping and the crime of simple kidnapping is the kidnapper's intent to extort. The elements of aggravated kidnapping have remained essentially unchanged since 1942, although the statute was amended in 1980 to eliminate the death penalty and make the penalty a mandatory life sentence.
A careful analysis of the present statute shows the elements of aggravated kidnapping to be:
1. The forcible seizing and;
2. the carrying of any person from one place to another (the asportation element);
3. with the intent to force the victim, or some other person, to give up anything of apparent present or prospective value (the extortion element);
4. in order to secure the release of that person.
There is no question the first element was met, i.e., the victim was forcibly seized. She was grabbed in the parking lot of a grocery store, forced inside her truck, and threatened with a knife if she resisted. Likewise, the second element was satisfied since defendant drove the victim from one parking lot to another in an attempt to isolate her from passersby.
The third element is also met since under our decisions, the seizure of the victim with intent to commit rape constitutes intent to force her to give up something of "apparent present or prospective value." State v. Rault, 445 So. 2d 1203 (La.1984), cert. denied, Rault v. Louisiana, 469 U.S. 873, 105 S. Ct. 225, 83 L. Ed. 2d 154 (1984); State v. Winn, 412 So. 2d 1337 (La.1982); State v. Sonnier, 402 So. 2d 650 (La.1981), cert. denied, Sonnier v. Louisiana, 463 U.S. 1229, 103 S. Ct. 3571, 77 L. Ed. 2d 1412 (1983).
The court of appeal apparently agreed these first three elements were satisfied but had difficulty with the fourth element, since it found "no evidence in this record which shows that defendant forced the victim to engage in sexual intercourse `in order to secure [her] release....'" 535 So.2d at 940. We disagree. From our review of the record, we conclude the clear implication of defendant's behavior is that the victim would be released safely only if she acceded to defendant's demand for sexual gratification.
Defendant would have this court expand the fourth element and require the state to prove, either directly or circumstantially, that he explicitly communicated to the victim his intent to release her once he was in receipt of ransom (i.e., sexual gratification). A review of the history of the statute and our jurisprudence reveals such a requirement has never been part of the law of aggravated kidnapping. Rather, all the law has required is evidence of defendant's intent to extort something of value by playing upon the victim's hope of release. In State v. Polk, 376 So. 2d 151 (La.1979), Justice Tate observed:
The kidnapping is classified as "aggravated," La.R.S. 14:44, rather than as far less serious "simple kidnapping," La.R.S. 14:45, solely because the seizure and asportation of the victim was made with the intent to rape her"to force the victim... to give up anything of apparent present or prospective value" (i.e., the offender's sexual gratification), La.R.S. 14:44; for the intent to extort is the essential difference between the two crimes.
376 So.2d at 152 n. 1 (emphasis added).
It is noteworthy that Justice Tate omitted any mention of explicit communication by the kidnapper to his victim that she would be released only after payment of ransom. Instead, he focused on the requisite intent to obtain something of value *924 through the advantage of the victim's fear and isolation, for it is this advantage which is at the heart of the offense of kidnapping. Similarly, if explicit communication were essential to the crime of aggravated kidnapping, it is highly unlikely we would have omitted discussion of it from our statement of the law in State v. Winn, supra, and State v. Rault, supra.
Winn, supra, involved a defendant who kidnapped his victim at gunpoint from a church, led her into the woods and raped her. The Winn defendant, much like the defendant in the present case, told his victim he would not kill her as long as she cooperated with him, but apparently did not communicate to her that she would only be released after complying with his demand for sexual gratification. This court found the evidence was sufficient to convict defendant of aggravated kidnapping.
Rault, supra, involved the review of a death penalty conviction of a defendant who kidnapped, raped and murdered his victim. Witnesses testified they heard the victim screaming defendant was going to rape her, but there was no evidence defendant explicitly communicated to the victim she would only be released upon submitting to him. In reviewing the aggravated kidnapping conviction, we concentrated on the defendant's intent:
In regard to aggravated kidnapping, the only possible hypothesis of innocence, given the clear proof of forcible abduction, is that defendant had no intent to force the victim to cede some property, i.e., sexual intercourse, to secure her release. In other words, when Rault abducted the victim from the parking lot, he had no intent to rape her, only to kill her. This hypothesis is negated by the victim's words as she was being forced into the car.
445 So.2d at 1213.
We did not require evidence of explicit communication by the kidnapper to his victim. Instead, we properly focused on defendant's intent, concluding that under these circumstances, a reasonable person would know the price of safe release was submission, and defendant intended to play upon this hope of release.
Therefore, a study of the applicable jurisprudence clearly shows the relevant factor in applying the fourth element of aggravated kidnapping is not whether the kidnapper explicitly communicated to the victim that performance of sexual acts would result in his or her release, but whether the kidnapper intended to extort sexual gratification from the victim by playing upon the victim's hope for release. This intent is manifested not merely by the kidnapper's words or actions, but by analyzing whether a reasonable person in the victim's place, given the totality of the circumstances, would believe that he or she would not be safely released unless he or she complied with the kidnapper's demands for sexual gratification. Clearly, any reasonable person who was forcibly seized, brought to a remote location, held at knifepoint and threatened in no uncertain terms with the use of that weapon, would comply with the abductor's demands in the hope of securing a safe release. Defendant's threat to the victim that he would "use the knife" if she did not do what he ordered plainly manifested his intent to force her to give in to his sexual demands with the hope of securing her safe release. Requiring additional evidence that defendant expressly announced to the victim she would not be released unless she complied with his demands is overly technical and unnecessary within the parameters of La.R.S. 14:44.
Furthermore, such a requirement could potentially give kidnappers an incentive to kill their victims. Given the nature of the crime of kidnapping, the only potential witness is often the victim. If we were to adopt the explicit communication requirement advocated by defendant, the kidnapper who slays his victim would stand little chance of being convicted of aggravated kidnapping, since the only person who could testify about communication would be dead. Meanwhile, a less culpable defendant who verbally promises to release his victim once she complies with his demands and actually does so would be subject to prosecution for aggravated kidnapping *925 based on the victim's testimony. By looking to the victim's perception of what he or she must do in order to survive, we avoid such an anomalous result.
Thus, the crucial question in determining whether an aggravated kidnapping has occurred is not whether the defendant had intent to release the victim at either the outset of the crime or indeed at any point during the crime. The more important question and the issue to be focused upon is whether the defendant sought to obtain something of value, be it sex or money or loss of simple human dignity, by playing upon the victim's fear and hope of eventual release in order to gain compliance with his demands.
After reviewing the evidence in the light most favorable to the prosecution, we believe any rational trier of fact could have found the essential elements of the crime of aggravated kidnapping were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Accordingly, we believe the court of appeal erred in finding otherwise and setting aside the conviction for aggravated kidnapping.
DECREE
For the reasons assigned, the judgment of the court of appeal is reversed insofar as it sets aside defendant's conviction for aggravated kidnapping and remands for resentencing for simple kidnapping. Defendant's conviction for aggravated kidnapping is reinstated. In all other respects, the decision of the court of appeal is affirmed.
AFFIRMED IN PART, REVERSED IN PART.
LEMMON, J., concurs and assigns reasons.
CALOGERO, J., concurs in part, dissents in part and assigns reasons.
LEMMON, Justice, concurring.
The court of appeal reversed the aggravated kidnapping conviction because the evidence was insufficient for a rational juror to conclude beyond a reasonable doubt that "defendant evidenced any intent, or promise, to release the victim if she either purchased drugs for him or had sex with him". I agree with the majority of this court that the record does support the intent element required for an aggravated kidnapping conviction.
The intent element for the crime of aggravated kidnapping in this case involves an examination of the facts and circumstances surrounding defendant's words and conduct to determine whether he intended to force the victim to give up something of value in order to secure her release.[1] It was not necessary for the prosecutor to prove by direct evidence that defendant promised the victim he would release her safely if she paid him ransom in the form of sex acts. Proof of defendant's threat to use the knife unless she acted as directed, followed immediately by his moving her to an isolated location and making knifepoint demands for sex, was circumstantial evidence which carried the unmistakable implication of his intent at the time of abduction to force the victim to give up something of value (sex acts) in order to obtain her release.[2] The direct and circumstantial evidence, *926 viewed in the light most favorable to the prosecution, was sufficient for a rational trier of fact to find beyond a reasonable doubt all of the essential elements of the crime, including the requisite intent. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
The fact that defendant stabbed the victim as she was getting out of the truck may tend to suggest that he never intended to release her unharmed. However, the critical focus should be on whether the kidnapper intended, at the time of abduction, to force the victim to give up something of value in order to obtain her release, and not on whether the kidnapper actually intended to release the victim after she gave up something of value. Indeed, a kidnap victim's success in obtaining a safe release after payment of ransom may be the exception rather than the rule, and this factor certainly bears little significance on the determination of the kidnapper's intent at the time of abduction to force the victim to give up something of value in order to obtain her release.
Furthermore, the kidnapper's conduct in this type of case constituted a separate and distinct crime that was not merely incidental to the underlying forcible rape attempt. See Model Penal Code, § 212.1 (1980). Defendant probably could not have accomplished the rape of the victim in the supermarket parking lot where customers and security officers were likely to be alerted to the crime.[3] The forcible seizure and movement of the victim was necessary to significantly lessen the risk of detection and to facilitate defendant's commission of the intended sexual felony (which he demanded implicitly in return for her safe release) and his escape thereafter. The carrying of the victim from the place of abduction to a more secluded location also significantly increased the risk that the victim would not be released unharmed.[4] These considerations warrant the conclusion that the seizure and removal of the victim "from the protection of law and assistance of friends" was conduct "sufficiently important to be punished as a distinct criminological wrong". Model Penal Code, supra, at 224.
CALOGERO, Justice (concurring in part and dissenting in part).
I dissent in part because I agree with the opinion of the court of appeal that there was insufficient evidence, all of which was circumstantial, to prove under the Jackson v. Virginia standard that Defendant had the intent "to force the victim, or some other person, to give up anything of ... value ... in order to secure a release ..." (Emphasis provided.) La.R.S. 14:44. The court of appeal was correct in determining that there was "nothing in the record to support the conclusion that defendant evidenced any intent, or promised, to release the victim if she either purchased drugs for him or had sex with him." State v. Arnold, 535 So. 2d 937, 940 (La.App. 2d Cir. 1988).
I also point out that the majority opinion misstates the position of the Defendant and the position taken by this dissenter in an earlier circulated opinion (which obviously did not secure sufficient votes), when he suggests that we would require an explicit communication by a kidnapper to a victim that the victim will only be released if she *927 complies with the demands of her abductor, in this case, sexual gratification.
This writer does state that an express statement by the defendant consistent with the requisite statutory intent would be the best evidence. However, such an express statement is obviously not the only type of satisfactory evidence. Rather, any adequate circumstantial evidence will do. I submit that some relevant factors which might be considered in ascertaining a defendant's intent are these:
1. Was the victim made to understand that submitting would secure her release?
2. Were the defendant's actions following the victim's submission consistent with a defendant's outset intent to release the victim upon "payment"?
3. Were the circumstances surrounding the abduction consistent with the aggravated kidnapping (an abduction for ransom, or an abduction coupled with extortion)? Or were the circumstances merely incidental to the commission of a forcible felony like aggravated rape, for instance, sexual intercourse where the victim is prevented from resisting because the defendant is armed with a dangerous weapon.
These factors do not depend on an express statement by the perpetrator.
The critical issue which must be determined is the defendant's intent at the time of the abduction to force the victim to give up sex in the hope of securing release. There is insufficient evidence to show that the defendant had such intent. Defendant never told the victim that she would be released if she submitted, nor did his actions convey an intent to release her following his gratification, for instead of releasing her, defendant attempted to kill her by stabbing her in the neck. Therefore, neither defendant's explicit statements to the victim, nor his actions showed an intent on his part to obtain something of value in exchange for her release. Furthermore, there was no evidence that the victim believed that submission was the price for her release, but rather, that submission was the price for avoiding harm.
The fault with the majority's assessment is their minimizing or disregarding the essential element of a defendant's intent to force the surrender of a thing of value in order to secure the release of the victim. There are, admittedly, two cases where that element was not discussed. See, State v. Winn, 412 So. 2d 1337 (La.1982) and State v. Rault, 445 So. 2d 1203 (La.1984). Both cases correctly stated that seizure of a person with intent to commit rape satisfies the requirement that the perpetrator has the intent to force the victim to give up "anything of apparent present or prospective value," (Winn, 412 So.2d at 1348 and Rault, 445 So.2d at 1213), for this court has determined that sexual gratification constitutes something of apparent value for the purposes of aggravating kidnapping. State v. Dupre, 369 So. 2d 1303 (La. 1979). However, ransom, or payment in return for release, is distinctly mentioned as a requirement in Dupre, and sex as ransom is what distinguishes aggravated kidnapping from other offenses where sex is forced from the victim.
Furthermore, both of these cases cited State v. Sonnier, 379 So. 2d 1336 (La.1979), a case in which the victim was told by the assailants that she would be released if she submitted to their sexual desires.[1] Simply because Rault and Winn do not discuss the ransom element, should not lead us to interpret them as holding that "seizure of a person with the intent to commit rape," without more, sufficiently establishes the crime of aggravated kidnapping. Ransom *928 is an essential element under the statute and the jurisprudence.[2]
Determination of the defendant's intent in this regard is admittedly often difficult. We have found the critical ransom element unsupported by the evidence in other cases, basically through a facts and circumstances analysis. State v. English, 367 So. 2d 815, appendix at 823 (La.1979); State v. Moore, 432 So. 2d 209, 225 (La.1983); State v. Brooks, 505 So. 2d 714 (La.1987); State v. Johnson, 541 So. 2d 818 (La.1989).[3]
In this case, although defendant used a knife at the point of abduction and during the sexual offenses, such conduct was consistent with the sexual offenses committed by him. A circumstance of both attempted aggravated rape and aggravated crime against nature is that the victim is prevented from resisting "because the offender is armed with a dangerous weapon." La.R.S. 14:42(A)(3); La.R.S. 14:89.1(A)(3).[4] There was little or no evidence, or even plausible inferences from the evidence, that defendant intended to force sex from the victim by leading the victim to understand that submission would be the price of release. There was merely defendant's use of the knife to prevent resistance to sex and the implication that if the victim did not resist she would not be harmed. Specifically, defendant told the victim at the point of abduction that "he would use the knife if she did not do what he said" and then that he *929 would use the knife if she "tried to bite him" during fellatio. The direct and circumstantial evidence surrounding the abduction and asportation of the victim, and the knife threats and subsequent sexual offenses perpetrated against the victim, could not have satisfied a rational juror that defendant intended to have the victim pay a price (sex) for her release, rather than that defendant simply intended to prevent resistance to his sexual advances because he was "armed with a dangerous weapon." La.R.S. 14:42(A)(3); La.R.S. 14:89.1(A)(3).[5] The state's purely circumstantial case does not exclude every reasonable hypothesis of innocence.
The majority focuses entirely on the purported fear of the victim, rather than the intent of the defendant. The opinion states that any reasonable person in the victim's place would implicitly understand that submission to the defendant's demands is the price for securing a safe release; therefore, they conclude that the requisite element of aggravated kidnapping is met. This, however, is not in accordance with the requirements of the aggravated kidnapping statute, which requires an intent by the abductor "to force the victim ... to give up anything of ... value ... in order to secure a release ..."
It is the defendant's intent at the time of "abduction"[6] to have the victim or another give up something of value, on the latter's assumption that such "payment" will effect the release of the victim, that distinguishes aggravated kidnapping from simple kidnapping. Whether or not the victim or third person complies with the demand is irrelevant.
On the other hand, understanding by the victim or other person, that "payment" will likely secure release, is a relevant fact which lends support to the state's proof of the all important and essential (perpetrator's) intent.
To support a conviction of aggravated kidnapping in this case, the prosecution had to prove, in addition to the asportation element (movement of the victim), that the intent of the defendant, at the time of abduction, was to force the victim to give up something of value (sex) in order to secure her release. This the state failed to do. They failed to prove beyond a reasonable doubt that the defendant in any manner conveyed an intent to release the victim following the fulfillment of his demands. Defendant did not do this by his actions, nor did he do so expressly.
The court of appeal properly concluded that the evidence presented in this case was insufficient to support a conviction for aggravated kidnapping. The evidence does, however, support a conviction of simple kidnapping, a lesser included offense of aggravated kidnapping. As the court of appeal found, there was ample proof that defendant committed a simple kidnapping, i.e., he forcibly and intentionally seized and carried the victim from one place to another without her consent (La.R.S. 14:45).
For these reasons, I would affirm the defendant's convictions for attempted aggravated rape, aggravated crime against nature, and attempted second degree murder and the sentences imposed by the court of appeal for these offenses, but would *930 reduce the aggravated kidnapping to simple kidnapping and remand for resentencing. For these reasons, I concur in the majority's affirmance of the convictions for attempted aggravated rape, aggravated crime against nature, and attempted second degree murder, but dissent from the conviction of aggravated kidnapping and the sentence imposed.
NOTES
[1] The Louisiana Legislature has not followed the lead of other states in broadening the definition of aggravated kidnapping to include motives other than ransom (such as facilitating the commission of a crime). See the model kidnapping statute in Model Penal Code, § 212.1 (1980), which provides in part:
A person is guilty of kidnapping if he unlawfully removes an other from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period in a place of isolation, with any of the following purposes:
(a) to hold for ransom or reward, or as a shield or hostage; or
(b) to facilitate commission of any felony or flight thereafter; or
(c) to inflict bodily injury on or to terrorize the victim or another; or
d) to interfere with the performance of any governmental or political function. (emphasis added).
[2] When defendant forcibly abducted the victim at knifepoint, telling her he would use the knife if she did not do as she was told, any reasonable person in the victim's position might have believed that defendant would not use the knife and would release her if she complied with his demands. Defendant's movement of the victim from the place of abduction, combined with his demand for sexual acts with the knife at the victim's back immediately upon arriving at a safer location, constituted sufficient evidence that defendant intended, at the time of the abduction, to force the victim to give up something of value (sex acts) in order to secure her release.
[3] Had the kidnapper confronted the victim in an isolated area, the same use of force would have been necessary to overcome the victim's resistance, but seizure and movement of the victim would not have been required. A victim can protect herself from such rape attacks by avoiding isolated areas while traveling alone. This victim was in a supermarket parking lot during store hours, and a kidnapping was necessary to remove her to an isolated area.
[4] A robber's moving a victim at knifepoint from one room to another for the purpose of opening a safe arguably should not be punished as a kidnapping. This case does not present such an insignificant movement or difference in risk.
[1] Winn cites State v. Sonnier, 379 So. 2d 1336 (La.1979), as authority for its holding. In Sonnier, this court held that "there was sufficient evidence that the defendant and his brother abducted the couple with the intention of forcing the female victim to engage in sexual relations in order to secure the couple's safe release." On other grounds, this court ordered a new sentencing hearing. Sonnier was again sentenced to death. Rault cites this court's review of Sonnier's second death sentence, 402 So. 2d 650 (La.1980), wherein this court again found the commission of an aggravated kidnapping, in an opinion which did not mention the ransom element (obviously an unintentional omission).
[2] The majority's reliance on Justice Tate's opinion in Polk, supra, is also misplaced. This case dealt with a defendant's entitlement to bail when charged with aggravated rape and aggravated kidnapping. At that time, aggravated kidnapping was still legislatively defined as a capital crime even though the U.S. Supreme Court held the death penalty was unconstitutional in such instances. The case considered whether the legislative definition still governed the entitlement to bail even though the death penalty could not be imposed, or whether the Supreme Court's ruling required a reclassification of the crime on the bail issue as well. The Court did not rule on the elements of aggravated kidnapping.
[3] In State v. English, supra, this court found that the extinction of a debt by killing the creditor was arguably the gaining of something of value under La.R.S. 14:44, but held that there was no aggravated kidnapping because there was no evidence that defendant intended to condition the release of the victim upon the payment of ransom. In State v. Moore, supra, this court determined that although the evidence established that a murder victim was deprived of his valuables, there was no evidence in the record from which any rational trier of fact could have concluded that the victim was deprived of his valuables in exchange for his release or promise of release. In State v. Brooks, supra, this court determined that although a victim was bound, driven to a remote location, raped, then killed, the existence of an aggravated kidnapping was "equivocal" and "may well have been insufficient" because there was no evidence that defendant intended by that conduct to force the victim or some other person to give up anything of value as a condition of release. Lastly, in State v. Johnson, supra, this court found that the evidence was insufficient to support a jury finding that defendant killed the victim during the perpetration of an aggravated kidnapping where defendant tied up the victim, took her to a remote location, then killed her, because there was no evidence that defendant desired to prevent the victim from testifying against him (a thing of value) as a condition for her release.
[4] There exists an interesting debate in the legal literature, over the wisdom of punishing with the severe penalties associated with aggravated/first degree kidnappings, conduct which is essentially no more than an aggravated rape or armed robbery. Because there is usually a certain amount of movement of the victim and an element of extortion, coupled with use of a weapon in the commission of a rape or robbery, the conduct of the perpetrator can easily fall into the general language of most kidnapping statutes. The Model Penal Code advocates a restricted interpretation of kidnapping statutes in order to avoid "abusive prosecution" for kidnapping conduct which is a "criminologically insignificant circumstance" in the course of committing a rape or robbery. § 212.1, Comment (Ten. Draft No. 11, 1960). Prosecution for kidnapping in rape/robbery situations has been used as a means of securing a death sentence or life imprisonment for behavior which is essentially only a rape/robbery in jurisdictions where the offenses of rape/robbery are not subject to these more severe penalties. Id. Some commentators urge that aggravated kidnapping should be limited to those circumstances giving rise to a "distinct criminological wrong." Id. This has been defined as cases where the seizure and removal of the victim "from the protection of law and assistance of friends (is) sufficiently important to be punished as a distinct criminological wrong." Id.
In this case, we need not join the debate referred to in the paragraph above. The sufficiency of evidence in support of the defendant's intent concerning the element of ransom should be the primary concern.
[5] In a different scenario a defendant with sexual gratification as his motive might commit both aggravated rape and aggravated kidnapping. For instance, in State v. Dickinson, 370 So. 2d 557 (La.1979), the same two defendants were convicted of having committed distinct aggravated kidnappings (one year apart), a single victim on each occasion. In each case, the victim was abducted at knife point in Baton Rouge and taken to Baker, La. Each was isolated in a darkened apartment for several hours, raped, then released. In this case, a rational trier of fact could have found that the defendants' outset intent was to extract sexual submission as a price of release. The circumstances surrounding the abduction (i.e., the substantial distance the victim was taken and the length of detention) were consistent with an aggravated kidnapping, as opposed to merely being incidental to the commission of aggravated rape. Also, the defendants' actions following each victim's submission were consistent with an intent to release each victim upon obtaining sexual gratification (i.e., each was transported back to the city of her abduction and released.)
[6] By "abduction," I refer to any of the three acts in La.R.S. 14:44, which are: (1), forcible seizing and carrying of a person from one place to another; or (2), enticing or persuading any person to go from one place to another; or (3), imprisoning or forcibly secreting any person. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1903419/ | 873 A.2d 1099 (2005)
CAHALL v. THOMAS
No. 350, 2004.
Supreme Court of Delaware.
May 16, 2005.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609908/ | 866 P.2d 286 (1993)
Vickie CHASTAIN, as Guardian Ad Litem for Jennifer Chastain, a Minor, Vickie Chastain in her Individual Capacity and Raymond Chastain, in his Individual Capacity, Appellants,
v.
CLARK COUNTY SCHOOL DISTRICT, a Political Subdivision of the State of Nevada, Respondent.
No. 23620.
Supreme Court of Nevada.
December 30, 1993.
*287 A. Bryce Dixon, Las Vegas, for appellants.
Donald H. Haight, Gen. Counsel, Clark County School Dist., Las Vegas, for respondent.
OPINION
YOUNG, Justice.
FACTS
On a hot September day in 1988, Jennifer Chastain ("Jennifer"), a student at the Clark County School District's ("CCSD") Booker Sixth Grade Center ("Booker"), played kick-ball with her P.E. class. Several students complained of the heat. While Jennifer's team was up to kick, Mrs. Flanagan ("Flanagan"), Jennifer's P.E. teacher, told Jennifer to sit in the shade of a nearby tree.
Jennifer sat in the shade of the tree on a block wall surrounding Booker's sandbox. The bottom of this sandbox is concrete. One of Jennifer's friends pushed Jennifer off the wall into the sandbox. Rather than land on a pile of soft sand, Jennifer landed on a hard object, apparently either a broken bottle or the wall's concrete footing. As a result, Jennifer suffered spondylolisthesis which caused paralyzing pain and eventually required surgery.
Jennifer's mother, Vickie, spoke with Jane Wisdom ("Wisdom"), Booker's principal, who told Vickie that she had ordered sand for the sandbox at least five times. Vickie also spoke with Flanagan, who told Vickie that there was a constant problem with broken bottles in the sandbox. Flanagan stated in a deposition that Booker is used as a park and that debris is often found in the sandbox.
Jennifer filed suit, alleging that CCSD was negligent in allowing the broken bottles to remain in the sandbox and for failing to keep an adequate amount of sand in the sandbox. The complaint also alleges negligent supervision.
CCSD filed a motion for summary judgment. CCSD argued that an exception to the legislature's waiver of sovereign immunityNRS 41.033barred Jennifer's action because CCSD had no notice of the alleged hazardous conditions prior to the accident.
In opposing summary judgment, Jennifer argued that CCSD did have knowledge of the lack of sand in the sandbox as evidenced by Wisdom's statement that she had ordered sand at least five times. Jennifer introduced pictures depicting the sandbox with a dearth of sand and with the wall's concrete footings clearly exposed. Further, Jennifer, relying on the fact that the custodian searched for and removed debris from the area on a daily basis, argued that CCSD had knowledge of the bottles in the sandbox.
During the hearing on CCSD's summary judgment motion, the district court perceived two questions in issue. The first was whether CCSD had express knowledge of the presence of the hazardous conditions. The second was whether CCSD acknowledged that the conditions were in fact hazardous. CCSD argued that it did not have express knowledge that a sandbox low on sand constituted a hazard. CCSD also argued that it had nothing more than constructive notice with regard to the presence of the bottles.
Jennifer argued that the issue of whether CCSD acknowledged a lack of sand as a hazardous condition was not a requirement. If it were, argued Jennifer, CCSD and others similarly situated could avoid liability by simply denying that a condition is hazardous. Jennifer argued that the question of whether the condition was hazardous was a question for the jury. The district court, relying on our recent decision in Nardozzi v. Clark Co. School Dist., 108 Nev. 7, 823 P.2d 285 (1992), disagreed:
[U]nder Nardozzi ... and under [NRS 41.033], the school district must have actual knowledge of the condition.
I also believe that [Nardozzi] stands for the principal [sic] [that] not only must [CCSD] have actual knowledge of the condition but [CCSD must] acknowledge it as a hazardous or dangerous condition....
Accordingly, the district court granted CCSD's motion for summary judgment, but stayed entry of the judgment for thirty days, purportedly to allow Jennifer to amend her complaint with regard to her negligent supervision *288 claim. Jennifer did not amend her complaint and now appeals.
DISCUSSION
CCSD successfully argued that NRS 41.033, as interpreted by Nardozzi, 108 Nev. at 7, 823 P.2d at 285, precluded Jennifer's action. Thus, we turn our attention to the applicability of NRS 41.033.[1]
I. NRS 41.033
A reading of NRS 41.033 reveals that it was designed to provide governmental agencies immunity for: (1) failing to inspect, whether or not a duty to inspect exists; or (2) failing to discover a hazard, whether or not an inspection is performed. As indicated by Nardozzi, NRS 41.033 does not provide immunity to the public entity if that entity fails to take reasonable action once it gains express knowledge of the hazard. Nardozzi, 108 Nev. at 9, 823 P.2d at 287 (citing Lotter v. Clark Co. Bd. of Commissioners, 106 Nev. 366, 793 P.2d 1320 (1990)); County of Clark v. Powers, 96 Nev. 497, 611 P.2d 1072 (1980); Crucil v. Carson City, 95 Nev. 583, 600 P.2d 216 (1979).
In Nardozzi, the appellant broke her ankle after slipping at a CCSD school. Nardozzi sued CCSD, alleging that CCSD was negligent for failing to keep the floor dry on a rainy day. CCSD denied any knowledge of the hazardous condition and claimed total immunity under NRS 41.033. The district court granted summary judgment in favor of CCSD. Nardozzi, 108 Nev. at 8, 823 P.2d at 286.
On appeal, Nardozzi argued that CCSD had implied knowledge of the existence of the hazard. This court affirmed the district court's ruling, stating that "the express knowledge exception to NRS 41.033 has not been extended to include situations in which the government had only implied knowledge of the condition." Nardozzi, 108 Nev. at 10, 823 P.2d at 287.
The query in the instant case, then, is whether or not CCSD had express knowledge of the existence of the hazardous conditions, i.e., the sandbox low on sand and the broken bottles therein.
A. Whether CCSD had express knowledge of the broken bottles in the sandbox.
CCSD had knowledge that bottles and other debris were frequent hazards in the sandbox. Flanagan told Vickie that the custodian customarily looked for such debris three times a day. However, neither the custodian, Wisdom, nor Flanagan admitted to having seen bottles in the sandbox the day Jennifer was injured.
This case is very similar to our recent decision in Sprague v. Lucky Stores, Inc., 109 Nev. 247, 849 P.2d 320 (1993). Sprague became injured after slipping on a grape in the produce department of a store owned by Lucky. Lucky had actual notice that its produce department often had debris on its floor. Sprague, however, could not show that Lucky had actual knowledge that the grape on which Sprague slipped was on the floor. Therefore, Sprague had to offer proof that Lucky had constructive notice of the hazardous condition of its produce department. Id. at 249, 849 P.2d at 323.
This court concluded that whether Lucky had constructive notice of the hazardous condition was a jury question.
[A] reasonable jury could have found that Lucky knew that produce was frequently on the floor, that this produce created a hazard to shoppers, and that sweeping the floor could not wholly keep the floor free of debris. A reasonable jury could have determined that the virtually continual debris on the produce department floor put *289 Lucky on constructive notice that, at any time, a hazardous condition might exist which would result in an injury to Lucky customers.
Id. at 251, 849 P.2d at 323 (emphasis added).
Except for the applicability of NRS 41.033, the instant situation is virtually identical to Sprague. There is no evidence that CCSD had express knowledge of the bottles in the sandbox the day Jennifer was hurt. It can only be said that CCSD had constructive notice of the hazard. Since NRS 41.033 bars suit unless the public entity has express knowledge of the existence of a hazardous condition, NRS 41.033 precludes Jennifer's action insofar as her falling on a bottle may have caused her injury. Unlike in Sprague, constructive notice will not do. Thus, we conclude that with regard to the existence of bottles in the sandbox, summary judgment was proper.
B. Whether CCSD had express knowledge that the sandbox was inadequately filled with sand.
Wisdom allegedly told Vickie that she had ordered sand for the sandbox at least five times. It is therefore apparent that CCSD did have express knowledge that the amount of sand in the sandbox was inadequate. Nardozzi, then, does not apply and NRS 41.033 does not immunize CCSD. Lotter, 106 Nev. at 368, 793 P.2d at 1322 (where county inspectors had knowledge of house's framing defects and approved framing despite defects, NRS 41.033 did not provide immunity).
We assume, without deciding, that had the sandbox contained an adequate amount of sand, the concrete footing upon which Jennifer possibly fell would not have been exposed. We conclude that the district court erred in granting summary judgment on this issue.
C. Whether the district court properly held that CCSD was immune unless CCSD acknowledged that the condition in the sandbox was hazardous.
For purposes of summary judgment, the district court appeared to have accepted as true that CCSD had express knowledge that the sandbox was low on sand. However, the district court became preoccupied with the issue of whether or not a sandbox low on sand constituted a hazardous condition and, more importantly, whether CCSD acknowledged that a sandbox low on sand constituted a hazardous condition.
The distinction between these two issues must be fully grasped. The first issue was whether CCSD had express knowledge of the existence of the alleged hazardous condition, i.e., did CCSD know that the sandbox was low on sand? The answer is clearly "yes."[2]
The second issue was whether CCSD acknowledged that a sandbox low on sand constituted a hazardous condition. Jennifer argues that whether or not CCSD acknowledged the sandbox low on sand as hazardous was not relevant and should not have been considered by the district court in entertaining CCSD's summary judgment motion. Jennifer argues that whether a condition is hazardous is not a question to be answered by the allegedly negligent party. We agree.
The district court believed that if CCSD failed to acknowledge the condition as hazardous, then NRS 41.033 barred Jennifer's action notwithstanding the fact that CCSD had express knowledge of the existence of the condition. We conclude that this is error because this permits the alleged tortfeasor, here CCSD, to decide for itself what constitutes a hazardous condition. The conflict of interest is clear. Nardozzi does not require that the public entity acknowledge as hazardous a condition of which it has express knowledge. Rather, the entity need only have express knowledge of the existence of the condition.
Whether a particular condition constitutes a hazard is a question of fact for the jury.[3]*290 "Summary judgment is only appropriate when, after a review of the record in a light most favorable to the non-moving party, there remain no genuine issues of material fact and it is determined that the moving party is entitled to judgment as a matter of law." Caughlin Homeowner Ass'n v. Caughlin Club, 109 Nev. 264, 265, 849 P.2d 310, 311 (1993). The factual question of whether a sandbox low on sand constitutes a hazard is yet to be resolved. Accordingly, summary judgment as to this issue was improper.
II. Whether Jennifer adequately stated a claim for negligent supervision.
The district court stayed entry of summary judgment for thirty days. CCSD argues that Jennifer failed to state a cause of action of negligent supervision and that she waived this claim by not amending her complaint within the thirty-day period.
Jennifer's complaint alleged that CCSD "failed to warn the children attending the school to keep away from this dangerous area and, in fact, ordered the children to sit on the wall next to the dangerous area and were negligent in other ways as well." Complaints are liberally construed to do substantial justice. Hay v. Hay, 100 Nev. 196, 678 P.2d 672 (1984); NRCP 8(f). We conclude that the allegation just quoted sufficiently placed CCSD on notice of a claim of negligent supervision. Thus, Jennifer did not need to amend her complaint.
CONCLUSION
In light of the foregoing, we conclude that summary judgment was proper with regard to the existence of broken bottles in the sandbox because CCSD did not have express knowledge of the presence of the bottle on which Jennifer allegedly injured herself. Accordingly, NRS 41.033 precludes this claim. We thus affirm the district court's action on this issue.
For the reasons previously discussed, however, we disagree that NRS 41.033 precludes Jennifer's action insofar as her injury may have been caused by an inadequate amount of sand in the sandbox. We further hold that whether a specific condition constitutes a hazard is a question for the jury. Accordingly, we reverse the district court's judgment as to that count. Finally, we hold that Jennifer adequately stated a claim of negligent supervision. We therefore remand this matter to the district court for further proceedings.
ROSE, C.J., and SHEARING, J., concur.
SPRINGER, Justice, with whom STEFFEN, Justice, agrees, dissenting:
The trial court was correct in ruling that there is no evidence that the school district had "actual knowledge" of a hazardous condition. Any knowledge on the part of the school district must be based on the principal's knowledge, and there is no evidence that the principal knew of any danger.
Chastain relies on her affidavit, which tells us only that "Mrs. Wisdom told me that she had ordered sand for the sandbox at least five times." That a principal should order sand more than once tells us very little about what she "actually" knew about the condition of the sandbox. The principal's ordering of sand in this case could tell us that she anticipated a shortage or that a shortage already existed. Even if she had known that a shortage existed, this by no means suffices as proof that she had "actual knowledge of [a] hazard." See Nardozzi v. Clark Co. School Dist., 108 Nev. 7, 823 P.2d 285 (1992).
The mere fact that the principal ordered sand several times does not constitute a prima facie case that the school district, through its principal, had actual knowledge *291 of some hazard in the school environs and that the district failed to heed a known danger. I would affirm the judgment of the trial court.
NOTES
[1] NRS 41.033 provides:
Conditions and limitations on actions: Failure to inspect or discover. No action may be brought under NRS 41.031 or against an officer or employee of the state or any of its agencies or political subdivisions which is based upon:
1. Failure to inspect any building, structure or vehicle, or to inspect the construction of any street, public highway or other public work to determine any hazards, deficiencies or other matters, whether or not there is a duty to inspect; or
2. Failure to discover such hazard, deficiency or other matter, whether or not an inspection is made.
[2] This should have ended the inquiry because once a public entity has express knowledge of a hazardous condition, NRS 41.033 no longer provides immunity from suit.
[3] Gott v. Johnson, 79 Nev. 330, 383 P.2d 363 (1963) (whether the defendant has knowledge that a particular task is hazardous is a question of fact); see also Merluzzi v. Larson, 96 Nev. 409, 610 P.2d 739 (1980) (reasonable minds may differ as to whether a risk of harm reasonably should have been foreseen, and the issue should generally be submitted to the trier of fact), overruled on other grounds, Smith v. Clough, 106 Nev. 568, 796 P.2d 592 (1990); cf. Shannon v. Butler Homes, Inc., 102 Ariz. 312, 428 P.2d 990 (1967) (what constitutes a hidden peril is, in borderline cases, a question for the jury); Weirum v. RKO General, Inc., 15 Cal. 3d 40, 123 Cal. Rptr. 468, 539 P.2d 36 (1975) (foreseeability of risk of harm from an activity is a question of fact for jury); Hurley v. Northern Pac. Ry. Co., 153 Mont. 199, 455 P.2d 321 (1969) (whether probability of injury is reasonably foreseeable is question of fact for jury). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609964/ | 2 Wash. App. 144 (1970)
467 P.2d 178
In the Matter of the Estate of DEWEY T. VERBEEK, SR., Deceased.
A.J. VERBEEK, Appellant,
v.
IRENE L. VERBEEK, as Administratrix, Respondent.
No. 111-40661-1.
The Court of Appeals of Washington, Division One, Panel 2.
March 23, 1970.
Bell, Ingram, Smith, Johnson & Level, Lewis A. Bell, and Edward E. Level, for appellant.
Benson & Stege and George Stege III, for respondent.
HOROWITZ, A.C.J.
Decedent, Dewey T. Verbeek, Sr., died intestate on September 20, 1967. His surviving widow, Irene L. Verbeek, qualified as administratrix of his estate. In that capacity she filed an inventory and appraisement which lists a real estate contract on certain described property naming Dewey T. Verbeek, Sr. and Irene Verbeek as sellers, and Philip R. Verbeek and Carol C. Verbeek as purchasers. The description is followed by the insertion of a figure of $13,000 under a heading reading "Appraised Value." However, no appraisement by a court appointed appraiser, pursuant to RCW 11.44, has yet been had nor has notice to creditors yet been published. RCW 11.40.010.
On February 15, 1968, A.J. Verbeek, decedent's son by a prior marriage, filed an objection to the inventory pursuant to RCW 11.44.035 claiming the inventory to be erroneous
in that it indicates there is a balance due and owing and unpaid by the purchasers of the real estate contract, PHILIP R. VERBEEK and CAROL C. VERBEEK, of the sum of THIRTEEN THOUSAND ($13,000.00) DOLLARS, wherein in truth and fact said real estate contract is null and void and of no effect and said real property should have been inventoried as belonging entirely to the estate of said decedent without obligations by contract or otherwise to *146 convey to PHILIP R. VERBEEK and CAROL C. VERBEEK, and without any contractual rights to receive said conveyance vested in them.
The objector then prayed that the inventory be reformed
to disclose the real property ... as vested in said decedent without contractual obligation to convey the same for any price whatsoever, and that said real property be appraised for its true value without reference to the contractual rights of the aforesaid purchases ...[[1]]
The trial court entered findings, conclusions and order dated July 30, 1968, upholding the validity of the real estate contract inventoried; adjudging the property described in the contract to be community property of the decedent and his surviving widow; and adjudging the balance due on the real estate contract at the time of the death to be in the sum of $12,200 and at the time of trial, $11,800. Appellant objector appealed.
Dewey T. Verbeek, Sr. and Irene Verbeek lived together as husband and wife from 1936 until the decedent's death in 1967, but were not married until December 22, 1953. The real property described in the real estate contract listed in the inventory was acquired by the decedent in his own name on November 21, 1944, in fulfillment of a real estate contract entered into by the decedent on September 15, *147 1937. In 1945, 1951 and 1962, the decedent and Irene Verbeek joined in mortgaging the real property. All mortgage indebtedness, however, has been apparently repaid.
On January 15, 1965, decedent and Irene, his wife, owned no real property other than real property above referred to and here involved. Their home was located on this property. On January 15, 1965, the decedent and his wife Irene executed and acknowledged an agreement as to status of community property after death of one of the spouses under the provisions of which the community property of the parties upon the death of the first to die would vest in the survivor. RCW 26.16.120. The agreement was recorded after decedent's death.
On May 25, 1966, Dewey T. Verbeek, Sr. and his wife, Irene, executed, acknowledged and delivered the contract for the sale of real estate here involved to their son, Philip R. Verbeek and his wife, Carol C. Verbeek. The real estate contract was on a printed real estate form commonly distributed by title insurance companies. The real estate sales tax in the amount of $250 was paid to the Snohomish County Treasurer on May 26, 1966, although the contract was not filed for record until after the decedent's death on September 20, 1967.
Under the terms of the real estate contract the sellers agreed to sell and the purchasers agreed to purchase from the sellers the real estate described free of all encumbrances except that the following provision was typed in: "That the sellers during their life time or the life time of either shall have the right to occupy said premises and the home thereon, with the right to use said premises for their own personal benefit or gain." The typewritten provisions also provided that payment was to be made on the following terms and conditions:
The purchase price is Twenty-Five Thousand, and No/100 ($25,000.00) dollars, of which Six Thousand and No/100 ($6,000.00) dollars has been paid, the receipt whereof is hereby acknowledged, and the purchaser agrees to pay the balance of said purchase price as follows: The sum of $50.00 per month shall be payable on *148 the ____ day of each month as long as both or either of the sellers lives, regardless of whether there is a balance due on the contract. That said balance shall not bear interest and in case of the death of both parties, if there is any balance under the contract, the same is to be discharged and remitted and all obligations of purchasers hereunder, financially or otherwise, shall be fully satisfied, and there shall be no further payments due or payable on any balance by purchasers. The monthly payments herein provided shall continue during the life time of either of the sellers.
The sellers hereby declare their intent, during the life of this contract to make a gift of $3,000.00 to each of the purchasers on the 1st. day of each year, beginning with January 1st. 1967, to be credited only against any balance which might still be due on the contract.
The sellers agreed in the printed provisions to execute and deliver to the purchasers a warranty deed "upon receiving full payment of the purchase price and interest in the manner above specified ..." The sellers were required to deliver to the purchasers within 10 days a title insurance policy in the usual form. The record does not show whether such a title insurance policy was in fact delivered.
With reference to the purchasers' obligations, the printed provisions of the contract provided that the purchasers should pay before delinquency all taxes and assessments, to keep the buildings unceasingly insured against fire, loss or damage, to deliver to the sellers insurance policies, to keep the buildings and other improvements in good repair and not to use the premises for any illegal purpose. The printed provisions further provided that the purchasers should have possession of the real estate and be entitled to retain possession so long as the purchasers were not in default, and that upon default, forfeiture might be declared. With reference to the initial $6,000 payment receipted for by the sellers, the court found that the down payment had been made with a $6,000 gift which the deceased made and delivered to the purchasers in 1966 upon execution and delivery of the contract and that the deceased participated in and *149 delivered a gift of $6,000 to the purchasers on January 1, 1967.
Following the execution of the real estate contract, the sellers remained in physical possession of the real property. However, the purchasers paid real estate taxes thereon in 1967 and 1968; made repairs to the fences; paid for and installed gravel; made installment payments called for in the contract at the rate of $50 per month for 16 months; and the purchasers have continued to pay $50 per month to Irene Verbeek through May, 1968.
Appellant contends (1) that the real estate contract is void because it is a testamentary instrument not executed in accordance with the formalities required of a will (RCW 11.12.020); (2) that the real estate described in the real estate contract is the separate property of the decedent and should be so inventoried; and (3) that the true balance owing under the contract as found by the court is too low.
[1-3] We turn then to a consideration of the testamentary character of the real estate contract involved. A testamentary instrument, whether or not purporting to be a will, has three essential, although somewhat overlapping, characteristics: (1) It must be executed with testamentary intent; (2) it is revocable or ambulatory during the testator's lifetime, and (3) it operates upon property existing at the date of death and is effective at his death. 1 W. Bowe & D. Parker, Page on Wills § 1.2 (1960); Young v. O'Donnell, 129 Wash. 219, 224 P. 682 (1924). In determining whether the testamentary intent exists with respect to a particular instrument in a case when the maker's intention cannot be ascertained from the language used in that instrument, the name given to the instrument or to the legal relationship created, whether it be "deed", "contract", "lease", or other relationship, is helpful but not controlling. One must look to the provisions of the instrument in order to determine whether the instrument is, in fact, testamentary. Resort may be had to so-called indicia of intention. Such indicia, particularly pertinent here, include the name of the writing given by the parties to the instrument, the form of the *150 instrument, the manner of execution of the instrument, the acknowledgment of the instrument, the recording of the instrument, the way in which the instrument has been treated by the parties, the fact that the powers of revocation of sale or modification are not reserved in the seller, the fact that the conveyance is not conditional upon the purchaser surviving the seller, the fact that there is no prohibition against recording the instrument until the seller's death, the fact that the possession of the instrument is not required to be retained by the seller. These indicia of intention tend to show the nontestamentary character of the instrument and the intention to pass a present interest. No one factor is necessarily controlling. Annot., 31 A.L.R. 2d 532 at 543 (1953). The indicia of intent of paramount importance in determining whether the instrument is testamentary is the fact that if the instrument creates an interest in praesenti rather than an instrument to take effect at the death of the testator, the instrument is nontestamentary. Deeds and contracts to sell real estate present common problems in an effort to ascertain whether the instrument is testamentary in character. Annot., 31 A.L.R. 2d 532 at 534 (1953); see 11 A.L.R. 23 (1921). Thus, if a deed passes a present interest merely postponing enjoyment thereof to the date of death, it is not a testamentary instrument. 31 A.L.R. 2d 532 at 538 (1953). We see no reason for not extending this doctrine to a contract, lease or other instrument. See In re Estate of Murphy, 193 Wash. 400, 75 P.2d 916 (1938), overruling 191 Wash. 180, 71 P.2d 6 (1937); cf, Young v. O'Donnell, supra.
The difference between an interest in praesenti and testamentary interest is stated as follows in 1 W. Bowe & D. Parker, Page on Wills § 6.1 (1960):
An inter vivos transfer or transaction requires that some interest or control, however small, be surrendered and that some right in another party come into being at the time of the transaction. If a purported inter vivos conveyance has no effect whatsoever until death and involves absolutely no surrender or divestiture of control, use, power or interest in the property involved, and creates *151 no present duty or liability upon the maker and no rights in others, there exists no reason to consider it as inter vivos for it squarely meets the very definition of testamentary disposition and ought to come under the requirements of the statute of wills. It is a very common practice for courts to strike down illusory inter vivos transactions as void on the ground that they accomplish nothing until death, are testamentary in nature, and therefore should be denied effect for want of execution according to testamentary formalities.
In Annot. 31 A.L.R. 2d 532 at 538 (1953) it is stated:
One has a present interest in property when he presently owns or holds some property rights therein, regardless of the time at which the estate comes into enjoyment. The principal distinction between a deed and a will is that a deed conveys a present interest, takes effect upon delivery, and is irrevocable after delivery, whereas a will does not divest the maker of any interest, and does not operate until the maker's death, until which time it is ambulatory and revocable.
We turn then to an examination of the provisions of the real estate contract here involved. Preliminarily, it should be recalled that in Ashford v. Reese, 132 Wash. 649, 233 P. 29 (1925) it was held that a seller in an executory contract for the sale of real estate, the contract containing a forfeiture clause, "conveys no title or interest, either legal or equitable, to the vendee ..." Numerous subsequent explanatory cases, however, have made it plain that the purchaser does have existing contract rights and does have rights in respect to the land resulting from the contract. Many such cases are set out in the footnote below.[2] In fact, the Supreme Court has held in Windust v. Department of Labor & Indus., 52 Wash. 2d 33, 323 P.2d 241 (1958) that
*152 The cumulative effect of many slight deviations is demonstrated by the rule of Ashford v. Reese, 132 Wash. 649, 233 P. 29, which, in 1925, held that a vendee under an executory contract to purchase real property, acquired no title or interest, legal or equitable, in it. It has never been overruled, yet, in a series of subsequent cases, it has been whittled away until nothing remains.
Here, the instrument is expressly characterized as "a real estate contract" in the form commonly distributed by title insurance companies and used as a form appropriate to the creation of a vendor-vendee relationship. The contract purports to create certain obligations including the obligation to pay purchase price installments, to repair, pay taxes and to keep the premises insured. The contract purports to give the purchasers a right of immediate possession, subject to a retained or reserved right of occupancy on the part of the sellers. In effect, the contract provides for the sale of a vested remainder interest in the real property subject to a life tenancy in favor of the sellers. Annot. 11 A.L.R. 23 to 106 (1921). See 1 W. Bowe & D. Parker, Page on Wills § 6.10 (1960). The sellers have reserved no power to revoke or sell. 1 W. Bowe & D. Parker, Page on Wills § 6.13 (1960). The interest of the purchasers is immediately assignable, exchangeable, mortgageable and lienable. 1 W. Bowe & D. Parker, Page on Wills § 6.12 (1960). Neither is there any provision that the contract shall not take effect until the death of the sellers nor any provision for revestment of title in the sellers in the event of death of the purchasers. 1 W. Bowe & D. Parker, Page on Wills § 6.5 (1960); Young v. O'Donnell, supra. The death of the purchasers does not terminate the purchasers' interest. On the contrary, that interest continues and is descendable to their heir or devisee, as the case may be. The real estate contract, therefore, is not ambulatory, but is effective during the lifetime of the parties and does not necessarily postpone the vesting of title until the death of the sellers. Thus, the purchasers are entitled to a warranty deed when the stated purchase price of $25,000 is paid, even though there is a continuing obligation, *153 should the sellers survive, to pay the sellers, or their survivor, $50 a month so long as either survive. The sellers treated the real estate contract as such by paying $250 real estate sales tax to the Snohomish County Treasurer.
[4] There are, however, provisions not found in conventional real estate contracts, namely (1) the payments must continue to be made until the death of both sellers even after the payment of the $25,000 stated purchase price; (2) if both sellers die, the unpaid purchase price is cancelled; (3) the purchase price owing is noninterest bearing; (4) the sellers' stated intention to make a gift of $3,000 a year to each of the purchasers to be applied "against any balance which might still be due on the contract"; and (5) there is in effect a reservation of a life estate in the sellers. It is true that these provisions indicate that the sellers were motivated by a desire to make it as easy as possible for the purchasers (their son and daughter-in-law) to acquire the property. In a sense the contract was a substitute for a will. However, an instrument may be a will substitute and still not be testamentary. 1 W. Bowe & D. Parker, Page on Wills § 6.1 (1960) lists 18 will substitutes, none of which is a testamentary instrument requiring compliance with the execution requirements of a will. A statutory community property agreement (RCW 26.16.120) is a will substitute and if the statute is complied with, a valid nontestamentary instrument. Bartlett v. Bartlett, 183 Wash. 278, 48 P.2d 560 (1935). None of the unusual provisions of the contract derogate, however, from the fact that an interest in praesenti is created by the contract. The provision that if both vendors die the unpaid balance of the purchase price is cancelled, does not render the contract a testamentary instrument. Compton v. Westerman, 150 Wash. 391, 273 P. 524 (1928). Nor do the provisions disclosing a donative intent operate to make the instrument ambulatory during the life of the sellers so as to make the instrument testamentary.
On the issue of the testamentary character of the real estate contract here involved, appellant particularly relies on In re Estate of Murphy, 193 Wash. 400, 75 P.2d 916 *154 (1938) overruling departmental opinion in 191 Wash. 180, 71 P.2d 6 (1937). That case involved a lease with provisions distinguishable from the real estate contract herein involved. The lease term was "for the period of his [Murphy's] natural life and until his death, or until a guardian or trustee for any cause is appointed of his estate." Certain provisions significant on the testamentary character of the Murphy lease are not present in the real estate contract. They include; e.g., (1) the provision prohibiting the title of the lessee to be transferred from the lessee involuntarily or by operation of law; (2) the provision prohibiting the lessee from encumbering the leasehold interest; (3) the provision prohibiting the lessee from contracting any debt for labor or material that might become a lien against the lessor; (4) the provision prohibiting the lessee from contracting or creating any mortgage liens; (5) provisions making it impossible for lessee to perform and obtain a deed to the property prior to the death or described disability of Murphy, the lessor. In effect, the court held that the creation of a leasehold interest was not a sufficient in praesenti interest to preclude the court from treating the lease as in substance a testamentary instrument. In the instant case, as above pointed out and for the reasons stated, the real estate contract did create an interest in praesenti. Thus, the purchasers had a right to obtain title upon paying the stated purchase price of $25,000, a matter within the purchaser's control. In In re Estate of Murphy, supra, the lessee lacked the power to obtain title until the death of or disability of the owner lessor. We conclude that the administratrix properly treated the real estate contract as a valid and subsisting agreement and properly listed it in the estate inventory as such.
Appellant next contends that the real property involved is the decedent's separate property having been acquired in decedent's name prior to decedent's marriage to Irene Verbeek in 1953. Engstrom v. Peterson, 107 Wash. 523, 182 P. 623 (1919); Carr v. Bell, 129 Wash. 413, 225 P. 230 (1924); Hynes v. Hynes, 28 Wash. 2d 660, 184 P.2d 68 (1947). The *155 court found, however, that the deceased and Irene Verbeek while living together subsequent to 1936 jointly entered into mortgages on the real property involved on three occasions two before their marriage on December 22, 1953, and one subsequent thereto; that the deceased and Irene Verbeek, his wife, entered into the statutory community property agreement above referred to (RCW 26.16.120) on January 15, 1965, said agreement being prepared by the decedent's attorney; and that on May 25, 1966, the decedent and Irene Verbeek entered into the real estate contract hereinabove described at length. The court further found "That the defendant [decedent] did not have to have Irene Verbeek join in the sale to Philip R. Verbeek unless he intended or believed the same was community property." In the conclusions of law the court further stated: "That the deceased did by act and deed convert the said property from separate property to community property." The foregoing conclusion is also in the nature of a finding and we may properly consider it as such along with the other findings briefly summarized above. See Ferree v. Doric Co., 62 Wash. 2d 561, 383 P.2d 900 (1963).
Appellant's assignments of error raise the question as to whether substantial evidence supports the findings of the trial court that the real property involved at the date of the death of the decedent was the community property of the parties.
[5] It is true, of course, that the existence of a lawful marriage is essential to the creation of community property. It is also true that the mere belief of a party to a marriage, without more, that certain real property owned or acquired by him is community property, is not sufficient to support a finding that the property involved is community property. See State ex rel. Van Moss v. Sailors, 180 Wash. 269, 39 P.2d 397 (1934); Merritt v. Newkirk, 155 Wash. 517, 285 P. 442 (1930). We agree also that mere joinder in a contract, mortgage or deed by husband and wife or by two parties living together prior to marriage is insufficient to convert property into community property. *156 Seaton v. Smith, 186 Wash. 447, 58 P.2d 830 (1936); Guye v. Guye, 63 Wash. 340, 115 P. 731 (1911); Dobbins v. Dexter Horton & Co., 62 Wash. 423, 113 P. 1088 (1911). We further agree that mere self-serving statements of a spouse are insufficient to change the status of separate property to community property. In re Estate of Allen, 54 Wash. 2d 616, 343 P.2d 867 (1959); Berol v. Berol, 37 Wash. 2d 380, 223 P.2d 1055 (1950). It is also true that under the law of this state, the status of real property as distinguished from personal property; e.g., earnings, cannot be changed by mere oral agreement of the spouses. Leroux v. Knoll, 28 Wash. 2d 964, 184 P.2d 564 (1947); Rogers v. Joughin, 152 Wash. 448, 277 P. 988 (1929); Graves v. Graves, 48 Wash. 664, 94 P. 481 (1908). The necessity for a writing changing the separate status of real property has been said to arise because of the statute requiring all conveyances of real estate or an interest therein and all contracts creating or evidencing any encumbrance upon real estate to be by deed or written contract. Graves v. Graves, supra, (Bal. Code § 4517); Nichols v. Oppermann, 6 Wash. 618, 34 P. 162 (1893) (between strangers) (Gen. Stat. § 1422); Shorett v. Signor, 58 Wash. 89, 107 P. 1033 (1910) (Rem. & Bal. Code § 8766). Other cases have assumed the necessity of a written agreement or cited earlier case support for that requirement. Dobbins v. Dexter Horton & Co., supra; Katterhagen v. Meister, 75 Wash. 112, 134 P. 673 (1913); see Churchill v. Stephenson, 14 Wash. 620, 45 P. 28 (1896). The earlier statutes above cited are now superseded and embraced by RCW 64.04.010; cf., RCW 26.16.050. However, under that statute and its predecessors it was and is well settled that deeds and written contracts of sale must contain an adequate legal description of the real estate upon which it operates. Martinson v. Cruikshank, 3 Wash. 2d 565, 101 P.2d 604 (1940); Fosburgh v. Sando, 24 Wash. 2d 586, 166 P.2d 850 (1946); Geoghegan v. Dever, 30 Wash. 2d 877, 194 P.2d 397 (1948); Martin v. Seigel, 35 Wash. 2d 223 212 P.2d 107 (1949); Bingham v. Sherfey, 38 Wash. 2d 886, 234 P.2d 489 (1951); Herrmann v. Hodin, 58 Wash. 2d 441, 364 P.2d 21 *157 (1961). An inadequate legal description is said to be violative of the statute of frauds. Bigelow v. Mood, 56 Wash. 2d 340, 353 P.2d 429 (1960). Even our general statute of frauds (RCW 19.36.010(5)) requiring an agreement authorizing or employing an agent or broker to sell or purchase real estate for compensation or commission requires that the agreement contain an adequate legal description. Heim v. Faulstich, 70 Wash. 2d 688, 424 P.2d 1012 (1967).
Yet, notwithstanding the legal description requirements of RCW 64.04.010 and its predecessors, no such requirement has been held necessary in an agreement between husband and wife changing the status of separate to community property, at least when the questions arise as between the spouses and persons in privity with them. Thus, in Volz v. Zang, 113 Wash. 378, 194 P. 409 (1920) the court held that a written agreement between husband and wife that each parcel of land wherever situated, both presently owned or thereafter to be acquired, should be deemed community property was a valid contract and operated to convert separate real property into community property. No legal description was contained in the written agreement concerning the real property to which the agreement had application. It is true that the agreement in Volz v. Zang, supra, contained a recital that it should operate as a conveyance. However, the agreement was not a conveyance in the conventional sense since there was no legal description of the real property purportedly conveyed as required in a deed. It was not even contended in the briefs that a legal description was necessary. Volz v. Zang, supra, has been cited with approval many times by the Supreme Court. In no subsequent case has the Supreme Court ever suggested that an adequate legal description of real estate intended to be covered by the agreement, was necessary to satisfy the requirements of RCW 64.04.010 and its predecessors. One must conclude that the requirement of a writing is not a statutory requirement but a court-created requirement adapting itself to felt requirements in aid of the policy favoring freedom of contract between spouses, the desire to *158 carry out their mutual intentions adequately evidenced, and in the case of the conversion of separate into community property, in aid of the policy favoring community property. See Volz v. Zang, supra; In re Estate of Salvini, 65 Wash. 2d 442, 397 P.2d 811 (1964). What is required is that the mutual intention of the husband and wife to convert separate into community property should be evidenced by a writing. Mutual written promises as in Volz v. Zang, supra, will suffice, even though unaccompanied by legal description.
[6] The husband and wife here executed a statutory community property agreement pursuant to the provisions of RCW 26.16.120. That statute by its terms is applicable only to community property. By that agreement the spouses agreed that all community property owned at the date of the execution of the agreement, together with all other community property, real or personal, that might thereafter be acquired, should vest in the survivor of the parties upon the death of the first to die. In addition there was the following recital:
That whereas the said parties hereto are owners of certain community property, and are desirous that said property, together with all other community property, either real or personal, that may hereafter be acquired, shall pass, without delay or expense, upon the death of either, to the survivor.
The agreement does not identify the "certain community property" to which it refers and that property must be identified by parol evidence.[3] In Volz v. Zang, supra, the pleadings admitted the ownership of the property that was the subject of agreement. It is one thing to enforce a parol agreement to convert separate into community property and a different thing to resort to parol evidence solely for the purpose of identifying the property, the promise to convert which is in writing. Cf., 55 Am. Jur. Vendor and *159 Purchaser § 122 (1946); 49 Am. Jur. Statute of Frauds §§ 349, 352 (1943) dealing with statutory provisions. We see no difference in substance between a joint acknowledgment by husband and wife and by way of recital which is an admission against interest of the decedent husband that real property is community property and a written promise by husband and wife that real property should be deemed or treated as community property. Were we to distinguish between the two, there being no statute or construction thereof requiring us so to do, we would be sacrificing substance for form on the question of identification. See G. McKay, Law of Community Property §§ 235-240 (2d ed. 1925). Furthermore, the adoption of the rule we here apply is within the reason and policy of the Volz v. Zang court-created doctrine.
The evidence shows that the husband and wife consulted their long-time attorney and discussed with him the distinction between separate and community property, and the disposition of the real property here involved, and then occupied by them, upon the death of either. The real property was the only real property they then had. Acting upon their attorney's advice, they executed the statutory community property agreement prepared by him for the purpose of giving effect to their intentions. Because RCW 26.16.120 is applicable only to community property it is a reasonable inference from the evidence that the husband and wife mutually intended that the statutory community property agreement should be applicable to their home property then under discussion and that the property should be left to the survivor. No will was drawn up or executed. Prior to the execution of that agreement in 1962 the wife had joined with her husband in mortgaging the property. Subsequent to that agreement on May 25, 1966, the husband and wife both executed and acknowledged a written contract for the sale of the real estate specifically describing it. Such a joinder by the wife was essential if the property were community property, whereas, it would have been unnecessary if the property were separate property *160 (RCW 26.16.040; 26.16.020; 26.16.010). Any uncertainty in the description of the real property that may have existed at the time of the execution of the statutory community property agreement was removed by the legal description in the later contract of sale. Cf., 49 Am. Jur. Statute of Frauds §§ 349, 352 dealing with statute of frauds. At the same time, the statutory community property agreement evidenced by the recital that it was applicable to "certain community property" was mutually observed. See Kolmorgan v. Schaller, 51 Wash. 2d 94, 316 P.2d 111, 67 A.L.R. 2d 704 (1957) dealing with postmarital earnings. In our opinion there is substantial evidence and reasonable inferences therefrom to support the express and implied findings of the court that the real property here involved at the date of the death of the decedent was the community property of the parties.
Appellant finally contends that the unpaid balance of the real estate contract found to be owing was too low because certain claimed gifts in reduction of the balance owing had not been made. Having found that the statutory community property agreement executed by the decedent and Irene Verbeek was a valid instrument applicable to the real property involved as community property, it follows that the only party entitled to the purchase price upon the death of the decedent is Irene Verbeek. RCW 26.16.120. If the amount found owing is less than the true amount owing, only she will be prejudiced and appellant has no interest in that matter. Appellant's rights are no greater than that of the decedent since appellant as the decedent's heir is in privity with the decedent. See Volz v. Zang, supra, and Aguilera v. Corkill, 201 Kan. 33, 439 P.2d 93 (1968). Appellant is not a creditor objecting in that capacity.
Appellant's contention concerning the correctness of the balance found owing raises the question as to whether the trial court in adjudging the amount owing was dealing with the stated purchase price of $25,000 or dealing also with the provision that the survivor would be entitled to $50 per month for life. No evidence was taken as to the present *161 value of the monthly payments and the calculations made by the parties had reference to the $25,000 stated purchase price. Were we to affirm the judgment on the assumption that the court intended to adjudge the total amount owing we would be depriving Irene Verbeek of her right to receive the $50 per month payments after the stated purchase price was paid. We do not think that a fair construction of what the trial court did requires us to so find. We construe the trial court's finding to deal only with the unpaid balance owing on the stated purchase price.
The judgment is affirmed.
JAMES, C.J., and WILLIAMS, J., concur.
NOTES
[1] There is no cross-appeal assigning error directed to the trial court's treating the appellant heir as a "party in interest" (RCW 11.44.035) entitled to raise the objections here made at this stage of the proceedings. At the time of the hearing, the time for the filing of creditors' claims had not expired (RCW 11.40.010) and appraisement had not been had (RCW 11.44). It thus could not be known whether the estate was solvent or insolvent so as to enable a determination to be made whether appellant heir would benefit from his objections. Furthermore, neither the purchasers nor Irene Verbeek in her individual capacity were made parties to the record (although each testified below) and no administrator ad litem was appointed to represent the estate's interest because of the potential conflict of interest between Irene Verbeek, individually, and Irene Verbeek in her capacity as administratrix. Until presented on proper assignments of error, we do not determine to what extent, if any, persons other than the parties to the record here are bound by our rulings on this appeal.
[2] Dysart v. Colonial Fire Underwriters, 142 Wash. 601, 254 P. 240 (1927); Oliver v. McEachran, 149 Wash. 433, 271 P. 93 (1928); State ex rel. Oatey Orchard Co. v. Superior Court, 154 Wash. 10, 280 P. 350 (1929); Vandin v. McCleary Timber Co., 157 Wash. 635, 289 P. 1016 (1930); Hubbard v. Grandquist, 191 Wash. 442, 71 P.2d 410 (1937); Cady v. Kerr, 11 Wash. 2d 1, 118 P.2d 182 137 A.L.R. 713 (1941); In re Horse Heaven Irr. Dist., 11 Wash. 2d 218, 118 P.2d 972 (1941); Turpen v. Johnson, 26 Wash. 2d 716, 175 P.2d 495 (1946).
[3] As to after-acquired property unknown to the parties at the date of the agreement, parol evidence of identification would, of course, be necessary. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610098/ | 467 P.2d 688 (1970)
Charles H. HUTTON et al., Plaintiffs and Respondents,
v.
John J. MING et al., Defendants and Appellants.
No. 11722.
Supreme Court of Montana.
Submitted March 10, 1970.
Decided April 6, 1970.
Rehearing Denied April 30, 1970.
Rognlien, Hash & O'Brien, Kenneth E. O'Brien (argued), Kalispell, for appellants.
L. Lloyd Evans, Fennessy, Crocker & Arness, Franklin Arness (argued), Libby, for respondents.
Mr. Justice JOHN CONWAY HARRISON delivered the Opinion of the Court.
Plaintiffs, Charles H. Hutton and Annette Hutton, brought this action in the *689 district court of the eleventh judicial district, Lincoln county, to recover actual and punitive damages from the defendant, John J. Ming. The basis of the action was fraudulent misrepresentation and conversion. The jury returned a verdict against the defendant, John J. Ming, for actual and punitive damages. Defendant Ming appeals from the judgment entered on the verdict and from orders denying his motions for new trial and for judgment notwithstanding the verdict.
In late 1963, the plaintiffs, Charles H. Hutton and Annette Hutton, husband and wife, purchased a type of prefabricated dwelling sold under the trade name of "Capp-Homes". Capp-Homes are delivered in partially finished sections which are assembled on the site to form the roofed and enclosed shell of a house. Prefabricated materials to finish the interior of the house are supplied with the package. Plaintiffs had finished the downstairs portion of their home early in 1966, but had not laid the hardwood flooring.
In 1965, Mrs. Hutton underwent major surgery and the family became delinquent on their house payments and were in financial difficulty. In March 1966, Huttons went to the real estate office of defendant Ming to seek some assistance in refinancing their home. They received some encouragement from Ming, but he told them he could not obtain a mortgage on an unfinished dwelling.
In the belief that if the flooring was laid Ming could arrange a mortgage for the home, the Huttons laid and finished the hardwood flooring on the main floor of the house. Ming then told them it would be necessary to finish the bedrooms on the upper floor, install a heat duct system, and replace the wood burning furnace before refinancing could be arranged. The Huttons were unable to afford the materials to make these improvements. Ming suggested to the Huttons that they might be able to work out a debt consolidation plan with the credit bureau, but the Huttons were unable to set up such a plan. They allege that they then requested Ming to sell the house for them.
Ming denies entering into any agreement for the sale of the house. In support of his denial, he points out the absence of any evidence as to a written contract for the sale of real estate which is required by Montana law. Significantly, even the Huttons did not testify that a sale price had ever been established.
On October 11, 1966, Capp-Homes wrote Ming and inquired about his efforts to sell the Huttons' house. Ming replied October 17, stating that he was no longer trying to assist the Huttons and that he had never attempted to sell the house for them. In that same letter he stated he would like to take over the house payments and sell the house for Capp-Homes. Capp-Homes replied on October 21, inquiring as to the possibility of obtaining a quit claim deed from the Huttons and indicating they would be willing to discuss a transfer of the property to Ming. On December 13, Ming replied that he was interested in purchasing the property and he would talk to the Huttons.
Ming discussed the quit claim deed with the Huttons and they both signed a quit claim deed dated December 23, with the condition they could remain in the house until school was out the following spring. On December 23, 1966, Ming wrote Capp-Homes that he had the deed in his possession and offered to finish, repair and sell the house for Capp-Homes. Several letters passed between Capp-Homes and Ming before negotiations for Ming's purchase of the house for $8,900 were completed on April 11, 1967.
School was out June 1, 1967. On May 31, Ming went to the Huttons' home and asked when they would be out of the house. They asked for two more months, but Ming refused because he had already rented the house to another person. Two or three days later Ming returned and found the Huttons had not vacated the property; he *690 demanded they leave. When he returned on June 9, 1967, they were gone.
Huttons left an electric clothes dryer, three or four boxes of clothes, and a damaged couch in the house. Mrs. Hutton testified the total value of these articles was approximately $300 to $350. Ming had his workman put the dryer in the basement and haul the boxes and couch to the dump. He then completed the unfinished portions of the house and refinished the walls and floors on the main floor. A concrete floor was poured in the basement and concrete steps were poured in both the front and back of the house. Heating ducts and a new furnace were installed.
Defendant set forth some thirteen issues for this Court's consideration. We believe the issues can be narrowed to two issues and full consideration be given to the case. (1) Is there sufficient evidence of fraud and misrepresentation by Ming to support a verdict for both compensatory and punitive damages? (2) Whether or not defendant is liable for damages for conversion.
Huttons allege Ming misrepresented to them that if the floors were laid and finished they could obtain a loan; that if they executed the quit claim deed they could live in the house until school was out; that Charles H. Hutton was not eligible for a Veterans Administration loan; that the only way the Huttons could avoid the immediate loss of their home was to sign the deed; also, that Ming fraudulently failed to advise them of their rights to possession during foreclosure and their right of redemption after foreclosure.
In order to establish a claim of fraud a claimant must prove (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) the intent that it should be acted upon in the manner contemplated; (6) the hearer's ignorance of its falsity; (7) the hearer's reliance upon its truth; (8) the right of the hearer to rely thereon; and (9) the hearer's consequent and proximate injury or damage. Healy v. Ginoff, 69 Mont. 116, 220 P. 539. Here, the evidence clearly indicates there was no false representation made in at least three of the instances the Huttons raise as fraudulent. Capp-Homes was going to foreclose on their mortgage immediately, as the letters from that company to Ming indicate. The Huttons were allowed to live in the house from the date of the quit claim deed until school was out in June. Mr. Vanderwood, appraiser for the Federal Housing Authority and for the Veterans Administration, testified that the Huttons, in fact, were not eligible for a Veterans Administration loan because of the large part that a credit rating plays in obtaining a Veterans Administration loan and because the Hutton house was unfinished.
There is a lack of proof that Ming falsely represented to the Huttons they would be able to obtain a loan on the house if they laid the hardwood flooring. However if that were the case, there is no evidence showing any consequent and proximate damage to the Huttons, for they laid the flooring which had been supplied with the original house package. There was no evidence produced of cost of materials used or of any labor required to lay the flooring. Furthermore, the Huttons lived in the house for almost fourteen months after the flooring was laid, and they received the benefits of its installation during that period.
The allegations that Ming fraudulently (1) advised the Huttons the only way they could avoid the immediate loss of their home was by signing a quit claim deed, and (2) failed to advise Huttons of their right to possession during foreclosure and redemption after foreclosure, are both allegations based on advice about what the law is, rather than a misrepresentation of a fact.
"A misrepresentation or opinion expressed by one of the parties to the other as to what the law is relative to their respective *691 rights in the matter, which is the subject of negotiations, is not a fraudulent misrepresentation within this rule.
* * * * * *
"If, however, a relation of trust and confidence exists between the parties, a misrepresentation or opinion by the party in whom the trust and confidence is reposed as to what the law is, if made for the purpose of deceiving the other or of gaining an unconscionable advantage over him, forms an exception to the foregoing rule, and constitutes a ground for relief." Emerson-Brantingham Implement Co. v. Anderson, 58 Mont. 617, 626, 627, 194 P. 160, 164.
However, in this situation there are no facts that indicate the existence of a relationship of trust and confidence required to implement the exception to the rule. The Huttons had originally sought out Ming for advice and help. Ming had not been in contact with the Huttons from April until December, when he discussed the quit claim deed with them, a period of almost eight months. He had never acted as a real estate agent for the sale of their house nor had he any listing of their house with a sale price. There is no evidence that they placed any particular confidence in him.
"`To establish a fiduciary relationship upon the violation of which fraud is sought to be based, there must be something more than mere friendly relations or confidence in another's honesty and integrity. There must be something in the particular circumstances which approximates a business agency, a professional relationship, or a family tie, something which itself impels or induces the trusting party to relax the care and vigilance which he otherwise should, and ordinarily would, exercise.'" Hood v. Cline, 35 Wash.2d 192, 212 P.2d 110, 115.
A confidential relationship is a fact to be established in the same manner and by the same kind of evidence as any other fact is proven. In re Rugani's Estate, 108 Cal. App. 2d 624, 239 P.2d 500. Here, the Huttons failed to prove the existence of any such relationship; therefore their allegations of fraudulent misrepresentation have no merit.
Huttons also sought damages for an alleged conversion of two or three boxes of clothes, a damaged couch, a clothes dryer, and other miscellaneous articles they left in the house. The record is clear that Ming rightfully took possession of the house, according to the agreement he made with the Huttons. The property allegedly converted was in the house when he took possession and in the belief of the articles were abandoned debris, Ming had everything except the clothes dryer hauled to the dump.
"Where the original taker acquires possession of the property rightfully, a demand and refusal are ordinarily necessary to give rise to a cause of action in conversion." Foster v. First National Bank of Missoula, 139 Mont. 396, 401, 365 P.2d 938, 941.
The record is clear that no demand for the property was made. There is no proof of the essential elements of conversion.
The two basic issues on appeal have been resolved as unproven, therefore, as a matter of law, no recovery of either punitive or compensatory damages can be permitted. The other specifications of error raised by the defendant are rendered moot by the resolution of the two basic issues and those matters need not be discussed.
The action is remanded to the district court with directions to reverse the judgment and dismiss the complaint.
JAMES T. HARRISON, C.J., and HASWELL and CASTLES, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610104/ | 207 Kan. 584 (1971)
485 P.2d 1352
STATE OF KANSAS, Appellee,
v.
MAE McLAUGHLIN, Appellant.
No. 46,119
Supreme Court of Kansas.
Opinion filed June 12, 1971.
Cliff W. Ratner, of Ratner, Mattox, Ratner, Ratner and Barnes, of Wichita, argued the cause, and Walter F. McGinnis, of McGinnis and McGinnis, of El Dorado, was with him on the brief for appellant.
John E. Sanders, county attorney argued the cause, and Vern Miller, attorney general, was with him on the brief for appellee.
The opinion of the court was delivered by
FATZER, J.:
The appellant, Mae McLaughlin, was charged as a principal, tried to a jury, and convicted of the offense of grand larceny (K.S.A. 21-533), and sentenced to the Kansas State Industrial Farm for Women, Lansing, Kansas, there to be confined for a period not to exceed seven years. The companion case is reported as State v. McLaughlin, 207 Kan. 594, 485 P.2d 1360.
The testimony relative to the events surrounding the crime is conflicting in many respects, and the events set forth herein are summarized and reported as found by the jury.
Freddie Pope, a confessed accomplice to the crime and the state's principal witness indeed, its only witness to the "facts" of its perpetration became acquainted with the appellant's husband, Henry McLaughlin, some months prior to the commission of the offense. Pope is a hardened criminal of considerable experience in "underworld" affairs, who has accumulated a lengthy record of *585 convictions of previous felony offenses. He has spent eleven years in prison, where he became the "jail-house lawyer" and wrote writs for other inmates. He is no amateur at representing his own interests in criminal proceedings in court, and was singularly successful in securing probation from the confinement portion of the district court's sentence following his plea of guilty on July 18, 1969, to the crime here involved, two days after he testified against Mae and Henry McLaughlin at their preliminary examinations.
On Sunday, July 23, 1967, two black angus steers owned by Karen Pike and a hereford steer owned by Kenneth Pike, disappeared from the corral at Pike's barn located on a farm leased by him south of Eureka, Kansas. Pike last saw the cattle at 9:30 p.m. on that date. The next day he discovered the cattle were missing.
According to Pope, on Saturday, July 22, 1967, he visited with the McLaughlins at a fair in Anthony. When he returned to his home in Wichita that night, he learned the police were looking for him, and he made a hasty exit from the city. Accordingly, Pope and his colleague in crime, Johnnie Wyss, drove to McLaughlin's home in Greenwood County, near Rosalia, where, with Henry's permission, they spent the night. The next morning, Sunday, July 23, Mae fixed breakfast for Pope, Wyss and Henry in her trailer house which was parked adjacent to Henry's house.
Later that day, all of the parties decided to go for a Sunday drive, the bizarre purpose, according to Pope, was to search for antique bottles and jars in abandoned farm homes in the Eureka community. Henry's car served as the means of conveyance. After some driving and searching, they arrived at the Pike farm. Pope and Wyss commenced searching outbuildings; Henry checked the barn, and Mae looked about the farm yard and then returned to the car. Henry summoned Pope to the barn where the steers in question were found. A conversation then occurred between Pope and Henry out of Mae's presence, to the effect that Pope told Henry it looked to him like someone stole the cattle and hid them there until they could dispose of them. Henry said in effect do you think we could steal them, and Pope replied that they could if they had the means to haul them off. As hereafter noted, Mae's objection to such testimony, upon the grounds the statements were made outside her presence and were not binding upon her, was overruled. However, the entire conversation was heard by the jury before the court sustained the objection and instructed the jury to disregard it.
*586 After Pope and Henry agreed to steal the steers, the parties returned to Henry's residence and Pope and Wyss left in Pope's station wagon for his home in Wichita to get Pope's pickup truck. Both men then drove to the Jim Frisbie place near Andover, in Butler County Wyss in the pickup and Pope in the station wagon where, after finding no one at home, they hitched Frisbie's four-horse trailer to the pickup and proceeded back to Henry's residence. Upon arrival at the McLaughlin residence, Pope, Wyss and Henry went into Mae's trailer and had coffee and a couple of cans of beer and waited for darkness. After it was dark, Pope, Wyss, Mae and Henry left for the Pike farm. Henry drove his car and Mae and Pope were passengers; Wyss followed in the pickup pulling the trailer. Upon arriving at the Pike farm, the trailer was backed up to the barn, and Pope, Henry and Wyss loaded the cattle into the trailer. Pope then told Wyss to drive the steers to Frisbie's farm. Henry, Pope and Mae followed in Henry's car. Upon arriving at Frisbie's farm, Pope and Wyss unloaded the steers into the barn, and the parties returned to their respective homes.
The following morning, Monday, July 24, 1967, Pope called Henry on the telephone and advised him he had made arrangements to have the steers slaughtered at the Haysville Packing Plant. Henry met Pope about 9:00 a.m. at the Frisbie place, and Pope and Wyss loaded the steers into the pickup and drove to the packing plant where they were unloaded in the slaughter room. The steers were booked and processed in Pope's name, and he arranged for the hides to be returned to him. Later that same day, Pope, Henry and Frisbie returned to the packing plant in Henry's automobile, picked up the hides, and disposed of them. Eight or ten days later, Pope was advised the beeves had been processed.
Pope relayed the message to Henry and he and Mae met Pope at the Frisbies, where Henry gave Pope his check for $130 representing payment of the butchering and processing fee. Mr. and Mrs. Frisbie, Henry, Mae and Pope drove to the packing plant where two orders were loaded into Frisbie's truck for Pope and Frisbie, and the third order was loaded into Henry's car. Frisbie received Wyss's beef because he had no place to store it. This in essence constituted the state's case.
The case on behalf of the appellant is summarized: There was no evidence Mae had any criminal record. She first saw Pope at the horse races in Anthony in July, 1967. On Sunday, July 23, 1967, *587 Mae and Henry were eating dinner with their old friends, Mr. and Mrs. Jim Frisbie at their home near Andover, when Pope and Wyss appeared. Pope said his mother was selling her place and he had some cattle he wanted to sell. Frisbie is a yardmaster for the Santa Fe Railway at Wichita, and told Pope if Henry looked at the cattle and thought they were all right, he would buy one. Mae and Henry returned to their home, and Pope and Wyss followed. At Rosalia, Pope, Wyss, Henry and Mae got into Mae's automobile and Pope directed her to a farm somewhere south of Eureka. Upon their arrival, Pope, Wyss and Henry got out and looked at the steers and after inspecting them, they returned to the McLaughlin residence and Pope and Wyss left in Pope's car. Pope and Wyss did not spend the previous night with the McLaughlins as testified by Pope; neither did Mae fix either Pope or Wyss a meal, and they did not go on a search for antique bottles and jars. Mae's testimony was corroborated throughout by Wyss, and Wyss testified that Mae was not present when the steers were taken.
The following morning, Monday, July 24, Henry and Mae drove to Wichita. On their way home, they stopped at Frisbie's home at about 10:00 or 11:00 a.m. While there, Pope and Wyss came by and said the steers had been delivered to the locker plant. Pope said he wanted $200. Mae wrote a check for that amount for one beef, Henry signed it, and the check was given to Pope. Frisbie gave Pope $200 in cash for one beef, and the third beef was to be Pope's.
Defendant's Exhibit 9 was identified as the $200 check given to Pope for the beef. However, the evidence showed the check had been altered. It originally bore the notation "machine hire," but was altered by Mae to "butchered beef" after it was returned from the bank. The check was dated July 24, 1967.
There was evidence that Henry paid Pope's and Frisbie's share of the processing fee since Pope had delivered the steers and Henry was indebted to Frisbie on a horse trade; that Henry wrote a check to Frisbie for $130 to pay the fee; that Frisbie cashed the check at his mother's, and the packing plant was paid in cash.
The appellant complains of numerous errors occurring at the trial. She first contends the district court erred in instructing the jury that conviction could be sustained if based upon the uncorroborated testimony of an accomplice. Instruction No. 9 reads:
"The court instructs the jury that the testimony of parties aiding, assisting, *588 encouraging, and abetting the crime is admissible; yet their evidence when not corroborated by the testimony of others not implicated in the crime, as to matters material to the issue, should be received with great caution by the jury, and they should be fully satisfied of its truth before they should convict the defendant on such testimony."
In 30 Am.Jur.2d, Evidence, § 1151, pp. 327, 328, it is said:
"... [A]t common law, it is well settled that the testimony of an accomplice, although entirely without corroboration, will support a verdict of conviction of one accused of crime unless the testimony of the accomplice appears on its face to be bold, perjury, preposterous, or self-contradictory. The common law rule has, however, been changed in many jurisdictions, generally by statutes expressly declaring that the uncorroborated testimony of an accomplice cannot sustain a conviction."
Kansas has no statute which prevents conviction on the uncorroborated statements of an accomplice. In State v. McIntyre, 132 Kan. 43, 294 P. 865, it was said:
"... [I]t is now well settled that the uncorroborated testimony of an accomplice, if otherwise sufficient, will sustain a verdict of guilty. The credit to be given to the evidence is a matter for the determination of the jury ..." (l.c. 48.)
See, also, State v. Carter, 148 Kan. 472, 83 P.2d 689; State v. Peasley, 179 Kan. 314, 295 P.2d 627, and State v. Wood, 196 Kan. 599, 413 P.2d 90.
The jury was adequately cautioned by Instruction No. 9 as to the weight to be given Pope's testimony. Thereafter, the weight of the evidence and the credibility of the witnesses was solely a matter for the determination of the jury. Moreover, the record indicates the instruction was submitted by the appellant's trial counsel, and she is in no position to complain. In addition, there was testimony that, if believed by the jury, the appellant altered the check allegedly given as payment for the stolen steers. She may not complain if the jury believed the state's witnesses, rather than her own.
It is next contended the district court's definition of reasonable doubt was erroneous, and that a new trial should be granted. Specifically, the appellant complains of that part of the instruction which reads:
"... [Y]ou are instructed that reasonable doubt is just what the words themselves imply a doubt founded on reason. It is such a doubt as a juror is able to give a reason for."
An instruction of very similar language was approved in State v. Patton, 66 Kan. 486, 71 P. 840, and it cannot be said that error *589 was committed by the district court. See State v. Wolfley, 75 Kan. 406, 89 P. 1046, and State v. Killion, 95 Kan. 371, 148 P. 643.
The appellant complains the district court erred in permitting hearsay evidence over her objection. As indicated, the state's principal witness, Pope, was allowed to testify to the substance of a conversation held between him and Henry in the barn at the time the steers were discovered. That conversation related to the plan to steal the steers, and was had out of the presence of the appellant. We think no error was committed. In State v. Borserine, 184 Kan. 405, 337 P.2d 697, it was said:
"Ordinarily when acts and declarations of one or more co-conspirators are offered in evidence against another co-conspirator by a third party witness or witnesses, the conspiracy should first be established prima facie, and to the satisfaction of the trial judge. But this cannot always be required. Where proof of the conspiracy depends on a vast amount of circumstantial evidence a vast number of isolated and independent facts it cannot be required. In any case where such acts and declarations are introduced in evidence, and the whole of the evidence introduced at the trial taken together shows that a conspiracy actually exists, it will be considered immaterial whether the conspiracy was established before, or after, the introduction of such acts and declarations. (State v. Winner, 17 Kan. 298.) Evidence of the acts and declarations of the co-conspirators, done and made in the absence of the accused, is admissible so far as it pertains to the furtherance of the common criminal design, to its consummation, to the disposition of its fruits, and to acts done to preserve its concealment, as an exception to the rule against the admissibility of hearsay evidence." (l.c. 410.) (Emphasis supplied.)
As indicated, Pope's testimony was first admitted and then stricken with instructions by the district court to the jury to disregard "the conversation between the witness and Mr. McLaughlin." If the introduction of the evidence was improper, the district court in clear language admonished the jury to disregard it, and we think no prejudicial error occurred.
The appellant further contends the evidence was insufficient to establish she aided and abetted in the commission of the crime, or was a second degree principal, and that it was insufficient to establish felonious intent. The point is not well taken.
The evidence clearly establishes that the appellant was present at the time the crime was committed. By her own admission, she was present when the beeves were picked up at the processing plant. Likewise, there was testimony showing she altered the check after it had been cashed in an attempt to make it appear the check was given to Pope in payment for a portion of the beef, which alteration would serve to substantiate her story.
*590 Intent is seldom capable of direct proof and may be proved from surrounding circumstances. (State v. Linville, 150 Kan. 617, 95 P.2d 332.) Under the circumstances, the jury was entitled to consider such evidence, along with other incriminating factors, and if believed, the evidence was sufficient to sustain a conviction of the crime charged.
The judgment is affirmed.
FROMME, J., dissenting:
The evidence in this case was insufficient as a matter of law to support a conviction. It was not shown that Mae McLaughlin knowingly participated in planning or carrying out the crime. She was convicted of stealing cattle. The evidence of the state established the crime was planned and carried out by her husband and two other men, who were later convicted.
Under K.S.A. 21-105 a principal in the second degree (accessory before the fact) may be charged and punished as a principal in the first degree. (State v. Yohe, 203 Kan. 855, 457 P.2d 12.) However, it must be shown that a principal in the second degree knowingly participated in the crime by doing or saying something to show a consent to the felonious purpose and to contribute to its execution.
The defendant was charged as a principal in this case and convicted of stealing three steers on the basis of Pope's testimony. Accepting that testimony as true, what did this lady do or say to show a consent to the felonious purpose and to contribute to its execution?
The morning the crime was committed she fixed breakfast for her husband and his two friends. She accompanied the three men and participated in searching for antique bottles around vacant farmsteads. When they arrived at the Pike farmstead she looked around in the farmyard and then returned to the car.
Pope testified that defendant's husband discovered three steers in the barn and the three men had a conversation about stealing the cattle, "out of Mae's presence." That evening Mr. McLaughlin was with her husband in his car when they returned to the Pike Farm. The men had borrowed a trailer which was hitched to Pope's pickup. The pickup was driven by Wyss. The men loaded the steers into the trailer and Pope and Wyss hauled them to the Frisbie farm for safekeeping. The defendant remained in her husband's car and returned home with him. The next morning *591 the men loaded the steers into the trailer and hauled them to a locker plant for slaughter. The men picked up the hides and disposed of them later.
Carefully sifting through the state's evidence, I find nothing to establish a knowing participation in the crime by Mrs. McLaughlin. The only thing from which a consent to the felonious purpose can be inferred is her presence in her husband's car at or near the scene of the crime.
In State v. Douglass, 44 Kan. 618, 26 P. 476 it was said:
"... [N]or have we any statute making the consenting to even the commission of a crime an offense, unless the consent amounts to the counseling, aiding, or abetting in the commission of such crime. Hence, where a thing is not an offense at all, a party cannot be guilty of committing an offense by merely consenting thereto; and even where the thing is an offense, a party can be guilty of committing an offense by consenting thereto only where his consent is of that affirmative and expressed character which amounts to a counseling, aiding, or abetting in the commission of the offense. `He must do or say something showing consent to the felonious purpose, and must contribute to its execution.' (1 Am. & Eng. Encyc. of Law, 63, 64.)
"... And that mental consent to a crime, where no expressed consent is given by any word or act, does not make the person consenting guilty of an offense, see the following authorities: Clem v. The State, 33 Ind. 418; The State v. Cox, 65 Mo. 29; White v. The People, 81 Ill. 333; The State v. Hildreth, 9 Ired. Law, 440; same case, 51 Am. Dec. 369; 1 Whar. Cr. Law, §§ 211, 211a, 211d....
..............
"In the case of The State v. Cox, ante, it was held that `The mere mental approval by a bystander of a murder committed in his presence, does not make an accomplice in the murder.' ..." (pp. 625, 626.)
The state failed to prove a felonious intent on the part of Mrs. McLaughlin. This failure is highlighted in the majority opinion where the evidence on that necessary element is collected in one short paragraph at page 589 of the opinion. It read:
"The evidence clearly establishes that the appellant was present at the time the crime was committed. By her own admission, she was present when the beeves were picked up at the packing plant. Likewise, there was testimony showing she altered the check after it had been cashed in an attempt to make it appear the check was given to Pope in payment for a portion of the beef, which alteration would serve to substantiate her story."
Clearly the state's case rests solely upon the presence of Mrs. McLaughlin in her husband's car at the scene of the crime.
The balance of the evidence recited refers to matters occurring after the steers were processed and after the crime of stealing the steers had been accomplished.
*592 Mrs. McLaughlin was not charged with concealing the crime or with assisting the others in avoiding arrest. Under K.S.A. 21-106 an accessory after the fact is guilty of a separate and distinct offense. This offense must be separately charged and carries a distinct penalty. The testimony concerning the change made on the check cannot supply evidence of a felonious intent to steal the steers. It might indicate a desire to assist her husband in avoiding arrest but she was not charged as an accessory after the fact. It should be noted the check was signed by her husband, drawn on his personal checking account and not on a joint account in which the wife had an interest.
Mrs. McLaughlin's presence when the meat was picked up from the locker does not support or prove a felonious intent to steal the steers from the Pike farm. Any inference to be drawn from her presence must depend upon evidence of a knowing participation in the crime, which is absent.
What was said in State v. Doyle, 201 Kan. 469, 441 P.2d 846 is applicable to the present case. There it was held:
"Presumption and inferences may be drawn only from facts established, and presumption may not rest upon presumption or inference on inference, and the rule is doubly applicable in criminal cases." (Syl. ¶ 8.)
One last matter deserves mention. Hearsay testimony was admitted during the trial over objection. The testimony was that of Pope concerning conversations of the three men in the barn when they planned the larceny of the cattle. These were conversations outside the hearing and presence of the defendant.
The majority justify the admission of this hearsay testimony on the basis of a special rule applicable in conspiracy cases, where third party witnesses are permitted to testify to conversations with one or more of the conspirators. State v. Borserine, 184 Kan. 405, 337 P.2d 697 is quoted by the majority in support thereof. It is not applicable in the present case. The general rule requires the conspiracy to be first established prima facie. It is only when proof of the conspiracy depends upon a vast amount of circumstantial evidence that the requirement of a prima facie case may be disregarded. It should be noted the theory of admissibility upon which the exception is based is wholly inapplicable to the present case. There was no conspiracy. Mae McLaughlin took no part in the planning. There was no vast amount of circumstantial evidence and no vast number of isolated and independent facts. Additionally, *593 in Borserine it was pointed out the declarations must be such as promote and further the common criminal design previously formed. In the present case this hearsay conversation did not promote and further a common criminal design previously formed, for it was only by reason of this conversation that a common criminal design among the three men was formed.
In State v. Johnson, 40 Kan. 266, 19 P. 749 as quoted in Borserine it was said that mere admissions or narrations of that which took place which have no tendency to promote the common criminal intent are inadmissible against anyone but him who made it.
The eventual admonition to the jury to disregard the conversation came after three prior conversations of the same objectionable nature were admitted. It was impossible for the jury to know which of these, if any, were to be disregarded. In my opinion the Borserine case does not support the admissibility of this testimony and the testimony was highly prejudicial. The case should, on this point alone, be reversed and sent back for a new trial.
However, even with this prejudicial hearsay testimony, the evidence was insufficient as a matter of law to support a conviction. Therefore, I respectfully dissent.
FONTRON, J., joins in the foregoing dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610089/ | 467 P.2d 119 (1970)
G.F. BROWN, Appellant,
v.
W.B. BROWN, Respondent.
Court of Appeals of Oregon, Department 1.
Argued and Submitted February 10, 1970.
Decided March 26, 1970.
David A. Rhoten, Salem, argued the cause for appellant. On the briefs were Rhoten, Rhoten & Speerstra, Salem.
Asa L. Lewelling, Salem, argued the cause and filed the brief for respondent.
Before SCHWAB, C.J., and FORT and BRANCHFIELD, JJ.
BRANCHFIELD, Judge.
On November 4, 1964, plaintiff wife filed for a divorce from the defendant. A trial was subsequently held, and on July 23, 1965, the court granted plaintiff an absolute decree of divorce. The decree also confirmed and incorporated a property settlement agreement previously executed by the parties. The agreement provides that each of the parties shall become an undivided owner of one-half of the interest of the parties in certain real properties, and that one-half of the net proceeds (i.e. gross sales price less any obligations of the sellers to be deducted from such proceeds such as street and other assessments and taxes) received from lots sold or contract payments received from the sale of lots subsequent to the filing of the divorce and prior to the date of the decree shall be divided one-half to each.
During the seven month period between the filing of the divorce complaint and entry of the decree, the defendant sold certain of the above-described lots, and paid the street assessments and real property taxes on all of the subject property. Neither the divorce decree nor any provision in the property settlement agreement discussed the liability of the parties for these charges against the unsold lots. Hence, in rendering an accounting to plaintiff for her share of the sales price for the lots sold, defendant claimed a credit for one-half of the assessments and taxes so paid.
*120 The plaintiff disputed defendant's rights to the above credit, and on January 30, 1968, she filed a motion for an order fixing the dollar amount of the judgment awarded against the defendant in the divorce decree. She contended that under the terms of the agreement, as explained by her testimony concerning her intent as to its meaning, the defendant should have been declared liable for all of the charges imposed upon the property. The trial court ordered that defendant be given credit for one-half of the assessments and taxes, and plaintiff appeals.
In essence, plaintiff is seeking an interpretation of the property settlement agreement. She seeks relief concerning matters not within the contemplation of the parties or the court at the time the agreement was incorporated into the divorce decree. However, the court has no authority to make such a revision in the property settlement agreement. Jensen v. Jensen, 249 Or. 423, 438 P.2d 1013 (1968); Feves v. Feves, 198 Or. 151, 254 P.2d 694 (1953).
It has long been the rule in Oregon that if a property settlement made between a husband and wife is adopted and approved by a decree of divorce, it is beyond the power of the court to modify it subsequently. Beaman v. De Shazor, Jr., 197 Or. 669, 255 P.2d 157 (1953). Payne v. Payne, 215 Or. 412, 414, 332 P.2d 1075, 1076, 335 P.2d 606 (1959), states the rule thus:
"Beginning with Henderson v. Henderson, 37 Or. 141, 149, 60 P. 597, 61 P. 136, 48 L.R.A. 766, this court for more than a half century has consistently held that a decree approving and carrying into effect the terms of an agreement between husband and wife respecting a property settlement which has been approved by the court cannot thereafter be modified by the court without the consent of the parties * * *."
In Kuckenberg v. Kuckenberg, 88 Or. Adv.Sh. 115, 452 P.2d 305 (1969), the defendant husband appealed from an order of a divorce court which sought to interpret a property settlement agreement approved and incorporated in a decree of divorce entered by that court a month earlier. A dispute arose as to which of the parties was entitled to certain items of personal property, the ownership of which was left uncertain by the agreement. The order appealed from would have required the sheriff to sell the property and divide the proceeds of the sale equally between the parties. On appeal the Supreme Court held that the court's order was issued without either statutory or equitable jurisdiction and was therefore void. The court reversed and remanded the cause with instructions to dismiss the motion, saying at pages 119-120, 452 P.2d at page 307:
"* * * The property division, though appearing to need interpretation and implementation in another proceeding, is binding and beyond the power of the court to modify. * * *"
In the instant case, the challenged order would also effect a modification of the property settlement agreement as approved by the decree of divorce. Nothing in the transcript of proceedings[1] or the record in this case indicates that the divorce court contemplated continuing jurisdiction over the property settlement. The authority of the court to modify the decree is limited by ORS 107.100(1) (a) to modification of so much of the decree as may provide for the appointment of trustees; for support, custody and education of minor children; or for the maintenance of either party to the suit. The supplementary order entered in the case at bar is therefore void. The cause is reversed and remanded to the circuit court for proceedings consistent with this opinion.
NOTES
[1] The transcript is not properly before us for review, since the appellant did not file a designation of record as required by ORS 19.074(2) (a). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609898/ | 72 Wn. App. 733 (1994)
866 P.2d 648
THE STATE OF WASHINGTON, Respondent,
v.
FRANCISCO FLORES-MORENO, Appellant.
No. 14822-6-II.
The Court of Appeals of Washington, Division Two.
January 28, 1994.
*736 Thomas E. Doyle and Robert M. Quillian, for appellant (appointed counsel for appeal).
Patrick D. Sutherland, Prosecuting Attorney, and Jon Tunheim, Deputy, for respondent.
MORGAN, C.J.
Flores-Moreno appeals from his conviction and exceptional sentence for possession of heroin. We affirm as modified.
On September 20, 1990, officers of the Tacoma Police Department asked the Pierce County Superior Court to issue a search warrant for drugs thought to be located in a residence at 645 Bavarian Lane, Lacey, Washington. In part, they based their request on information from a person named Lynda Neville. Their affidavit amply established Neville's reliability. It also established that Neville had described the occupant of the residence as a Mexican male, 5 feet 9 inches in height, named Arturo or Tico, and that Arturo or Tico had been delivering drugs at the residence on various occasions within the preceding 10 days.
After the court issued the warrant, the officers drove to Lacey to serve it. They were accompanied by members of the Thurston County Narcotics Task Force, including Lieutenant John Suessman. They were also accompanied by Keila, a trained, certified, drug-sniffing dog.
The officers arrived at the residence at about 5:45 p.m. Those approaching the front saw the defendant, Flores-Moreno, close the trunk of a Grand Prix automobile and approach the driver's door as if to get in. The automobile was parked in the driveway of the residence, and Flores-Moreno matched the general description of "Arturo or Tico". He was detained while the officers searched the house. Because he could not speak English, he could not communicate who he was or why he was there.
As some of the officers were dealing with Flores-Moreno, Suessman saw three people moving toward the back of the *737 house. He quickly intercepted them, with gun drawn. He later testified that one of the three "immediately threw his hands up in the air and shouted to me, `I'm a police officer.' Once I inspected his credentials, he was, indeed, a Seattle police officer".[1]
After Suessman put his gun away, he learned that the three men were undercover officers who had begun a drug transaction with Flores-Moreno earlier that day. In Seattle, they had given him money with which he agreed to purchase cocaine and black tar heroin. They then had followed him to the residence at 645 Bavarian where, a moment before the Tacoma police arrived, they had watched him put what they believed were narcotics into the trunk of the Grand Prix.
Within a few minutes after Suessman accosted the Seattle officers, he and they returned to the front of the residence and asked that Keila's handler have her sniff the trunk of the car. Keila "indicated a positive reaction for the presence of narcotics in the trunk and on the door handle of the maroon Grand Prix."[2]
The officers then telephoned a judge of the Thurston County District Court and requested a search warrant for the Grand Prix. The warrant issued, and the ensuing search of the car revealed a "piece" of black tar heroin. According to findings made later by the trial court, this "piece" "was equivalent to 400 units or `matchheads', each containing two to three personal dosages...".[3] It "was a sufficient quantity to support the average heroin addict for well over a year",[4] with a street value of approximately $10,000.[5]
On September 24, Flores-Moreno was charged with one count of unlawful possession of heroin with intent to distribute. *738 Before trial, he filed a motion to suppress, which the trial court denied.
Trial commenced on January 10, 1991, and Flores-Moreno testified. He claimed that after borrowing the Grand Prix from a friend in Seattle, he had driven to the residence in Lacey to find his brother. He denied both drug trafficking and drug possession.
At the end of the evidence, the trial court instructed the jury on both possession with intent to deliver and simple possession. The jury found the defendant not guilty of possession with intent to deliver, but guilty of possession.
On March 12, 1991, Flores-Moreno was sentenced. His standard range was 0 to 90 days, but the trial court imposed an exceptional sentence of 14 months. As part of the sentence, the court required Flores-Moreno to submit to a year of community placement. It also required that he "submit to ... polygraph test at discretion of C.C.O."
On appeal, Flores-Moreno makes several contentions. First, he says the trial court erred in denying his motion to suppress. Second, he says the trial court erred in imposing an exceptional sentence. Third, he says the trial court erred in requiring him to submit to polygraph examinations.
I
Flores-Moreno says he was unlawfully detained because the police lacked articulable suspicion or other adequate reason to detain him, and because they detained him for a period longer than that permitted by law. His apparent premises are that the police lacked probable cause to arrest until they found the heroin, and that they found the heroin about an hour and a half to 2 hours after he was initially detained.[6] He also says the search warrant for the car was not supported by probable cause. For these reasons, he concludes that his motion to suppress should have been granted.
*739 We address four questions. (A) Was the defendant lawfully detained at the outset? (B) Did the detention exceed the time permitted by law before the dog gave a positive reaction indicating drugs in the car? (C) Was the car lawfully detained from when the dog gave a positive reaction to when the police searched it? and (D) Was the car lawfully searched?
A
[1, 2] The defendant was lawfully detained at the outset.[7] Under Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968), an officer is entitled "to briefly detain, for limited questioning, a person whom he reasonably suspects of criminal activity ...". State v. Smith, 102 Wn.2d 449, 452, 688 P.2d 146 (1984); see also State v. Kennedy, 107 Wn.2d 1, 5-6, 726 P.2d 445 (1986). Under Michigan v. Summers, 452 U.S. 692, 69 L.Ed.2d 340, 101 S.Ct. 2587 (1981), a valid warrant to search for drugs "implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted", even if the occupant is initially found outside the home.[8]Summers, 452 U.S. at 705; see also State v. Broadnax, 98 Wn.2d 289, 300, 654 P.2d 96 (1982) ("Thus, an occupant's constructive control over the premises which is the subject of a search warrant provides a sufficient connection with the suspected illegal activities to permit a detention of that individual.").
[3] Here, Terry is satisfied because information provided by Neville gave the police an articulable suspicion of criminal activity on the part of a person who met the defendant's *740 description. State v. Pimintel, 55 Wn. App. 569, 572, 779 P.2d 268, review denied, 113 Wn.2d 1022 (1989). Additionally, Summers is satisfied because the police immediately had adequate reason to believe that Flores-Moreno was the occupant of the residence for which they had a warrant. Under either rule, the police had the right to detain Flores-Moreno initially.
B
[4] Under Terry, and we assume under Summers, detention must be brief, and not in excess of a reasonable time. United States v. Sharpe, 470 U.S. 675, 84 L.Ed.2d 605, 105 S.Ct. 1568 (1985); State v. Lund, 70 Wn. App. 437, 446, 853 P.2d 1379 (1993). Here, only a few minutes elapsed from when Flores-Moreno was first detained until the dog reacted to drugs in the car. The trial court found that detention during that time was reasonable, and we agree.
C
In State v. Huff, 64 Wn. App. 641, 653, 826 P.2d 698, review denied, 119 Wn.2d 1007 (1992), we held "that when an officer has probable cause to believe that a car contains contraband or evidence of a crime, he or she may seize and hold the car for the time reasonably needed to obtain a search warrant and conduct the subsequent search." Thus, the questions here are whether and when the police had probable cause to search the car, and whether they detained it for more than a reasonable time in order to secure a warrant.
[5] The police had probable cause to search the car after the dog gave a positive reaction for drugs. When the Tacoma officers first drove up, they saw Flores-Moreno close the trunk of the Grand Prix and approach the driver's door as if to get in. Within a few minutes, the Seattle officers related that they had watched Flores-Moreno conduct a drug deal in Seattle; that they had followed him to Lacey; that the drug deal called for him to return to Seattle with drugs; and that they had seen Flores-Moreno put something in the trunk of the Grand Prix just before the Tacoma officers drove up. *741 Coupled with the Tacoma officers' observations and the drug dog's positive reaction to the car, these observations were such that a person of reasonable caution would have believed that the car contained drugs, and the police had probable cause to search as of that time.
[6] Flores-Moreno claims that the dog's positive reaction cannot contribute to probable cause because the record inadequately demonstrates the dog's training and certification. Probable cause to search can be established by the positive reaction of a drug sniffing dog whose reliability has been shown. State v. Wolohan, 23 Wn. App. 813, 815, 598 P.2d 421 (1979), review denied, 93 Wn.2d 1008 (1980). Here, the telephonic affidavit supporting the search warrant stated that Keila had received 525 hours of training, had been certified by the Washington State Police Canine Association as a Certified Narcotics Detection Canine, and had participated in 97 searches in which narcotics were found. Exhibit 1, at 4. These qualifications show reliability for purposes of probable cause, and Flores-Moreno's claim is not well taken.
[7] The police did not detain the car for more than a reasonable time. They detained it about 45 minutes after they acquired probable cause to search, and about 50 minutes overall. Both periods were reasonable under the circumstances.
D
[8] The car was lawfully searched. A search is lawful when conducted pursuant to warrant, and the warrant results from a showing of probable cause. Zurcher v. Stanford Daily, 436 U.S. 547, 549-50, 56 L.Ed.2d 525, 98 S.Ct. 1970 (1978). Probable cause exists when a reasonable, prudent person would understand that a crime has been committed, and that evidence of the crime can be found at the place to be searched. State v. Garcia, 63 Wn. App. 868, 871, 824 P.2d 1220 (1992) (citing State v. Fisher, 96 Wn.2d 962, 965, 639 P.2d 743, cert. denied, 457 U.S. 1137 (1982)).
Here, the Grand Prix was searched pursuant to warrant, and the warrant was issued on probable cause. For the reasons *742 already discussed, the police had probable cause to search the car, and they adequately presented that cause to the issuing magistrate.
E
We need not address whether the defendant's person, as opposed to the car, was lawfully detained from when the dog gave a positive reaction until the police found the heroin. During that period of time, no evidence was discovered on the defendant's person, and no statements were taken from him. Assuming without holding that the detention became unreasonably long at some point after the dog gave a positive reaction, there is no remedy that would affect this case.
II
To reverse a sentence outside the sentence range, a reviewing court must find that the reasons supplied by the sentencing judge are not supported by the record that was before the judge; that those reasons do not justify a sentence outside the standard range for that offense; or that the sentence imposed was clearly excessive or clearly too lenient. RCW 9.94A.210(4); State v. Oxborrow, 106 Wn.2d 525, 529, 723 P.2d 1123 (1986). Flores-Moreno concedes the trial court's findings are supported by the record.[9] He argues, however, that the trial court's findings do not justify a sentence outside the standard range, and that the sentence imposed was clearly excessive.
A
The trial court found as follows:
1. On 20 September 1990, defendant was in possession of a quantity of black tar heroin which was substantially higher and in a greater amount than would be possessed by any one person.
2. The street value of the heroin [the] defendant possessed was approximately $10,000 and is part and parcel of the finding that the quantity of controlled substance is grossly in excess of what ordinarily would be possessed by one person.
3. That the quantity of heroin was equivalent to 400 units or "matchheads", each containing two to three personal dosages *743 and was a sufficient quantity to support the average heroin addict for well over a year.
It also concluded as follows:
1. The fact that defendant was in possession of an extraordinary amount of a controlled substance justifies a sentence exceeding the standard range regardless of what defendant intended to do with it, and was a major [v]iolation of the Uniform Controlled Substances Act for Unlawful Possession of a Controlled Substance, RCW 69.50.401(d).
[9] The State says the exceptional sentence is justified by RCW 9.94A.390(2)(d), i.e., a major violation of the Uniform Controlled Substances Act. By its terms, however, RCW 9.94A.390(2)(d) only applies to major controlled substance violations "related to trafficking in controlled substances". Though undefined in the statute, "trafficking" does not mean simple possession. See State v. Fjermestad, 114 Wn.2d 828, 835, 791 P.2d 897 (1990) (undefined statutory term may be given its dictionary meaning). According to Black's Law Dictionary (6th ed. 1990), "trafficking" means the trading or dealing in certain goods. According to Webster's Third New International Dictionary, it means "to engage in commercial activity: buy and sell regularly". See also RCW 10.66.010(3). Thus, "trafficking" excludes simple possession, and simple possession is the crime here.
[10] Although the trial court could not base an exceptional sentence on the aggravating factors in RCW 9.94A.390, those factors "are illustrative only and are not intended to be exclusive reasons for exceptional sentences." RCW 9.94A.390; see also RCW 9.94A.010; State v. Perez, 69 Wn. App. 133, 847 P.2d 532 (trial court has discretion to fashion individualized sentences when the facts of a particular case demand it), review denied, 122 Wn.2d 1015 (1993). When a sentencing court employs an aggravating factor outside RCW 9.94A.390 to justify imposition of an exceptional sentence, an appellate court must determine whether that aggravating factor is "substantial and compelling" as a matter of law. RCW 9.94A.120(2); State v. Nordby, 106 Wn.2d 514, 518, 723 P.2d 1117 (1986).
*744 [11] To determine whether an aggravating factor is "substantial and compelling" as a matter of law, an appellate court asks two questions. State v. Grewe, 117 Wn.2d 211, 813 P.2d 1238 (1991). First, was the aggravating factor necessarily considered in setting the standard range for the offense? Grewe, at 215-16; Nordby, 106 Wn.2d at 518. Second, is the aggravating factor "sufficiently substantial and compelling to distinguish the crime in question from others in the same category"? Grewe, 117 Wn.2d at 216.
[12] Both questions can be answered in favor of the State when the circumstances underlying a crime are distinctively "more onerous or egregious" than is typical for that crime. This concept has been applied in a number of contexts, including vehicular assault or vehicular homicide, State v. Oksoktaruk, 70 Wn. App. 768, 775, 856 P.2d 1099 (1993); Perez; State v. Weaver, 46 Wn. App. 35, 43, 729 P.2d 64 (1986), review denied, 107 Wn.2d 1031 (1987), and various degrees of assault. State v. Warren, 63 Wn. App. 477, 820 P.2d 65 (1991), review denied, 118 Wn.2d 1030 (1992);[10]State v. Smith, 58 Wn. App. 621, 624, 626-27, 794 P.2d 541 (1990) (the defendant's "random, senseless acts" of violence rendered his assault "more onerous than is typical" of that crime (Clerk's Papers, at 624)), rev'd on other grounds sub nom. State v. Barnes, 117 Wn.2d 701, 818 P.2d 1088 (1991); see also State v. Holyoak, 49 Wn. App. 691, 696, 745 P.2d 515 (1987) (defendant's conduct in committing assault was "significantly more serious or egregious than typical"), review denied, 110 Wn.2d 1007 (1988). There is no reason it cannot also be applied in the context of simple possession.
*745 [13] Here, Flores-Moreno possessed up to 1,200 doses of heroin, valued at $10,000. This is much more than is typically seen in simple possession cases. See, e.g., State v. Valdobinos, 122 Wn.2d 270, 287, 858 P.2d 199 (1993) (possession of one-half gram of cocaine is typical for standard possession). Thus, Flores-Moreno's crime is distinctively more onerous than is typical, and the trial court did not err by going outside the standard range. See Grewe, 117 Wn.2d at 215-16.
B
[14] In determining whether an exceptional sentence is clearly excessive, an appellate court reviews for abuse of discretion. State v. Allert, 117 Wn.2d 156, 815 P.2d 752 (1991); State v. Dunaway, 109 Wn.2d 207, 218, 743 P.2d 1237, 749 P.2d 160 (1987). An abuse of discretion exists only when no reasonable person would have taken the position adopted by the trial court. State v. Nelson, 108 Wn.2d 491, 504-05, 740 P.2d 835 (1987).
Flores-Moreno's exceptional sentence was four times the high end of his standard range. However, exceptional sentences involving even higher multiples have been upheld. Oxborrow (15 times); State v. Armstrong, 106 Wn.2d 547, 723 P.2d 1111 (1986) (5 times); State v. Creekmore, 55 Wn. App. 852, 863-64, 783 P.2d 1068 (1989) (5 times low end, 3.75 times high end), review denied, 114 Wn.2d 1020 (1990). Given the amount of heroin possessed, we cannot say that no reasonable person would have taken the position adopted by the trial court, or that a 14-month sentence was clearly excessive.
III
Because Flores-Moreno had been convicted of a felony under RCW 69.50 and sentenced to total confinement with the Department of Corrections, the trial court was required to order a year of community placement as part of its sentence. RCW 9.94A.120(8)(a). As part of the community placement order, it was permitted to include crime-related prohibitions. RCW 9.94A.120(8)(c)(v).
*746 [15] Flores-Moreno contends that the condition of his sentence that required him to submit to polygraph examinations was not a crime related prohibition and thus not permissible. A "crime-related prohibition" is
an order of a court prohibiting conduct that directly relates to the circumstances of the crime for which the offender has been convicted, and shall not be construed to mean orders directing an offender affirmatively to participate in rehabilitative programs or to otherwise perform affirmative conduct.
RCW 9.94A.030(11).
Arguably, a condition requiring a drug offender to submit to polygraph examinations satisfies the statute if it requires the offender to submit to polygraph examinations related to drugs. However, the condition in this case required Flores-Moreno to submit to polygraph examination on any and all subjects, at the discretion of his community corrections officer. Because it was so broad, it did not directly relate to his crime, and the trial court erred by imposing it.
The condition requiring polygraph examinations is stricken. In all other respects, the judgment is affirmed.
ALEXANDER and HOUGHTON, JJ., concur.
Review denied at 124 Wn.2d 1009 (1994).
NOTES
[1] Report of Proceedings (Jan. 3, 1991), at 22.
[2] Exhibit 1, at 3.
[3] Exceptional sentence finding of fact 3; Clerk's Papers, at 53.
[4] Exceptional sentence finding of fact 3; Clerk's Papers, at 53.
[5] Exceptional sentence finding of fact 2; Clerk's Papers, at 53.
[6] Flores-Moreno testified that an hour and a half to 2 hours elapsed from when he was initially detained to when he was taken to jail. He did not testify concerning the amount of time that elapsed from when he was initially detained to when the heroin was found, and the trial court did not make a finding on that matter.
[7] If when the police arrived they had reasonably suspected that the Grand Prix contained drugs, we would base this part of our analysis on whether the Grand Prix was lawfully detained pursuant to United States v. Place, 462 U.S. 696, 77 L.Ed.2d 110, 103 S.Ct. 2637 (1983) (property may be held for short, reasonable time on basis of reasonable suspicion). Before the police arrived, however, they knew nothing about the Grand Prix, and it seems clear that they did not acquire reasonable suspicion to believe it contained drugs simply because they saw Flores-Moreno closing the trunk. Therefore, it becomes necessary to analyze whether they lawfully detained Flores-Moreno's person.
[8] In Summers, the occupant of the home was contacted as he was descending the front stairs. 452 U.S. at 693.
[9] Brief of Appellant, at 19.
[10] In Warren, the defendant shot and seriously wounded his neighbor. Though he was charged with attempted second degree murder, the jury only convicted him of the lesser included offense of third degree assault. Nevertheless, the trial court imposed an exceptional sentenced based, in part, on the egregious nature of the injuries suffered by the neighbor.
The appellate court affirmed. It found that though the verdict reduced the level of the crime, it did not reduce the level of the injuries. Thus, the appellate court held that defendant's "conduct producing the harm, and the harm produced, were significantly more serious than what is typically involved in the crime." 63 Wn. App. at 479. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1838070/ | 289 B.R. 711 (2003)
In re Larry Kenneth ALEXANDER, Debtor.
Larry Kenneth Alexander, Movant-Appellant,
v.
Mary Jo A. Jensen-Carter, Trustee-Appellee,
Habbo G. Fokkena, U.S. Trustee-Appellee.
No. 02-6-64 MN.
United States Bankruptcy Appellate Panel of the Eighth Circuit.
Submitted February 4, 2003.
Filed March 13, 2003.
*712 Larry Kenneth Alexander, St. Paul, Minnesota, pro se.
Mary Jo A. Jensen-Carter, Vadnais Heights, Minnesota, for appellee.
Before HILL, SCHERMER and FEDERMAN, Bankruptcy Judges.
SCHERMER, Bankruptcy Judge.
Debtor Larry Kenneth Alexander ("Debtor") appeals from the bankruptcy court[1] order denying his motion to remove the trustee, denying his motion requesting an order requiring the trustee to abandon certain real property, and enjoining him *713 from filing any further motions or proceedings related to such real property and/or the trustee's administration thereof. We have jurisdiction over this appeal from the final order and judgment of the bankruptcy court. See 28 U.S.C. § 158(b). We affirm.
ISSUES
The first issue on appeal is whether the bankruptcy court erred when it denied the Debtor's motion to remove the trustee for misconduct. We conclude that the bankruptcy court did not commit error in denying the motion. The second issue on appeal is whether the bankruptcy court erred when it denied the Debtor's motion for an order requiring the abandonment of the property. We conclude that the bankruptcy court did not err in denying the motion. The final issue on appeal is whether the bankruptcy court erred in enjoining the Debtor from filing any further motions related to the trustee's administration of the bankruptcy estate and the property. We conclude that the bankruptcy court properly issued the injunction.
BACKGROUND
On June 18, 1998, the Debtor filed a petition for relief under Chapter 13 of the Bankruptcy Code. He asserted a homestead exemption in certain property located at 875 Laurel Avenue in St. Paul, Minnesota (the "Laurel Property"). The Chapter 13 Trustee objected to the exemption. After a hearing, the bankruptcy court ruled that the Debtor was not entitled to an exemption in the Laurel Property and converted the Debtor's case to Chapter 7. The Debtor appealed the order disallowing the exemption in the Laurel Property, which order was affirmed on appeal. Alexander v. Chrysler Fin. Corp. (In re Alexander), 242 F.3d 373, 2000 WL 1717177 (8th Cir.2000).
Mary Jo Jensen-Carter ("Trustee") was appointed the Trustee in the Debtor's Chapter 7 case. The Trustee filed an objection to the Debtor's asserted exemption in the Laurel Property in the Chapter 7 case, which objection was sustained. In re Alexander, 236 B.R. 679 (Bankr.D.Minn.1999). The bankruptcy court's order sustaining the objection to the exemption was ultimately affirmed by the Eighth Circuit Court of Appeals. Alexander v. Jensen-Carter (In re Alexander), 236 F.3d 431 (8th Cir.2001), aff'ing 239 B.R. 911 (8th Cir. BAP 1999).
The Debtor thereafter filed a motion for reconsideration under Federal Rule of Civil Procedure 60 seeking to exempt the Laurel Property because his wife, Georgina Yvonne Stephens ("Stephens"), and his minor child occupy the property. The bankruptcy court denied the motion. The Debtor appealed this order which was also ultimately affirmed by the Eighth Circuit Court of Appeals. Alexander v. Jensen-Carter (In re Alexander), 44 Fed.Appx. 32 (8th Cir.2002), aff'ing 270 B.R. 281 (8th Cir. BAP 2001).
In October, 2001, Stephens attempted to claim an exemption in the Laurel Property in the Debtor's bankruptcy case as a dependent of the Debtor pursuant to 11 U.S.C. § 522(1) and Federal Rule of Bankruptcy Procedure 4003(a). The bankruptcy court denied Stephens' motion seeking an order sustaining such homestead exemption. Stephens appealed that order which was affirmed by the Bankruptcy Appellate Panel for the Eighth Circuit. Stephens v. Jensen-Carter (In re Alexander), 288 B.R. 127 (8th Cir. BAP 2003).[2]
*714 On September 23, 2002, the Debtor filed his motion to remove the Trustee and for an order requiring the abandonment of the Laurel Property. The bankruptcy court conducted a hearing on the motion on October 22, 2002, at which time the court entered its order denying the Debtor's request to remove the Trustee, denying the Debtor's request for an order requiring the abandonment of the Laurel Property, and enjoining the Debtor from filing any further motions or proceedings related to the Trustee's administration of the Debtor's bankruptcy estate and/or the Laurel Property and from filing a motion for reconsideration of such order. The Debtor appeals this order.
STANDARD OF REVIEW
We review the bankruptcy court's findings of fact for clear error and its conclusions of law de novo. Alexander v. Jensen-Carter (In re Alexander), 239 B.R. 911, 913 (8th Cir. BAP 1999), aff'd 236 F.3d 431 (8th Cir.2001). We review the bankruptcy court's issuance of an injunction for an abuse of discretion. Alexander v. Jensen-Carter (In re Alexander), 270 B.R. 281, 286 (8th Cir. BAP 1999), aff'd 44 Fed.Appx. 32 (8th Cir.2002).
DISCUSSION
The Debtor's motion is yet another attempt by the Debtor to exempt his interest in the Laurel Property. The Laurel Property is part of the Debtor's Chapter 7 bankruptcy estate. 11 U.S.C. § 541(a). It has been definitively determined that the Debtor is not entitled to any exemption in the Laurel Property. Alexander v. Jensen-Carter (In re Alexander), 236 F.3d 431 (8th Cir.2001), aff'g 239 B.R. 911 (8th Cir. BAP 1999), aff'g 236 B.R. 679 (Bankr.D.Minn.1999); Alexander v. Jensen-Carter (In re Alexander), 44 Fed.Appx. 32 (8th Cir.2002), aff'g 270 B.R. 281 (8th Cir. BAP 2001). The Trustee has a duty to administer the Laurel Property as property of the estate. 11 U.S.C. § 704. The Debtor's motion to remove the Trustee and for an order requiring the abandonment of the Laurel Property lacks any merit and is yet another thinly veiled attempt to exempt the property despite numerous prior failed attempts by both the Debtor and his non-debtor wife to prevent the Trustee from performing her duties and administering this estate asset.
I. REMOVAL OF A TRUSTEE
Pursuant to 11 U.S.C. § 324(a), the bankruptcy court may remove a trustee for cause. As the movant, the Debtor bears the burden of establishing cause by setting forth specific facts which support the removal of the Trustee. In re Marvel Entm't Group, Inc., 140 F.3d 463, 471 (3rd Cir.1998); In re Schultz Mfg. Fabricating Co., 956 F.2d 686, 692 (7th Cir.1992). A conclusory contention unsupported by specific facts does not constitute sufficient grounds for the removal of a trustee. In re Schultz Mfg., 956 F.2d at 692.
The Debtor failed to establish any fact supporting the removal of the Trustee. The Debtor merely established that he believes his wife is entitled to an exemption in the Laurel Property. The Debtor failed to articulate any fact which would support removal of the Trustee. The Debtor is merely attempting yet again to thwart the Trustee's efforts to administer the Laurel Property. Without a scintilla of evidence establishing cause to remove *715 the Trustee, the bankruptcy court properly denied the motion.
II. ABANDONMENT OF PROPERTY
Pursuant to 11 U.S.C. § 554(b), on request of a party in interest and after notice and a hearing, the court may order the trustee to abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate. The party seeking abandonment must establish that the property is either burdensome or of inconsequential benefit and value.
With respect to the Laurel Property, the Trustee testified that she believes the value to be $300,000 based on the tax statement value of "over $300,000." (Transcript, p. 36.) The Debtor testified that he believed the property was worth less than $200,000 on the date he filed his bankruptcy petition. (Transcript, p. 33.) The undisputed evidence established that the mortgage indebtedness encumbering the property is $30,000. It has already been conclusively established that neither the Debtor nor his wife are entitled to any exemptions in the property. The record thus supports the conclusion that the Laurel Property has value for the estate.
The Debtor argues that Stephens is entitled to a $200,000 homestead exemption in the property because she is his wife. The Debtor presented no evidence to support his belief. Nonetheless, even if his wife were entitled to $200,000 from the proceeds of the sale of the Laurel Property, the property still has value and benefit to the estate. The evidence supports the conclusion that the property has a value of $300,000 which is sufficient to satisfy the $30,000 mortgage and any $200,000 interest of the wife with $70,000 remaining for the Debtor's bankruptcy estate. The Debtor did not meet the burden of establishing that the property is burdensome or of inconsequential value and benefit to the estate. The bankruptcy court properly denied the motion for abandonment.
III. INJUNCTIVE RELIEF
Upon the Trustee's request, the bankruptcy court enjoined the Debtor from filing any more motions or proceedings with the bankruptcy court related to the Trustee's administration of the estate and/or the Laurel Property and enjoined him from filing a motion to reconsider his latest order. Pursuant to 11 U.S.C. § 105(a), the bankruptcy court is authorized to issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of the Bankruptcy Code. The issuance of an injunction under 11 U.S.C. § 105(a) is appropriate to protect the assets of the debtor's estate. NLRB v. Superior Forwarding, Inc., 762 F.2d 695, 698 (8th Cir.1985).
The bankruptcy court properly considered the request for injunctive relief, heard arguments, and determined that it has been definitively established that the Laurel Property is property of the Debtor's bankruptcy estate and that the Trustee is entitled to administer the asset. The court considered the fees and costs continuing to accrue as the Trustee is forced to relitigate the same issues with the Debtor and his wife and the negative impact thereof on the estate and its creditors. The court limited the injunction to any further proceedings in the bankruptcy court. The court did not enjoin the Debtor from pursuing any rights he may have with respect to the Laurel Property in any other forum, including the state courts of Minnesota and the United States District Court for the District of Minnesota where lawsuits related to the property were pending at the time. Nor did the court enjoin the Debtor from appealing its order. Rather, the court narrowly drafted the *716 injunction to prevent yet another attempt by the Debtor to assert an exemption in the Laurel Property and thus relitigate issues which have been previously decided by the Eighth Circuit Court of Appeals and are now governed by the law of the case. Graven v. Fink (In re Graven), 186 F.3d 871, 872 (8th Cir.1999). The bankruptcy court did not abuse its discretion in entering the injunction.
CONCLUSION
The bankruptcy court properly denied the Debtor's motion to remove the Trustee and for an order compelling abandonment of the Laurel Property. Furthermore, the bankruptcy court did not abuse its discretion in enjoining the Debtor from further litigation before the bankruptcy court related to the Laurel Property. Accordingly, we AFFIRM.
NOTES
[1] The Honorable Dennis D. O'Brien, United States Bankruptcy Judge for the District of Minnesota.
[2] This is a summary of only a portion of the litigation concerning the Laurel Property and the respective rights of the Trustee, the Debtor, and Stephens therein. Stephens has filed two bankruptcy petitions. Additionally, at least two separate lawsuits are pending before the United States District Court for the District of Minnesota and the Minnesota state court related to the Laurel Property. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1903421/ | 773 N.W.2d 662 (2009)
Angela PATREKA, Plaintiff-Appellant,
v.
Brandi Leigh CORDLE and United Healthcare Insurance Company, Defendants, and
State Farm Mutual Automobile Insurance Company, Defendant-Appellee.
Docket No. 139220. COA No. 284216.
Supreme Court of Michigan.
September 26, 2009.
Order
On order of the Court, the motion to hold the plaintiffs application for leave to appeal in abeyance for McCormick v. Carrier (Docket No. 136738) is considered, and it is GRANTED. We ORDER that the application be held in ABEYANCE pending the decision in that case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1863899/ | 276 B.R. 610 (2002)
In re Georgina Yvonne STEPHENS, Debtor.
Georgina Yvonne Stephens, Debtor Appellant,
v.
Mary Jo A. Jensen-Carter, Trustee Appellee.
No. 01-6096MN.
United States Bankruptcy Appellate Panel of the Eighth Circuit.
Submitted April 2, 2002.
Filed April 29, 2002.
*611 Georgina Yvonne Stephens, St. Paul, MN, pro se.
Mary Jo A. Jensen-Carter, St. Paul, MN, pro se.
Before KOGER, Chief Judge, SCHERMER and FEDERMAN, Bankruptcy Judges.
KOGER, Chief Judge.
Debtor Georgina Yvonne Stephens appeals from an Order of the Bankruptcy Court[1] denying her motion for an adjudication that Mary Jo Jensen-Carter violated the discharge injunction under 11 U.S.C. § 524(a) and for imposition of sanctions upon such an adjudication. For the reasons that follow, we affirm.
FACTUAL BACKGROUND
The facts of this case and the separate bankruptcy case of Stephens' husband, Larry Kenneth Alexander, have been reported in several previous decisions related to Alexander's case. See In re Alexander, 236 F.3d 431 (8th Cir.2001); In re Alexander, 270 B.R. 281 (8th Cir. BAP 2001); In re Alexander, 239 B.R. 911 (8th Cir. BAP 1999); In re Alexander, 236 B.R. 679 (Bankr.D.Minn.1999). In sum, as relevant here, Alexander moved out of the home he shared with Stephens, commonly known as 875 Laurel Avenue in St. Paul, Minnesota, a few days prior to filing his individual Chapter 13 bankruptcy petition in June of 1998. Stephens remained in the home with the parties' minor son and, on August 17, 1998, a couple of months after Alexander filed his original bankruptcy petition, she filed a separate Chapter 7 bankruptcy petition. She listed her address as 875 Laurel Avenue, but failed to schedule an ownership interest in the property or claim a homestead exemption on the schedules she filed with her petition because, as she has conceded, Alexander had acquired this property before the parties were married and he was the sole record title holder to that property, and therefore, she did not believe she had an ownership interest in that property.
*612 Because Alexander was having difficulty claiming a homestead exemption for the 875 Laurel property in his own case, discussed briefly below, Alexander filed an "Amended Schedule A & C to Correct Description of Realty Claimed Exempt" in Stephens' case, purporting to exempt the 875 Laurel property on his own behalf as a "dependent" of Stephens.[2] The Chapter 7 trustee in Stephens' case subsequently abandoned all property in her case and Stephens received a discharge on November 18, 1998.[3]
Meanwhile, in Alexander's separate bankruptcy case, Alexander attempted to claim the 875 Laurel Avenue property as his own homestead, despite the fact that he was not living there when he filed his bankruptcy petition. The trustee in Alexander's case, Mary Jo Jensen-Carter, objected to Alexander's claimed exemption in the 875 Laurel property and, after several court battles, the Bankruptcy Court ultimately sustained the objection and denied the claimed homestead exemption in Alexander's case. We have twice affirmed the Bankruptcy Court's decisions denying Alexander's attempts to claim the homestead in his case. See In re Alexander, 270 B.R. 281 (8th Cir. BAP 2001); In re Alexander, 239 B.R. 911 (8th Cir. BAP 1999). The Eighth Circuit Court of Appeals affirmed our first decision in his case, see In re Alexander, 236 F.3d 431 (8th Cir.2001), and Alexander's appeal from the latest decision is currently pending before the Eighth Circuit Court of Appeals.
Since the Bankruptcy Court determined that Alexander could not claim the 875 Laurel property as his homestead, Jensen-Carter, as trustee in his case, began efforts to take possession and sell the property for the benefit of Alexander's bankruptcy estate, including filing an unlawful detainer action against Stephens and Alexander in the Ramsey County District Court.
On or about August 31, 2001, without attempting to reopen the case, Stephens filed a Schedule C in her closed Chapter 7 case, purporting to claim a $200,000 homestead exemption in the 875 Laurel property. Jensen-Carter received notice of the claimed exemption on or around October 26, 2001, and objected to it on November 2, 2001. On or about November 23, 2001, Stephens then filed a motion in her closed Chapter 7 case, again without reopening it, asserting that Jensen-Carter's attempts to obtain possession of the 875 Laurel property violated the discharge injunction in her case and requesting an award of sanctions against Jensen-Carter.
The Bankruptcy Court conducted a hearing on Stephens' motion on December 10, 2001, and on December 13, 2001, the Bankruptcy Court announced via telephonic hearing its findings and conclusions, holding that Jensen-Carter's attempts to obtain possession of the 875 Laurel property did not violate the discharge injunction in Stephens' bankruptcy case because Jensen-Carter was not acting to collect, recover, or offset any debt owing by Stephens *613 to Alexander or any other person or entity. The Court entered a written Order, dated December 14, 2001, summarily memorializing the determinations announced during the December 13 hearing. Stephens appeals this Order.
STANDARD OF REVIEW
We review findings of fact for clear error and legal conclusions de novo. See O'Neal v. Southwest Mo. Bank (In re Broadview Lumber Co.), 118 F.3d 1246, 1250 (8th Cir.1997); Hartford Cas. Ins. Co. v. Food Barn Stores, Inc. (In re Food Barn Stores, Inc.), 214 B.R. 197, 199 (8th Cir. BAP 1997); see also Fed. R. Bankr.P. 8013. Mixed questions of law and fact are subject to plenary review. See Loehrer v. McDonnell Douglas Corp., 98 F.3d 1056, 1061 (8th Cir.1996).
DISCUSSION
In the telephonic hearing, the Bankruptcy Court summarized Stephens' arguments as follows: (1) since Stephens scheduled Alexander as a creditor in her case, Jensen-Carter, as successor in interest to Alexander's unfixed and unliquidated claim against Stephens by virtue of her trustee status in his case, is bound by the discharge injunction from pursuing any claims that Alexander had against Stephens; and (2) Jensen-Carter's actions are infringing on Stephens' homestead exemption in the property.
The Court agreed with Stephens that, as a general matter, because Stephens correctly scheduled Alexander as a creditor in her case due to the pending divorce action, this prevented Jensen-Carter, as trustee in Alexander's case, from taking any action to collect a debt against Stephens after she received her discharge. However, the Bankruptcy Court held, and we agree, that this general principle applies only to Jensen-Carter's status as a successor in interest to the in personam claims against Stephens, as would have been determined by the divorce court. The Bankruptcy Court found that this general principle did not apply in this situation, however, because Jensen-Carter was not attempting to liquidate the 875 Laurel property in her status as Alexander's successor as a creditor of Stephens. Rather, Jensen-Carter was attempting to liquidate the real estate as an asset of Alexander's estate for the benefit of his creditors. In other words, according to the Court, Jensen-Carter's attempt to liquidate his property was not an attempt to enforce a personal liability of Stephens to Alexander, but was an attempt to administer property belonging to Alexander's estate.
Thus, with that being the case, the Bankruptcy Court relied on our decision in Bank One Wisconsin, N.A. v. Annen (In re Annen), 246 B.R. 337, 340 (8th Cir. BAP 2000). In that case, the Chapter 7 debtors sought a determination from the bankruptcy court that a mortgagor bank's post-discharge declaratory judgment action to void an erroneously filed mortgage satisfaction and to reinstate a mortgage on the debtors' homestead violated the discharge injunction under § 524(a)(2). The Bankruptcy Court in that case held that the bank's post-discharge attempt to reinstate the mortgage on the homestead did not violate the discharge injunction because the bank's complaint did not seek and would not result in an adjudication that the debtors were personally liable on any debt. Id. at 339. We affirmed the bankruptcy court's decision.
Section 524(a)(2) provides that a discharge under the bankruptcy laws:
operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such *614 debt as a personal liability of the debtor, whether or not discharge of such debt is waived.
11 U.S.C. § 524(a)(2) (emphasis added). "As is evident from the plain language of the statute, the discharge injunction applies to in personam actions. It does not apply to in rem actions." In re Annen, 246 B.R. at 340. "In rem" is defined as "[a] technical term used to designate proceedings or actions instituted against the thing, in contradistinction to personal actions, which are said to be in personam." Black's Law Dictionary 713 (5th ed.1979) (emphasis in original).
We agree with the Bankruptcy Court in this case that Jensen-Carter's attempts to administer the 875 Laurel property are patently in rem and are not in personam because Jensen-Carter is merely attempting to recover the property as an asset in Alexander's estate and is not attempting to enforce or collect any debt from Stephens personally. As a result, Jensen-Carter's actions in attempting to liquidate the 875 Laurel property could not have violated the discharge injunction in Stephens' case.
We also agree with the Bankruptcy Court that, even assuming Stephens has an ownership interest in the 875 Laurel property and properly claimed a homestead exemption therein, which is by no means certain, Stephens' alleged homestead rights are not implicated here. As the Bankruptcy Court said, "[a]ll this does is present two parties with competing claims to the same thing, the same asset, the same res . . ." Again, since Jensen-Carter is attempting to enforce Alexander's property rights in the 875 Laurel property and is not attempting to collect any debt Stephens might owe to Alexander, Jensen-Carter is not infringing upon Stephens' alleged homestead rights.
Stephens raises several additional arguments on appeal relating to her homestead rights and various other issues. While we have carefully considered each of her arguments, we decline to specifically address many of them here because they are either premature, irrelevant, or without merit in this appeal.
CONCLUSION
For the foregoing reasons, we conclude that the Bankruptcy Court did not err in denying Stephens' motion for an adjudication that Jensen-Carter has violated the discharge injunction in Stephens' Chapter 7 bankruptcy case. The Bankruptcy Court's Order is therefore affirmed.
NOTES
[1] The Honorable Gregory F. Kishel, United States Bankruptcy Judge for the District of Minnesota.
[2] As we commented in our previous decision in Alexander's case, the validity and effect of Alexander's purported claim of homestead exemption in Stephens' case is questionable. However, that issue is not before us at this time and so we need not decide that issue here.
[3] Stephens filed a second bankruptcy petition, this time under Chapter 13, on June 7, 1999, again listing 875 Laurel Avenue as her address but failing to list any ownership interest or exemption in that property on her bankruptcy schedules. Ultimately, Stephens voluntarily dismissed her Chapter 13 case in December 1999. Because Stephens filed the instant motion in the Chapter 7 case, the details of the dismissed Chapter 13 case are not pertinent here. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1029522/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8290
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KOFIE AKIEM JONES,
Defendant – Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Frederick P.
Stamp, Jr., Senior District Judge. (1:03-cr-00047-FPS-JSK-1;
1:06-cv-00018-FPS-JSK)
Submitted: July 2, 2009 Decided: July 20, 2009
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Billy Lee Ponds, PONDS LAW FIRM, Washington, D.C., for
Appellant. Robert Hugh McWilliams, Jr., Assistant United States
Attorney, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kofie Akiem Jones seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge and
denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2009)
motion. The order is not appealable unless a circuit justice or
judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2006). A certificate of appealability will not
issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A
prisoner satisfies this standard by demonstrating that
reasonable jurists would find that any assessment of the
constitutional claims by the district court is debatable or
wrong and that any dispositive procedural ruling by the district
court is likewise debatable. Miller-El v. Cockrell, 537 U.S.
322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have
independently reviewed the record and conclude that Jones has
not made the requisite showing. Accordingly, we deny his motion
for a certificate of appealability and dismiss the appeal. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED
2 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1262284/ | 516 F.3d 432 (2008)
UNITED STATES of America, Plaintiff-Appellee,
v.
Brian BELL, Defendant-Appellant.
No. 06-6248.
United States Court of Appeals, Sixth Circuit.
Submitted: October 26, 2007.
Decided and Filed: February 14, 2008.
*434 *435 *433 *436 ON BRIEF: Robert C. Brooks, Memphis, Tennessee, for Appellant. E. Greg *437 Gilluly, Jr., Assistant United States Attorney, Memphis, Tennessee, for Appellee.
Before: KEITH and CLAY, Circuit Judges; STEEH, District Judge.[*]
CLAY, J., delivered the opinion of the court, in which KEITH, J., joined. STEEH, D.J. (pp. 448-50), delivered a separate dissenting opinion.
OPINION
CLAY, Circuit Judge.
Defendant Brian Bell ("Bell") appeals his conviction, following a jury trial, for possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), possession of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Bell argues that the district court committed reversible error by admitting into evidence four prior state court drug convictions under Federal Rule of Evidence 404(b) for the purpose of proving absence of mistake or accident and intent. For the reasons that follow, we REVERSE the conviction and sentence imposed by the district court and REMAND the case to the district court for a new trial.
I. BACKGROUND
On February 23, 2004, Shelby County Sheriff's officers responded to 9155 Berry Garden Circle in Cordova, Tennessee to investigate a domestic violence complaint concerning Bell and Amber Williams ("Amber"), a fourteen-year-old child who lived at that address. Upon arrival, Shelby County Deputy Sheriff Walter Blaylock found Bell in a physical altercation with Amber who was crying and showed signs of physical injury. Officer Blaylock then arrested Bell whom he proceeded to search. The search uncovered a bag of marijuana and $1,852.00 in cash.
Having secured Bell, Officer Blaylock escorted Amber inside the residence so that she could call her mother, April Armstrong ("Armstrong"), who was at school. While accompanying Amber to the phone, Officer Blaylock observed marijuana, scales, a cutting board, baggies, and other drug paraphernalia on a coffee table located in the house.
Once Armstrong arrived, Officer Blaylock obtained her consent to search the house. The subsequent search uncovered over eleven kilograms of marijuana, packaged in small amounts, over ninety grams of crack cocaine, eleven firearms, assorted ammunition, a large digital scale, bags of cigar "blunts," which are commonly used to smoke marijuana, and other tools of the drug trade.
Based on the evidence discovered during this search, Bell was subsequently charged in the United States District Court for the Western District of Tennessee with: (1) possession of 11,071.1 grams of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); (2) possession of 94.6 grams of crack cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); and (3) possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). On August 18, 2004, Bell was arraigned on these charges and entered a plea of not guilty. The case proceeded to a jury trial on April 10, 2006.
At trial, Amber testified that she lived at 9155 Berry Garden Circle with her mother and Bell who stayed at the house "maybe *438 three or four nights out of the week." J.A. at 76. According to Amber, Bell kept several personal belongings at the house, including his pit bull dogs, his clothes, his cologne, and his backpack. Amber also testified that Bell kept his Lexus in the garage at the house and that he had his own room where he kept his belongings. Amber further informed the jury that no one else lived in the house with her and her mother during February of 2004.
Armstrong likewise testified that in February of 2004 Bell lived with her and her daughter at the residence which she leased at 9155 Berry Garden Circle. Armstrong indicated that Bell assisted in paying the bills for the residence and that, although he was "in and out," he "lived there most of the time," sharing a bedroom with her. J.A. at 141. She also confirmed that Bell had access to the entire house, had his own room where he stored his belongings, and occasionally had visitors to the house. Armstrong further testified that the drugs and guns found in the house were not hers.
In response to these witnesses, Deeta Johnson ("Johnson") testified for the defense that Bell was her fiancé, and that he lived with her and her seven-year-old son in Memphis, Tennessee. Johnson testified that Bell stayed with her "[b]asically every night" and that he was only gone about "two nights out of the week," in order to, as he informed Johnson, stay "[a]t his aunt's." J.A. at 439. Bell offered no other witnesses on his behalf.
In addition to the testimony of these witnesses, the arresting officers, and police drug testing experts, the jury was also presented with evidence of Bell's four prior state court drug convictions: (1) an October 16, 1997 conviction for possession of marijuana with intent to distribute; (2) an October 16, 1997 conviction for possession of cocaine base with intent to distribute; (3) a June 18, 1999 conviction for possession of marijuana with intent to distribute; and (4) a June 18, 1999 conviction for possession of cocaine base with intent to distribute.
Prior to trial, the government had filed a motion in limine, seeking the admission of these prior convictions, under Federal Rule of Evidence 404(b), for the purpose of demonstrating knowledge, intent, and absence of mistake or accident. Bell had opposed the motion and the district court deferred ruling on the motion until later in the trial.
While the issue came up at various points in the trial, the district judge did not directly return to the government's Rule 404(b) motion in limine until the close of Bell's case. At that time, the government renewed its request to introduce the evidence of Bell's prior drug convictions to show knowledge, intent, and absence of mistake. Bell objected to the admission of such evidence on the basis of its highly prejudicial nature. The district judge then proceeded to engage in the three step inquiry required for the admission of 404(b) evidence. The district judge determined that the certified records of the convictions were sufficient evidence to demonstrate that these other acts had occurred. The district judge also examined the government's purported purposes for introducing the evidence:
The second issue deals not only with whether or not [the convictions] can be proved, but whether they whether the government has articulated an appropriate basis under 4004(b) [sic] for the admission of such type such evidence, in other words, whether or not they have submitted sufficient argument and proof to the court and based upon the court's review of the record as to whether or not one or more of the permitted admissibility bases is present. . . . I think it's cited in [United States v. Ismail, 756 *439 F.2d 1253 (6th Cir.1985)] and [United States v. Lattner, 385 F.3d 947 (6th Cir. 2004)] that, when the defendant in such a charge enters a plea of not guilty, basically he is putting every element, including the intent aspect, to the government's proof. And, as well, the court believes that the defendant's position in this case has been that he was not aware, he was he did not know these drugs were there or they were planted by someone else, put in there by somebody else, you know, that this was simply he just happened to be he was an innocent person in terms of their being present or it was a mistake or an accident or just happened to be there.
I think under the circumstances of what I've heard from the proof, is that the government's submission of this evidence would go towards the issue of intent and absence of mistake or accident.
J.A. at 482-83. Finally, the district judge weighed the probative value of the evidence against its prejudicial impact and found that, with a limiting instruction to the jury, the latter would not substantially outweigh the former, and, accordingly, permitted the introduction of the evidence.
When introducing the certified judgments of Bell's prior convictions, the district court cautioned the jury:
Ladies and gentlemen, the court has permitted the introduction of testimony or evidence, rather, here regarding the defendant, Mr. Bell, about committing the commission of other crimes other than the ones that are charged in the indictment.
Now if you find that the defendant committed these acts, these crimes, you can consider the evidence only as it relates to the government's claim on the defendant's intent or absence of mistake or absence of accident. You may not consider it for any other purpose. And I'll give this instruction to you again when I give you the final instruction. But remember and keep this in mind, that the defendant is on trial here only for the offenses that he is charged with in this indictment, which again I will read to you. So the burden still remains on the government to prove its case beyond a reasonable doubt and, again, the defendant is not on trial for any previous act, but only for those that are charged here in this indictment.
J.A. at 491. After the closing arguments and before dismissing the jury for deliberations, the district court repeated a similar instruction:
Now, you heard testimony that the defendant committed crimes other than the ones charged in the indictment. If you find that the defendant did these crimes, you can consider the evidence only as it relates to the government's claim on the defendant's intent, absence of mistake, or absence of accident. You must not consider it for any other purpose. Now, remember that the defendant is on trial here for only those charges in the indictment and not for the other acts. Do not return a guilty verdict unless the government proves the crime charged in the indictment beyond a reasonable doubt.
J.A. at 560.
On April 13, 2006, the jury found Bell guilty of all three charges. On September 18, 2006, the district judge sentenced Bell to sixty months imprisonment on count 1, life imprisonment on count 2, and one-hundred-twenty months imprisonment on count 3. The district judge ordered that the sentences should run concurrently and be followed by 10 years of supervised release.
*440 On September 22, 2006, Bell filed his timely notice of appeal.
II. DISCUSSION
On appeal, Bell challenges the district court's admission of the evidence of his prior drug convictions under. Rule 404(b). We find this Rule 404(b) claim to have merit and hold that the district court erred by permitting the government to introduce evidence of Bell's prior drug convictions. Because we also find that the admission of this evidence violated Bell's right to receive a fair trial, we reverse Bell's conviction and remand the case for a new trial.
A. Standard of Review
We generally review the district court's admission or exclusion of evidence for abuse of discretion. United States v. Ganier, 468 F.3d 920, 925 (6th Cir.2006). However, in the specific context of Rule 404(b):
[W]e employ a three-part test, reviewing (1) for clear error the district court's determination that the "other act" took place; (2) de novo the district court's legal determination that the evidence was admissible for a proper purpose; and (3) for abuse of discretion the district court's determination that the probative value of the other acts evidence is not substantially outweighed by its unfairly prejudicial effect.
United States v. Ayoub, 498 F.3d 532, 547 (6th Cir.2007). Accord United States v. Rayborn, 495 F.3d 328, 342 (6th Cir.2007); United States v. Murphy, 241 F.3d 447, 450 (6th Cir.2001); United States v. Merriweather, 78 F.3d 1070, 1074 (6th Cir.1996). But see United States v. Haywood, 280 F.3d 715, 720 (6th Cir.2002) (refusing to apply de novo review to the district court's determination that the contested evidence was admissible for a proper purpose, and applying abuse of discretion standard instead). "These standards are not in fact inconsistent, because it is abuse of discretion to make errors of law or clear errors of factual determination." Ganier, 468 F.3d at 925 (citation and internal quotation marks omitted).
Under the abuse of discretion standard, "we will leave rulings about admissibility undisturbed unless we are left with the definite and firm conviction that the district court committed a clear error in judgment." United States v. Dixon, 413 F.3d 540, 544 (6th Cir.2005). "Broad discretion is given to district courts in determinations of admissibility based on considerations of relevance and prejudice, and those decisions will not be lightly overturned." United States v. Chambers, 441 F.3d 438, 455 (6th Cir.2006). "A new trial is not required unless the error affects substantial rights." Id. (citing Fed. R.Crim.P. 52).
B. Rule 404(b) Analysis
Federal Rule of Evidence 404(b) states, in relevant part:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Fed.R.Evid. 404(b) (emphasis added). Admission of evidence under Rule 404(b) is also subject to the requirements of Rule 403 which provides that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Fed. R.Evid. 403.
Interpreting, the requirements of these rules, we have outlined a three-step *441 process for the admission of Rule 404(b) evidence:
First, the district court must make a preliminary determination regarding whether there is sufficient evidence that the "other acts" took place. The district court must then determine whether those "other acts" are admissible for a proper purpose under Rule 404(b). Finally, the district court must determine whether the "other acts" evidence is more prejudicial than probative.
United States v. Lattner, 385 F.3d 947, 955 (6th Cir.2004). Accord United States v. Abboud, 438 F.3d 554, 581 (6th Cir.2006); United States v. Jenkins, 345 F.3d 928, 937 (6th Cir.2003). Once the district court decides that the evidence is admissible under Rule 404(b), then it "must carefully identify in its instructions to the jury, the specific factor named in the rule that is relied upon to justify admission of the other acts evidence, explain why that factor is material, and warn the jurors against using the evidence to draw the inferences expressly forbidden [by] Rule 404(b)." United States v. Johnson, 27 F.3d 1186, 1194 (6th Cir.1994). Accord Abboud, 438 F.3d at 581.
Applying these factors to this case reveals that the district court erred in admitting the evidence of Bell's prior drug convictions for the purpose of demonstrating absence of mistake or accident and intent, and abused its discretion in finding that the probative value of this evidence on the issue of intent was not substantially outweighed by its prejudicial impact. Because this error was not harmless, Bell is entitled to anew trial.
1. Sufficient Evidence That Other Acts Occurred
The first step that the district court must engage in under the Rule 404(b) analysis is to determine whether there is sufficient evidence to show that the defendant committed the other acts. The Supreme Court has held that the government is not required to demonstrate that the other acts occurred by a preponderance of the evidence. Huddleston v. United States, 485 U.S. 681, 689, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). However, the government cannot introduce evidence of potentially prejudicial similar acts without any substantiation. "In the Rule 404(b) context, similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor." Id.
In the instant case, the evidence of Bell's prior drug convictions included certified copies of the conviction records. At trial, Bell did not contest that these records were accurate or claim he did not commit the prior crimes. On appeal, Bell has likewise refrained from arguing that the evidence presented was insufficient to show he committed the prior drug offenses. Accordingly, the district court's conclusion that there was sufficient evidence to show that Bell had committed the prior drug offenses was not clearly erroneous.
2. Admissible For Legitimate Purpose
The second step of the district court's Rule 404(b) analysis is to determine whether the other acts evidence is admissible for a legitimate purpose. "To determine whether the proffered evidence is admissible for a proper purpose, the trial court must decide `whether that evidence is probative of a material issue other than character.'" United States v. Carney, 387 F.3d 436, 451 (6th Cir.2004) (quoting Huddleston, 485 U.S. at 686, 108 S.Ct. 1496). This requires a three part inquiry. "Evidence of other acts is probative of a material issue other than character if (1) the *442 evidence is offered for an admissible purpose, (2) the purpose for which the evidence is offered is material or `in issue,' and (3) the evidence is probative with regard to the purpose for which it is offered." Rayborn, 495 F.3d at 342 (quoting Jenkins, 345 F.3d at 937).
The district court found and instructed the jury that the evidence of Bell's prior convictions was admissible to show both absence of mistake or accident, and intent. We find this instruction to be erroneous.
Absence of mistake or accident is one of the permissible purposes listed in Rule 404(b). However, "the government's purpose in introducing the evidence must be to prove a fact that the defendant has placed, or conceivably will place, in issue, or a fact that the statutory elements obligate the government to prove." Merriweather, 78 F.3d at 1076. Thus, for other acts evidence to be admissible for the purpose of showing absence of mistake or accident, the defendant must assert a defense based on some type of mistake or accident. See United States v. Newsom, 452 F.3d 593, 606 (6th Cir.2006) (finding absence of mistake not to be a permissible purpose, in a felon in possession case, when the defendant's only defense was that the gun was not his and that he did not know that it was under his seat); United States v. Ward, 190 F.3d 483, 489 (6th Cir.1999) (rejecting absence of mistake as a permissible purpose for the admission of evidence when the defendant's "defense was not that she mistakenly thought she was selling powdered sugar instead of cocaine"); Merriweather, 78 F.3d at 1077 (noting that "absence of mistake `on behalf of the government' is not a legitimate basis to admit other acts evidence").
The district court erred in concluding that the evidence of Bell's prior convictions was admissible for the purpose of demonstrating absence of mistake or accident. This case did not present an issue of mistake or accident. Bell's argument was not that he was mistaken about the narcotic nature of the substances seized by the police, but rather that he never possessed the marijuana and crack cocaine. The district court recognized that there was "no indication from [Bell's] arguments or anything that has been put on that would indicate that Mr. Bell knew something was there, but didn't know it was drugs." J.A. at 472. On the contrary, the district court believed Bell's position to be that "he did not know these drugs were there or they were planted by someone else, put in there by somebody else, [that] he was an innocent person in terms of their being present or it was a mistake or accident or just happened to be there." J.A. at 483. In other words, Bell was claiming that it was a mistake for the police to think that the drugs were his, not that he was mistaken about the fact that the substances found were drugs. As Bell "never claimed that he was unknowingly dealing in cocaine or was unwittingly engaging in unlawful activity," the evidence of his prior drug convictions could not be properly admitted for the purpose of absence of mistake or accident. Merriweather, 78 F.3d at 1077.
Proving intent, however, was a potentially legitimate reason for the government to offer evidence of Bell's prior convictions. Rule 404(b) specifically lists demonstrating a defendant's intent as a permissible purpose. Moreover, Bell's intent to possess and distribute was at issue because it is an element that the government must prove to establish possession with intent to distribute. See 21 U.S.C. § 841(a)(1) ("[I]t shall be unlawful for any person knowingly or intentionally to . . . possess with intent to . . . distribute . . . a controlled substance") (emphasis added); *443 United States v. Coffee, 434 F.3d 887, 897 (6th Cir.2006) ("The elements of a charge of possession with intent to distribute illegal drugs are: (1) the defendant knowingly, (2) possessed a controlled substance, (3) with intent to distribute."). By "plead[ing] not guilty to the offense of possession with intent to distribute, [Bell] put his general intent and specific intent at issue, thereby giving the government the burden to establish both beyond a reasonable doubt." Lattner, 385 F.3d at 957. "[W]here the crime charged is one requiring specific intent, the prosecutor may use 404(b) evidence to prove that the defendant acted with specific intent notwithstanding that the defense was lack of possession, not lack of intent to distribute." United States v. Bilderbeck, 163 F.3d 971, 977 (6th Cir.1999). See also Lattner, 385 F.3d at 957 ("[W]hen a defendant is charged with a specific intent crime, such as possession with intent to distribute, 404(b) evidence is admissible to prove intent, subject to the probative/prejudicial balancing"); Johnson, 27 F.3d at 1192. Accordingly, the district court properly found that the evidence was being offered for the admissible purpose of intent and that this purpose was at issue in the case.
However, whether the evidence of Bell's prior drug convictions was probative on the issue of intent is a closer question. "To determine if evidence of other acts is probative of intent, we look to whether the evidence relates to conduct that is `substantially similar and reasonably near in time' to the specific intent offense at issue." Haywood, 280 F.3d at 721 (quoting Blankenship, 775 F.2d at 739). But see United States v. Ismail, 756 F.2d 1253, 1260 (6th Cir.1985) ("There is no absolute maximum number of years that may separate a prior act and the offense charged."). Thus, we have drawn a distinction between the probative value of prior acts of personal drug use and prior acts of drug distribution, finding the former not to be probative of intent to possess and distribute. See Jenkins, 345 F.3d at 937-38 ("Jenkins' admission that she is a crack cocaine user does not ipso facto lead to the conclusion that she was involved in the distribution of crack cocaine."); Haywood, 280 F.3d at 721-22 ("Acts related to the personal use of a controlled substance are of a wholly different order than acts involving the distribution of a controlled substance. One activity involves the personal abuse of narcotics, the other the implementation of a commercial activity for profit.") (quoting United States v. Ono, 918 F.2d 1462, 1465 (9th Cir.1990)).
Likewise, while we "have repeatedly recognized that prior drug distribution evidence is admissible to show intent to distribute," Ayoub, 498 F.3d at 548 (citing Jenkins, 345 F.3d at 938 (collecting cases)), our cases have only found such evidence probative of present intent to possess and distribute when the prior distributions were part of the same scheme or involved a similar modus operandi as the present offense. See, e.g., United States v. Robison, 904 F.2d 365, 368 (6th Cir.1990) (admitting testimony about the defendant's statements to co-conspirator regarding his intent to distribute in prior drug transactions to show present intent to distribute in transaction with same co-conspirator); United States v. Rodriguez, 882 F.2d 1059, 1064-65 (6th Cir.1989) (admitting evidence of prior drug transactions with same accomplice as in present case for the purpose of showing intent, plan, and knowledge). Unless the past and present crime are related by being part of the same scheme of drug distribution or by having the same modus operandi, the fact that a defendant has intended to possess and distribute drugs in the past does not logically compel the conclusion that he presently intends to *444 possess and distribute drugs. See United States v. Bakke, 942 F.2d 977, 983 (6th Cir.1991) (holding that evidence of the defendant's arrest in a "totally unrelated drug transaction" six months after the charged drug conspiracy only showed that the defendant was a drug dealer at the time of the later transaction and did not prove that the defendant was a member of the drug conspiracy). Indeed, a person may be a distributor of drugs on one occasion, and a mere user on another. The only way to reach the conclusion that the person currently has the intent to possess and distribute based solely on evidence of unrelated prior convictions for drug distribution is by employing the very kind of reasoning i.e., once a drug dealer, always a drug dealer which 404(b) excludes. See Old Chief v. United States, 519 U.S. 172, 180-81, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). Thus, to be probative of a defendant's present intent to possess and distribute, his prior convictions for drug distribution must be related in some way to the present crime for which the defendant is on trial.
Here, Bell's prior convictions were for unlawful possession of cocaine and marijuana with intent to distribute, the same type of charges at issue in this case. However, the convictions were for offenses that occurred several years previously and were not alleged to be part of the same scheme to distribute drugs or to involve a similar modus operandi. Such evidence of prior distribution, unconnected to the present charge, is not probative of whether Bell intended to possess and distribute drugs in the instant case. Accordingly, the district court erred in finding evidence of these prior convictions admissible for the legitimate purpose of proving Bell's intent.
3. Prejudicial/Probative Balancing
As the district court erred in finding that evidence of Bell's prior drug convictions was admissible for the purpose of demonstrating intent and absence of mistake, our Rule 404(b) analysis need proceed no further. However, in order to assuage any doubts about the error committed by the district court in its Rule 404(b) ruling, we address the further mistake committed by the district court in the final step of its Rule 404(b) analysis.
This final part of the Rule 404(b) analysis requires the district court to determine whether the prejudicial impact of the proffered evidence substantially outweighs its probative value. In Johnson, we explained the rationale for this balancing requirement:
When jurors hear that a defendant has on earlier occasions committed essentially the same crime as that for which he is on trial, the information unquestionably has a powerful and prejudicial impact. That, of course, is why the prosecution uses such evidence whenever it can. When prior acts evidence is introduced, regardless of the stated purpose, the likelihood is very great that the jurors will use the evidence precisely for the purpose it may not be considered; to suggest that the defendant is a bad person, a convicted criminal, and that if he "did it before he probably did it again." That is why the trial court's duty is to apply Rule 404(b) correctly and, before admitting such evidence, to decide carefully whether it will be more substantially prejudicial than probative.
27 F.3d at 1193. The Supreme Court has further clarified that "Wile term `unfair prejudice,' as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged." Old Chief 519 U.S. at 180, 117 S.Ct. 644. *445 Such improper grounds include "generalizing a defendant's earlier bad act into bad character and taking that as raising the odds that he did the latter bad act now charged (or, worse, as calling for preventive conviction even if he should happen to be innocent momentarily)." Id. at 180-81, 117 S.Ct. 644. "A limiting instruction will minimize to some degree the prejudicial nature of other criminal acts; it is not, however, a sure-fire panacea for the prejudice resulting from needless admission of such evidence." Haywood, 280 F.3d at 724.
With regard to the probative value of the evidence, the. Supreme Court has suggested that the district court should consider "the full evidentiary context of the case as the court understands it when the ruling must be made." Old Chief, 519 U.S. at 182, 117 S.Ct. 644. The Fifth Circuit has explained:
Probity in this context is not an absolute; its value must be determined with regard to the extent to which the defendant's unlawful intent is established by other evidence, stipulation, or inference. . . . Thus, if the Government has a strong case on the intent issue, the extrinsic evidence may add little and consequently will be excluded more readily. In measuring the probative value of the evidence, the judge should consider the overall similarity of the extrinsic and charged offenses. If they are dissimilar except for the common element of intent, the extrinsic offense may have little probative value to counterbalance the inherent prejudice of this type of evidence.
United States v. Beechum, 582 F.2d 898, 914-15 (5th Cir.1978). We have similarly found that the district court should consider the government's alternative sources of proving intent when weighing the probative value of other acts evidence. See Haywood, 280 F.3d at 723; Merriweather, 78 F.3d at 1078-79 ("One factor in balancing unfair prejudice against probative value under Rule 403 is the availability of other means of proof.").
Because of the highly discretionary nature of this balancing process, the district court's decision is afforded great deference. Chambers, 441 F.3d at 455. Accord United States v. Layne, 192 F.3d 556, 573 (6th Cir.1999) ("[T]he district court enjoys broad discretion in balancing probative value against prejudicial impact."). In reviewing the district court's balancing of prejudice and probative value, "we look at the evidence in the light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect." Chambers, 441 F.3d at 455 (quoting United States v. Bonds, 12 F.3d 540, 567 (6th Cir.1993)). Accord United States v. Maliszewski, 161 F.3d 992, 1010 (6th Cir.1998).
Despite the substantial deference that must be afforded a lower court's Rule 403 balancing decision, we find that the district court abused its discretion in the instant case. We have already noted that the evidence of Bell's prior convictions was not probative of his present intent to possess and distribute, the only plausibly legitimate purpose for offering this evidence. However, even assuming that this evidence would have some probative value on the issue of intent, its value would be slight. Bell's prior distribution of drugs several years prior to the instant offense does not necessarily imply that he was intending to possess and distribute drugs on this occasion. The only way that such evidence would be probative is if the jury were permitted to infer that because Bell has distributed drugs in the past, it is likely that he was doing so in the present case. Yet, this is the very kind of propensity reasoning which Rule 404(b) prohibits the *446 jury from using in assessing the probative value of Bell's prior convictions and prevents the judge from considering when engaging in the Rule 403 balancing process. See Old Chief 519 U.S. at 182, 117 S.Ct. 644.
Moreover, the government had little, if any, need for such evidence to establish Bell's intent. "The government had a number of means available to it to prove [Bell's] specific intent to distribute and possess cocaine, without showing that he was involved in" previous drug crimes. Merriweather, 78 F.3d at 1078. The testimony at trial established that the police recovered over twenty pounds of marijuana, packaged in small amounts, which is consistent with distribution, and over ninety grams of crack cocaine. These quantities alone were sufficient to demonstrate intent to distribute. See United States v. Faymore, 736 F.2d 328, 333 (6th Cir.1984) (finding that intent to distribute may be inferred from large quantities of drugs). The police also found drug scales, a cutting board, baggies, cigar "blunts," and other drug paraphernalia which strongly suggest an intent to distribute. The government attorney appears to have recognized the powerful weight of this other evidence in its closing argument when he stated:
I would submit with regard to the drugs [sic] intent to distribute. Your common sense. You heard the testimony. I submit it's undisputed. It is undisputed that that amount of crack cocaine, that amount of marijuana is indicative of an intent to distribute. You combine the scales, you combine the packaging materials, you combine the cutting board, all of that demonstrates an intent to distribute. I submit its not even a contested issue.
J.A. at 515. Tellingly, the government attorney did not even mention the evidence of Bell's prior convictions when explaining why the jury should find that he had the requisite intent to distribute. Indeed, the strength of this other evidence of intent was so overwhelming that the evidence of Bell's prior convictions could only have been marginally probative at best.
In contrast to the weak probative value of the evidence of Bell's prior convictions, its prejudicial impact was significant. Evidence of a defendant's prior crimes "unquestionably has a powerful and prejudicial impact." Johnson, 27 F.3d at 1193. Here, the evidence of Bell's prior crimes painted a picture of Bell as a repeat drug offender, greatly increasing the chance that the jury would punish him not for his involvement in the offense at issue, but rather because he appeared to be a "bad" guy. By "branding [Bell] as a criminal possessing crack cocaine, the evidence had the natural tendency to elicit the jury's opprobrium for [Bell]." Jenkins, 345 F.3d at 939 (quoting United States v. Spikes, 158 F.3d 913, 929 (6th Cir.1998)). Given the prejudicial nature of this evidence, "the likelihood [was] very great that the jurors [would] use the evidence precisely for the purpose [for which] it may not be considered; to suggest that the defendant [was] a bad person, a convicted criminal, and that if `he did it before, he probably did it again.'" Johnson, 27 F.3d at 1193.
The district court's limiting instructions to the jury did little to abate this prejudicial impact. These instructions did remind the jury that Bell was on trial only for the charged offenses and not for his prior bad acts. However, by directing the jury to consider these acts for the purpose of ascertaining Bell's intent, the court was implicitly approving the kind of reasoning which would suggest that because Bell was a drug distributor in the past, the jury should consider him to have distributed drugs in the present case. Moreover, the court's instruction created the possibility *447 for an even greater prejudicial impact by directing the jury to consider the evidence of Bell's prior convictions for the purpose of absence of mistake, a matter which was not even at issue in the case. Such confusion of the purpose of this other acts evidence was likely to create more rather than less prejudice. See Merriweather, 78 F.3d at 1079 (finding that jury instructions which "left the jury free to consider" the other acts evidence for several impermissible purposes "permitted the jury to draw the very inference forbidden by Rule 404(b)"). Thus, even if we were to find that the evidence of Bell's prior drug convictions was properly admissible to demonstrate his intent to distribute, we are left with the definite and firm conviction that the district court committed a clear error in judgment when it found that the highly prejudicial impact of this evidence did not substantially outweigh the slight, if any, probative value it may have provided.
As the district court (1) erred in finding that the evidence of Bell's prior bad acts was admissible for the purposes of proving intent and demonstrating absence of mistake or accident, and (2) abused its discretion in finding that the limited probative value of this evidence was not substantially outweighed by its highly prejudicial impact, we conclude that the district court's admission of this evidence under Rule 404(b) was erroneous.
C. Harmless Error Inquiry
Even though the district court's admission of the evidence of Bell's prior drug convictions was erroneous, Bell is not entitled to a new trial if this error was harmless. As we have previously stated, "fain error in the admission of evidence does not require granting a criminal defendant a new trial unless the error affects `substantial rights.'" United States v. DeSantis, 134 F.3d 760, 769 (6th Cir.1998) (quoting Fed. R.Crim. Proc. 52(a)). Accord Murphy, 241 F.3d at 453. In short, we must, "consider the impact of the error upon the right of the defendant to a fair trial." Layne, 192 F.3d at 573. "We must take account of what the error meant to [the jury], not singled out and standing alone, but in relation to all that happened." Murphy, 241 F.3d at 453 (quoting United States v. Cowart, 90 F.3d 154, 158 (6th Cir.1996)). Our concern is not "with whether there was sufficient evidence on which [the defendant] could have been convicted without the evidence complained of," but rather the "question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction." DeSantis, 134 F.3d at 769 (quoting Fahy v. Connecticut, 375 U.S. 85, 86, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963); O'Guinn v. Dutton, 88 F.3d 1409, 1461 (6th Cir.1996)). "We will presume that the district court's error was reversible unless we can say, `with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by error." Haywood, 280 F.3d at 724 (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). "Whether the jury was `substantially swayed' by the improper admission of evidence of other acts in a criminal trial generally depends on whether the properly admissible evidence of the defendant's guilt was overwhelming." Id. "When the government presents other convincing evidence, we may deem the admission of 404(b) evidence mere harmless error." Layne, 192 F.3d at 573. The "giving of a curative instruction by the trial court [also] occasionally renders harmless the erroneous admission of prejudicial evidence." Id.
In the instant case, there is a reasonable probability that the wrongly *448 admitted evidence of Bell's prior drug convictions contributed to his conviction in this case. As already indicated, this evidence was highly prejudicial and suggested to the jury that Bell was an habitual drug dealer who should be kept off the streets. The evidence of these prior drug convictions painted a picture of Bell as a career drug dealer, making it substantially more likely that the jury would convict him, not on the evidence presented, but rather because of a belief that if Bell dealt drugs in the past, he probably possessed and intended to distribute the drugs in the present case. Rather than limiting the odds that the jury would employ this propensity reasoning during its deliberations, the district court's flawed instruction, which wrongly permitted the jury to consider the evidence of Bell's prior drug convictions for the purposes of intent or absence of mistake, in all likelihood probably increased them.
The weak evidence of possession presented in the case further increased the likelihood that such impermissible reasoning would motivate the jury to convict Bell. While the immense quantity of drugs found at 9155 Berry Garden Circle (over 11,000 grams of marijuana and 94.6 grams of crack cocaine) as well as the packaging and distribution paraphernalia present in the home provided overwhelming evidence of someone's intent to distribute the drugs, the government's evidence to connect Bell to those drugs, and thus demonstrate that Bell was the person who intended to distribute them, was only circumstantial. The government offered no witnesses who could directly link Bell to the drugs found at 9155 Berry Garden Circle. Amber and Armstrong did testify at trial that Bell spent a few nights of each week at 9155 Berry Garden Circle and stored his possessions there. However, they could not confirm that the drugs found at the apartment belonged to Bell. Moreover, their testimony was refuted by Johnson who reported that Bell stayed at her place almost every night. While a reasonable jury could find that Bell possessed the drugs based upon this evidence, it would not be compelled to do so. Rather, given this circumstantial and disputed evidence, it is reasonably probable that the tipping factor for the jury was the evidence of Bell's prior drug convictions.
As the record in this case, does not provide us with the fair assurance that the jury's verdict was not substantially swayed by the evidence of Bell's prior convictions, we cannot find that the admission of this evidence was harmless. Accordingly, we conclude that Bell is entitled to a new trial.
III. CONCLUSION
For the foregoing reasons, the conviction and sentence imposed by the district court are REVERSED and the case is REMANDED to the district court with instructions to provide Bell with a new trial.
GEORGE C. STEER, District Judge, dissenting.
I respectfully dissent. In the context of determining the admissibility of proposed Rule 404(b) evidence, the majority opinion correctly concludes that Bell's general intent to possess the illegal drugs and firearms, and his specific intent to distribute drugs, were both placed at issue by his not guilty pleas. Majority Op. at 446-48.
[T]he prosecution's burden to prove every element of the crime is not relieved by a defendant's tactical decision not to contest an essential element of the offense. In the federal courts, "[a] simple plea of not guilty . . . puts the prosecution to its proof as to all elements of the crime charged." *449 Estelle v. McGuire, 502 U.S. 62, 69-70, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (quoting Mathews v. United States, 485 U.S. 58, 64-65, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988)). Bell's not guilty pleas put the government to its proofs that Bell knowingly or intentionally possessed the 11 kilograms of marijuana and 94.6 grams of crack cocaine found inside the residence, and that Bell specifically intended to distribute these drugs. 21 U.S.C. § 841(a)(1); United States v. Coffee, 434 F.3d 887, 897 (6th Cir.2006).
The majority analysis discusses reasons for refusing admission of Bell's prior drug convictions to prove the absence of mistake or accident, or to prove specific intent to distribute the drugs, yet generally overlooks the government's burden of proving Bell knowingly or intentionally possessed the drugs and guns. The district court properly focused its attention on the general intent required to prove the § 841(a)(1) crime of knowingly or intentionally exercising dominion and control over illegal drugs, in response to Bell's defense that "he did not know these drugs were there or they were planted by someone else[.]" J.A. 482-83. The district court's inclusion of "absence of mistake" and "absence of accident," along with "intent," as purposes for admitting Bell's prior drug convictions, recognized the government's burden of proving that Bell did not mistakenly or accidentally possess the drugs by simply living at the home where the drugs were found.
The district court also properly relied on United States v. Lattner, 385 F.3d 947 (6th Cir.2004) in deciding to admit Bell's prior drug convictions under Rule 404(b). As reasoned in Lattner, "it seems logical that when [the defendant] pled not guilty to the offense of possession with intent to distribute, he put his general intent and specific intent at issue, thereby giving the government the burden to establish both beyond a reasonable doubt." Id. at 957. Citing United States v. Ismail, 756 F.2d 1253 (6th Cir.1985), a case also relied on by the district court, the Lattner court recognized that "claims of innocent presence or association . . . routinely open the door to 404(b) evidence of other drug acts." Lattner, 385 F.3d at 957 (emphasis added).
Logically, Bell's prior convictions represent compelling probative evidence of his general intent to possess the marijuana and crack cocaine. Bell's history includes knowing and intentional acts in relation to illegal drugs, making it much less plausible that Bell lacked knowledge on this occasion of the presence of over 11 kilograms of marijuana, 94.6 grams of crack cocaine, eleven firearms, drug packaging materials, and tools of the drug trade inside the home. Bell's prior acts of drug distribution diminish the likelihood that he innocently overlooked the illegal contraband within the residence, and also diminish the chances that these items were planted or left at the residence by someone else.
In short, the Rule 404(b) evidence of Bell's four prior drug convictions is powerfully probative of Bell's general and specific intent. While the prior acts evidence greatly undermines Bell's opening statement to the jury that "he had no knowledge whatsoever about the contents that were in that house," J.A. 72 (emphasis added), the prior acts evidence was not unfairly prejudicial. Bell's closing argument criticizes the absence of any evidence of actual possession or direct evidence of his constructive possession of the contraband. J.A. 521-526. Just as the $1,800.00 cash in Bell's pocket at the time of arrest constitutes important circumstantial evidence of his constructive possession, so does the prior acts evidence admitted by the court. The record below includes an accurate analysis of the Rule 403 balancing *450 that preceded the decision to admit this evidence. The district judge's admission of Bell's prior convictions cannot be said to be an abuse of discretion, and if we truly afford great deference to the trial court's decision, this conviction should be affirmed.
NOTES
[*] The Honorable George Caram Steeh, United States District Judge for the Eastern District of Michigan, sitting by designation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2235558/ | 929 N.E.2d 790 (2010)
JERVIS
v.
STATE.
Supreme Court of Indiana.
April 7, 2010.
Transfer denied. All Justices concur, except Sullivan, J., and Boehm, J., who vote to grant petition to transfer. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3102236/ | Helvetia Asset Recovery
Fourth Court of Appeals
San Antonio, Texas
May 29, 2014
No. 04-14-00012-CV
Burton KAHN,
Appellant
v.
HELVETIA ASSET RECOVERY INC.,
Appellee
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2013-CI-18355
Honorable Karen H. Pozza, Judge Presiding
ORDER
Appellee's motion for extension of time to file brief is hereby GRANTED. Appellee's
brief is due on or before June 16, 2014.
_________________________________
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/1715125/ | 518 S.W.2d 836 (1975)
HOUSTON OILERS, INC., Appellant,
v.
Donald Wayne FLOYD, Appellee.
No. 16415.
Court of Civil Appeals of Texas, Houston (1st Dist.).
January 16, 1975.
Rehearing Denied February 13, 1975.
*837 Caldwell & Hurst, Ernest C. Hurst, John H. Caldwell, Houston, for appellant.
James H. Campbell, Houston, for appellee.
EVANS, Justice.
This action was brought by Donald Wayne Floyd, a professional football player, against Houston Oilers, Inc. to recover the sum of $14,240.00 which he asserted was the balance of his salary due under his player's contract. Floyd alleged that he had suffered an injury to his right ankle on August 23, 1968 which prevented his performing further service as a football player under his contract; that after being examined by the team physician he was carried on the club's injured reserve list until September 30, 1968, when he was returned to the active player list by the team trainer; that about two days later, October 2, 1968, he was notified that his contract was being terminated and that he would receive no further salary, and that such actions constituted a breach of his player's contract. Houston Oilers, Inc. generally denied these allegations and specially alleged that Floyd had failed to comply with a contractual provision whereby he was to submit himself for examination to a physician of his choice within 72 hours after the decision of the club physician that he was physically able to return to the active player list, and also that he was barred from recovery by reason of a general release of liability which he and his attorney had signed in connection with the settlement of his claim for workman's compensation.
In response to special issues, the jury found that as a result of the injury on August 23, 1968 Floyd was physically disabled from playing football from that date through December 16, 1968 (the end of the regular football season). The jury failed to find that Floyd had intended to release the Houston Oilers from their obligations arising out of their salary contract with him. The court found, among other facts, that Floyd had been restored to the active player roster on September 30, 1968 and terminated on October 2, 1968; that he had fully performed the terms of the salary contract and that the Houston Oilers had breached the contract in failing to pay his salary. The court further found that the contract called for a total salary of $19,000.00 payable at the end of the football season on December 15, 1968; that Floyd had been paid $6,178.00, and the Houston Oilers should be given credit for the $1400.00 workman's compensation payment he had received. It awarded judgment to Floyd in the amount of $11,422.00 with interest at the legal rate from date of judgment.
In its first three points of error, the Houston Oilers assert that the trial court erred in allowing parol evidence of Floyd's intent in signing the release, in submitting an issue to the jury on such matter, and in failing to enforce the release as a bar to Floyd's cause of action.
The agreed judgment entered in Floyd's prior action against the workman's compensation carrier, Standard Insurance Company, awarded Floyd $1120.00 for his injuries and disability, including medical expenses to the date of judgment and $280.00 for medical aid, hospital services, nursing, chiropractic services, medicines, doctor bills and prosthetic appliance expenses which might be incurred by him in the future. The judgment clearly shows that Floyd's suit was to recover workman's compensation benefits for the injury sustained by him on August 23, 1968. The Houston Oilers were not a named party to the suit although they are named in the judgment as Floyd's employer at the time of the injury. The day prior to the date of the judgment, Floyd and his attorney executed a general release whereby they acknowledged receipt of the payment of the *838 sum of $1400.00 and, reciting a consideration of the insurance company's agreement to the entry of said judgment, released and discharged National Standard Insurance Company and Houston Oilers, Inc.
"of and from any and all claims, controversies, actions or causes of action of whatever nature arising out of and resulting from the alleged injury and accident of August 23, 1968 and of and from any and all claims, controversies, demands, actions, or causes of action for liability for medical aid, hospital services, nursing, chiropractic services and medical expenses, past, present and future."
In order to ascertain and give effect to the true intention of the parties to the release, it is appropriate that we construe the release in the light of the facts and surrounding circumstances as shown by the record. Loy v. Kuykendall, 347 S.W.2d 726, 728 (Tex.Civ.App.San Antonio 1961, writ ref., n. r. e.). When the language of the release is considered together with the recitations showing the nature of the settlement and the payments made under the agreed judgment in the workman's compensation case, it is clear that the release was given to cover the subject matter of that litigation. The release purports only to release those claims and causes of action which Floyd might have had "arising out of and resulting from" his injury and accident of August 23, 1968. The fact that Floyd's injury may have preceded and perhaps have influenced the Houston Oilers' decision to terminate his services under the contract, does not require the conclusion that his claim for salary benefits under the contract is an integral part of his claim to workman's compensation benefits due to his physical injury. The facts of this case present an entirely different situation than that evidenced in Rough v. Southwestern Bell Telephone Co., 426 S.W.2d 579 (Tex.Civ. App.Dallas 1968, writ ref.). In that case the employee specifically released all claims and causes of action "arising out of his employment," including claims for "employee benefits." Also in that case, the settlement check contained an endorsement on the back which purported to release not only the employee's claims on account of the injury but also "all causes of action whether or not they grew out of said alleged injury."
We hold, as a matter of law, that the release does not constitute a bar to this action. We further hold that in the event there is any ambiguity in the terms of the release, that question has been determined against the Houston Oilers' contention by the jury's failure to find that Floyd intended to release the Oilers from their obligations arising out of the contract. Although the Houston Oilers argue that the issue was not submitted in proper form and failed to inquire as to the ultimate issue in the case, it failed to properly apprise the court of that objection. We overrule Houston Oilers' first three points of error.
In its remaining four points of error, Houston Oilers, Inc. asserts that the trial court erred in entering judgment for Floyd because the record conclusively establishes that Floyd failed to comply with a condition precedent to his recovery as found in paragraph 14 of his player's contract.
Paragraph 14 of the player's contract with the club provides as follows:
"In the event that Player is injured in the performance of his services under this contract, and if Player gives written notice to the Club Physician of such injury within thirty-six (36) hours of its occurrence, the Club will: (1) provide, during the term of this contract, such medical or hospital care as, in the opinion of the Club Physician, may be necessary; and (2) continue, during the term of this contract, to pay Player his salary as provided in § 3 or § 10 hereof, whichever is applicable if and so long as it is the opinion of the Club Physician that Player, because of such injury, is unable to perform the services required of him by this contract; Player, may, within *839 seventy-two (72) hours after his examination by the Club Physician, submit at his own expense to an examination by a physician of his choice. If the opinion of such physician with respect to Player's physical ability to render the services required of him by this contract is contrary to that of the Club Physician, the dispute shall be submitted to a disinterested physician to be selected by the Club Physician and Player's physician or, if they are unable to agree, by the Commissioner, and the opinion of such disinterested physician shall be conclusive and binding upon the Player and the Club. Except as provided in this paragraph, Player's failure for any reason whatsoever to perform this contract or the services required of him by this contract, or his failure to comply with: the Joint Constitution; or the Constitution and By-Laws, Rules and Regulations of the League, or of the Club, or of any league of which the Club may hereafter become a member, shall entitle the club, at its option, to terminate such contract, such termination to be effective when the Club sends to the Player written notice of such termination, or shall entitle the Club at its option to terminate Player's salary under this contract. The Player's death shall automatically terminate this contract. The rights of termination set forth in this paragraph shall be in addition to the rights of termination set forth in § 6 hereof, and any other rights of termination allowed by law.
"If Player is injured in the performance of his services under this contract, this contract shall remain in full force and effect despite the fact that Player, following injury, is either carried by the Club on its Reserve List or is waived out as an injured player while injured; when such Player is, in the opinion of the Club Physician, again physically able to perform his services under this contract, the Club shall have the right to activate such Player, and Player shall be obligated to perform his services hereunder in accordance with the terms hereof."
Under this provision, the parties agreed the contract would remain in effect and the player would be entitled to his stipulated salary for the contract term despite his inability to perform active service by reason of physical injury. If the club's physician certified the injured player able to perform active service, the player might, within 72 hours after such determination, have an examination made by his own physician. In the event of disagreement between the two physicians, a third, disinterested physician was to be selected by the two, and if they were unable to agree, selection was to be made by the Commissioner.
The evidence does not establish whether the club doctor was of the opinion that Floyd was physically able to perform services under the contract. The record shows only that Floyd was advised by the club trainer that he had been placed on the active player list. Floyd testified that the only reason given him by the club trainer for being reactivated was "that he had no choice other than to put me back on, because it was from higher up to reactivate me." It further appears from the evidence and the trial court's finding, against which no attack has been made, that Floyd's services were terminated less than seventy-two hours after he was restored to the active player roster. The evidence does not show that he was given the period of time specified in the contract to have an examination made by a physician of his own choice, even if he had decided to take that course of action.
We hold that the evidence does not establish as a matter of law that Floyd failed to comply with the provisions of the contract, as contended by the Houston Oilers, and we overrule appellant's points of error four through seven.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609918/ | 12 Ariz. App. 6 (1970)
467 P.2d 81
Marny R. SILL, Petitioner,
v.
The INDUSTRIAL COMMISSION of Arizona, Respondent, Good Samaritan Hospital, Respondent Employer, State Compensation Fund, Respondent Carrier.
No. 1 CA-IC 303.
Court of Appeals of Arizona, Division 1, Department A.
April 1, 1970.
Rehearing Denied April 27, 1970.
Review Denied May 19, 1970.
*7 Gorey & Ely, by Herbert L. Ely and Jeffrey D. Bonn, Phoenix, for petitioner.
Donald L. Cross, Phoenix, Chief Counsel for the Industrial Commission of Arizona.
Robert K. Park, Chief Counsel, by Harlan J. Crossman, Phoenix, for State Compensation Fund.
STEVENS, Judge.
This case is before the Court by writ of certiorari to review the lawfulness of an award of The Industrial Commission issued on 30 April 1969. The award found that petitioner's claim was noncompensable.
The petitioner is a registered nurse and was employed at the Good Samaritan Hospital as an operating room nurse. One of the conditions of her employment was that she have chest X rays taken to determine the presence or absence of tuberculosis. The petitioner was X-rayed in February 1964 and again in November 1965. As a result of an X ray taken in October 1966, the petitioner discovered that she had acute pulmonary tuberculosis. She was seriously ill and was hospitalized for the condition.
Two questions are presented on review: One, does this Court have jurisdiction to review this award of the Commission? Two, is the award of the Commission reasonably supported by the evidence?
JURISDICTION
The Commission contends that this Court is without jurisdiction to review the lawfulness of this award because the notice of protest of the previous award, issued 10 June 1968, was not filed within the 20-day period provided by The Industrial Commission Rules. Copies of that award were sent to the respondent employer and to the claimant, but no copy was sent to the claimant's attorney until 15 October 1968. A notice of protest was filed on behalf of the claimant on 4 November 1968. Although the hearing officer recommended that the petition for hearing be dismissed, the Commission overruled this and required that a decision be made upon the merits. On 30 April 1969, The Industrial Commission entered the noncompensable claim award which is here for review.
It is the Court's opinion that this Court has jurisdiction to review the award. The record before us shows that on 25 April 1967, the Commission filed a letter addressed *8 to it, signed by the claimant, which includes the following paragraph:
"You are hereby authorized to allow my attorneys and their designees access to any and all records which are or may be in your possession * * * and to direct all correspondence, including checks payable to my order to (name and address of the attorney followed)."
The Commission admitted in its briefs and in its oral argument that service was not made on the attorney for the claimant until 15 October 1968, four months after the filing of the award. Several rules of The Industrial Commission are applicable to this case. Rule 37 provides, in part:
"Any party aggrieved by any award or decisions of the Commission granting or denying compensation must file his application for a rehearing thereof at the office of the Commission, 1616 WEST ADAMS STREET, PHOENIX 7 ARIZONA, within twenty (20) days after the service of the award or decision complained of * * *." (Emphasis Supplied).
Rule 42 provides for personal service, Rule 43 provides for service by mail, Rule 44 is entitled "Service Upon Attorney" and states "[s]ervice upon an attorney who has appeared in behalf of a party will constitute service upon such party." It is the opinion of the Court that service upon the claimant who had previously given written authorization for service to be made upon her attorney, who was an attorney of record, was not valid service. Therefore, the time for filing a protest or petition for rehearing did not start to run until service was made upon the attorney. The Commission was correct in ordering the referee to make the decision upon the merits.
EVIDENCE
The petitioner does not contend that her pulmonary tuberculosis was caused by conditions present in her employment. Rather, it is her contention that an "accident" arose when the radiologist employed by the employer failed to correctly diagnose her beginning symptoms of tuberculosis which were evident, it is uncontradicted, in the 1965 X ray. We do not agree with this contention. In Reilly v. Industrial Commission of Arizona, 1 Ariz. App. 12, 398 P.2d 920 (1965), after pointing out that the Workmen's Compensation Act is remedial and its terms should be liberally construed, we went on to say:
"* * * [a]n employee contacting a disease may recover compensation as for an injury by accident arising out of and in the course of his employment, (citation omitted) and that the term `disease' and `accident' are no longer considered mutually exclusive (citation omitted)." 1 Ariz. App. at 15, 398 P.2d at 923.
The Supreme Court has defined the term "[an] accident arising out of and in the course of his employment" with some specificity in City of Phoenix v. Industrial Commission of Arizona, 104 Ariz. 120, 449 P.2d 291 (1969):
"An injury or accident occurs in the course of his employment if the employee is injured while he is doing what a man so employed may reasonably do within a time during which he is employed and at the place where he may reasonably be during that time. `The words "in the course of" refers to the time, place, and circumstances under which it occurred.' (citations omitted) "We believe a fair interpretation of the term `arising out of' to be that the cause producing the accident must flow from a source within the employment. The source must have its situs in some risk inherent in the employment or incidental to the discharge of the duties thereof. In other words there must be some causal relation between the employment and the injury. (citations omitted)." 104 Ariz. at 122, 449 P.2d at 293.
The evidence in the instant case establishes that the petitioner had the disease in its beginning stages at the time of her first employment X ray. Thereafter, the disease became worse as the result of its *9 natural progression and not due to any risk inherent in the employment. It is the opinion of the Court that the failure of the doctors to diagnose the tuberculosis was not an "accident" within the meaning of the Workmen's Compensation Act.
Other questions were presented by the appeal relating to whether the evidence reasonably supported the award, but having reached the determination that there was no accident, it is our opinion that it is not necessary that we discuss them.
The award is affirmed.
DONOFRIO, P.J., and CAMERON, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876094/ | 260 S.W.3d 855 (2008)
STATE of Missouri, Respondent,
v.
Peter V. WISONG, Appellant.
No. WD 67516.
Missouri Court of Appeals, Western District.
August 26, 2008.
Susan L. Hogan, Esq., Kansas City, MO, for appellant.
Shaun J. Mackelprang, Esq., and Rebecca Kurz, Esq., Jefferson City, MO, for respondent.
Before Div III: ELLIS, P.J., HARDWICK and DANDURAND, JJ.
ORDER
PER CURIAM.
Peter Wisong appeals from his convictions for second-degree murder and armed criminal action. For reasons explained in a Memorandum provided to the parties, we find no error and affirm the judgment of the circuit court. Rule 30.25(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609894/ | 177 Ariz. 206 (1993)
866 P.2d 874
177 Ariz. 206
STATE of Arizona, Appellee,
v.
David Allen VANNOY, Appellant.
No. 1 CA-CR 91-0351.
Court of Appeals of Arizona, Division 1, Department D.
April 22, 1993.
Review Denied February 1, 1994.
*208 Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Criminal Div. and Randall M. Howe, Asst. Atty. Gen., Phoenix, for appellee.
David Burnell Smith, Scottsdale, for appellant.
OPINION
CONTRERAS, Judge.
In this case, we decide whether the state must provide a breath sample to a defendant charged with driving under the influence of alcohol when the defendant has given a deficient sample in the breath test, but the state still uses the test results at trial. Defendant David Allen Vannoy was convicted following a jury trial of one count of aggravated driving under the influence of alcohol, a class 5 felony. He appeals from his conviction and from the trial court's order suspending imposition of sentence and placing him on probation for three years. He raises the following issues on appeal:
1. whether the state's interference with his right to counsel required that the charge against him be dismissed;
2. whether the state's failure to inform him of his right to an independent blood alcohol test required that the charge against him be dismissed;
3. whether the state's failure to provide him with a breath sample for independent testing required the suppression of the breath test results that the state introduced at trial; and
4. whether the trial court abused its discretion in denying his motion to allow a previously undisclosed witness to testify.
We reverse and remand for a new trial because we conclude that the trial court erred in denying defendant's motion to suppress the breath test results.
FACTUAL AND PROCEDURAL HISTORY
On the evening of August 31, 1990, Scottsdale police officers observed defendant's automobile going forty miles per hour in a twenty-five mile per hour zone. When the officers stopped defendant, they found that he was driving on a revoked license and that he had alcohol on his breath. They arrested him for aggravated driving under the influence of alcohol.[1] The officers informed defendant of his Miranda rights[2] and of the provisions of Arizona's implied consent law,[3] and transported him to the police station for a breath test.
Defendant was tested twice on an intoxilyzer. The results indicated that the machine had received a deficient breath sample on both tests. Defendant was not advised of his right to have an independent test done, and no breath samples were preserved for him for this purpose.
At trial, the state's intoxilyzer expert, Lucien Haag, testified that a deficient sample can occur when the person being tested fails to blow all of the breath that is in his lungs into the machine. Haag explained that the reading obtained from a deficient sample will be lower than a person's actual BAC. Officers David Bickel and Philip Hazlett testified that defendant's breath samples were deficient because each time defendant took the test, he blew some of his breath out of the side of his mouth instead of into the machine.
*209 Prior to trial, defendant filed a motion to suppress the test results. He also filed a motion to dismiss the charge against him on the ground that the officers had refused to allow him to call an attorney after he was arrested. The trial court denied both motions. Although defendant's breath samples were deficient, the state introduced the intoxilyzer results into evidence at trial. The first test registered a BAC of .194, and the second test registered a BAC of .161. On the basis of these results, Haag testified that defendant's actual BAC exceeded .10 when he took the tests and that it exceeded .21 when he was stopped by the police. Defendant filed a timely notice of appeal from his conviction and from the order suspending imposition of sentence and placing him on probation for three years.
DISCUSSION
I. Alleged Interference with Right to Counsel
Defendant initially argues that the trial court should have dismissed the charge against him because his right to counsel was violated. At the hearing on the motion to dismiss, defendant testified that he asked to speak with his attorney prior to taking the breath test. He maintained that the police told him just to take the test. Two police officers testified that defendant did not ask to call an attorney.
If defendant asked to speak with an attorney, he had a right to do so before taking the test. Ariz.R.Crim.P. 6.1(a); State v. Juarez, 161 Ariz. 76, 80, 775 P.2d 1140, 1144 (1989). The conflicting testimony, however, created an issue of fact as to whether defendant actually made such a request. The responsibility of resolving factual disputes rests with the trial court. State v. Tapia, 159 Ariz. 284, 288, 767 P.2d 5, 9 (1988). The trial court implicitly resolved the factual dispute in question against defendant in ruling that defendant had not been deprived of his right to counsel. Defendant does not claim that there is insufficient evidence to support such a finding. Under these circumstances, there is no basis for reversing the trial court's ruling.
II. Failure to Advise of Right to Independent Test
Defendant also argues that the trial court should have dismissed the charge against him because the officers did not advise him of his right to an independent blood alcohol test. We conclude that the officers were not required to inform defendant of his right to an independent test under the circumstances of this case.
Defendant cites Montano v. Superior Court, 149 Ariz. 385, 719 P.2d 271 (1986), in support of his argument. In Montano, the court held that when the state charges a person with driving under the influence of alcohol (DUI), but chooses not to ask the person to submit to a blood alcohol test in accordance with the implied consent law, it must inform the person of his right to obtain an independent test. Id. at 389, 719 P.2d at 275. The court stated that since DUI cases are particularly susceptible to resolution by way of chemical analysis evidence, due process requires the state to provide DUI defendants with a fair chance to acquire this type of evidence when the state itself decides to forgo obtaining it. Id. at 391, 719 P.2d at 277. In contrast, due process does not require that a defendant be informed of his right to an independent test when the state invokes the implied consent law, because in that instance, the defendant is normally given the opportunity to obtain chemical analysis evidence in conjunction with the test that the state performs. State v. Miller, 161 Ariz. 468, 469-70, 778 P.2d 1364, 1365-66 (App. 1989); State v. Ramos, 155 Ariz. 153, 155-56, 745 P.2d 601, 603-04 (App. 1987). Since the officers in the present case asked defendant to take an intoxilyzer test in accordance with the informed consent law, defendant was not denied due process by the officers' failure to inform him of his right to an independent test.
III. Failure to Preserve Breath Samples
Defendant next asserts that the trial court should have suppressed the breath test results because the state did not provide him with a breath sample for an independent test. The state responds that defendant waived *210 this issue by raising it for the first time in his reply in support of the motion to suppress. Although the state made the same argument in the trial court, the trial court decided the issue on the merits and ruled that defendant had waived the right to his own sample by giving deficient samples both times that he was tested.
The fact that an issue may have been raised in an untimely fashion does not preclude this court from reviewing the trial court's ruling on the merits of the issue. See United States v. Ramos-Zaragosa, 516 F.2d 141, 144 (9th Cir.1975). Because defendant brought the state's failure to give him a blood sample to the trial court's attention in a manner that was sufficient to inform the trial court that the issue had not been waived and the trial court ruled on the issue, we will review the court's ruling. See State v. Briggs, 112 Ariz. 379, 542 P.2d 804 (1975).
The state next argues that defendant waived his right to have a breath sample preserved by failing to give an adequate sample. Beginning with Baca v. Smith, 124 Ariz. 353, 356, 604 P.2d 617, 620 (1979), Arizona cases have consistently held that a DUI defendant is entitled to a breath sample so that he may have the opportunity to challenge the state's test results by having the sample independently tested and by introducing the independent test results into evidence if they are more favorable to him than the state's results. See, e.g., Mongan v. Superior Court, 148 Ariz. 486, 487, 715 P.2d 739, 740 (1986); State v. Harrison, 157 Ariz. 184, 186, 755 P.2d 1172, 1174 (App. 1988); State v. White, 155 Ariz. 452, 455, 747 P.2d 613, 616 (App. 1987). While a defendant may waive his right to a sample, such a waiver must be voluntarily and intelligently made. See Mongan, 148 Ariz. at 487-88, 715 P.2d at 740-41.
The state notes that A.R.S. section 28-691(B) provides that a DUI defendant's failure to "successfully complete" the blood alcohol test will be deemed a refusal to take the test. It argues that by failing to give a sufficient sample in the present case, defendant in effect refused to take the test and waived his right to a sample. It cites Miller and Ramos in support of this contention. We disagree.
Section 28-691(B) only addresses the civil suspension penalty for refusing to take the test.[4] It does not govern the state's duty to preserve for independent testing breath samples obtained pursuant to the implied consent law. See Sherrill v. DOT, 165 Ariz. 495, 498, 799 P.2d 836, 839 (1990) (civil suspension proceeding is separate from and unrelated to criminal prosecution). Moreover, Miller and Ramos are readily distinguishable. Both hold that the state has no obligation to inform a defendant of his right to an independent test when he refuses to take the test offered by the state. Miller, 161 Ariz. at 469-70, 778 P.2d at 1365-66; Ramos, 155 Ariz. at 155, 745 P.2d at 603. However, the state did not obtain any chemical evidence in either case because neither of the defendants took a breath test. Miller, 161 Ariz. at 469, 778 P.2d at 1365; Ramos, 155 Ariz. at 153, 745 P.2d at 601. In contrast, the state did obtain evidence from the breath tests that defendant took in the instant case, and it used that evidence against him. The purpose of the rule announced in Baca is to give a defendant the opportunity to counter the state's scientific evidence of intoxication with scientific evidence of his own. State ex rel. Dean v. City Court, 163 Ariz. 366, 368, 788 P.2d 99, 101 (App. 1989), approved, 163 Ariz. 510, 789 P.2d 180 (1990). By failing to preserve a breath sample in the present case, the state deprived defendant of that opportunity.
In State v. Velasco, 165 Ariz. 480, 799 P.2d 821 (1990), the court described in detail the model 5000 intoxilyzer, which is the machine that the state used to test defendant in the instant case. The machine uses a process of infrared spectroscopy, which analyzes a breath sample without destroying it. Id. at 485, 799 P.2d at 826. Upon completion of the primary test, the state can preserve the sample by blowing it over silica gel. Id. at 483, *211 799 P.2d at 824. The tube containing the silica gel can then be sealed and given to the defendant for independent analysis. Id. The state has not explained why it could not have done this in the present case. Because there is no evidence that defendant voluntarily and intelligently waived his right to a breath sample, we conclude that the state's breath test results must be suppressed and that defendant must be granted a new trial.
The state's concern that this decision will cause DUI defendants to intentionally give deficient samples is unfounded. First, a defendant will not be able to offer the results that he has obtained from independent testing of a deficient sample in evidence to prove his actual BAC. A deficient sample lacks sufficient foundation to be admitted for this purpose because it only measures a portion of a person's BAC. Thus, a defendant who has given a deficient sample will only be able to use the sample to show that the state's results are inaccurate. This is precisely the use that Baca contemplates.
Second, a DUI defendant who gives a deficient sample remains subject to the civil suspension penalty that section 28-691(B) imposes for failing to successfully complete the test. See Kuznicki v. Arizona Dep't of Transp., 152 Ariz. 381, 382, 732 P.2d 1119, 1120 (App. 1986); Ontiveros v. Arizona Dep't of Transp., 151 Ariz. 542, 729 P.2d 346 (App. 1986). In addition, the defendant's failure to successfully complete the test is deemed a refusal to take the test. Evidence of such a refusal is admissible to show that the defendant was conscious of his guilt. See State v. Superior Court, 154 Ariz. 574, 577-78, 744 P.2d 675, 678-79 (1987). Thus, the state is no worse off when a defendant gives a deficient sample than it is when a defendant totally refuses to take the test.
The state contends, however, that in California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), the United States Supreme Court overruled the Arizona cases that mandate the preservation of breath samples. In Trombetta, the Court held that the due process clause of the Fourteenth Amendment does not require the state or its agencies to preserve breath samples of DUI defendants for independent testing in order to introduce the results of breath tests at trial. Id. at 491, 104 S.Ct. at 2535. The Arizona Supreme Court has discussed Trombetta several times and has consistently declined the opportunity to overrule existing Arizona case law.
In Velasco, the court found that it was unnecessary to decide whether Trombetta overruled Baca and its progeny. 165 Ariz. 480, 488-89, 799 P.2d 821, 829-30. The court commented, however, that the Arizona cases did not necessarily conflict with Trombetta. Id. at 488, 799 P.2d at 829. The court went on to reject the suggestion that Baca and its progeny were no longer viable in light of State v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), which the state also relies upon in the present case. Velasco, 165 Ariz. at 488, 799 P.2d at 829. In Youngblood, the United States Supreme Court said that due process only requires the state to preserve and present to a defendant evidence that has apparent exculpatory value, not evidence that is only potentially exculpatory. 488 U.S. at 56, n. *, 109 S.Ct. at 336 n. *. In Velasco, the Arizona Supreme Court distinguished Youngblood, noting that the case concerned the destruction of evidence that the state had not attempted to use in its case in chief. 165 Ariz. at 488, 799 P.2d at 829. The court stated that in the case before it and in other DUI cases, the state did use the evidence in question the defendant's breath and analysis results in its case in chief. Id.
The court also distinguished Trombetta in Oshrin v. Coulter, 142 Ariz. 109, 112-13, 688 P.2d 1001, 1004-05 (1984). It concluded that Trombetta was inapplicable for several reasons, including the fact that under California law, a DUI suspect is given a choice of taking a breath, blood, or urine test. Id. at 113, 688 P.2d at 1005. The court noted that the state could have provided the defendant in Trombetta with a sample for independent testing if he had taken a blood or urine test, but that he elected to take a type of breath test that did not preserve a sample for later analysis. Id. at 112-13, 688 P.2d at 1004-05. The court further noted that the defendant in the case before it did not have such a choice; he was required to take the test that the state of Arizona offered or face the consequences of *212 his refusal. Id. at 113, 688 P.2d at 1005; see also Dean, 163 Ariz. at 514, 789 P.2d at 184 (allowing defendant choice between blood test, which would have preserved sample for independent testing, and breath test, which would not have preserved such a sample, satisfied due process). Finally, in Montano, the court reiterated the conclusion concerning Trombetta that it had reached in Oshrin and further noted that "[w]holly apart from its factual limitations, Trombetta cannot account for the separate guarantees of the Arizona Constitution." 149 Ariz. at 390 n. 3, 719 P.2d at 276 n. 3. The court recognized that the affirmative duty that Baca placed upon the state to collect and preserve breath samples represented an exception to the general rule that the state has no duty to gather evidence for the defense. Id. at 390, 719 P.2d at 276. It explained the reason for this exception as follows:
While the state normally has no obligation to aid a suspect in gathering potentially exculpatory evidence, the unique evidentiary circumstances attendant to DWI arrests justify a narrow exception. The Due Process Clause of the Arizona Constitution guarantees to [a] DWI suspect[] a "fair chance to obtain independent evidence of sobriety essential to his defense at the only time it [is] available."
Id. at 389, 719 P.2d at 275 (emphasis in original) (citations omitted).
In State v. Youngblood, 173 Ariz. 502, 844 P.2d 1152 (1993), the court recently rejected the argument that the due process clause of the Arizona Constitution provides greater protection than its federal counterpart with regard to the preservation of evidence by the state. The court held that "absent bad faith on the part of the state, the failure to preserve evidentiary material which could have been subjected to tests, the results of which might have exonerated the defendant, does not constitute a denial of due process of law under the Arizona Constitution." Id. 173 Ariz. at 508, 844 P.2d at 1158. The court left intact the exception that Montano discussed, but explicitly limited its application to the DUI area:
Driving under the influence cases are arguably unique for a variety of reasons. The evidence is in the defendant's own body. Usually the defendant is in custody and the state has the right to take a breath or blood sample. Whatever our DUI jurisprudence means, the differences are too great to transpose its peculiar rules to any other setting. Efforts in the court of appeals to extend this "narrow exception" are expressly rejected.
Id. 173 Ariz. at 506, 844 P.2d at 1156.
The Arizona Supreme Court is the final arbiter of Arizona Constitutional issues. Id. 173 Ariz. at 504-506, 844 P.2d at 1154-56. We leave it to that court to decide whether to alter its longstanding interpretation of due process requirements in the DUI area.
CONCLUSION
Our disposition makes it unnecessary for us to address defendant's argument that the trial court abused its discretion in denying his request to call a previously undisclosed witness. This issue will not reoccur if the witness is properly disclosed prior to the new trial.
As we have stated, the trial court should have suppressed the intoxilyzer results because the state failed to preserve a sample of defendant's breath for independent testing. We therefore vacate defendant's conviction and the order placing him on probation and remand this matter for a new trial at which the intoxilyzer results will be suppressed.
GRANT, P.J., and CLABORNE, J., concur.
NOTES
[1] Arizona Revised Statutes section 28-697(A)(1) (Supp. 1992) (formerly section 28-692.02(A)(1)) provides that a person is guilty of aggravated driving under the influence of alcohol if he drives under the influence of alcohol while his driver's license is suspended, canceled, revoked, or refused.
[2] See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
[3] Arizona's implied consent law, A.R.S. section 28-691(A) (Supp. 1992), provides in pertinent part as follows:
Any person who operates a motor vehicle within this state gives consent ... to a test or tests of his blood, breath, urine or other bodily substance for the purpose of determining alcohol concentration . .. if arrested for any offense arising out of acts alleged to have been committed ... while the person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor.
[4] Section 28-691(B) provides in pertinent part that any person who fails to take and successfully complete a blood alcohol test will have his license or driving permit suspended or denied for one year. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609903/ | 866 P.2d 181 (1993)
124 Idaho 924
STATE of Idaho, Plaintiff-Respondent,
v.
Milton R. FOX, Defendant-Appellant.
No. 19778.
Supreme Court of Idaho, Idaho Falls, April 1993 Term.
December 28, 1993.
*182 Spencer E. Daw, Idaho Falls, for appellant.
Larry EchoHawk, Atty. Gen., and Michael A. Henderson, Deputy Atty. Gen., Boise, for respondent. Michael A. Henderson argued.
McDEVITT, Chief Justice.
On January 11, 1991, appellant Milton Fox was charged with one count of conspiracy to manufacture a controlled substance and one count of possession of ephedrine, a controlled substance. As far as the Court can tell from the record, Fox ordered and received 100,000 tablets of ephedrine from an out-of-state mail order distributor. According to the Physician's Desk Reference, ephedrine has a stimulative effect on the central nervous system and is used to treat asthma symptoms. In some states, ephedrine is a legal over-the-counter drug. In Idaho, ephedrine was listed as a Schedule II substance in the Uniform Controlled Substances Act in 1988. I.C. § 37-2707(g)(1)(b). Compounds containing ephedrine could be sold over-the-counter until November 1990, when the Idaho Board of Pharmacy designated ephedrine as a prescription drug.
The court dismissed the conspiracy count for lack of proof at the end of the State's case. During the trial on the count of possession, Fox attempted to introduce Defense Exhibits A, B, and C, magazines carrying mail order advertisements for ephedrine from out-of-state suppliers. The State objected to the exhibits as cumulative (apparently the State introduced a magazine with a similar advertisement) and the court sustained the State's objection. The court then held a hearing outside the presence of the jury. During this hearing, the court held that the proffered exhibits were not relevant because knowledge that possession of ephedrine was illegal was not an element of the offense.
The next day, Fox renewed his argument that the exhibits were relevant. He pointed out that the State's proposed jury instruction required that it prove that "Milton Fox had knowledge of its [i.e. the ephedrine's] presence and nature as a controlled substance." The court responded by ruling that it would not give that instruction, or the similar one which the defense proposed, because these instructions did not accurately state the law.
After that ruling, Fox entered a conditional plea of guilty pursuant to I.C.R. 11(a)(2) which preserved his right to appeal the trial court's rulings. On appeal, Fox states the issues as follows:
Did the District Court err in holding that intent, general intent or specific intent, `is not a required element for guilt in possession of a controlled substance' and, further, `that mistakes of law or fact are not defenses to the crime of possession of a controlled substance[?]'
We will address each contention in turn.
1. THE MENS REA ELEMENT OF THE OFFENSE OF POSSESSION OF A CONTROLLED SUBSTANCE IS KNOWLEDGE OF POSSESSION, NOT KNOWLEDGE THAT THE SUBSTANCE POSSESSED IS A CONTROLLED SUBSTANCE.
The Uniform Controlled Substances Act, in I.C. § 37-2732(c), states that:
It is unlawful for any person to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this chapter.
The text of the possession statute does not set forth any mental state as an element of the offense. This Court has previously ruled that "whether a criminal intent is a necessary element of a statutory offense is a matter of construction, to be determined from the language of the statute in view of its manifest purpose and design, and where such intent is not made an ingredient of the offense, the *183 intention with which the act is done, or the lack of any criminal intent in the premises, is immaterial." State v. Sterrett, 35 Idaho 580, 583, 207 P. 1071, 1072 (1922).
Fox therefore turns to I.C. § 18-114, which provides that "[i]n every crime or public offense there must exist a union, or joint operation, of act and intent, or criminal negligence." Fox argues that this statute means that conviction under the possession statute requires specific intent. The State argues that only a general intent is required. This Court has explained the difference between specific and general intent as follows:
A general criminal intent requirement is satisfied if it is shown that the defendant knowingly performed the proscribed acts, State v. Booton, 85 Idaho 51, 375 P.2d 536 (1962), but a specific intent requirement refers to that state of mind which in part defines the crime and is an element thereof. LaFave and Scott, Criminal Law, Sec. 28, p. 126.
State v. Gowin, 97 Idaho 766, 767-68, 554 P.2d 944, 945-46 (1976).
This Court has previously determined, however, that the intent required by I.C. § 18-114 is "not the intent to commit a crime, but is merely the intent to knowingly perform the interdicted act, or by criminal negligence the failure to perform the required act." State v. Parish, 79 Idaho 75, 78, 310 P.2d 1082, 1083 (1957), quoting State v. Taylor, 59 Idaho 724, 738, 87 P.2d 454, 460-61 (1939).
Fox then argues that a mistake of fact is available to him, pursuant to I.C. § 18-201. Idaho Code § 18-201 provides a defense for "[p]ersons who committed the act or made the omission charged, under an ignorance or mistake of fact which disproves any criminal intent." Our review of the record does not support this contention. Fox does not claim that he did not know he possessed ephedrine. His claim is that he did not know ephedrine was illegal. In short, Fox asserts a mistake of law claim rather than a mistake of fact claim.
Thus, as I.C. § 37-2732(c) does not expressly require any mental element and I.C. § 18-114 only requires a general intent, we conclude that the offense only requires a general intent, that is, the knowledge that one is in possession of the substance. Consequently, we also conclude that the trial court was correct in refusing Fox's proffered exhibits because any evidence tending to establish Fox's lack of knowledge that ephedrine was illegal is irrelevant. Evidence that is not relevant is not admissible. I.R.E. 402. We also affirm the district court's refusal to give the proposed jury instructions because they were not accurate statements of the law.
2. FOX CANNOT CLAIM A GOOD FAITH MISTAKE OF LAW DEFENSE UPON THE RECORD IN THIS CASE.
Fox also argues that a good faith mistake of law excuses his possession of the ephedrine. As far as we can tell, Fox's attempted defense at trial on this issue was that he did not know or reasonably could not have known that ephedrine was a controlled substance.
Ignorance of the law is not a defense. See e.g., Hale v. Morgan, 22 Cal.3d 388, 149 Cal.Rptr. 375, 380, 584 P.2d 512, 517 (1978) ("[I]n the absence of specific language to the contrary, ignorance of a law is not a defense to a charge of its violation."); State v. Einhorn, 213 Kan. 271, 515 P.2d 1036, 1039 (1973) ("The general rule is that ignorance of the law does not disprove criminal intent.") There is no indication in the record, nor is any argument made, that the defendant could not have discovered what substances were listed in the schedules of controlled substances. Ephedrine had in fact been added to the list in 1988, several years prior to Fox's possession of the substance in 1991.
This is simply a case where Fox possessed a substance, knowing full well what the substance was, but claiming now that he did not know it was listed in the statutes as a controlled substance. There is nothing in that argument which would rise to the level of a viable defense.
The district court is affirmed.
JOHNSON, TROUT and SILAK, JJ., concur.
*184 BISTLINE, Justice, conceding that the applicable statute is controlling as the State contends, but dissenting from the result.
That the other members of the Court have readily joined an opinion which affirms the trial court is not a great surprise. As the brief prepared in the office of the Attorney General of the State of Idaho informs its readers, the law as presently structured makes it impossible to do other than affirm the trial court; the hands of the trial judge were equally tied. Reluctantly I concede that convicting Fox under I.C. § 37-2732(c) was the correct procedure in this case. I write separately to register my concerns regarding the potential application of I.C. § 37-2732(c) to other Idaho citizens who possess far smaller amounts of ephedrine than did Fox, who purchased this ephedrine validly, but who may subsequently be convicted as felons.
Fox ordered the ephedrine by calling the toll-free number of a national outlet. Apparently, some of the ephedrine advertisements that are available to Idaho citizens contain warnings that the offer is void where prohibited by law, but some do not; ordering from the wrong catalog may therefore be a defendant's biggest mistake. In another potential scenario, an Idaho citizen might travel to another state for business or pleasure, purchase ephedrine while there to alleviate his or her bronchial or other health-related symptoms, and return home again, bearing the ephedrine, only to be possibly convicted under I.C. § 37-2732(c).
Ephedrine is a drug used for medical purposes. Surely persons who make out-of-state purchases of ephedrine for medical reasons pose no more of a threat to Idaho's safety and freedom from drug traffickers than persons who purchase ephedrine pursuant to a valid prescription or practitioner order while in Idaho. The Idaho Legislature is to be commended in its effort to reduce the trade of drugs, but I.C. § 37-2732(c) is truly too blunt an instrument. Moreover, at the least, the statute should provide a defense to Idaho citizens who did not know about the statute, did not comprehend its import, and were not alert enough to see that they should comply, even though they knew naught.
It is often stated that ignorance of the law is no excuse. The responsibility of the legislative branch in drafting the laws that govern society, then, is weighty. A law that imposes a felony for potentially very innocent behavior must be carefully worded; I.C. § 37-2732 is not. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609904/ | 177 Ariz. 244 (1994)
866 P.2d 1330
The ESTATE OF Ruben A. HERNANDEZ, by Elizabeth L. HERNANDEZ-WHEELER, his personal representative, for and on behalf of Ruben R. Hernandez, Elizabeth L. Hernandez-Wheeler and Catherine Rose Poli, Plaintiffs/Appellants,
v.
ARIZONA BOARD OF REGENTS, a body corporate, Delta Tau Delta Fraternity, a New York corporation, Epsilon Epsilon Chapter of Delta Tau Delta Fraternity, Inc., an Arizona corporation, Epsilon Epsilon Educational Foundation, an Arizona corporation, Brett Harper Anderson, Bradley Reed Bergamo, Paul Jude Biondolillo, Joshua Christopher Bliss, Matthew James Bosco, Steven Penn Bryan, Anthony Charles P. Caputo, Thomas David Carlson, Stephen Michael Carpenter, Jeffrey David Catlin, Nathaniel Louis Derby, Albert Edward Dietrich IV, Clo Earl Edgington, Karam Elias Farah, Christopher Todd Flavio, Gerritt Andrew Gehan, Barry James Ginch, Steven Hare, David James Henshall, Markus Rudolph Holtby, Mark Thomas Hopkins, David Laurence Ison, Douglas Edward Jameson, Gregory Richard Janis, Rex Edward Jorgensen, Jay Adam Josephs, Craig Landon, Sean David Leahy, Dale R. Lemon, John Christopher Manross, John Conrad Miller, Christopher J. Molloy, Harrison Lane Morton, Kurt Richard Munzinger, Paige Ray Peterson, Kenneth S. Plache, Daniel Lee Rasmus, Scott Allen Remington, Paul Anthony Reynolds, James Samuel Rigberg, Gary Edward Rink, Erick Jon Roberts, Michael Daniel Roth, George Evangelos Roussos, Charles Dana Sacks, Thomas McKinlay Schwarze, William John Sheoris, Douglas Todd Sims, Clifford Lawrence Smith, Kristopher James Stathakis, Roger Sanford Stinnett, Douglas Matthew Stoss, Anthony Charles Suriano, Eric Joseph Szoke, Nelson Sterlin Udstuen, James Frank Uppendahl, Scott Urban, Larry Wagner, Todd Eric Wallis, Jonathan Blakeslee Woodard, Michael Patrick Woodward, Jeffrey Ryan Wyne, and David Hall Yohe, Defendants/Appellees.
No. CV-92-0079-PR.
Supreme Court of Arizona, En Banc.
January 13, 1994.
Reconsideration Denied March 3, 1994.
*246 Risner & Graham by Kenneth K. Graham, William J. Risner, Tucson, for plaintiffs/appellants.
Grant Woods, Atty. Gen. of Arizona by Bruce G. McDonald, Nancy M. Coomer, Tucson, for defendants/appellees Arizona Board of Regents, Steven Hare.
Fish, Duffield, Miller, Young, Adamson & Alfred, P.C. by Samuel D. Alfred, Tucson, for defendant/appellee Delta Tau Delta Fraternity.
Murphy, Goering, Roberts & Berkman by Michael F. McNamara, William L. Rubin, Tucson, for defendants/appellees Epsilon Epsilon Chapter of Delta Tau Delta Fraternity, Epsilon Epsilon Educational Foundation, Brett Harper Anderson, Bradley Reed Bergamo, Paul Jude Biondolillo, Joshua Christopher Bliss, Matthew James Bosco, Steven Penn Bryan, Anthony Charles P. Caputo, Thomas David Carlson, Stephen Michael Carpenter, Jeffrey David Catlin, Nathaniel Louis Derby, Albert Edward Dietrich IV, Clo Earl Edgington, Karam Elias Farah, Christopher Todd Flavio, Gerritt Andrew Gehan, Barry James Ginch, David James Henshall, Markus Rudolph Holtby, Mark Thomas Hopkins, David Laurence Ison, Douglas Edward Jameson, Gregory Richard Janis, Rex Edward Jorgensen, Jay Adam Josephs, Craig Landon, Sean David Leahy, Dale R. Lemon, John Conrad Miller, Christopher J. Molloy, Harrison Lane Morton, Kurt Richard Munzinger, Paige Ray Peterson, Kenneth S. Plache, Daniel Lee Rasmus, Scott Allen Remington, Paul Anthony Reynolds, James Samuel Rigberg, Gary Edward Rink, Erick Jon Roberts, Michael Daniel Roth, George Evangelos Roussos, Charles Dana Sacks, Thomas McKinlay Schwarze, William John Sheoris, Douglas Todd Sims, Clifford Lawrence Smith, Kristopher James Stathakis, Roger Sanford Stinnett, Anthony Charles Suriano, Eric Joseph Szoke, Nelson Sterlin Udstuen, Scott Urban, Larry Wagner, Todd Eric Wallis, Jonathan Blakeslee Woodard, Michael Patrick Woodward, Jeffrey Ryan Wyne, and David Hall Yohe.
*247 Ridenour, Swenson, Cleere & Evans by Harold H. Swenson, Richard H. Oplinger, Robert R. Byrne, Phoenix, for defendants/appellees John Christopher Manross and Douglas Matthew Stoss.
Law Office of Kevin E. Miniat by Kevin E. Miniat, Tucson, for defendant/appellee James Frank Uppendahl.
Begam, Lewis, Marks, Wolfe & Dasse, P.A. by Stanley J. Marks, Michael J. D'Amelio, Phoenix, for amicus curiae Mothers Against Drunk Driving (MADD).
OPINION
FELDMAN, Chief Justice.
We review a court of appeals opinion affirming summary judgment for defendants. The trial court held that A.R.S. § 4-312(B) immunizes a social host from liability for serving alcohol to a minor who became intoxicated and injured an innocent third party. The court of appeals affirmed. Estate of Hernandez v. Arizona Board of Regents, 172 Ariz. 522, 838 P.2d 1283 (Ct.App. 1991). It held A.R.S. § 4-312(B) severable from A.R.S. § 4-312(A), which we declared unconstitutional in Schwab v. Matley, 164 Ariz. 421, 793 P.2d 1088 (1990). The court of appeals also found that A.R.S. § 4-312(B) did not violate the anti-abrogation provisions of Ariz. Const. art. 18, § 6.
We have jurisdiction under Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24. We granted review to determine whether a non-licensee can be liable for damages for furnishing alcohol to a person under the legal drinking age who subsequently harms a third party.[1]See Ariz.R.Civ.P. 23(c)(4).
FACTS
When reviewing a grant of summary judgment, we examine the facts in the light most favorable to the party opposing the motion. Gulf Ins. Co. v. Grisham, 126 Ariz. 123, 124, 613 P.2d 283, 284 (1980).
On August 27, 1988, a University of Arizona fraternity welcomed new members with a bid party. As was customary, the fraternity served alcohol. To purchase alcohol for social events, the fraternity maintained a separate fund to which all imbibing members contributed. The social fund chair, a member over the age of twenty-one, collected and held the liquor money, and ensured that non-contributing members did not drink at parties.
The fraternity's officers kept background records on all members and were aware of their ages. As of August 27, 1988, a majority of the members were under the legal drinking age of twenty-one. However, all members, regardless of age, could contribute to the fund; and contribution was the sole criterion to drink at parties. Several hundred people generally attended these functions, but the fraternity checked neither members nor non-members for proof of age.
John Rayner, a contributing fraternity member under twenty-one, drank at the bid party that night. At 1:45 a.m., Rayner's car crashed into a vehicle driven by Ruben Hernandez. Rayner was driving over forty in a twenty-five mile-per-hour zone. At 2:30 a.m., his blood alcohol level was .15, exceeding the limit set by A.R.S. § 28-692(A)(2). The crash left Hernandez blind, severely brain-damaged, and quadriplegic.
Hernandez brought an action against Rayner for personal injuries, and his three adult children joined in the action to recover loss of consortium. Hernandez later amended the complaint to add as defendants: (1) the fraternity; (2) each fraternity member who contributed to the social fund that semester; (3) the lessor of the property on which the fraternity house was located; (4) the national fraternity organization; (5) the Arizona Board of Regents; and (6) a student assigned to the fraternity through a university student education program aimed at reducing alcohol-related problems among fraternities and sororities. Hernandez died in July 1990, and his personal representative was substituted as a plaintiff. Rayner settled and was dismissed from the suit. We refer *248 to the remaining defendants collectively as "Defendants."
LEGISLATIVE BACKGROUND
At one time, Arizona arguably did not recognize civil liability for those who furnished or sold alcohol that was a contributing factor in a later accident.[2]See, e.g., Lewis v. Wolf, 122 Ariz. 567, 568, 596 P.2d 705, 706 (Ct.App. 1979); Profitt v. Canez, 118 Ariz. 235, 236, 575 P.2d 1261, 1262 (Ct.App. 1978). In 1983, however, we held that a licensed tavern owner could be liable to third persons injured by an intoxicated patron. See Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983). We also held that the tavern owner could be liable to a minor who was furnished alcohol and, as a result, injured himself. See Brannigan v. Raybuck, 136 Ariz. 513, 667 P.2d 213 (1983).
Following these decisions, in April 1985, the Arizona Legislature enacted A.R.S. § 4-301, dealing with "social hosts" and granting civil immunity to non-licensees who serve alcohol to a person over the legal drinking age. One obvious purpose of § 4-301 was to limit any extension of Ontiveros and Brannigan to non-licensees. The statute reads:
Liability limitation; social host
A person other than a licensee ... is not liable in damages to any person who is injured, or to the survivors of any person killed, or for damage to property, which is alleged to have been caused in whole or in part by reason of the furnishing or serving of spirituous liquor to a person of the legal drinking age.
A.R.S. § 4-301 (emphasis added).
The following year the legislature enacted 1986 Ariz. Sess. Laws ch. 329, entitled "Illegal Sale of Spirituous Liquor." This act had only two sections, designated §§ 4-311 and 4-312. In pertinent part, the first provides:
Liability for serving intoxicated person or minor; definition
A. A licensee is liable for property damage and personal injuries or is liable to a person who may bring an action for wrongful death pursuant to § 12-612 if a court or jury finds the following:
1. The licensee sold spirituous liquor either to a purchaser who was obviously intoxicated, or to a purchaser under the legal drinking age without requesting identification containing proof of age or with knowledge that the person was under the legal drinking age, ....
A.R.S. § 4-311(A) (emphasis added).
The other provision, § 4-312(B), reads:
Liability limitation
Subject to the provisions of subsection A of this section[3] and except as provided in section 4-311, a person, firm, corporation or licensee is not liable in damages to any person who is injured, or to the survivors of any person killed, or for damage to property which is alleged to have been caused in whole or in part by reason of the sale, furnishing or serving of spirituous liquor.
(Emphasis added). In Schwab we did not address the scope and effect of the immunity purportedly granted by § 4-312(B), but we must do so now.
DISCUSSION
A. Does A.R.S. § 4-312(B) provide immunity to non-licensees who illegally furnish alcohol to persons under the legal drinking age?
Defendants argue that they are protected under the language of § 4-312(B), which immunizes *249 all persons, firms, or corporations not liable under § 4-311. Under Defendants' reading, therefore, § 4-312(B) confers blanket immunity on everyone except those licensees who may be liable, in certain instances, under § 4-311. If correct, this theory would immunize Defendants and all non-licensees, including social hosts, under all circumstances.
1. The effect of A.R.S. § 4-301
Defendants' argument stretches § 4-312(B) much too far for two reasons. First, it overlooks § 4-301, which is in the same chapter as §§ 4-311 and 4-312. By its title, § 4-301 is applicable to social hosts and immunizes only those non-licensees who furnish or serve alcohol "to a person of legal drinking age." Conspicuously absent from § 4-301 is any provision immunizing non-licensees who serve those under the legal drinking age. It is a familiar if overused rule that a statute's expression of one or more items of a class indicates legislative intent to exclude unexpressed items of the same class. Pima County v. Heinfeld, 134 Ariz. 133, 134, 654 P.2d 281, 282 (1982); Wells Fargo Credit Corp. v. Arizona Property & Cas. Ins. Guar. Fund, 165 Ariz. 567, 571, 799 P.2d 908, 912 (Ct.App. 1990).
Second, and as important, common sense tells us that when, in dealing with a very controversial subject,[4] the legislature took the trouble to expressly grant immunity for furnishing alcohol to persons of legal drinking age, it meant to exclude from its largesse those who furnish alcohol to persons below that age. We see no other rational construction of § 4-301, nor has any been suggested. We conclude, therefore, that § 4-301 covers non-licensee liability and grants no immunity when, as in this case, a non-licensee furnishes liquor to an underaged person. Defendants concede this interpretation but argue that § 4-301 was repealed.
2. Implied repeal
Notwithstanding the lack of express repeal, Defendants claim that § 4-301 is no longer in effect because it conflicts with the provisions of § 4-312(B), which grants immunity to all persons, firms, or corporations except those licensees liable under § 4-311. Because § 4-312 was passed after § 4-301, Defendants argue we must resolve the conflict in the statutes by construing § 4-312 as repealing § 4-301. Lemons v. Superior Court, 141 Ariz. 502, 505, 687 P.2d 1257, 1260 (1984). We disagree.
The law does not favor construing a statute as repealing an earlier one by implication. Pima County v. Maya Construction Co., 158 Ariz. 151, 155, 761 P.2d 1055, 1059 (1988); Mead, Samuel & Co., Inc. v. Dyar, 127 Ariz. 565, 568, 622 P.2d 512, 515 (Ct.App. 1980). Rather, whenever possible, this court interprets two apparently conflicting statutes in a way that harmonizes them and gives rational meaning to both. Id. We can do so here with a construction that both fulfills legislative intent and furthers legislative goals.
a. "Plain wording"
Defendants submit that the words of § 4-312(B) "a person, firm, corporation or licensee is not liable," are plain and must be applied accordingly. They read the words as granting immunity to every person, firm, or corporation, licensed or not, except those licensees liable under § 4-311 for sale to intoxicated or underaged persons. When determining legislative intent, they argue, courts must apply the ordinary meaning of the words used. This, of course, is true "unless it appears from the context or otherwise that a different meaning should control." State v. Raffaele, 113 Ariz. 259, 262, 550 P.2d 1060, 1063 (1976) (emphasis added).
If read in isolation, the provisions of § 4-312(B) may seem unambiguous. However, given § 4-301, Defendants' broad interpretation is insupportable. We believe the section headings are telling. Although section headings are not part of the substantive law, see § 1-212, they aid interpretation *250 when uncertainty exists. State v. Barnett, 142 Ariz. 592, 597, 691 P.2d 683, 688 (1984).
All three statutes are in chapter 3 of title 4. The chapter is entitled "Civil Liability of Licensees and Other Persons." The legislature first addressed "other persons" non-licensee, non-sale liability in article 1 of chapter 3, denominated as § 4-301, "Liability limitation; social hosts" (emphasis added). The following year, the legislature added article 2 to chapter 3, entitled "Illegal Sale of Spirituous Liquor" (emphasis added). These headings at least indicate that the legislature intended the first article (consisting of § 4-301) to apply to transactions other than sales and the second article (§§ 4-311 and 4-312) to apply to sales under a license.
b. Legislative intent
We would be reluctant, of course, to base construction of such important statutes on chapter headings and section titles. However, Defendants' argument that the conflict in the statutes indicates legislative intent to repeal the earlier statute has yet another fatal flaw. We believe that we would not only defy common sense if we were to conclude that § 4-301 was repealed by implication on adoption of § 4-312 but would attack legislative competence as well.
Section 4-301 is not a technical provision that could be overlooked and impliedly repealed by a legislative committee engaged in the revision of some obscure portion of the code. Although such oversights may occur with legislative bodies and others, we deal here with three statutes passed by the same legislature. These statutes were contained in the same chapter and dealt with a subject that, after Ontiveros and Brannigan, was one of the most controversial before the legislature.[5] In essence, Defendants ask us to assume that in 1986, when the legislature added article 2 (§§ 4-311 and 4-312) to chapter 3, it forgot that just the previous year it had adopted article 1 of that chapter, expressly providing for only a partial limitation of social host liability. We do not assume so easily that the legislature was unaware of its own actions. Nor does the legislature's own language admit of such a conclusion.
In 1985, when enacting § 4-301, the legislature's stated purpose was "in no way [to modify] existing law with respect to the principles of civil liability applicable to licensees who sell, furnish or serve spirituous liquor." A.R.S. § 4-301, Historical Note. We believe the only rational conclusion is that in 1985 the legislature enacted a provision (§ 4-301) dealing only with the liability of non-licensees, and in 1986, the same legislature, after further debate and thought, followed with two complementary provisions (§ 4-311 and 4-312) regulating only licensee liability. We believe common sense makes this conclusion much more likely than the "legislature forgot" argument that we would otherwise have to adopt if we found an implied repeal.
The legislative record further indicates the lawmakers' intent to address only licensees by the 1986 enactments. Legislative committee members considering § 4-312 discussed "bar owners" and "liquor establishments," but never even mentioned social hosts or non-licensees in reference to the statute. See Minutes, Committee on Judiciary, H.B. 2376, March 3, 1986. They referred to the proposed law as "dramshop legislation." Id. The legislative minutes also contain numerous comments by bar and restaurant owners, and the Arizona Licensed Beverage Association,[6] indicating that the purpose *251 of the 1986 legislation was to alleviate commercial vendors' difficulties in obtaining affordable liquor liability insurance. Id. The owner of one Tempe establishment testified that his insurance premiums had jumped from $43,000 in 1983 (when there was almost no common-law liability) to $113,000 in 1985. Id. This testimony was typical of that given by several other individuals in the restaurant and bar industry. Id.
Some further history helps to clarify legislative intent. After passing §§ 4-311 and 4-312, citizens groups attempted to place the legislation on the November 1986 general election ballot as Proposition 301. See Proposition 301, Publicity Pamphlet. The measure evidently did not qualify. See State of Arizona Official Canvass, Nov. 4, 1986 (an official list of all measures that were actually on the ballot). Proposition 301 does not appear on the canvass presumably because the sponsor did not collect the required signatures but the Arizona Attorney General's Office published the necessary publicity pamphlet.
As required by § 19-124,[7] a simple analysis and a "pro" and "con" argument written by the Arizona Legislative Council, with input from informed and interested legislators, accompanied Proposition 301 in the publicity pamphlet. This analysis of Proposition 301 discussed only licensee liability, and in reference to § 4-312(B) states, "if the conditions listed in paragraphs 1, 2 and 3 above [§ 4-311] do not exist, then the liquor licensee is not liable." Proposition 301, Publicity Pamphlet (emphasis added). In its supporting statement, the council even gave meaning to the terms "person," "firm," and "corporation" in the context of a liquor licensee. When discussing the "server" of liquor it stated, "every time a server pours a drink, he is exposing himself and the owner of the business to possible liability that can wipe out the business." Id. (emphasis added). Hence, we believe that the legislature's intent with respect to a person, firm, or corporation was to protect those associated with licensees. Our reading is reinforced by the wording of § 4-301, which excludes from immunity an employee of a licensee acting in connection with employment. This illustrates the legislature's belief that the word "licensee" is broad enough to encompass those beyond the actual license holder.
In short, every aspect of the statute's history indicates a legislative intent to regulate non-licensee liability under § 4-301 and licensee liability under §§ 4-311 and 4-312.
c. Overall legislative scheme
As this court has stated, "[w]hen the text of a statute is capable of more than one construction or result, legislative intent on the specific issue is unascertainable, and more than one interpretation is plausible, we ordinarily interpret the statute in such a way as to achieve the general goals that can be adduced from the body of legislation in question." Dietz v. General Elec. Co., 169 Ariz. 505, 510, 821 P.2d 166, 171 (1991); see also City of Phoenix v. Superior Court, 144 Ariz. 172, 175-76, 696 P.2d 724, 727-28 (Ct.App. 1985).
The legislature's goals are clear. As pointed out in an amicus curiae brief, the legislature has responded to the tragic problem of underaged drinking[8] with a strong policy of deterrence. The statutory scheme includes § 4-244(9), which creates criminal penalties for both minors who possess alcohol and licensees or others who serve alcohol to anyone under the legal drinking age; § 4-241(A), which requires a licensee or other *252 person to demand identification before serving liquor to a person who appears underage; § 4-301, which grants immunity to social hosts only when serving those of the legal drinking age; § 4-312(A), which implies, among other things, that licensees are liable for injuries resulting from a licensee's service to a minor; and § 8-249 (the "not a drop" law), which allows courts to suspend the driver's license of a minor who drives while possessing or consuming any alcohol.
As a whole, this body of legislation reveals a definite scheme. The legislature has imposed criminal and other sanctions on all persons who, whether licensed or not, furnish alcohol to minors. Given this, it is unreasonable to assume that the legislature would provide civil relief to those who act illegally by serving alcohol to minors. Such a reading of § 4-312(B) would give civil immunity to someone whose conduct could even result in a charge of manslaughter. See State v. Marty, 166 Ariz. 233, 801 P.2d 468 (Ct.App. 1990) (defendant can be guilty of manslaughter by supplying drugs and alcohol to driver who subsequently dies in accident).
The parties have not cited, and we cannot find, any instance where the legislature has expressed such an intent. We can see no indication that the legislature wanted to abandon its comprehensive fight against the cost and carnage created by underage drinking and driving by granting immunity to those who illegally furnish alcohol to minors.
3. Resolution
We conclude, therefore, that the most plausible interpretation of § 4-312(B) is that the immunity it grants applies solely to liquor licensees and their associates. In the statute, the word "person" must refer to a licensee's agent or employee, while "firm or corporation" refers to any entity associated with the licensee, such as a partner, landlord, subsidiary corporation, or the like. The most reasonable construction is that by enacting § 4-312(B), the legislature protected only licensees and those associated with a licensee's permitted activities from personal liability, "subject to" the common-law liability expressed in Ontiveros and Brannigan and codified in § 4-311.
This interpretation harmonizes all three statutes. It leaves § 4-301 intact, reconciles potentially conflicting wording in all three statutes, and implements the overall intent expressed in the chapter's title, the legislative history, and the entire body of Arizona law on alcohol and minors.
We hold, therefore, that the term "person, firm or corporation" in § 4-312(B) is intended to protect from liability only licensees and their associates who conduct a transaction permitted under a license for the "sale, furnishing or serving" of alcohol. We further hold that § 4-312(B) has no effect on non-licensee liability under § 4-301. The statutory immunity granted by § 4-301 applies only when a non-licensee furnishes alcohol to "a person of legal drinking age." Thus, no statutory immunity protects Defendants all of whom are non-licensees who furnished alcohol to a minor.
This holding obviates the need to determine the constitutionality of A.R.S. § 4-312 under Ariz. Const. art. 18, § 6 or other issues such as severability, de facto licensee, and retroactivity. Having determined that Defendants are not protected by any statutory immunity, we turn now to the question of common-law liability.
B. Is there a common-law cause of action against a social host who serves alcohol to a minor?
1. The effect of A.R.S. § 4-301
Defendants argue that if we sustain Hernandez' claim, we create a new cause of action, infringing on the legislature's realm. Given the noted statutory provisions, we see no infringement on legislative prerogative. Indeed, we believe that by granting immunity in A.R.S. § 4-301 only to those non-licensees who furnish or serve alcohol "to a person of the legal drinking age," the legislature left this court to determine the liability, if any, of social hosts who furnish or serve alcohol to those under the legal drinking age. We see no other explanation for legislative action immunizing non-licensees who serve those of legal age and legislative silence on the question that then comes into focus: *253 what about the liability of those who serve underaged drinkers?
Thus, we see no reason to "pass the buck" to the legislature. By the words of § 4-301, the lawmakers have obviously left resolution of this issue to us, and we would abdicate our responsibility by refusing to decide it.
2. The effect of criminal statutes
The common-law rule of non-liability was based on either a lack of causation or a lack of duty. The existence of a statute criminalizing conduct is one aspect of Arizona law supporting the recognition of duty in this cause of action. Like other states,[9] Arizona has a statute making it a criminal offense to furnish alcohol to a minor. A.R.S. § 4-244(9). A criminal statute may establish a tort duty if the statute is "designed to protect the class of persons, in which the plaintiff is included, against the risk of the type of harm which has in fact occurred as a result of its violation...." W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 36, at 229-30 (5th ed. 1984).
We have previously relied on § 4-244 to sustain a cause of action against those who furnish alcohol to minors.
We believe that A.R.S. § 4-244(9) ... constitute[s] legislative recognition of the foreseeable danger to both the patron and third parties, and an effort to meet that danger by enactment of laws designed to regulate the industry, to protect third persons, and to protect those who are underage from themselves.
Brannigan, 136 Ariz. at 517, 667 P.2d at 217.
Although Brannigan addressed licensee liability, § 4-244(9) makes it a crime for anyone to furnish alcohol to a minor. We believe the rationale of Brannigan is certainly broad enough to apply to the facts of this case.[10] Here, as in Ontiveros and Brannigan, we find Defendants' violation of the statute further supports a civil cause of action. These provisions are not new. The statutory prohibition against furnishing alcohol to a minor is long settled in Arizona. It was a crime as early as 1887. "Every person who shall directly or indirectly, knowingly ... give away any intoxicating liquor to any minor ... without the consent of [the minor's] guardian or parent, shall be deemed guilty of a misdemeanor, ..." Arizona Penal Code § 514 (1887); see also Arizona Penal Code § 270 (1901) (adopting the same ban). Based on past and present statutes, we see no constriction of the duty of social hosts under the facts of this case.
3. Duty based on common-law principles
Many state courts faced with a claim against a social host who served alcohol to a minor have found this to be a valid cause of action properly before the judiciary. Cravens v. Inman, 223 Ill. App.3d 1059, 166 Ill. Dec. 409, 586 N.E.2d 367 (Ill.Ct.App. 1991) (citing cases), rev. granted, 143 Ill.2d 637, 167 Ill.Dec. 398, 587 N.E.2d 1013 (1992), appeal dismissed, 168 Ill.Dec. 19, 589 N.E.2d 133 (1992). See generally Edward L. Raymond, Jr., Annotation, Social Hosts Liability for Injuries Incurred by Third Parties as a Result of Intoxicated Guest's Negligence, 62 A.L.R. 4th 16 (1988). A minority of courts have left this problem to their legislatures for various reasons. See, e.g., Cravens, 166 Ill.Dec. at 420, 586 N.E.2d at 375-78. Most have deferred because their legislatures had "entered the field" and they felt the "policy decisions" were better left to them. See, e.g., Bankston v. Brennan, 507 So.2d 1385, 1387 (Fla. 1987). As noted above, we believe that the legislature invited this court to decide the question of liability for those who furnish alcohol to minors by declaring an immunity extending only to adults. See A.R.S. § 4-301.
It is especially appropriate for this court to address this issue because, under Ariz. *254 Const. art. 18, § 6, Arizona's judiciary shares responsibility for the evolution of the law of torts. Law v. Superior Court of State of Arizona, 157 Ariz. 147, 156, 755 P.2d 1135, 1143 (1993), ("[T]his court has an obligation to participate in the evolution of tort law so that it may reflect societal and technological changes.") (citing Summerfield v. Superior Court, 144 Ariz. 467, 698 P.2d 712 (1985)). This court is a proper forum in which to resolve this important issue. As we have held:
[T]he common law, which is judge-made and judge-applied, can and will be changed when changed conditions and circumstances establish that it is unjust or has become bad public policy. In reevaluating previous decisions in light of present facts and circumstances, we do not depart from the proper role of the judiciary.
Ontiveros, 136 Ariz. at 504, 667 P.2d at 204.
Before 1983, this court arguably recognized the common-law rule of non-liability for tavern owners and, presumably and a fortiori, for social hosts. Id. Traditional authority held that when "an able-bodied man"[11] caused harm because of his intoxication, the act from which liability arose was the consuming not the furnishing of alcohol. See also Megge v. United States, 344 F.2d 31, 32 (6th Cir.), cert. denied, 382 U.S. 831, 86 S.Ct. 69, 15 L.Ed.2d 74 (1965); 45 Am.Jur.2d Intoxicating Liquors § 553 (1969).
However, the common law also provides that:
One who supplies ... a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise ... to use it in a manner involving unreasonable risk of physical harm to himself and others ... is subject to liability for physical harm resulting to them.
RESTATEMENT (SECOND) OF TORTS § 390 (1965) (hereinafter RESTATEMENT). Arizona's courts have repeatedly followed the RESTATEMENT'S analysis in this area. See Powell v. Langford, 58 Ariz. 281, 119 P.2d 230 (1941) (lending car to intoxicated driver); Lutfy v. Lockhart, 37 Ariz. 488, 295 P. 975 (1931) (giving automobile to incompetent driver); see also Ontiveros, 136 Ariz. at 508, 667 P.2d at 208 (same analysis as RESTATEMENT § 390).
Even in an earlier era, it was actionable negligence to furnish a minor with a dangerous instrument. For example, in Anderson v. Settergren, 100 Minn. 294, 111 N.W. 279 (1907), relying on a criminal statute making it illegal for one under the age of fourteen to possess a gun, the Minnesota Supreme Court held the defendant liable for damage resulting from furnishing a thirteen-year-old with a gun. The court stated: "`Every man must be taken to contemplate the probable consequence of the act he does.'" Id. 111 N.W. at 280-81 (quoting Townsend v. Wathen, 103 Eng.Rep. 579, 580-81 (1808)).[12]
This principle, like RESTATEMENT § 390, found common application in cases involving furnishing cars to inexperienced, youthful, or intoxicated drivers. See Engleman v. Traeger, 136 So. 527, 530 (Fla. 1931) ("every court in the land has recognized" liability for entrusting a car to a person who is drinking); Ransom v. City of Garden City, 113 Idaho 202, 743 P.2d 70 (1987) (city can be liable when police officer entrusted keys to intoxicated person who then caused an automobile accident).
We perceive little difference in principle between liability for giving a car to an intoxicated youth and liability for giving drinks to a youth with a car. If there should be a difference between duty in the former and the latter, no case cited has explained it to us, and we perceive none. If the recipient is known to be incompetent to receive the dangerous *255 instrument, it is irrelevant whether it is a loaded gun, a car, or alcohol. The theory of recovery is the same and was well-established long ago. This, perhaps, is the unarticulated rationale explaining why so many states now impose either common-law or statutory liability in cases such as this. See Cravens, 166 Ill.Dec. at 416, 586 N.E.2d at 374 (listing states). Perhaps these states have interpreted common-law concepts of duty as broad enough to encompass the liability of one who furnishes alcohol to a minor. See, e.g., Wiener v. Gamma Pi, 258 Or. 632, 485 P.2d 18 (1971); Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983); Koback v. Crook, 123 Wis.2d 259, 366 N.W.2d 857 (1985).
4. Duty based on prior Arizona case law
In 1940, this court sustained a claim for a wife's loss of consortium against defendants who had supplied liquor to her husband, despite knowing he was alcoholic. Pratt v. Daly, 55 Ariz. 535, 104 P.2d 147 (1940). Although it recognized that Arizona had no dram shop statute, this court held that there is a duty not to provide liquor to persons known to have subnormal ability to control their actions. Id. at 546, 104 P.2d at 151. As in the present case, the defendants in Pratt argued there was no Arizona precedent for such a decision and no common law to sustain the action, and therefore the court would be legislating if it allowed the claim to proceed. With great wisdom, Judge Alfred C. Lockwood replied:
Every requested application of the principles of the common law to a new set of circumstances is originally without precedent, and some court must be the first one to make the proper application.
In answer to the second question, ... [w]e are asked to declare what the common law is and always has been, and a declaration by us that it has always permitted such an action, even though none has ever actually been brought, is no more legislation than would be a declaration that it does not.
Id. at 545-46, 104 P.2d at 151.
A minor is similar to an adult who has diminished judgment and capacity to control his alcohol consumption. Moreover, unlike Pratt, where the tortious conduct was legal, here it is illegal to furnish alcohol to a minor.
In Brannigan, this court sustained an analogous claim, basing its decision on the duty, foreseeability, and causation issues related to furnishing alcohol to a minor. We held in relevant part:
A growing number of cases, however, have recognized that one of the very hazards that makes it negligent to furnish liquor to a minor ... is the foreseeable prospect that the [youthful] patron will become drunk and injure himself or others. Accordingly, modern authority has increasingly recognized that one who furnishes liquor to a minor ... breaches a common law duty owed ... to innocent third parties who may be injured.
Brannigan, 136 Ariz. at 516, 667 P.2d at 216 (citations omitted). Although Brannigan dealt with a licensee, the common-law concept of the duty of reasonable care logically applies whether the individual furnishing alcohol to an underage person is a licensee or social host.
Nor are considerations of proximate causation a reason to conclude there is no liability as a matter of law in all cases. See Ontiveros, 136 Ariz. at 505, 667 P.2d at 205 (finding that both furnishing and drinking alcohol contributed to the cause of the subsequent accident). Furnishing alcohol to underaged consumers creates an obvious and significant risk to the public. The facts of this case and its two companion cases are illustrative. We are hard pressed to find a setting where the risk of an alcohol-related injury is more likely than from underaged drinking at a university fraternity party the first week of the new college year.
CONCLUSION
The factors we have considered on the issue of recognizing the common-law liability of those who provide alcohol to persons under the legal drinking age point to a single conclusion. Furnishing alcohol to underaged drinkers violates numerous statutes. It is outside the area of immunity from civil liability described by the legislature in A.R.S. §§ 4-301 and 4-312. It is within the area *256 left by the legislature to judicial decision. The conduct in question violates well-established common-law principles that recognize a duty to avoid furnishing dangerous items to those known to have diminished capacity to use them safely. These principles are embodied in Arizona authority and in the majority of cases that have examined the question of common-law duty.
We join the majority of other states, therefore, and conclude that as to Plaintiffs and the public in general, Defendants had a duty of care to avoid furnishing alcohol to underaged consumers.[13] We understand the need to specify in this area of tort law what we hold and what we do not. We hold only that the so-called traditional rule if ever there was one of non-liability when a non-licensee serves alcohol to minors does not exist in Arizona. We do not, in this opinion, lay down any rule of absolute liability for serving alcohol to minors. We also expressly refrain from addressing, considering, or deciding in any way the liability of non-licensees for serving adults or the validity of A.R.S. § 4-301 under Ariz. Const. art. 18, § 6.
Arizona courts, therefore, will entertain an action for damages against a non-licensee who negligently furnishes alcohol to those under the legal drinking age when that act is a cause of injury to a third person.
We vacate the court of appeals' opinion and reverse the trial court's judgment. Because we do not, at this stage in the case, reach the questions of negligence or cause in fact, we simply remand to the trial court for further proceedings.
MOELLER, V.C.J., and CORCORAN, ZLAKET and MARTONE, JJ., concur.
NOTES
[1] We consolidated this case for oral argument with Petolicchio v. Santa Cruz County Fair & Rodeo Ass'n, No. CV-92-1098-PR, and Simental v. Magma Copper Co., No. CV-92-0036-PR, which present related issues.
[2] But see McFarlin v. Hall, 127 Ariz. 220, 619 P.2d 729 (1980) (court found liability when bar owner continued to serve intoxicated patron with knowledge of patron's violent temper, and failed to warn or protect fellow patrons, one of whom the intoxicated patron shot in parking lot); Pratt v. Daly, 55 Ariz. 535, 104 P.2d 147 (1940) (court found liability based on server's knowledge of imbiber's alcoholism).
[3] A.R.S. § 4-312(A) limited liability by preventing intoxicated persons and their companions from suing the licensee provider of the alcohol. In Schwab, we found this section unconstitutional because it mandated a finding of contributory negligence and assumption of the risk, impermissibly infringing on the jury's right to decide the question in "all cases" as guaranteed under the Arizona Constitution. Schwab, 164 Ariz. at 425, 793 P.2d at 1092; Ariz. Const. art. 18 § 5; see generally Richard Gordon, Note, Schwab v. Matley: The Constitutionality of the Legislative Attempt to Limit Dramshop Liability in Arizona, 33 ARIZ.L.REV. 955 (1991).
[4] The subject of this legislation was hotly debated. See, e.g., New law takes aim at teen-age `keg parties,' ARIZ. DAILY STAR, May 4, 1985, § B, at 6.
[5] For example, in one of several articles, the Arizona Daily Star called Ontiveros and Brannigan "landmark decisions." The paper, quoting a legislator about resulting legislation, stated "[a]nytime you get into legislation that involves alcohol, you get into a lot of discussion." See Bars liable for patrons, state justices rule, ARIZ. DAILY STAR, July 7, 1983, at 9.
[6] We consider this testimony in conjunction with the legislators' own comments and only to discern the subject matter. Little weight is generally given to non-legislative testimony when determining legislative intent, unless there is some indication that such evidence reflects the legislators' views. See Turner v. Prod, 707 F.2d 1109, 1119 (9th Cir.1983) ("[T]estimony of witnesses before congressional committees prior to passage of legislation generally constitutes only `weak evidence' of legislative intent.") (citing 2A C.D. SANDS, STATUTES AND STATUTORY CONSTRUCTION, A REVISION OF THE THIRD EDITION OF SUTHERLAND ON STATUTORY CONSTRUCTION § 48.10 (4th ed. 1973)), rev'd on other grounds, Heckler v. Turner, 470 U.S. 184, 105 S.Ct. 1138, 84 L.Ed.2d 138 (1985).
[7] The version of § 19-124, in effect in 1986 stated:
B. Not later than sixty days preceding the regular primary election the legislative council, after providing reasonable opportunity for comments by all legislators, shall prepare and file with the secretary of state an analysis of the provisions of each ballot proposal of a measure or proposed amendment....
(Emphasis added.)
[8] The statistics are alarming. In 1990, about 30.8% of fatally injured 16- to 20-year-old drivers were intoxicated at the time of the accident. More than 43% of all deaths of 16- to 20-year-olds in 1990 resulted from automobile accidents. Almost half of those were alcohol-related. Of all persons arrested for DUI/DWI nationally, approximately 26% were under the age of 25. Alcohol is a factor in 21% of all college dropouts and that likely costs nearly $210 million in tuition in 1991. MADD Amicus Curiae Brief, Appendix A.
[9] Cf. Michael P. Rosenthal, The Minimum Drinking Age for Young People: an Observation, 92 DICK.L.REV. 649, 656 n. 62 (1988) ("every state bans sales [of alcohol] to minors").
[10] We contrast these facts with those in Keckonen v. Robles, 146 Ariz. 268, 705 P.2d 945 (Ct. App. 1985), where the court of appeals found no duty upon which to extend liability to social hosts. In Keckonen, a social host furnished alcohol to an intoxicated adult. The court expressly excluded minors from the scope of its decision. Id. at 269 n. 1, 705 P.2d at 946 n. 1.
[11] See Cruse v. Aden, 127 Ill. 231, 20 N.E. 73, 74 (1889) ("It was not a tort at common law to either sell or give intoxicating liquor to `a strong and able-bodied man'").
[12] See also Binford v. Johnston, 82 Ind. 426 (1882) (holding defendant liable for harm caused from giving toy pistol loaded with gunpowder and ball to two boys, ages 10 and 12); Carter v. Towne, 98 Mass. 567 (1868) (holding licensed gunpowder seller liable for harm caused by providing gunpowder to 8-year-old child); Lynch v. Nurdin, 1 Q.B. 30, 113 Eng.Rep. 1041 (1841) (finding that defendant negligently left horse and cart in street, causing child to be injured when he climbed into cart).
[13] In speaking of duty here, we include not only the concepts of duty as described in most cases, see, e.g., Markowitz v. Arizona Parks Board, 146 Ariz. 352, 706 P.2d 364 (1985), but also the concept of proximate cause, or the so-called able-bodied man theory, that was mixed with the duty issue in some of the older cases, such as Cruse. See supra, n. 10. In doing so, however, we do not address fact-intensive questions involving proximate cause or any question of negligence or cause in fact. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2898976/ | NO. 07-08-0425-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JULY 30, 2009
______________________________
ALFREDO PEREZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2007-417,321; HONORABLE JIM BOB DARNELL, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ABATEMENT AND REMAND
Following an open plea of guilty, Appellant, Alfredo Perez, was convicted by the trial
court of murder. Punishment was assessed at confinement for life. The clerk’s record was
filed on December 12, 2008, but due to caseload, the reporter’s record was not filed until
May 5, 2009. Appellant’s brief was due to be filed on June 4, 2009, but has yet to be filed.
See Tex. R. App. P. 38.6(a)(2). By letter dated June 16, 2009, this Court notified
Appellant’s appointed counsel, Maxwell C. Peck, III, of the defect and explained that failure
to file the brief by June 29, 2009, would result in the appeal being abated and the cause
remanded to the trial court for further proceedings. See Tex. R. App. P. 38.(b)(2) and (3).
In response, counsel filed a motion for extension of time citing as good cause that he was
drafting a Petition for Discretionary Review and “researching and preparing for two
previously unscheduled and unanticipated pretrial hearings in [that] matter.”
Notwithstanding the fact that counsel’s motion failed to allege good cause, the motion was
granted and the deadline in which to file the brief was extended to July 3, 2009. To date,
the brief remains outstanding.
Given the information available to this Court, we now abate this appeal and remand
the cause to the trial court for further proceedings. Upon remand, the trial court shall
determine why counsel has failed to timely file Appellant’s brief and take such action as is
necessary to ensure that the brief is filed with the Clerk of this Court on or before August
13, 2009.
Should counsel timely file the brief, he is directed to immediately notify the trial
court, in writing, of the filing. If the trial court does not receive notification of the timely filing
of Appellant’s brief by the above-stated due date, pursuant to Rule 38.8(b)(2) and (3) of
the Texas Rules of Appellate Procedure, the trial court is directed to utilize whatever
means necessary to determine the following:
1. whether Appellant still desires to prosecute this appeal;
2.whether Appellant’s counsel has effectively abandoned this appeal
given his failure to timely file Appellant’s brief;
3.whether Appellant has been denied effective assistance of counsel;
and
4.if Appellant’s counsel has effectively abandoned this appeal or
Appellant has been denied effective of counsel, whether Appellant is
indigent and entitled to the appointment of new counsel;
On or before August 27, 2009, the trial court shall enter an order containing findings of fact
and conclusions of law addressing each of these issues. In addition to filing that order, a
copy of the same shall be forthwith delivered to the Clerk of this Court. Should it be
determined that Appellant still desires to prosecute the appeal and has either retained new
counsel or is entitled to the appointment of new counsel, said order shall contain the name,
address, telephone number, and state bar number of the newly-retained or newly-appointed counsel. Finally, the trial court shall cause a supplemental clerk’s record
containing that order to be filed with this Court as soon as practicable.
It is so ordered.
Per Curiam
Do not publish. | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/8326479/ | Lauriat, Peter M., J.
In this latest in an increasingly long line of similar cases, plaintiff Paul Masiello (“Masiello”) claims on behalf of himself and others similarly situated,1 that defendant Marriot International Inc. (“Marriott”) failed to distribute certain fees in violation of the Commonwealth’s tip distribution statute, G.L.c. 149, §152A (the “Tips Act” or “Act”). Now before the court is Marriott’s motion for summary judgment on all counts of the complaint. For the following reasons, Marriott’s motion is allowed.
BACKGROUND
The record before the court reveals the following facts, which are undisputed. Since 1997, Masiello has been employed as a room service server at the Copley Marriot Hotel in Boston. In that capacity, he serves food and beverages as well as other amenities, to guest rooms (“room service”) as well as food and beverages to catered events held in guest rooms or hospitality suites (“hospitality suites”).
With respect to regular room service, Marriott collects an 18% “service charge” on the price of food and beverages which is distributed to room servers, and a flat $4.00 delivery fee that is retained by the hotel. These are itemized and listed separately at the bottom of both the door knob menu and the room service menu, and are reflected separately in the room service bill.2 JA, Ex. 7, 8, 9. Sometime in 2006, Marriott added language to its room service menus that explicitly states: “Prices are subject to 5% sales tax, 18% service charge (distributed to your server) and $4.00 delivery charge (which is not a tip or gratuity for any employee).” As to items that do not generate a service charge, such as utensils, glasses, condiments, or com-plimentaiy amenities, Marriott charges an additional flat fee, known as a “charge tip,” of either $4.00 or $6.00, depending on the items.3 All charge tips are distributed to the room server who delivers the item or items.
With respect to the hospitality suites, Marriott offered the option of having a bar attended by a bartender, a carving station or other culinary stations for which it charged and retained a flat “station fee.” The station fee was listed as a fixed, flat fee on the Banquet Event Order (“BEO’j; service charges were listed separately from the station fee. In 2006, Marriott added disclaimer language similar to that on its room service menus to the effect that station fees did not represent gratuities for employees.4
The plaintiff filed this action on September 10, 2010, alleging in Count II a violation of G.L.c. 149, §152A, in Count III a violation of G.L.c. 149, §148, in Count IV money had and received, in Count v. restitution, in Count VI breach of contract, and in Count VII statutory and equitable accounting. Count I of the complaint seeks a declaratory judgment to the effect *279that his common-law claims do not duplicate his statutory claim under the Tips Act. Marriott has now moved for summary judgment on all claims.
DISCUSSION
Summary judgment will be granted where, viewing the evidence in the light most favorable to the non-moving party, all material facts have been established and the moving party is entitled to judgment as a matter of law. Cabot Corp. v. AVX Corp., 448 Mass. 629, 636-37 (2007); Mass.R.Civ.P. 56(c). “The moving party must establish that there are no genuine issues of material fact, and that the nonmoving party has no reasonable expectation of proving an essential element of its case.” Miller v. Mooney, 431 Mass. 57, 60 (2000). See also Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). “Conclusoiy statements, general denials, and factual allegations not based on personal knowledge [are] insufficient to avoid summary judgment.” Cullen Enters., Inc. v. Massachusetts Prop. Ins. Underwriting Ass’n, 399 Mass. 886, 890 (1987).
The Tips Act was first enacted in 1952, amended in 1983, and amended again effective September 8, 2004. Because there is no contention that the 1983 version of the act governs the outcome of this dispute, the court’s analysis will address only the Act as amended in 2004. “Service charge” is defined in the 2004 version to include “any fee designated as a service charge, tip or gratuity, or a fee that a patron or other consumer would reasonably expect to be given to a wait staff employee, service employee, or service bartender in lieu of, or in addition to, a tip.” G.L.c. 149, §152A(a). Section 152A(d), also known as the safe harbor provision, see Bednark v. Catania Hospitality Group, Inc., 78 Mass.App.Ct. 806, 808 n.8 (2011), reads as follows:
Nothing in this section shall prohibit an employer from imposing on a patron any house or administrative fee in addition to or instead of a service charge or tip, if the employer provides a designation or written description of that house or administrative fee, which informs the patron that the fee does not represent a tip or service charge for wait staff employees, service employees, or service bartenders.
The gist of the plaintiffs argument is that a patron would reasonably expect that “delivery fee" or a “station fee” are in the nature of a gratuity to be remitted to the wait staff. At the very least, he contends, the terms engender sufficient confusion to require a factual inquiry. The court does not agree.
At the bottom of the sample door knob menu is the statement “[a]n 18% service charge, appropriate tax and a $3.00 trip charge will be added to your check.” In like manner, the sample room service menu states: “[a]n 18% service charge, $4.00 delivery charge and appropriate sales tax will be added to your check.” The sample bill adds to the sub-total an “18% RS SVC CHG.”5 Quite clearly a patron would reasonably expect that a fee designated as a “service charge” is a gratuity to be remitted to service employees. See, e.g., DiFiore v. American Airlines, Inc., 454 Mass. 486, 494 (2009). See also Cooney v. Compass Group, 69 Mass.App.Ct. 632, 637 (2007) (“service charge” on an invoice for food or beverage service is the functional equivalent of a tip or gratuity).
The room service menus in the record do not contain any disclaimer language similar to that with respect to station fees, see n.5, supra. Nonetheless, the court is hard pressed to conclude that, where a service charge and a delivery fee are separately itemized and listed, any patron would reasonably expect that the “delivery charge” (or “trip charge”) was an additional gratuity.6 This is especially so where the service charge is designated as a percentage and the delivery fee as flat. The Attorney General, charged with administering the Tips Act, has stated that, with respect to an additional fee that may be retained at the employer’s discretion, “(i]t must be evident to customers that this fee is not a gratuity, tip or service charge.” Advisory 2004/3. The court concludes that, on the facts of this case, it would be clear to patrons that the delivery fee is not a service charge.7 Hence there is no violation of the Tips Act.
Masiello seeks declaratory relief as well as recovery on a variety of common-law claims. Marriott argues that these claims are duplicative of Masiello’s statutory claim and must therefore be dismissed. “Where a statute has been enacted seemingly intended to cover the whole subject to which it relates, including a remedy for its infraction, other provisions of the common law, including such as are remedial in nature, are thereby superseded.” School Comm. of Lowell v. Mayor, 265 Mass. 353, 356 (1928). See also Mello v. Stop & Shop Cos., 402 Mass. 555, 557 (1988); King v. Driscoll, 418 Mass. 576, 584 n.7 (1994). Otherwise put, Masiello’s common-law claims rise or fall on his Tips Act claim. Where that fails, so too must his cOmmon-law claims.
CONCLUSION
For the forgoing reasons, Defendant Marriott International, Inc.’s Motion for Summary Judgment is ALLOWED.
No class certification proceedings have occurred; the court will therefore refer to the plaintiff in the singular.
The delivery fee is listed as both a “delivery charge” and a “trip charge”; the samples in the record reflect fees of $3.00 and $4.00.
For those items that are complimentary, Marriott charges the hotel internally rather than imposing the charge tip on the guest.
Marriott also charged and retained a flat “administrative fee" for hospitality suites. The plaintiffs complaint asserts that this administrative fee was the equivalent to a service charge to be distributed to wait staff under the Tips Act. At the summary judgment hearing held on April 6, 2011, how*280ever, the plaintiffs counsel represented to the court that he had abandoned this argument.
To the extent that the plaintiff argues that the station fee should be considered a service fee, that argument is foreclosed where both the sample BEO and the sample hospitality menu included in the record contain the following disclaimer language: ‘TAXABLE ATTENDANT FEE: Fees for Station Attendants, Carvers, and Bartenders do not represent a tip, gratuity, or service charge for wait staff employees, bartenders or other service employees engaged in the event.” The Marriott represents that this language was added in 2006. However, neither party has provided a sample BEO or hospitality suite menu for any previous year. Had the plaintiff wished to present evidence that the Marriott did not include such a disclaimer prior to 2006, he could have done so. The court will consider only those documents contained in the record.
The Massachusetts Appeals Court’s decision in Bednark v. Catania Hospitality Group, 78 Mass.App.Ct. 806 (2011), does not compel a different result. There, the court held that a charge designated an “administrative fee,” without more, was not sufficient to bring the fee within the safe harbor provision of the Tips Act. Id. at 816. In that case, however, there was no separate service charge listed and itemized.
To the extent that the plaintiff argues confusion on the part of patrons, he has presented no evidence to support that contention. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/811054/ | FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
October 31, 2012
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
IVAN KILGORE,
Plaintiff-Appellant,
v.
No. 12-7056
(D.C. No. 6:12-CV-00087-JHP-SPS)
SEMINOLE COUNTY PUBLIC
(E.D. Okla.)
OFFICIALS MIKE WEATHERLY;
TIMOTHY OLSON,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.
Ivan Kilgore filed this pro se suit under 42 U.S.C. § 1983 against a former
prosecutor and a court stenographer in Seminole County, Oklahoma. He alleges
that the defendants refused to provide — at no charge to him — a full transcript
of his Oklahoma murder trial for use in his appeal of a separate murder conviction
*
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
order and judgment is not binding precedent except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
in California and a related habeas petition. This conduct, he says, violated the
Equal Protection Clause of the Fourteenth Amendment.
In a four-page order, the district court dismissed Mr. Kilgore’s complaint
pursuant to 28 U.S.C. § 1915(e), which governs proceedings in forma pauperis
and provides that “the court shall dismiss the case at any time if the court
determines that . . . the action . . . is frivolous.” 28 U.S.C. § 1915(e)(2)(B)(i).
Mr. Kilgore appeals this decision and seeks permission to proceed in forma
pauperis on appeal. “We generally review a district court’s dismissal for
frivolousness under § 1915 for abuse of discretion. However, where the
frivolousness determination turns on an issue of law, we review the determination
de novo.” Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006) (internal
citations omitted).
After careful review of his pleadings and the district court’s order, we
discern no error. To be sure, an indigent defendant is entitled to a free transcript
of his trial when directly appealing the judgment from that trial. Ruark v. Gunter,
958 F.2d 318, 319 (10th Cir. 1992) (citing Griffin v. Illinois, 351 U.S. 12 (1956)).
But no such entitlement attaches in a collateral attack on the same judgment.
Id. (citing United States v. MacCollom, 426 U.S. 317 (1976)). And Mr. Kilgore
was not appealing or even collaterally attacking his Oklahoma conviction when he
requested the transcript — he was contesting (directly and collaterally) a separate
conviction in California, where his Oklahoma conviction was relevant only as
-2-
potential impeachment evidence. Mr. Kilgore cites, and we are aware of, no
authority suggesting the federal Constitution is implicated by the failure to supply
a free transcript in these circumstances.
We affirm the judgment of dismissal for frivolousness, deny Mr. Kilgore’s
motion to proceed in forma pauperis, and direct him to pay any remaining filing
fees forthwith.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
-3- | 01-03-2023 | 10-31-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1903423/ | 873 A.2d 1099 (2005)
McGOWAN v. FERRO
No. 567, 2004.
Supreme Court of Delaware.
May 9, 2005.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609921/ | 2 Wash. App. 169 (1970)
467 P.2d 189
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant,
v.
CHESTER PHILLIPS et al., Respondents.
No. 40-40236-3.
The Court of Appeals of Washington, Division Three.
March 26, 1970.
Robert A. Southwell (of Malott & Southwell), for appellant.
Lawrence Monbleau (of Cashatt, Williams, Connelly & Rekofke) and W. Walters Miller (of Miller & Sackmann), for respondents.
EVANS, C.J.
Appellant, State Farm Mutual, brought an action for declaratory judgment, claiming its policy did not cover an accident that occurred March 10, 1965 between respondents, Chester Phillips (insured) and Clark Phillips, his son. State Farm Mutual appeals from a judgment to the contrary.
Appellant claims 41 assignments of error. All are directed to the findings of fact and conclusions of law entered by the trial court, and to the refusal of the trial court to enter appellant's proposed findings of fact and conclusions of law. Appellant concedes, however, that all assignments of error relate to and ultimately narrow down to one principal question: At the time of the accident was the son Clark Phillips a member of the family of and residing in the same household as his father Chester Phillips, within the meaning of the following exclusion in the named insured's policy:
*171 This insurance does not apply under:
...
(i) coverage A, to bodily injury to the insured or any member of the family of the insured residing in the same household as the insured; ...
The coverage under the insuring agreement provided:
COVERAGES A and B (A) Bodily Injury Liability and (B) Property Damage Liability
(1) To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of (A) bodily injury sustained by other persons, and (B) property damage, caused by accident arising out of the ownership, maintenance or use, including loading or unloading, of the owned automobile; and to defend any suit against the insured alleging such bodily injury or property damage and seeking damages which are payable hereunder even if any of the allegations of the suit are groundless, false or fraudulent; but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient.
There is no material dispute as to the facts. Respondent, Chester Phillips, is a lifelong resident of Adams County. For the past 25 years or more he has operated a combination wheat farm and cattle ranch located just outside the city limits of Lind. Since 1945 these operations for the most part have required the full-time assistance of at least one hired hand on a year-round basis, who, as a condition of employment, lived on the premises.
The buildings on the premises consist of a house which Chester Phillips occupied with his wife, daughter, and son Clark. There is also a machine shed and a repair shop, but no bunkhouse or similar facility separate and apart from the house. The Phillipses' home is the only place where quarters are available for occupancy by live-in hired help.
From 1946 to 1963 Chester Phillips employed a total of four hired hands. As a condition of their employment they were required to live on the premises and to occupy a room in the Phillipses' home. This conformed to a long standing general custom and practice prevailing in the Adams *172 County area on farms and ranches where no bunkhouses or separate housing facilities are available. In such situations, hired hands are afforded room and board in their employers' homes, enjoying full and unrestricted use thereof to the same extent as members of their employers' families. All four hired hands employed by Chester Phillips during the period from 1946 to 1963 occupied a room in his home, took their meals at the same time and table as did the Phillips family, and enjoyed the same unrestricted use of the Phillipses' home and its conveniences as did its permanent occupants. Laundry, ironing and such mending and the like as was necessary was attended to by Mrs. Phillips at no charge to her husband's hired help.
In 1961 respondent Clark Phillips graduated from high school. Following his graduation he was employed by his father on a full-time basis as a laborer on the farm. Clark was paid $10 per day. As additional compensation for his services he was furnished room and board in his father's home in the same manner as other employees.
From the beginning, Chester Phillips carried Clark as an employee on his payroll records, made the necessary deductions from his wages for social security and federal income tax, and carried an insurance policy covering injuries sustained by Clark and other employees in the scope of their employment. During his employment Clark was fully self-supporting and paid all expenses incidental to his own maintenance, including the medical expenses arising from injuries he sustained in the accident from which this action stems. He worked regular hours as fixed by his father, did such work as he was directed to do, and was otherwise treated in the same manner as other hired hands.
Clark had resided in his father's home all his life. It was his home and at no time in his life had he resided away from this home. He had never been married, nor had he been in the armed services. He received his mail at his father's post office box and had been doing this all his life. His legal residence for the purpose of selective service registration was the same as that of his father. He had free use *173 of the family home and was not restricted to any part of the house; he took his meals with the family in the same manner as when he was going to high school; and he enjoyed the same use of the house as when he was in school. His mother was in the habit of washing and mending his clothes, just as she did when he was attending high school, and her attitude toward him as a son was no different than it was when he was in school. He was not excluded from any family gatherings, and was treated as a member of the Phillips family the same as was his sister. His father would give fatherly advice to Clark, if he was asked. Such was the relationship between Chester Phillips and his son, Clark, when the former applied to appellant for an automobile liability insurance policy.
After issuance of the policy in question, and on March 10, 1965 while Chester Phillips was operating the vehicle described in appellant's policy, he collided with a motorcycle driven by his son Clark on a public street in the business area of Lind. Clark was severely injured. He was 23 years of age. Neither Chester Phillips nor the son Clark knew the other was in the area at the time. In fact, Chester Phillips was unaware it was Clark he had struck until after the collision.
Chester Phillips thereafter gave appellant notice of the accident. After investigation of the facts and circumstances, appellant by letter directed to Chester Phillips declined coverage, resting its denial on the basis that "at the time of the accident your son, Clark Phillips, was a resident of your household and a member of your family."
Two years later Clark Phillips commenced an action against his father in the Adams County Superior Court. Appellant, State Farm Mutual, thereupon commenced this action in the same court, pursuant to the provisions of RCW 7.24.010 et seq., the Uniform Declaratory Judgment Act, seeking an adjudication that its policy did not afford coverage for the accident on March 10, 1965, and it had no obligation to defend any litigation arising from it, thus *174 invoking the exclusionary effect of paragraph (i), supra, of its policy.
The trial court entered findings of fact, including finding of fact 14, which provided "At all times since said employment agreement was entered into the relationship between Chester Phillips and Clark Phillips has been that of an employer and employee, and not that of members of the same family residing in the same household."
Thereafter, judgment was entered declaring that appellant's policy covered the accident, and appellant was obligated to defend the action commenced by Clark in Adams County Superior Court and pay all sums adjudged due and owing as damages arising from that accident, except as limited by other terms of the policy.
Appellant contends the uncontroverted facts establish as a matter of law that Clark was a member of the family of the insured, residing in the same household of the insured within the meaning of the policy provisions, and retained that same status after he was employed by his father on a full-time basis. Appellant argues creation of the relationship of employer-employee did not destroy the family relationship that existed during all of Clark's life; he was more than a mere farm employee; and the normal relationship of father and son still existed and Clark remained the natural object of his father's affections.
On the other hand, respondents took the position, and the trial court found, that the exclusionary clause relied on by appellant is ambiguous and inapplicable to an employee, whether or not related to appellant's insured, who, as a condition or requirement of his employment is obliged to become or remain a member of his employer's household. Respondent contends the word "family" has no fixed or unalterable meaning; that it is a term connoting a variety of meanings and relationships, a circumstance that has led some courts to conclude, as did the trial court in this case, that the so-called family-exclusion clause was ambiguous. In support of this contention respondent cites State Farm Mut. Auto. Ins. Co. v. Thompson, 372 F.2d 256, 258 (9th Cir. *175 1967); Umbarger v. State Farm Mut. Auto. Ins. Co., 218 Iowa 203, 254 N.W. 87, 89 (1934); State Farm Mut. Auto. Ins. Co. v. Hannah, 277 Ala. 32, 166 So. 2d 872 (1964); State Farm Mut. Auto. Ins. Co. v. Pennington, 215 F. Supp. 784 (D.C. Ark. 1963), affirmed 324 F.2d 340 (8th Cir.1963); Fruchtman v. State Farm Mut. Auto. Ins. Co., 274 Minn. 54, 142 N.W.2d 299 (1966).
Based upon the premise that the provisions of the exclusionary clause are ambiguous, respondent contends this ambiguity entitles respondents to the benefit of two well-established rules relating to the construction of an insurance policy exclusionary clause: first, where the provisions of a policy of insurance are capable of two meanings, or are fairly susceptible of two different constructions, that meaning and construction most favorable to the insured must be applied even though the insurer may have intended another meaning (citing Selective Logging Co. v. General Cas. Co., of America, 49 Wash. 2d 347, 301 P.2d 535 (1956)); second, exclusionary clauses of insurance policies are to be strictly construed against the insurer (citing Thompson v. Ezzell, 61 Wash. 2d 685, 379 P.2d 983 (1963)).
Respondent urged, and the trial court found, the mere fact of a blood relationship between Chester Phillips and Clark Phillips, who occupied and shared a common household, was not sufficient to establish the family relationship (citing State Farm Mut. Auto. Ins. Co. v. Pennington, supra). Given the meaning most favorable to appellant's insured, the term "family" is limited in its scope to an aggregate of individuals related by ties of blood or marriage who share a common household, subject to the control of its head a parent in the case of children who are dependent on that head in whole or in part for their support. Respondents urged, and the trial court agreed, there are at least two elements essential to establish the existence of a family that are lacking in this case, namely, parental control by Chester Phillips over his son, Clark, and dependency for support by Clark on his father, Chester Phillips.
*176 [1, 2] The basic premise upon which the trial court made its findings, conclusions and judgment, was that the term "family" as used in the policy is ambiguous. Respondent contends this issue was a question of fact and that the findings of fact entered by the trial court will not be disturbed on appeal if they are supported by substantial evidence. This rule, however, does not apply to construction of language in an insurance policy. In Rew v. Beneficial Standard Life Ins. Co., 41 Wash. 2d 577, 250 P.2d 956, 35 A.L.R. 2d 891 (1952), a case involving the construction of language in an insurance policy, our Supreme Court, in determining the question was one of law, stated:
Appellant insurer makes six assignments of error, but concedes that they present but one question: Was the Valley View Convalescent Home a hospital within the coverage of the policy? The question is one solely of law.
(Italics ours.)
The court in that case also stated, at page 581:
This court has laid down and followed the rule that:
"A policy of insurance is a contract, and its language, like that of any other contract, must be given its usual and ordinary meaning, unless it is apparent from a reading of the whole instrument that a different or special meaning was intended, or is necessary in order to avoid an absurd or unreasonable result." Richards v. Metropolitan Life Ins. Co., 184 Wash. 595, 55 P. (2d) 1067.
In the absence of evidence to the contrary, the parties to a contract of insurance will be presumed to have intended the words and terms of the contract as they are ordinarily understood by the average man. Kane v. Order of United Commercial Travelers of America, 3 Wn. (2d) 355, 100 P. (2d) 1036.
And again, at page 582, the court stated:
The rule that contracts of insurance will be construed in favor of the insured and most strongly against the insurer should not be permitted to have the effect of making a plain agreement ambiguous and then construing it in favor of the insured. Hamilton Trucking Service v. Automobile Ins. Co. of Hartford, Connecticut, 39 Wn. (2d) 688, 237 P. (2d) 781. The trial court, therefore, *177 erred in concluding that the Valley View Convalescent Home was a hospital within the policy coverage.
See also, Lampson Equip. Rental & Sales, Inc. v. West Pasco Water System, Inc., 68 Wash. 2d 172, 412 P.2d 106 (1966).
[3, 4] The language in this particular exclusion:
This insurance does not apply under:
...
(i) coverage A, to bodily injury to the insured or any member of the family of the insured residing in the same household as the insured; ...
has never been construed by the Supreme Court of this state. However, it has been construed many times by appellate courts of other states. Those decisions supporting respondents' contention have been cited above and appear to represent the minority view. The majority rule upholds the validity and application of exclusionary provisions in factual situations substantially similar to the facts in the present case. See 50 A.L.R. 2d 108, at 120; 50 A.L.R. 2d 110, later case service. A review of the numerous cases therein cited leads this court to the conclusion that in considering the construction of any exclusionary clause in a liability insurance policy, the purpose and intent of the insurer in inserting the particular clause must be considered. The exclusion in question is a so-called "household or family exclusionary clause", the purpose of which is not only to protect insurers from collusion which might possibly arise in intrafamily suits but also to protect them from the natural tendency of one insured to strengthen or enlarge the case against him when it involves members of his household and family. There is a natural disposition to favor those in one's household and close members of one's family. The practical impossibility facing an insurer in defending such an action is readily apparent, and explains why this type of exclusion is inserted in a policy. The exclusion, when read in connection with the Insuring Agreement I, Coverage A, that insures against bodily injuries sustained *178 by other persons, clearly indicates there was no intent to provide coverage for injuries to insured or to members of the family of the insured residing in the same household as the insured.
The identical exclusionary language contained in the policy was most recently considered in State Farm Mut. Auto. Ins. Co. v. Xaphes, 384 F.2d 640 (2d Cir.1967). There the court held that the policy contained provisions that excluded from coverage bodily injuries to insured or any member of her household. Insured's mother, who was a member of insured's household, was killed while riding in insured's automobile at the time it was being driven by a friend of insured with insured's permission. The court held the insurer was not obligated to defend a suit brought by the administrator of the mother's estate against the driver. This was a case of first impression in Vermont. The court, in arriving at its decision, stated at page 641:
However, the policy before us is not ambiguous; its provisions as quoted above were carefully drawn as a result of court decisions and clearly indicate that it was not intended to require State Farm to defend Wesson in the situation here presented. The insurer agreed to defend the insured and the additional insured only against claims arising out of injuries sustained by other parties. The company did not undertake to pay for bodily injuries suffered by the insured and members of the insured's household.
To make clear this limitation on its responsibility the insurer drafted the exclusion quoted above and placed it in the policy. The language of that exclusion appears to us to be clear and unambiguous members of the household of the named insured may not recover. We note that the policy could have contained a "severability of interest" clause that directs each insured to be treated separately with respect to the exclusions. But this policy did not contain such a clause to read it in, and include this claim because Clara Brown was not part of Wesson's household as the district court would do, is to transform a liability policy into an accident policy.
Since the insurer's reading of the policy to exclude this claim is accepted by substantially all prior cases, we may *179 assume that that interpretation was reflected in the premium charged. See, e.g., Johnson v. State Farm Mutual Automobile Ins. Co., 252 F.2d 158 (8 Cir. 1958); Great American Ins. Co. v. State Farm Mutual Automobile Ins. Co., 412 Pa. 538, 194 A.2d 903 (1963); State Farm Mutual Automobile Ins. Co. v. Cocuzza, 91 N.J. Super. 60, 219 A.2d 190 (1966). It may be, as appellees argue, that the risk of collusion that justified the exclusion of intrafamily suits does not operate with the same force in the situation here, when a member of the family is suing a friend of the named insured. But the exclusion was not designed for the sole purpose of avoiding collusive claims it was drawn to make clear that the insurer's obligation was limited to pay for injuries sustained by persons other than the insured and members of her household. The clear language of the exclusion should not be circumvented because it may be argued that collusion is less likely in cases such as this.
(Footnote omitted.)
Appellant's same exclusion, construed with the same insuring agreement as we have in this case, was held to apply in State Farm Mut. Auto. Ins. Co. v. Cocuzza, 91 N.J. Super. 60, 219 A.2d 190, 193 (1966), a case of first impression in New Jersey. The facts were substantially the same as those in State Farm Mut. Auto. Ins. Co. v. Xaphes, supra. The court stated, at page 65:
Exclusionary clauses must be examined and interpreted in the light of their design and intent as well as in view of the objects and purposes of the policy. Capece, supra [88 N.J. Super. 535, 212 A.2nd 863]. The purpose of the relevant part of the policy in question was to provide liability coverage. Great American Ins. Co. v. State Farm Mutual Auto Ins. Co., supra. The use of the word "other" in insuring agreement (1) under coverage A makes this clear. The exclusion of the named insured or any member of his family from recovery under clause (g) is in accord with this interpretation. It clearly appears that the parties intended to exclude the named insured and members of his family residing in the same household from recovery on the policy of insurance for any injuries sustained.
*180 The Georgia court approved the application of the exclusion in question in Teems v. State Farm Mut. Auto. Ins. Co., 113 Ga. App. 53, 147 S.E.2d 20 (1966), where a mother and father obtained a judgment against their 18-year-old daughter for injuries to the mother while she was a passenger in an automobile operated by the daughter. The daughter was living in the residence of her mother and father, together with her younger sister, and they had all lived there for about 4 years. The daughter occupied one of three bedrooms in the house. For a period of 2 years following graduation from high school she worked, paid rent to her father at the rate of $5 per week, and paid for a telephone extension in her room. She was free to do as she pleased, could go where she wanted, and was not disciplined or told by her father what to do. She owned her own automobile, bought her own clothes, and paid her own medical bills and expenses. The Georgia court held the mother and father were members of the family of the insured daughter, residing in the same household as the insured, and applied the exclusion to deny coverage. The exclusion in question was the same as that in the present case.
The Wisconsin case of Goller v. White, 20 Wis. 2d 402, 122 N.W.2d 193 (1963), concerned an exclusion in a farm liability policy, excluding bodily injury to "(1) any insured or any member of his family residing in the household of any insured ..." The court found the exclusion applied and affirmed an order granting summary judgment. The court determined a boy who was placed in the named insured's licensed foster home was a "member of the family" of the named insured with the definition of "insured" in the policy in question. At the time of the accident the minor plaintiff was working for his foster father and contended he was afforded coverage as an employee. Notwithstanding the fact he was employed by his foster father, the court found he was a member of the family of his foster father.
A leading case representative of the majority rule, construing this exact exclusion, is Tomlyanovich v. Tomlyanovich, 239 Minn. 250, 58 N.W.2d 855, 50 A.L.R. 2d 108, *181 decided in 1953. In that case plaintiff and defendant were brothers. Defendant was 29 years of age and the plaintiff was 27. Both were unmarried and resided in the family home. The home and all furnishings were owned by their father. The mother prepared the meals and all members of the family ate at the same table when they were home on time. They all received their mail in a common mailbox. The mother did the housework and laundry for all members of the family. At the time of the accident defendant was employed as a brakeman and plaintiff was unemployed. Both plaintiff and defendant paid their mother and father for board, room and laundry. Plaintiff and defendant each had a separate bedroom but otherwise had free use of the house. Plaintiff was riding in defendant's car, driven by defendant at the time of the accident. The Minnesota court found that the plaintiff brother was a member of the family of the insured brother, residing in the same household as the insured, and the exclusionary clause applied. The court exhaustively reviewed the cases up to that time bearing on this point, and in its decision pointed out the obvious purpose of the clause was to except the insurer from liability to those persons to whom the insured, on account of close family ties, would be apt to be partial in case of injury.
[5] In Tomlyanovich v. Tomlyanovich, 239 Minn. at 259, the Minnesota court quoted from a prior Minnesota case with respect to the distinction between the words "household" and "family":
With respect to the distinction between the words "household" and "family," we said, [in Engebretson v. Austvold] (199 Minn. 402, 271 N.W. 810):
"There is not much disagreement in the definitions of `household,' whether they emanate from judges or lexicographers. The word is synonymous with `family' but broader, in that it includes servants or attendants, `all who are under one domestic head; persons who dwell together as a family.'"
And in the same case, at page 255, the court also quoted from a 6th circuit court case as follows:
*182 In Ocean Acc. & Guart. Co. Ltd. v. Schmidt, (6 Cir.) 46 F. (2d) 269, 270, the court said:
"In Arthur v. Morgan, 112 U.S. 495, 499, 5 S. Ct. 241, 243, 28 L. Ed. 825, the court said: `Persons who dwell together as a family constitute a "household."'... We do not doubt that a son living under the parental roof is a member of the household even though he has reached his majority and supports himself, ...." (Italics supplied.)
This being a question of first impression in this state we accept the majority rule as expressed in Tomlyanovich v. Tomlyanovich, supra, as being the better reasoned and sounder rule, and hold as a matter of law that Clark Phillips was a member of the family and a resident of the same household as the named insured within the meaning of the provisions of the exclusionary provision (i).
In addition to urging a lack of coverage on the basis that Clark was a member of Mr. Phillips' family and a resident of his household, appellant claims Clark was also an insured as defined in its policy for whom no coverage was afforded. Appellant made no such claim at the time coverage was initially denied, failed to allege Clark's status as an insured in its complaint at the time this action was commenced, and neglected to raise this issue in the trial court.
[6] By reason of appellant's failure to raise the issue of whether Clark was an insured under its policy, appellant is foreclosed from raising it for the first time in this court. Daniels v. Pacific N.W. Bell Tel. Co., 1 Wash. App. 805, 643 P.2d 795 (1970), Matthias v. Lehn & Fink Prod. Corp., 70 Wash. 2d 541, 424 P.2d 284 (1967).
Judgment reversed, and remanded for entry of judgment for plaintiff in accordance herewith.
GREEN and MUNSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609926/ | 467 P.2d 692 (1970)
The STATE of Montana, Plaintiff and Respondent,
v.
Gary Lee QUIGG, Defendant and Appellant.
No. 11743.
Supreme Court of Montana.
April 3, 1970.
Rehearing Denied April 30, 1970.
Derry, Hanser & Derry, Billings, Harold F. Hanser, argued, Billings, for appellant.
Robert L. Woodahl, Atty. Gen., Billings, Patrick J. Brophy, Asst. Atty. Gen., argued, Helena, John L. Adams, Jr., County Atty., argued, Billings, for respondent.
CASTLES, Justice.
This is an appeal from a judgment of conviction of murder in the first degree entered on a jury verdict. Defendant was sentenced to life imprisonment. A motion for new trial was denied.
*694 Defendant Gary Lee Quigg was charged by Information in the district court in Yellowstone County on August 5, 1968 with the crime of first degree murder of one Lee R. Robbins, who was killed on April 8, 1968. On October 21, 1968, a motion to suppress evidence seized under authority of certain search warrants was heard by Judge C.B. Sande and granted in part and denied in part.
The case was first tried on January 13, 1969 and the jury was unable to reach a verdict. The case was tried a second time on March 31, 1969 and a verdict of guilty returned.
The body of Lee R. Robbins was found on a county road near the Billings airport at approximately 10:45 p.m. on April 8, 1968, by two college students who were driving up the road on which the body was lying. Lee R. Robbins had been killed by two bullets in his head, bullets which were later shown to have been fired from his own gun which he had had under the front seat of his car. His pockets, with the exception of his left, were turned inside out; his wallet was missing; his watch was missing; his car was gone; and various small items were scattered in the area of the body.
Lee R. Robbins left his home at about 9:45 p.m. to go to the airport to meet his boss, a representative of the company which employed him. Robbins was a drug salesman for William H. Rorer, Inc., a pharmaceutical company which deals in drugs dispensed through pharmacies. Robbins carried in his car drug samples. On his way to the airport, Robbins stopped at the Rimrock Lodge to verify reservations previously made for his boss. At the Rimrock Lodge the desk man spoke with Robbins and testified that Robbins mentioned he had been followed by an automobile with which he had had a near accident earlier.
Robbins was next seen at the airport where he spoke with various acquaintances. He was last seen alive at the airport terminal between 10:25 and 10:30 on the night of April 8, 1968, at which time he was heading out towards the terminal entrance to check on his car. His body was found 15 to 20 minutes later near the airport. His boss arrived on schedule, waited in vain for Robbins, and finally went to his motel.
The investigation of the scene where the body of Robbins was discovered was conducted by law enforcement officers on the night the body was found, and again at daylight the following morning. Robbins had been slain as the result of two bullet wounds of a.22 caliber, one wound at the right ear and one at the left ear. During the search of the area, two .22 caliber shell casings were discovered near the body position.
The automobile belonging to Robbins was discovered the next morning in downtown Billings in a parking lot. Robbins' wallet was found in it but contained no money; other contents of the wallet were strewn about the floor of the car. Also scattered around the automobile were drug supplies which were the supplies used by Robbins in his work as a drug salesman. The automobile was fingerprinted and vacuumed but no results were produced linking the defendant to the automobile.
The investigation continued; about two months elapsed. On June 11, the Ten Inn bar, located between Park City and Columbus, Montana in Stillwater County, was found to have been burglarized and ransacked. A German shepherd watchdog was found dead, having been shot. Two .22 caliber shell casings were found on the floor, one under a bar stool and one in a hallway near the dog's body.
On June 23, one Richard Cammack was arrested by Carbon County Sheriff Eichler and Highway Patrolman Mead on a charge of receiving stolen property. Cammack had a case of beer in his possession. Shortly thereafter Cammack was charged with the burglary of the Ten Inn bar. He at first did not implicate others, and, in fact, plead guilty to the crime of burglary; but the following day he told officers that two men were with him on the burglary, Gary Quigg and Mort Reid.
*695 The homicide investigation into the death of Lee R. Robbins continued. The Federal Bureau of Investigation (hereinafter referred to as FBI) Laboratory in April had examined, among other things, the two .22 caliber shell casings found near the body of Robbins. It was determined that they each had been fired from the same .22 caliber gun. It was also determined, at that time, they had marks typical of that produced by a .22 caliber Ruger pistol; but, the expert could not eliminate the possibility of a different make or style of .22 caliber gun being involved.
Subsequently, in July 1968, after the Ten Inn burglary, the same FBI laboratory expert received one of the .22 caliber shell casings found on the floor of the Ten Inn bar. His examination of that shell disclosed it had been fired from the identical gun that had fired the two shell casings found at the Robbins homicide scene. Again the type of marks indicated a Ruger pistol, but could not be narrowed down to one particular weapon.
In the meantime, police investigation continued. The same weapon was involved in Robbins' death and in the two month later burglary. Also, at this time, among other things, the officers had involved Cammack, Quigg and Reid in the burglary. Cammack testified that Quigg, defendant here, had shot the dog with an automatic pistol. The search was narrowing down.
Defendant Quigg was arrested on August 2, as were Reid and Cammack.
On that same day a petition for a search warrant was filed which read:
"Comes now Richard Shaffer, a Police Officer for the city of Billings, Montana, and being first duly sworn, on oath, alleges as follows:
"I.
"That he is a Police Officer for the City of Billings, Montana, assigned to the Detective Division;
"II.
"That on April 8, 1968, in Yellowstone County, State of Montana, a person by the name of Lee Robbins was killed by a person or persons unknown and the homicide is presently under investigation;
"III.
"That at the scene where Mr. Robbins' body was found there were found the shell casings of a gun similar in caliber to the gun with which Mr. Robbins was shot;
"IV.
"That the shell casing above mentioned were retained by the Billings Police Department and subsequently in June, 1968, there were found at the scene of another crime committed in Stillwater County, shell casings which were compared by the Federal Bureau of Investigation Laboratory to those found at the scene of Mr. Robbins slaying and the shell markings on said shell casing indicate they were fired by the same gun.
"V.
"That in the crime committed in Stillwater County, three (3) persons namely, Richard D. Cammack, William Morris Reid and Gary Lee Quigg, were apprehended for said crime and one of these persons indicated that the gun used in commission of the crime in Stillwater County, which discharged the shell casings identical with the shell casings found at the scene of the Lee Robbins homicide, has been fired by one of the three (3) persons involved in said crime.
"VI.
"That Gary Lee Quigg is known to have had .22 guns in his possession, a caliber, which is identical with the gun caliber that killed Mr. Robbins and said guns were believed kept in the home or kept in automobiles in possession of said Gary Lee Quigg;
*696 "VII.
"That at the time of Mr. Robbins' killing certain papers, money and a watch disappeared;
"VIII.
"That for aforesaid reasons and in the reasonable belief that said person, Gary Lee Quigg has in his possession or in his vehicle the said property, the petitioner prays that a Search Warrant be issued allowing the Billings Police Department of Billings, Montana, to search the premises of a one story house, color white, with basement, exact size of house unknown, located at 236 Custer Avenue, Billings, Montana, the property of Harold M. Learn and Mabel G. Learn, and the residence address given by Gary Lee Quigg as his home also detached garage next to building, and then and there to seize and take into their possession any .22 caliber pistol, a gold wristwatch with expansion band or any other property or evidence they might discover that may connect to the demise of Lee Robbins.
"S/ Richard E. Shaffer
Richard Shaffer
"On this 2nd day of August, 1968, before me E.E. Collins, Justice of the Peace, personally appeared Richard Shaffer, known to me to be the person whose name is subscribed to the within instrument and being first duly sworn and examined by me; he did acknowledge that he executed the same.
"S/ E.E. Collins
E.E. Collins
Justice of the Peace."
Justice of the Peace Collins issued the search warrant in these words:
"THE STATE OF MONTANA TO ANY SHERIFF, CONSTABLE, MARSHAL OR POLICEMAN, Richard E. Shaffer, Police Officer, in the County of Yellowstone, State of Montana;
"Proof, by Petition under oath having been this day made before me by Richard E. Shaffer, a Police Officer for the City of Billings, Montana, seeking issuance of a search warrant for the premises located at 236 Custer Avenue, a one story house, color white, with basement, exact size of house unknown, the property of Harold M. Learn and Mable G. Learn, and the residence address given by Gary Lee Quigg as his home also detached garage next to building;
"You are hereby commanded to make a search, in either day or night of that house located at 236 Custer Avenue, a one story house, color white, with basement, exact size of house unknown, the property of Harold M. and Mabel G. Learn, for the following described property: Any .22 Caliber pistol, a gold wristwatch with expansion band or any other property or evidence they might discover that may connect to the demise of Lee Robbins; and if you find the same, or any part thereof, to bring it forthwith before me, at my Courtroom, in the Courthouse in said Yellowstone County.
"Given under my hand, and dated this 2nd day of August, 1968.
"S/ E.E. Collins
Justice of the Peace."
On the same day search warrants were issued in Carbon County with the same language on the items to be seized. One search warrant was for the residence of defendant Quigg and the other for a described automobile.
A return on the search warrant in Billings was made covering these items:
"One (1) super X 22 cartridge from FFA coat
"One (1) scrapbook of guns
"One (1) empty red, white and black box labeled Sturm Ruger 22 Automatic long rifle, catalog No. RST 4-4 3/4 inch barrel and number 300657 on the red, white and black box.
"Seven (7) Super X 22 cartridges (hollow point)
"One (1) 22 Caliber rifle, Remington model 514 single shot."
*697 On the search warrants in Carbon County certain items were seized including thirteen (13) tablets William H. Rorer, Inc., a brown cigarette, one switch blade knife, and one bottle of Robitussin A-C. Of the foregoing items seized in Yellowstone county and in Carbon county, only two, the gun box and the pills referred to as tablets were admitted into evidence. The remainder were suppressed. More will be said concerning these matters in our discussion of specification of error No. I.
The weapon, a .22 caliber Ruger pistol, serial number 300657 appeared. One Z.P. Eldridge came to the police station on August 2, the same day of the arrests and searches, and gave the police a receipt for a .22 Ruger pistol from the Frank Laudy Secondhand Store. Frank Laudy turned the pistol over to the police with his records. The pistol was sent to the FBI laboratory and examination disclosed it to be the weapon which had fired the two shells found at Robbins' body and one of the shells found at the Ten Inn bar burglary scene. The pistol was traced in the evidence and testimony in two directions, one to Robbins, the deceased, and the other to Quigg, the defendant.
Following the arrests of Quigg, Reid, and Cammack and the seizure of the items, an Information charging murder in the first degree was filed against Quigg for the murder of Lee R. Robbins. Counsel was appointed. A motion to suppress evidence was subsequently filed and a hearing had.
As related earlier, the first trial resulted in a "hung" jury. The second in conviction. A motion for new trial was made, hearing had, and denied.
Appellant Quigg lists seventeen separate specifications of error.
Appellant contends that the trial court erred in refusing to grant defendant's motion to suppress evidence. The trial court suppressed all items except two particular items, the gun box with the serial number that matched the murder weapon and the pills that were found in a drawer in Quigg's dwelling in Red Lodge. The pills were in cellophane packages of the make and style used by the deceased as samples. The gun box was found in a box containing Quigg's clothes in the garage at 236 Custer Avenue.
These two items are the subject of appellant's specification of error No. I. Appellant argues that (1) probable cause was not shown for the issuance of the warrants; (2) the description of the place to be searched was faulty; and (3) the items to be seized were not described with sufficient particularity.
We have heretofore set out the fact situation that confronted the police. They laid before the magistrate the petition heretofore quoted.
Section 95-704, R.C.M. 1947, provides:
"Grounds for search warrant. Any judge may issue a search warrant upon the written application of any person that an offense has been committed, made under oath or affirmation before him which:
"(a) States facts sufficient to show probable cause for issuance of the warrant,
"(b) Particularly describes the place or things to be searched, and
"(c) Particularly describes the things to be seized."
The Criminal Law Commission Comment in regard to section 95-704, states in part: "The intention of this section is to follow U.S. Supreme Court decisions on this point. (e.g., Jones v. U.S., 362 U.S. 257 [80 S. Ct. 725, 4 L. Ed. 2d 697]; Aguilar v. State of Texas, 84 S. Ct. 1509, 378 U.S. 108 [12 L. Ed. 2d 723] (1964)."
Section 95-705, R.C.M. 1947, provides:
"Scope of search with warrant. A search warrant may authorize the seizure of the following:
"(a) Contraband.
"(b) Any instruments, articles or things which are the fruits of, have been used in the commission of, or which may constitute evidence of, any offense. * * *."
*698 The Criminal Law Commission Comment in regard to section 95-705, states:
"The intent of this provision is to set out as expansively as possible the items which may be seized under a search warrant. This section basically codifies present law established by federal and state cases. (See State v. Bisaccia, [45 N.J. 504] 213 A.2d 185).
"This provision does not eliminate the necessity of `particularly describing' the place to be searched or the things to be seized as is required by section 95-703, the Montana Constitution, Art. III, section 7, and the United States Constitution, Amendment 4.
"The courts are not clear and exacting as to the requirement of description. Describing an apartment building generally, and not an explicit apartment is not sufficient. People v. Estrada, [234 Cal. App. 2d 136] 44 Cal. Rptr. 165. Where books are to be seized the most `scrupulous exactitude' must be used when the basis for their seizure is ideas which they contain. Stanford v. Texas, 85 S. Ct. 506 [379 U.S. 476, 13 L. Ed. 2d 431]. Thus a determination of particular description necessary to meet the statutory and constitutional requirements may be made only in view of the facts and circumstances of the particular case."
The probable cause for issuance of the search warrant seems to us to appear clearly from the recitation in the petition. In Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723, the United States Supreme Court set forth the test in this statement:
"* * * when a search is based upon a magistrate's, rather than a police officer's, determination of probable cause, the reviewing courts will accept evidence of a less `judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant,' and will sustain the judicial determination so long as `there was substantial basis for [the magistrate] to conclude that narcotics were probably present * * *.'" (Emphasis added.)
Here, the search warrant application, although not involving narcotics, has the substantial basis for a conclusion. Also in Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637, sufficient facts for independence of judicial determination of reliability are required. We have them here.
Thus, was there a substantial basis for the magistrate to conclude that a .22 caliber weapon, taken from the deceased's automobile, used to kill him, used by Quigg to perpetrate a burglary, and seen in his possession, was probably present in one of the places to be searched? We think a reasonable person would so conclude.
Appellant goes on to urge that since the .22 caliber pistol was not described with the particulars of make, serial number or other identifiable features, but, rather, in the only terms the police officers then knew, that this makes it a "general warrant" and therefore constitutionally invalid. Appellant emphasizes the word "any" .22 caliber pistol as well as the words, "any other" evidence they might discover that "may" connect to the demise of Lee R. Robbins. In the context, and under the facts and circumstances then known to the law enforcement officers, the language is not, in our view, language that would be considered "general". The deceased had been robbed before slain, his automobile stolen and burglarized. Exactly what was taken and with detailed exactness, only the deceased and the criminal or criminals involved knew; but, papers, money, and a gold watch were shown to be missing. Because of the rifled condition of the automobile, the possibility of missing drug items was there but no particulars of what might be missing were known.
In Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967), the United States Supreme Court, speaking through Mr. Justice Brennan, discussed search and seizure concerned *699 with a search of a home without a warrant where police had information that an armed robber had entered it five minutes previously. The Court, among other things, said:
"The `mere evidence' limitation has spawned exceptions so numerous and confusion so great, in fact, that it is questionable whether it affords meaningful protection. But if its rejection does enlarge the area of permissible searches, the intrusions are nevertheless made after fulfilling the probable cause and particularity requirements of the Fourth Amendment and after the intervention of `a neutral and detached magistrate'".
The Court in Hayden also discussed Gouled v. United States, 255 U.S. 298, 41 S. Ct. 261, 65 L. Ed. 647. It stated:
"The premise in Gouled that Government may not seize evidence simply for the purpose of proving crime has likewise been discredited. The requirement that the Government assert in addition some property interest in material it seizes has long been a fiction, obscuring the reality that government has an interest in solving crime. Schmerber settled the proposition that it is reasonable, within the terms of the Fourth Amendment, to conduct otherwise permissible searches for the purpose of obtaining evidence which would aid in apprehending and convicting criminals. The requirements of the Fourth Amendment can secure the same protection of privacy whether the search is for `mere evidence' or for fruits, instrumentalities or contraband. There must, of course, be a nexus automatically provided in the case of fruits, instrumentalities or contraband between the item to be seized and criminal behavior. Thus in the case of `mere evidence,' probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction. In so doing, consideration of police purposes will be required. Cf. Kremen v. United States, 353 U.S. 346, 77 S. Ct. 828, 1 L. Ed. 2d 876. But no such problem is presented in this case. The clothes found in the washing machine matched the description of those worn by the robber and the police therefore could reasonably believe that the items would aid in the identification of the culprit."
That items or things other than those described in the warrant may be seized is clear so long as a reasonable relationship between the search authorized by the warrant and the seizure of the thing not described is demonstrated. State v. Pietraszewski, 172 N.W.2d 758 (Minn. 1969), and see discussion in Gurleski v. United States, 5 Cir., 405 F.2d 253. Here we have the gun box, identified by serial number with the murder weapon, which had been described in general terms by the widow as being kept in the automobile of the deceased. As to the pills the facts as to the rifling of the drug supplies in the automobile which belonged to the deceased, a drug salesman known to distribute Rorer company products, and other matters, make for the reasonable relationship between them and the item sought, the missing weapon. Thus, the two items seized are not seized as a direct result of the description of items described on the search warrant, but rather as a result of the lawful right to search and their reasonable relationship to the crime involved and the items authorized to be searched for.
The fact that the warrant went on to describe "any other property or evidence they might discover that may connect to the demise of Lee Robbins" does not, in our view, change the character of an otherwise valid search warrant to an invalid one. The trial court suppressed most items, and we need not discuss whether those items were reasonably related to the items sought.
The rationale applied in Hayden fits here. The particularity of description, under the facts and circumstances here shown, is satisfied. The probable cause for issuance of the warrants exists.
As to the particularity of place, the appellant cites State ex rel. King v. District *700 Court, 70 Mont. 191, 224 P. 862. In the King case there were shown to be three dwellings on the quarter section described. This Court held that sufficient particularity was not shown as against evidence produced, on a motion to suppress. In the instant case the exact address is given. Appellant makes an issue that the city of Billings was not set forth. However, such a technicality, where the warrant is sought by Billings city police in a Billings justice court of a well-known residential street with the names of the property owners, does not render the location questionable in any manner.
We find no error in specification of error No. I.
Specification of error Nos. II, III and IV are concerned with instructions given by the trial court. The court's No. 27 is a felony-murder instruction. Court's No. 4 is the statutory definition of robbery and court's No. 18 is an instruction on circumstantial evidence. In each instruction, no error nor any prejudicial effect is shown and we shall not burden this opinion with a discussion in detail.
Specification of error Nos. V and VI concern the refusal of the trial court to give two instructions, defendant's proposed 5 and 7. Defendant's proposed instruction No. 5 read:
"You are instructed that the evidence in this case fails to show any motive on the part of the accused to commit the crime charged, this is a circumstance you should consider."
Of course, it is immediately apparent that the instruction, being a command to the jury, is not a proper instruction under the circumstances shown here. Appellant puts much emphasis on the fact that this is a circumstantial evidence case; and, therefore, that even though the State is not required to prove motive the jury should be instructed that failure to prove motive is a circumstance to be considered. In State v. Vanella, 40 Mont. 326, 106 P. 364, appears a discussion by Justice Holloway of an instruction somewhat similar. However the Court was there considering whether modification of an instruction that included the words "is a circumstance in favor of his innocence" by striking "in favor of his innocence" was error. It held it was not, but significantly the determination of motive was left in the hands of the jury and not directed by the Court. Here, no error is shown.
Defendant's proposed instruction No. 7 refused, was the language of section 94-2510, R.C.M. 1947. However, the corpus delicti proof and proof beyond a reasonable doubt of the criminal agency of the death was included in an instruction given as court's No. 16. No error is shown.
Specification of error No. VII is that the court erred in refusing to grant defendant's motion for a mistrial based on alleged police intimidation of witnesses Z.P. Eldridge and Clyde Eldridge. The witness Z.P. Eldridge had pawned the .22 Ruger pistol, the death weapon, which had been Robbins' own gun. It was Z.P. Eldridge who brought the pawn slip to the police station, by means of which the officers were able to get the gun. Z.P. Eldridge, in turn, had gotten the gun from his brother, Clyde. Clyde had gotten the gun from defendant Quigg.
Clyde Eldridge was called as a witness for the State and testified as to the gun. After cross-examination by counsel for defendant, the transcript shows:
"MR. HANSER: No further questions.
"A. I have one thing I would like to ask, if it is okay?
"THE COURT: No, you may not. A. No?"
A recess was taken and in Chambers, in the absence of the jury, what we will describe as a long discussion was had between the witness Eldridge, counsel for the State, counsel for the defendant and the district judge. Eldridge had many complaints, mostly about the police officers and the prosecuting attorney; but the trial judge on several occasions questioned Eldridge on the truth of his testimony concerning the gun before the jury. Eldridge assured the *701 judge that his testimony was true. At the end of the exchange the record is:
"THE COURT: Now, let this gentleman go out, and I would like to have this other gentleman brought in, Mr. Z.P. Eldridge. It is understood that he is, that Clyde Eldridge is still under subpoena?
"MR. McNAMER: Yes."
[At this point the record is silent as to the discussion had with Z.P. Eldridge.]
The record goes on:
"(Whereupon Court resumed, pursuant to recess, parties present the same as before and the following proceedings were had in the presence and hearing of the Jury:)
"MR. Z.P. ELDRIDGE: I would like to talk to an attorney to get legal advice before I am sworn in.
"MR. McNAMER: May we have a recess.
"(Whereupon Court recessed following the usual admonition to the Jury and the following proceedings were had in Chambers in the absence of the Jury. Counsel present, William R. McNamer, Chris Nelson and Harold Hanser.)
"PROCEEDINGS HELD WITH REFERENCE TO Z.P. ELDRIDGE:
"THE COURT: Now, what was bothering you, Mr. Eldridge, in the Courtroom?
"MR. ELDRIDGE: Well
"THE COURT: I might say this, and then you can have your say. The only thing I am interested in is that Mr. Quigg gets a fair trial.
"MR. ELDRIDGE: That is right.
"THE COURT: That is all I am interested in.
"MR. ELDRIDGE: Right.
"THE COURT: Now, what you might do in the courtroom could hurt him, do you understand that?
"MR. ELDRIDGE: Yes.
"THE COURT: What is bothering you about testifying?
"MR. ELDRIDGE: Well, a few days ago they took my brother first and then they take him to the courthouse and they played a tape on him, and they played it all the way through on my brother, and then when I went in there, that guy right there
"MR. McNAMER: Now you are pointing at me, the prosecutor of this case?
"MR. ELDRIDGE: Right, He was in the room, him and I I think it was Shaffer, the guy that is, walked out of the courtroom named Capt. Shaffer, I think it was him at the time I walked into the office, the phone rang and they sent him to answer the phone.
"MR. McNAMER: That is they
"MR. ELDRIDGE: To answer the phone. Shaffer played a tape on me, and the tape he played were really, was scared, threaten my life, what Gary was going to do to me; Gary was going to if he was found guilty, he was going to kill me and my brother, and then he was going to take us along with him, and then really, they tried to get me to tell a lie.
"THE COURT: All right, now let me interrupt one minute. You testified in the first trial, did you not?
"MR. ELDRIDGE: Yes.
"THE COURT: And, Mr. McNamer, may I ask you this, your purpose of using this man as a witness is to prove the fact that he got the gun from his brother, is that right?
"MR. McNAMER: That is right.
"THE COURT: And it is limited to that, isn't it?
"MR. ELDRIDGE: But, Your Honor,
"THE COURT: Just one minute and you will have your say.
"MR. McNAMER: Yes, the questions would be the same as at the previous trial, I did want to ask you whether
"MR. ELDRIDGE: What you mean by previous?
"THE COURT: When you testified before in Court.
*702 "MR. ELDRIDGE: Well, see look them questions what you really asked me some of them they weren't supposed to ask me. They were where did I get the gun from and everything, that is what they really were supposed to ask me, and then they asked me a whole lot more questions.
"DIRECT EXAMINATION
"BY MR. McNAMER:
"Q. You mean in Court, you mean at the last trial. A. Right, the only thing I was supposed to clear myself, how I got the gun, that is what they was supposed to
"Q. And who you gave that to? A. Right, that is the only thing I was supposed to say in Court, really.
"Q. Well, I wanted to ask whether you had been at a fight, that Gary had with another kid while in the cast. A. Well, I will be honest, I saw Gary quite a few times around at the poolhall, but all this time, me and Gary had some run-in too, when my nephew left and went back to Memphis, Tennessee, I walked over to the Greyhound Bus station and Gary was there and my brother, and then I asked Gary to take me out by the shopping center to the drug store and I would give him a dollar and that is the only thing Gary and me had
"Q. Did you ever see him in a fight? A. No.
"Q. Well, you wanted to ask him do you mind if I ask you about that? A. I ain't supposed to answer that because I had nothing to do with that.
"Q. Well, I will just ask you then about getting the gun and who you gave it to. A. Right.
"THE COURT: Now do you have anything
"CROSS-EXAMINATION
"BY MR. HANSER:
"Q. Did Gary Quigg ever threaten you Z.P.? A. No, Gary don't even really know me. The only way he know me is just by seeing me and then they accused me of going up the, up to the jail to see Gary.
"Q. Are you afraid of Gary? A. No.
"Q. Did the police threaten you, Z.P.? Well, when I got out of lying, when he kept asking me the same question over and over again, I got kind of smart with him and I said a couple of bad words to him and then he threatened to hit me.
"MR. McNAMER: Who did? A. The police you was in the office when he did that.
"MR. McNAMER: No. A. Yes, you were.
"MR. McNAMER: He didn't threaten you. A. He said, `Z.P., you know better than that, one more time and he say if you don't shut up I am going to do something to you, I am going to hit you.'
"MR. McNAMER: He didn't say hit you. A. Yes, he did.
"THE COURT: Let me interrupt again. Now Mr. Eldridge, the reason we are in here is that what you did in the courtroom is actually detrimental to Mr. Quigg, do you understand that? A. Is what?
"THE COURT: Is hurting Mr. Quigg's trial. A. I didn't
"Q. (By Mr. Hanser) Yes, it is, and I want to know, is it because you are afraid of Gary Quigg or was it because you are afraid of the police that you weren't going to testify in the courtroom? A. Well, I am going to be honest, see, I was going to bring this up in the courtroom about the tape, I don't want them to come up with another story on me and that is why I brought it up.
"MR. McNAMER: I want the record to show that if Mr. Hanser is going to claim that he has already been prejudiced, and if he is going to base it upon alleged threats by the police department, that I want to make a full record, sworn, with the witnesses sworn, with all the people involved.
"THE COURT: Well now, let me interrupt once more. If you were asked in the courtroom in front of the Jury whether *703 your brother gave you a gun similar to the one that is in there, what would your answer be? A. Well, I would be right, he did not give it to no, it wouldn't be that I would say that he didn't give it to me, I give him some money on it.
"THE COURT: What? A. I gave him some money.
"MR. McNAMER: He hocked it to you?
"THE COURT: In other words, did you receive A. The gun, yes, I did.
"REDIRECT EXAMINATION
"BY MR. McNAMER:
"Q. You received a gun similar to the one in the courtroom from your brother? A. Yes, I did.
"Q. Last year? A. Yes, last year, but I don't know at what time.
"Q. Now if you made that statement in Court, would that be the truth? A. Yes.
"Q. And you are not saying it because you are afraid of the police? A. No. but I got proof.
"THE COURT: All right now, if Mr. McNamer asks you in the courtroom what you did with the gun what would you say? A. I would tell the truth.
"Q. What it is? I told I kept the gun for about it is maybe three months, now I let different people use it and one I got proof on it he saw me with the gun because I had to I got broke and so I asked my cousin, Robert Smith will he take it up to Mariano at the poolhall and hock it to him for $10.00 and I would give him $15.00 back, Mariano owned the poolhall, and the reason I did not take it in because I was in the poolhall at that time and then, bring the gun back to me.
"Q. Who did that? A. My cousin, Robert Smith he is going to go on the stand so he should have brought it back to me, and he had another guy to hock it for him, and the reason he had another guy to hock it for him, on account of because he had a gun in that same shop, and then that guy owned the shop, I went in there three or four times and tried to hock the gun and he refused me, and I could not go in there, and I could have went in but the only reason I did not go in there because I had a gun to hock already.
"Q. Did you get the hock slip back on the gun? A. Yes.
"Q. And I will show you this and you can recognize that, can't you? A. Well, I wouldn't be for sure.
"Q. I think you did last time. A. No, I didn't last time.
"Q. You didn't? A. No.
"Q. You say it looks like it? A. Yes, it looks like it because I won't say that is because the police are out to
"Q. And then did you go up the I think you testified last time that you went up there to get it? A. Yes.
"Q. That same day that you came up to the police station? A. Right.
"Q. Is that right? A. Yes, because it wasn't in the hock shop all this time that's it my brother asked for it back to go up to the police station because I don't want no trouble about having the gun.
"RECROSS-EXAMINATION
"BY MR. HANSER:
"Q. When the police played this tape to you, Mr. Eldridge A. Yes.
"Q. did they tell you that were not telling the truth, when you testified at the first trial? A. Well, they really didn't come out and tell me that and in a way they were telling me all the time I was lying, and they told me this way, that we, if you do testify again, Quigg, and he gets some time, he is going to do something bad to you and in a lot of ways, and really, they really tried to get me to lie on Quigg, they tried to get me to tell a lie on him and I don't even hardly know the man.
"THE COURT: Well you know what Mr. McNamer has requested which would take another morning anyway and this gentleman if he talks and he is going to hurt Quigg
"MR. McNAMER: What do you mean?
*704 "THE COURT: If he gets up there and is on the stand too long I think you are
"MR. McNAMER: I think we have got to have him for the gun.
"THE COURT: I think you have to, too, Bill, but
"MR. HANSER: Are we through with Mr. Eldridge?
"THE COURT: No, I think yes, he can step outside for just a moment.
"(Mr. Eldridge leaves the Chambers.)
"MR. HANSER: Let the record show that Z.P. Eldridge, Jr., was called to the stand as a State's witness, that he refused to be sworn, and testify, that there was conversation between the witness, Z.P. Eldridge, Jr., and the Court, and that thereupon there was an adjournment to the Chambers and the proceedings were held which immediately preceded this notation in the record. That based upon the testimony given by Z.P. Eldridge at this time, comes now the Defendant and moves this Court to declare a mistrial for the reason that the substantial rights of the Defendant, Gary Lee Quigg, have been jeopardized by the actions of the witness, Z.P. Eldridge, Jr., and that the actions of Z.P. Eldridge, Jr. were brought about and caused by being intimidated by the Billings Police Department in the playing to him of the tape, in which it was purported that Gary Lee Quigg had made threats upon the life of Z.P. Eldridge, Jr., and further that the police officer affirmed these threats, and that he further told this witness that if Gary Lee Quigg were released from custody or once having served his sentence, was released, that he would do him great harm, and that it was the impression of this witness that the police wanted him to lie, and for that reason and that reason alone this witness took the actions he did in front of the empaneled Jury, and the witness has further testified that Gary Lee Quigg had not made any threats to him, and that he, the witness, Z.P. Eldridge, was not in fact afraid of, or concerned about Gary Lee Quigg.
"MR. McNAMER: Comes now the State and challenges the Defendant's statement as to what occurred in the courtroom, and challenges the record on that score, and which will disclose that the witness did not affirmatively or obviously refuse to be sworn, but simply approached the clerk and the Bench and asked in a low voice to the Court, or said that he would like to talk to a lawyer before he testified, and it is very questionable and doubtful, and there is no affirmative indication that this was heard by the Jury; that there was an immediate request for a recess by myself in order to avoid any taint on the record; that the proceedings were had in Chambers which are now in this record, that these proceedings were not under oath, that I have knowledge that the statements by Clyde Eldridge and Z.P. Eldridge are incorrect. It is correct that a tape was played to these men, a tape of a witness who heard Mr. Quigg make certain statements regarding threats to them. That the recording was not of Mr. Quigg but of this witness. That the Defense is aware of the contents of that tape and have seen the transcript of it a week ago, and if there is going to be any action, that the prosecution, the State requests the right for a full-dress hearing on this question, with the calling of witnesses including Capt. Shaffer, and if necessary myself, to go into the entire background, and we believe that this will show that there was no effort to coerce these witnesses from testifying or to do anything but get, elicit the truth from them.
"THE COURT: Let the record show that the motion for mistrial is denied, and it is my judgment that when Mr. Eldridge came into the Court, he came to the clerk's desk with his back to the Jury, and was at least 15 feet or more away from the Jury, and that it is my opinion that the Jury could not have heard the very limited statement that Mr. Eldridge made.
"(Whereupon, Court resumed, pursuant to proceedings had in Chambers, with parties present the same as before and the following proceedings were had in the presence and hearing of the Jury.)"
*705 While a reading of the foregoing record, largely made in Chambers out of the jury's presence, makes this reviewing Court realize the difficult problem confronting the trial court and counsel on both sides in dealing with what both briefs refer to as "unsavory and unpleasant" witnesses, yet the trial court did not restrict the defense from examining fully into the matter. The same Z.P. Eldridge was called as a witness, after the foregoing exchange, by the State. The defense did not cross-examine. The same two witnesses, Clyde and Z.P. Eldridge, were called as witnesses by the defendant. While appellant suggests in his brief that he did not have full opportunity to examine them, yet the record does not bear this assertion out. We find no merit in specification of error No. VII.
Specification of error Nos. VIII, IX and XV are treated together by appellant. They are: that the court erred in refusing to grant defendant's motion for a mistrial based on the testimony of witness, Ben Hagerman; that the court erred in admitting State's Exhibit 7-A-N, which is a small photo of the defendant; and, that there was prejudice to the defendant in allowing testimony concerning his character and other crimes.
The testimony of Ben Hagerman concerned statements made to him by the defendant. Hagerman was the jailer of the county jail where the defendant was held in lieu of $20,000 bail. The exchange heretofore quoted between the witnesses Eldridge, the court, and counsel was complicated further. We are told in the appellant's brief that one Osier, an inmate of the state prison, was subpoenaed as a witness by the State but not put on the witness stand by either party as his mental competence to testify was questionable. Osier, so we are told in appellant's brief, was a witness who was supposed to have heard defendant Quigg make threats towards certain witnesses, including the Eldridges. The Eldridges were obviously hostile, unfriendly, and most reluctant witnesses. Ben Hagerman's testimony was not an attack on the character of the defendant, but went directly to proof of the guilt of the defendant. The defendant stated, according to Hagerman, that if he got out on bond, "I would get rid of some witnesses".
The appellant then goes on to the exhibit, a photo of defendant wearing a beard, which the appellant describes as having been cut out of a mug shot. The photo was used to show the appearance of the defendant on or about the time of the murder of Robbins and was used as a means of identification by witnesses to show that they were familiar with the defendant at that time. The photo was accurate and other than appellant's characterization of it as being cut out of a "mug shot" we fail to see how it in any manner affects the character of the defendant.
Then, the defendant appellant adds to these matters the testimony about the burglary and killing of the dog at the Ten Inn bar as being prejudicial attacks on the character of the defendant. The appellant cites State v. Tiedemann, 139 Mont. 237, 362 P.2d 529, that proof of other crimes is not admissible to how depravity or criminal propensity, nor may such evidence be offered if it only tends to create a prejudice against the accused in the minds of the jury.
Here, however, the evidence concerning the Ten Inn bar burglary and the shooting of the watchdog was most relevant to the chain of evidence and the proof of the murder weapon and its use by defendant. The Tiedemann case relied upon by appellant recognizes that if the evidence is relevant to the proof of the crime charged it is admissible. See State v. Schlaps, 78 Mont. 560, 254 P. 858; State v. Hughes, 76 Mont. 421, 246 P. 959; State v. Semmens, 105 Mont. 113, 71 P.2d 913. We find no error in specification Nos. VIII, IX and XV.
Specification of error No. X is concerned with the admission into evidence of a deposit slip from the Security Trust & Savings Bank. Mrs. Robbins, the widow *706 of the slain man, testified she received the deposit slip by mail from the bank. She knew her husband's handwriting. It showed a deposit by Lee R. Robbins on April 8, 1968 of $285.12, less cash received $150. The appellant argues that no foundation was laid since a bank official did not testify. We shall not dwell on this as clearly Mrs. Robbins did establish sufficient foundation.
Specification of error No. XI goes to the admission into evidence of a photograph of the body of Lee R. Robbins at the scene of the crime. Seemingly the appellant argues that the photograph's only use was an inflammatory one. However, what this Court said in State v. Campbell, 146 Mont. 251, 261, 405 P.2d 978, 984, has application here:
"Photographs are admissible for the purpose of explaining and applying the evidence and assisting the court and jury in understanding the case. Fulton v. Chouteau County Farmers' Co., 98 Mont. 48, 37 P.2d 1025. When the purpose of an exhibit is to inflame the minds of the jury or excite the feelings rather than to enlighten the jury as to any fact, it should be excluded. State v. Bischert, 131 Mont. 152, 308 P.2d 969."
Specification of error No. XII challenges the chain of evidence and the admission of .22 caliber shell casings as State's exhibits 5N, 6N, and 7N. The objection of appellant was as to foundation and integrity of the exhibits. We have carefully gone over the long record wherein the State established the chain of evidence concerned with these exhibits. We can only summarize by saying that the foundation was laid in every detail and the integrity of the items maintained. The trial court very carefully made its determination of admissibility. See State v. Olsen, 152 Mont. 1, 445 P.2d 926, 25 St.Rep. 618.
Specification of error No. XIII is that the court erred in not allowing the testimony of a defendant's witness, one Donn Peden. As to this alleged error, we have no record of what Peden might have testified to; no offer of proof was made. The State objected to a question; a recess was taken and following the recess the objection was sustained. Whatever point or testimony the defendant sought does not appear. No error is apparent.
Specification of error No. XIV goes to rebuttal testimony of State's witnesses Schafer and Walters in regard to an experiment conducted. The defendant had taken the stand in his own behalf. He testified in substance that he had found the murder weapon in a paper sack which he saw placed in a vacant lot by two men. He described the men as being between twenty and thirty years of age and of Indian or Mexican race, and that he made the identification from their general build and manner of talking. The experiment conducted by the officers, under substantially the same conditions and place described by the defendant, was described with any possible variations being pointed out. The trial court determined that the testimony was admissible.
In State v. Blair, 147 Mont. 87, 410 P.2d 450, we reviewed the rules on admissibility of evidence of experiment. There we said that admissibility of experimental evidence is largely within the discretion of the trial court. At page 93, 147 Mont., at page 454, 410 P.2d, of Blair we said:
"In State v. Keller, 126 Mont. 142, 148, 246 P.2d 817, 820, we reaffirmed the principle that admission of experimental evidence is one addressed to the trial court, but it was further stated: `Substantial similarity of conditions is all that is necessary to render such evidence admissible. 20 Am.Jur., Evidence, § 756, p. 628. "Whether the circumstances and conditions are sufficiently similar to render the results of the experiment competent is of course a preliminary question for the court, and unless too wide of the mark, the ruling thereon will be upheld on appeal." State v. Phillips, 228 N.C. 595, 46 S.E.2d 720, 722.'
*707 "This court feels, however, that due to the several conflicting versions of the shooting, and the fact that the truthfulness of the witnesses, in the eyes of the jury is of such great importance here that any evidence or exhibits which would aid the jury in its determination which are within the realm of proper admittance should have been made available for the jury's consideration."
We find no error in specification No. XIV.
Specification of error No. XVI is that it was error to deny defendant's motion for dismissal based upon insufficiency of the evidence. The evidence was sufficient to support the verdict. The appellant's brief dwells on matters that were not proven, such as fingerprints, tracks, details of motive of robbery, or otherwise. Appellant suggests that others may have been involved. By what has been discussed heretofore in this opinion and other facts not set forth, clearly the jury had before it evidence upon which they could find the guilt of the accused. No error is shown.
Finally, specification of error No. XVII goes to the denial of a motion for new trial based on newly discovered evidence. On April 8, 1969, the jury returned its verdict of guilty. On April 9 and April 11, statements were taken from one Harvey Paugh and one Keith Eden. These statements, so appellant urges, would indicate that a car that fit the description of Robbins' car was observed as it was being parked, at a time shortly after the killing. The identification of the driver would be other than defendant Quigg. Counter-affidavits were filed by two police officers who investigated the facts and questioned the individuals. The affidavits of the police officers state that they found certain discrepancies in the statements and it was their opinion that the statements added nothing in the way of new evidence. The trial judge heard the motion. He was in good position to weigh the merits, having heard both trials. We, too, have examined the statements; if they add anything to the evidence beyond mere speculation, we are unable to find it. Appellant cites State v. Gangner, 73 Mont. 187, 235 P. 703, for the criteria to be used in determining whether a new trial should be granted because of newly discovered evidence. Section 95-2101, R.C.M. 1947, provides for new trial motions. The criteria used in the Gangner case, although no longer set forth by statute, seem to be reasonable ones. However, here the affidavits, or more aptly the depositions, do not contain any material evidence that would likely produce a different result. What little suggestion of material proof the affidavits did contain by way of speculation, was effectively answered by counter-affidavits. We find no merit in specification No. XVII.
We have examined all of the specifications of error and issues presented and have studied the trial record in detail and find no reversible error. The guilt of the defendant was established beyond a reasonable doubt to the satisfaction of the jury, and the trial judge denied the motion for new trial. The judgment is affirmed.
JAMES T. HARRISON, C.J., and HASWELL and JOHN C. HARRISON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609927/ | 77 Wash. 2d 838 (1970)
467 P.2d 284
THE STATE OF WASHINGTON, Respondent,
v.
JESSE EUGENE HAISLIP, Appellant.[*]
No. 40491.
The Supreme Court of Washington, Department Two.
April 9, 1970.
Hobart S. Dawson and Byron L. Swedberg, for appellant (appointed counsel for appeal).
Stan Pitkin and James P. Thompson, for respondent.
FINLEY, J.
Jesse Haislip was charged and convicted of two counts of forgery. He was also subsequently charged with being a habitual criminal. He was found guilty as charged and sentenced to life imprisonment. He now appeals from these judgments and the sentence imposed.
Both counts of forgery involved checks for $20, payable to cash from the account of Delbert Freeman in the Northwestern Commercial Bank in Bellingham, Washington. Haislip had been a friend of Freeman and on one occasion accompanied Freeman to the trailer where Freeman lived. It is not questioned that the defendant had the opportunity to take several blank checks while he was visiting the trailer.
The state introduced no evidence by anyone who recognized or remembered Haislip as being the one who passed the check. Indeed, the defendant called the manager and several other employees of the grocery where one of the checks was cashed. All testified that they knew Haislip by sight and that they did not remember his cashing the checks in question.
*840 Most of the state's case was built upon the testimony by Sergeant Kelsen from the Seattle Police Department, an expert on handwriting. He made comparisons between the two forgeries and three genuine checks which were in defendant's handwriting. He concluded that the defendant had written the figures and words for the dollar amount and in all probability had written the word "cash" on both forgeries. He stated that he had no opinion and was unable to testify about the identity of the author of the forged signatures.
At the conclusion of the trial, the jury returned a verdict of guilty on both counts. Haislip was subsequently sentenced to life imprisonment upon a finding of guilty to a habitual criminal charge.
There are a number of assignments of error upon which appellant Haislip relies. They relate to errors in instructions on expert testimony, the presumption of innocence, direct and circumstantial evidence, reasonable doubt, and the law governing the crime of forgery. Appellant also contends that adverse pretrial publicity was prejudicial and made it impossible for him to have a fair trial.
The most serious challenge to the validity of the conviction evolves around the failure of the state to introduce expert testimony tending to show that the signature on the checks in question was similar to the handwriting of appellant. He contends that there should have been an instruction given which in essence would have limited the word "forge" to the false making of a signature. That proposed instruction read as follows:
As used in the information filed in this case and in these instructions, the words `forge' and `forged' include the false making or counterfeiting of the signature of a party, real or fictitious.
[1] The instructions as given, essentially paraphrasing the forgery statute, read as follows:
Every person who, with intent to defraud, signs the name of another person, knowing that he has no authority so to do, or falsely makes, alters, forges or counterfeits a check is guilty of forgery.
*841 The words `forge' and `forged' include the false making of a genuine instrument, in whole or in part, and the false making or counterfeiting of the signature of a party, real or fictitious.
We do not believe appellant's contentions are well taken. In the first place, there was evidence before the jury which could have formed the basis of a finding that Haislip in fact forged the signature. The jury had the two checks involved before them as well as other checks, which beyond question were written and signed by Haislip. The fact that the expert witness was unable to testify with any assurance that Haislip did or did not sign the checks in question is no reason that the jury could not independently make their own comparison. See Mitchell v. Mitchell, 24 Wash. 2d 701, 166 P.2d 938 (1946); Annot., 80 A.L.R. 2d 272 (1961).
[2, 3] Even if we were to assume that there was no basis for a finding that Haislip forged the signature, it would not follow that he could not be convicted under RCW 9.44.020 and the instructions as given. The provisions of RCW 9.44.020 applicable to the instant case, may be excerpted as follows:
Every person who, with intent to defraud, shall forge ... any request for the payment of money . .. shall be guilty of forgery in the first degree . ..
We have noted that the definition of forge as used in that statute "is to be determined by reference to accepted and well understood definitions of the term." State v. Lutes, 38 Wash. 2d 475, 478, 230 P.2d 786, 788 (1951). Although the term is not precisely defined by RCW 9.44.010, the term "forge" includes at least the offenses mentioned therein. The excerpted portion of that statute which is pertinent to this case reads:
The words `forge,' `forgery,' `forged,' and `forging,' shall include false making, `counterfeiting' and the alteration, erasure or obliteration of a genuine instrument in whole or in part, the false making or counterfeiting of the signature of a party or witness, real or fictitious .. .
Appellant contends that the first portion of the statute regarding *842 the false making of a genuine instrument in part could not refer to the checks here involved because they are spurious documents and not valid or "genuine" in themselves. If his contention were accepted, the statute would make no sense. It is a logical impossibility for one to falsely make or counterfeit an instrument which is also valid or "genuine." If "genuine instrument" is to mean anything, it must refer to the myriad of writings enumerated in RCW 9.44.020 which affect legal rights. By this we mean any instrument which purports on the face of it to be good and valid for the purpose for which it was created. Thus one may falsely make out in whole or in part a blank check. This act of course is not a felony unless it meets the additional element of intent to defraud as set forth in RCW 9.44.020. There is also one further requirement. The recognized rule is that in order to constitute a forgery a writing or instrument must be such that if genuine it would have efficacy as affecting some legal right. State v. Morse, 38 Wash. 2d 927, 234 P.2d 478 (1951). In Morse this court was faced with the question of whether the signature "Hillyard Motors" was a forgery and, if a forgery, was sufficient to create apparent legal efficacy without an individual signature. We held that evidence showing that the signature "Hillyard Motors" was not made by anyone with authority to sign checks at Hillyard Motors was enough to establish that the signature was forged by someone. In the instant case there was ample testimony on the basis of which the jury could have found that the signature was a forgery, i.e., that it was not signed by Delbert Freeman. There can be no question that the check, if valid, would have efficacy in affecting legal rights. On its face it has everything required in order to qualify as a "written instrument" within the meaning of the forgery statute.
[4] There is no requirement either in common law or by statute that the accused personally write each and every item which is required in order to make the instrument apparently valid on its face. In State v. Taes, 5 Wash. 2d 51, 104 P.2d 751 (1940), we held that an instrument purporting to be a bank check but not containing the name of any *843 bank would not, if genuine, have such efficacy as to furnish the basis for a charge of forgery. Although the name of the bank is required, there is obviously no requirement that the state prove that the name of the bank was written in the accused's handwriting. We do not believe that there was error on this issue regardless of how the jury instruction is interpreted.
Appellant also contends that adverse pretrial publicity about a pending robbery charge and to the effect that the state would demand writing exemplars were prejudicial. The publicity is allegedly in violation of the Bench-Bar-Press Guidelines. The following was the brief news item read several times over a local radio station on the Thursday and Friday preceding the Monday trial:
Scheduled to begin Monday morning before a jury is the case of the State versus Jesse Eugene Haislip. Haislip was arrested for allegedly robbing Robert Dennis of $500.00 in March of 1967 and charged on two counts of first degree forgery of the name of Delbert Freeman on a pair of $20.00 checks which proved to be worthless last May. Deputy Prosecuting Attorney James P. Thompson plans to move to require the defendant to provide a complete handwriting sample before the case begins next Monday morning. Attorney Byron Swedberg represents Haislip.
On the day the trial convened a story appeared on page 8 of the Bellingham Herald which read in part:
A Superior Court jury began listening to the forgery and robbery case against Jesse Haislip, 45, Monday in Judge Bert Kale's courtroom.
The jury was selected shortly before lunch.
Haislip is accused of robbing by force $500 from Robert Dennis and forging two $20 checks with the name Delbert Freeman here last May. He has pleaded innocent to both charges.
[5] Appellant contends that the information that Haislip was being tried for both robbery and forgery was incorrect and prejudicial. There is no question but that parts of the newspaper article were incorrect. However, that does not mean that it was prejudicial. Haislip was in fact arrested for robbery. This charge was pending and a trial *844 date had been set. It is no violation of the Guidelines to report the fact of an arrest for robbery. The robbery count had been severed before trial, a fact which was overlooked by the newspaper. But, there was no prejudice which can be shown from this relatively obscure news story which, at most, misreported the date of a trial which had been set.
[6] The disclosure that the state planned to move for handwriting exemplars raises different questions. Statements concerning anticipated evidence should generally be avoided whenever possible. However, we hardly think the one sentence in the very brief news item was enough to create the atmosphere and notoriety which may taint a case.
There is a further facet to appellant's argument. He contends that the further action of the state in mentioning the lack of exemplars made the earlier news item prejudicial. We disagree.
The state subsequently moved, in the absence of the jury, for handwriting exemplars. The deputy prosecutor conditioned his motion with the comment "it's never been sanctioned by the court. I don't believe it's been tested. If it has I haven't found it."[1] The trial court denied the motion. The only comment heard by the jury was a comment later in the trial by the expert witness that he lacked samples of handwriting upon which to base an opinion as to the signature. We do not believe that statement was prejudicial.
Appellant also claims that the court's instruction on circumstantial evidence is prejudicial error. The portion of the instruction which he objects to reads:
[W]here circumstantial evidence is relied upon for a conviction, all of the circumstances which are proved must be consistent with each other and consistent with the hypothesis that the accused is guilty, and at the same *845 time inconsistent with every other reasonable conclusion except that of the guilt of the accused.
The instruction proposed by appellant was an almost exact quotation from State v. Gillingham, 33 Wash. 2d 847, 207 P.2d 737 (1949):
It is a well-established rule of law that, in order to sustain a conviction on circumstantial evidence, the circumstances proved by the state must not only be consistent with each other and consistent with the hypothesis that the accused is guilty, but also must be inconsistent with any reasonable hypothesis or theory which would establish, or tend to establish, his innocence.
[7] The instruction requested by Haislip was probably better than the instruction actually given. However, we must look to the effect of the instructions as a whole before we decide that the failure to give any one instruction was prejudicial error. The essence of appellant's objection is that instruction No. 7 did not tell the jury that they could not base a conviction on circumstantial evidence unless every reasonable hypothesis of innocence was excluded. However, an earlier portion of the same instruction, omitted from the quoted portion in appellant's brief, clearly states that circumstantial evidence must be "of such character as to exclude every reasonable hypothesis other than that of the guilt of defendant ..." We can find no prejudicial error in this instruction.
[8] Haislip requested an instruction specifically on the subject of testimony by expert witnesses. The jury was instructed generally that they were the sole and exclusive judges of the testimony and credibility of the witnesses and of the weight to be attached to each. We have previously noted in a civil case that "[i]t perhaps would have been wise to have specifically called the jury's attention to the fact that this instruction also applied to expert witnesses." Gerberg v. Crosby, 52 Wash. 2d 792, 329 P.2d 184 (1958). This admonition would apply to a criminal trial. However, the error, if any there was, in failing to give the proffered instruction was harmless. It would not have constitutional dimensions such as might require automatic reversal. The *846 expert witness was the main witness relied upon by the state; the instruction on witnesses generally clearly applied to him. The jury was constantly reminded that they and they alone were the triers of fact.
Haislip personally submitted several additional assignments of error. One in particular raises points which require some elaboration. He contends that there was no showing that the defendant had aid of counsel in the prior convictions which form the basis of the habitual criminal conviction. This was allegedly in violation of Burgett v. Texas, 389 U.S. 109, 19 L. Ed. 2d 319, 88 S. Ct. 258 (1967), which suggests that prior convictions rendered in violation of due process standards cannot be used to enhance penalties. The prosecutor dismisses this claim, noting that the "record does not disclose whether or not appellant was without counsel," but that even if he did not have counsel, Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963), is not retroactive and thus counsel did not have to be provided. Although the prosecutor is wrong on both counts, it does Mr. Haislip little good. Gideon is not limited to prospective applications. See Doughty v. Maxwell, 376 U.S. 202, 11 L. Ed. 2d 650, 84 S. Ct. 702 (1964); Pickelsimer v. Wainwright, 375 U.S. 2, 11 L. Ed. 2d 41, 84 S. Ct. 80 (1963). However, it is equally clear that the record shows counsel was available on at least two of the prior convictions involved. Haislip was represented by counsel in the California trial for forgery which led to his conviction in 1957 and again during a trial in Arizona which led to his 1960 conviction for cashing a bogus check. These convictions adequately support the finding that Haislip was a habitual criminal, so we need not reach the questions raised by Burgett, supra.
We have considered the numerous other assignments of error and find them completely without merit. Nothing would be gained by a further discussion of these points.
The judgment is affirmed.
HUNTER, C.J., ROSELLINI, J., and LEAHY, J. Pro Tem., concur.
*847 NEILL, J. (dissenting)
I am in disagreement with the majority's premises: first, that a conviction of forgery by the making of a spurious instrument is proper where the accused is shown to have made out only a part of an instrument that is now complete, regardless of a lack of evidence that an efficacious instrument left the defendant's hands; and, second, that there was sufficient evidence on which the jury could conclude beyond a reasonable doubt that defendant forged the signatures to the checks.
To constitute a forgery, there must be a making of a writing or instrument that, if genuine, would operate to affect some legal right. State v. Morse, 38 Wash. 2d 927, 234 P.2d 478 (1951); State v. Taes, 5 Wash. 2d 51, 104 P.2d 751 (1940); State v. Kuluris, 132 Wash. 149, 231 P. 782 (1925). However, the accused need not have forged the entire instrument; it is sufficient under RCW 9.44.010 that his acts constitute a false making of a genuine instrument in whole or in part or the false making of a signature.
An accused has not committed a forgery by the false making of a genuine instrument in whole or in part unless his act has the effect of creating a seemingly "genuine instrument" or alters, erases or obliterates a genuine instrument. We have held that such an instrument is not created when a purported bank check does not contain the name of a bank. State v. Taes, supra. A blank check does not become a seemingly genuine instrument unless, among other things, it is signed. Here, it is quite doubtful that there is any evidence that the check blanks in question contained a signature when they left the defendant's control. I will discuss this absence later. My present concern is with the majority's assertion that such evidence is unnecessary. The majority rationale would hold an accused guilty of forgery whenever he is shown to have forged some part of an instrument, irrespective of the fact that his act did not result in a seemingly genuine instrument, so long as a sufficiently complete instrument is ultimately in evidence. Thus, if an accused once begins a forgery, and the incomplete instrument is then taken, completed and negotiated by a stranger, under the majority's view the accused would *848 still be guilty of forgery. As I perceive the rule, an accused in some circumstances may be guilty of an attempt, but he is not guilty of the completed crime of forgery.
In a charge of forgery under RCW 9.44.020, the state must prove either that the accused perpetrated a "false making ... of a genuine instrument in whole or in part" or the "false making ... of the signature." (Other acts of forgery defined in RCW 9.44.010 are not pertinent here.) As to the first method of forgery, the state must prove that the accused committed an act or acts which, when alone or when combined with prior or concerted acts of others, results in a seemingly genuine instrument. The proof required under the second method of forgery relates solely to the signature.
The jury had before it three genuine checks written by the defendant, the two bogus checks, and two samples of the writing of the complaining witness whose name had been forged on the bogus checks. The state's own expert witness gave "negative testimony" about the sufficiency of this evidence. That is, he testified that the evidence presented was not sufficient as a basis for concluding that the defendant had forged the signatures on the bogus checks. The majority states that this uncountered negative testimony is of no significance and that the jury, in its own deliberations, could reach a conclusion which the expert stated was not reachable. I disagree.
In order to correctly perceive the present issue, it is important to narrow the scope of attention. This case does not involve the question of whether a trier of fact may, in the complete absence of expert testimony, make an independent comparison between the disputed writing and admittedly genuine specimens of the defendant's handwriting which are in evidence. See Mitchell v. Mitchell, 24 Wash. 2d 701, 166 P.2d 938 (1946); State v. Simmons, 52 Wash. 132, 100 P. 269 (1909); but cf. Clark v. State, 114 So. 2d 197, 80 A.L.R. 2d 261, 268 (Fla. App. 1959). It may well be that, where especially technical subject matter is concerned, the burden of producing evidence should encompass a requirement of affirmative expert testimony; but that question is *849 not before us here. Rather, the matter before us is the effect of uncountered negative expert testimony pertaining to analysis of technical handwriting characteristics, not to comparison of same-name signatures.
The purpose and justification for expert testimony rests in the obscurity of the subject matter involved, because of which the jury requires the assistance of someone with special knowledge. Cf., McCormick, Handbook of the Law of Evidence § 13 (1954). It seems to me that expert testimony is not only effective to draw conclusions from obscure or complex facts in evidence, but also to demonstrate that reasonable conclusions cannot be drawn from that evidence. In the latter instance, the expert testimony may be termed "negative." In cases where such testimony goes uncountered, the efficacy of the evidence to make out a prima facie case on the point in issue is nullified. Thus, where expert testimony is appropriate as to an ultimate fact, uncountered negative expert testimony constitutes a failure of the evidence to support the party bearing the burden of proof on that issue.
It is not denied that handwriting analysis and comparison is an appropriate subject of expert testimony. In the present case, that testimony was entirely negative as to the possibility of concluding from the evidence presented that defendant had forged the signatures on the bogus checks. As such evidence is essential to a conviction of the offense charged, the state has failed to meet its burden of proof.
I would reverse.
NOTES
[*] Reported in 467 P.2d 284.
[1] The deputy prosecutor's search for precedent was not exhaustive. See Gilbert v. California, 388 U.S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951 (1967); Lewis v. United States, 382 F.2d 817 (D.C. Cir.1967); but see United States v. Green, 282 F. Supp. 373 (S.D. Ind. 1968). Cf. State v. Craig, 67 Wash. 2d 77, 406 P.2d 599 (1965); State v. McLaughlin, 74 Wash. 2d 301, 444 P.2d 699 (1968). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609936/ | 1 Wash. App. 1044 (1970)
467 P.2d 352
THE STATE OF WASHINGTON, Respondent,
v.
TOMMY EDWARD BASFORD, Appellant.
No. 107-40752-2.
The Court of Appeals of Washington, Division Two.
March 2, 1970.
Velikanje, Moore, Countryman & Shore and John A. Rossmeissl, for appellant.
Lincoln E. Shropshire, Prosecuting Attorney, and Patrick H. Olwell, Deputy, for respondent.
PETRIE, J.
The defendant appeals from an order denying his motion for a new trial following his conviction by verdict *1045 of a jury of the crime of grand larceny. The specific crime charged was that of receiving, concealing and withholding stolen property as set forth in RCW 9.54.010(5).
He has specified four assignments of error: (1) that the court erred in denying his motion to suppress several of his statements, one made shortly before his formal arrest and others within a few minutes following arrest; (2) that the court erred in denying his motion to suppress evidence seized under authority of a search warrant at his mother's residence; (3) that the court erred in denying his motion to exclude from the courtroom during his trial a deputy sheriff who was conspicuously armed; and (4) that the court erred in denying his motion for new trial based on the first three assignments of error.
The facts surrounding the defendant's arrest are essentially as follows: In the early morning of December 28, 1967 two McCulloch chain saws were stolen from a hardware store in Yakima County. On December 29, 1967 the owner of the store advised the Yakima police he had received an anonymous telephone call indicating that a chain saw answering the description of one of the stolen saws had been seen at the Boise Cascade wood lot during the day of the 28th in the possession of two men driving an old green Ford truck, flatbed type with side racks. The caller left the impression that the two men would return to the wood lot on December 29th. The caller did not identify the two men.
Acting upon this information on the morning of December 29, four police officers in two police cars entered the wood lot area. This appears to be a fairly extensive area filled with piles of mill wood and log scraps open to those who care to cut and gather the same. A third police car appears to have been parked in the general vicinity but was on the freeway beyond the wood lot area. Two officers in one of the cars, seeing a green truck generally answering the description provided by the anonymous caller, drove near to it and stopped their car. The officers got out and approached the defendant and his cousin who were with the truck. Two officers in the other car subsequently *1046 stopped and also began to approach the truck. Prior to the arrival of the latter two officers, but apparently while they were in sight of the defendant and obviously approaching the immediate vicinity, one of the first officers noticed a chain saw lying on the ground. He asked the defendant, "Is this your chain saw?" The defendant replied, "Yes, it is." The officer then asked the defendant's permission to examine the saw. Having obtained such permission, the officer picked it up and ascertained that the serial number matched the serial number of one of the stolen saws. The defendant was thereupon arrested, placed in a police car and advised of his constitutional rights pursuant to the requirements set forth in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R. 3d 974 (1966). The defendant does not challenge (1) the fact of recital of those rights at that time, (2) his intelligent understanding of them, or (3) their sufficiency.
After being so advised, he was asked how he acquired the saw. His reply, later retracted, was that he purchased it a couple of "days ago" from a "wino" at a street corner in Yakima.
The foregoing facts were elicited at a CrR 101.20W hearing in Superior Court for Yakima County to ascertain the admissibility of the defendant's several statements. The court determined that both statements were admissible as evidence at the defendant's trial.
The crux of defendant's assignment of error is that at the time when the four officers approached him, (1) the investigation no longer remained a general inquiry into an unsolved crime but had begun to focus on a particular suspect and (2) in any event, the show of force had effectively deprived him of his freedom of action. In either case, he contends, in accordance with recent decisions of the United States Supreme Court, Escobedo v. Illinois, 378 U.S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758 (1964); Miranda v. Arizona, supra, and Orozco v. Texas, 394 U.S. 324, 22 L. Ed. 2d 311, 89 S. Ct. 1095 (1969), he was "under arrest" and his response to questions propounded by police officers prior to *1047 his being advised of basic constitutional rights, would be inadmissible as evidence against interest at his trial. Further, he contends, because of the taint of illegality surrounding the first statement, the subsequent statements are also inadmissible even though they were given after he had been advised of his constitutional rights.
[1, 2] Attempts to delineate a sharp line of demarcation, specifying the point at which a general inquiry into an unsolved crime ceases to exist and immediately becomes custodial interrogation, must necessarily proceed upon a case-by-case basis. The penumbrum of doubt probably will never be reduced to a paper-thin line, clearly recognizable in any given factual circumstance by all jurists, let alone understandably apparent to all law enforcement officials, who must act under the heat, tempo and pathos of the moment. Suffice it to say that in the present circumstances, when the police officers were pursuing a vaguely descriptive lead furnished by an anonymous caller, which led them into an area where practically any adult male was apt to be in possession of a power saw, sufficient cause to effect an arrest did not exist until such time as it had been reasonably well established that an item of contraband had been sufficiently identified and in some reasonable manner associated with the person to be arrested.
One certain method to establish identity of a stolen saw, although not the only avenue available under all circumstances, is to examine its serial number. The police officer who effected the arrest did not engage in coercive questioning. His actions, in asking the prefatory question concerning ownership, were neither overbearing to the point of intimidation nor overzealous to the point of trickery. Much better, than not, that law enforcement officials be granted the opportunity to seek permission of a purported owner of property before seizing and examining the same. No court, so far as we are aware, has yet imposed sanctions upon efficient police investigation so long as the methods employed are consistent with recognized standards of human dignity and personal decency. The police officer who arrested *1048 Tommy Basford on December 29, 1967, did not contravene those standards.
Defendant contends, however, that the convergence of four police officers upon the scene, in and of itself, effectively deprived him of his freedom of action, and therefore constituted his "arrest" prior to any question having been asked or answer given. In support of this contention he cites Orozco v. Texas, supra. In Orozco, four officers entered the defendant's bedroom and began to question him concerning his activities of some four hours prior thereto and also concerning his ownership of a pistol. The defendant appears to have been a specifically identified individual and one of the officers testified that he was not free to go where he pleased, but was "under arrest" from the moment he gave his name. The court reversed his conviction because at his trial one of the officers was permitted to testify as to the defendant's responses to questions propounded by the officers about incriminating facts prior to warning him of his rights as set forth in Miranda v. Arizona, supra. We have carefuly reviewed Orozco and find that Reyes Orozco's "freedom of action" at the time of his interrogation was considerably more restricted than was that of Tommy Basford when he was asked about ownership of the chain saw.
The trial court quite properly permitted the arresting officer to relate to the jury that on December 29, 1967, Tommy Basford responded, "Yes, it is", after having been asked, "Is this your chain saw?" The allowance of such testimony did not constitute a violation of the defendant's constitutional rights, state or federal, that he not be compelled in any criminal case to be a witness against himself.
The defendant acknowledges that subsequent statements were made after he had been advised of his constitutional rights as set forth in Miranda. His only objection to the use of these subsequent admissions against interest was that the "primary taint" of the pre-arrest statement carried over to the subsequent statements; and the intervening recital of Miranda warnings was insufficient to permit the state to *1049 use either the original or the subsequent statements. Having held that there was no primary taint, there was nothing to give rise to imperfection in the subsequent statements.
Defendant next assigns error to the court's denial of his motion to suppress evidence seized subsequent to issuance of a search warrant. In the afternoon of December 29, one of the officers present at the time of arrest actually an investigator for the office of prosecuting attorney for Yakima County sought issuance of a search warrant from a magistrate in Yakima, based upon an affidavit of the officer declaring that he had probable cause to believe a stolen chain saw was in the residence of the defendant's mother. After hearing the officer's testimony, the magistrate issued the warrant. No record of the testimony was kept and the officer's affidavit does not contain a recital of the facts upon which the officer based his conclusion of probable cause. Armed with this search warrant, several officers entered Mrs. Basford's residence and found among other items the other stolen chain saw under a bunk bed in one of the bedrooms. Evidence of this finding was presented to the jury at the defendant's trial.
The defendant does not challenge the sufficiency of the officer's probable cause. He does, however, challenge the procedure utilized to obtain the warrant on the two-fold grounds that no record of the proceedings was kept and the insufficiency of the officer's affidavit used in seeking the warrant.
[3] We are advised that the procedure for issuance of a search warrant currently employed in Yakima County does now include (1) the making and preserving of a permanent record by the issuing magistrate and (2) the requirement that the affidavit which forms the basis for seeking the warrant must encompass the underlying circumstances upon which the affiant bases his contention for probable cause. In State v. Walcott, 72 Wash. 2d 959, 435 P.2d 994 (filed on December 28, 1967), the Supreme Court of this state expressed a preference that these latter procedural steps be taken, but did not specifically declare that a procedure *1050 which did not include them contravened either the fourth amendment to the United States Constitution or article 1, section 7 of the Constitution of the State of Washington. In view of the chronological proximity of the filing of Walcott to the issuance of the search warrant in the case at bar we are not inclined at this time to condemn the procedures utilized herein. The trial court did not commit error at the preliminary hearing by denying the defendant's motion to suppress evidence seized during the search of Mrs. Basford's residence.
The defendant's third assignment of error relates to the presence, during trial, of a uniformed deputy sheriff, obviously armed, seated in the courtroom (apparently within the enclosed area usually reserved for counsel and their clients). He contends that the presence of such an officer created a prejudicial inference that the defendant was a dangerous man and thus denied him his right to a fair trial. When the presence of this officer was specifically brought to the attention of the trial court, he was advised that the defendant had been previously convicted of the crime of robbery and that an appeal from such conviction was then pending before the Supreme Court. Upon being so advised, the trial court refused to exclude the officer from the courtroom.
[4] While he is presiding at a trial, the trial court is required to direct, control and regulate the proceedings as its chief officer. True, he has a grave responsibility to insure that a defendant charged with commission of a crime be given a fair and impartial trial. However, he has an equally grave responsibility to protect the other officers of the court as well as the members of the public in attendance. He must at all times maintain proper decorum and provide an atmosphere consistent with judicial dignity. When requested to perform a specific act which calls for a possible balancing of these grave responsibilities upon the scales of justice, the court must necessarily choose from among a wide variety of possible choices all within the permissible areas of judicial discretion. In the instant case, the record is *1051 devoid of any proof that jurors were prejudiced by the presence of the deputy sheriff. We cannot say that the trial judge abused the discretion with which he has been cloaked. State v. Sawyer, 60 Wash. 2d 83, 371 P.2d 932 (1962); State v. Ollison, 68 Wash. 2d 65, 411 P.2d 419 (1966).
There being no remaining grounds upon which to base the defendant's fourth assignment of error, denial of his motion for new trial, the judgment is affirmed.
ARMSTRONG, C.J., and PEARSON, J., concur. | 01-03-2023 | 10-30-2013 |
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