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https://www.courtlistener.com/api/rest/v3/opinions/2609937/ | 12 Ariz. App. 21 (1970)
467 P.2d 245
Ernest TORREZ, Petitioner,
v.
INDUSTRIAL COMMISSION of Arizona, Respondent, Merritt-Chapman & Scott Corporation, Respondent Employer, State Compensation Fund, Respondent Carrier.
No. 1 CA-IC 297.
Court of Appeals of Arizona, Division 1, Department A.
April 6, 1970.
Rehearing Denied May 6, 1970.
Review Denied June 2, 1970.
Morgan & Jerome, by Donald J. Morgan, Phoenix, for petitioner.
Donald L. Cross, Chief Counsel, Phoenix, for respondent Industrial Commission of Arizona.
Shimmel, Hill & Bishop, by Richard T. Ball, Phoenix, for respondent Employer Merritt-Chapman & Scott Corporation.
Robert K. Park, Chief Counsel, by R. Kent Klein, Phoenix, for respondent State Compensation Fund.
DONOFRIO, Presiding Judge.
This case is before the Court by writ of certiorari to determine the lawfulness of an award of the Industrial Commission issued on April 21, 1969, denying a rehearing, and affirming an award issued on January 8, 1969 which determined that the applicant was entitled to three $4.68 shoe lifts per calendar year (medical benefits) and had no increased disability.
The petitioner jumped off a loading dock and twisted his left knee on December 5, 1962 when he was 37 years of age. He had three different surgical procedures for the repair of the injured knee, all of which proved unsuccessful. On February 1, 1965 an arthrodesis (surgical fixation of the joint) of the left knee was performed. Petitioner *22 was seen by a group consultation on September 29, 1965 and the group determined that following the removal of the internal fixation devices (plates) his case could be closed with a 35% functional loss of the left leg. By the award of January 19, 1966, petitioner was discharged as recommended as of January 4, 1966. The claim was reopened for medical benefits on October 11, 1967 at which time petitioner was fitted with a built-up left shoe. This was protested, and a hearing was held on September 25, 1968. The referee issued recommendations on which the Commission based the award which was finalized with the award of April 21, 1969, which has been appealed here.
The question before the Court is whether the award of the Commission is reasonably supported by the evidence.
It is the function of the Court of Appeals when petitioned to review Industrial Commission awards to determine whether the evidence before the Commission reasonably supports its decision, and not to try the case anew. Andreason v. Industrial Commission, 6 Ariz. App. 434, 433 P.2d 287 (1967). The Commission's findings, as trier of facts, must be sustained if reasonably supported by the evidence. Valdon v. Industrial Commission, 103 Ariz. 547, 447 P.2d 239 (1968). However, when the evidence before the Industrial Commission is such that the only reasonable interpretation of it is one that leads to a conclusion different from the one reached by the Commission, the reviewing court has no alternative but to set the award aside. Lugar v. Industrial Commission, 9 Ariz. App. 44, 449 P.2d 61 (1968).
We said in Merrill v. Industrial Commission, 11 Ariz. App. 564, 466 P.2d 783 (Filed March 24, 1970):
"The question of whether the injury or the resulting disability is controlling in determining awards for compensation was settled by Arnott v. Industrial Commission, 103 Ariz. 182, 438 P.2d 419 (1968), in which the court indicated that the site of the disability remaining following an injury controlled what the award of compensation should be. * * *"
The Supreme Court in Gullick v. Industrial Commission, 94 Ariz. 237, 383 P.2d 123 (1963) stated:
"* * * The legal responsibility for workmen's compensation benefits arises upon the occurrence of an injury by accident in the course of the employment and extends to the physical and mental consequences which are traceable to the accidental injury. * * *"
Dr. T.H. Taber testified as follows with regard to petitioner's back problems:
"A I think that the medical probabilities would be pretty certain that his back symptoms were related to a short lower extremity. This is a medical situation that we are certainly all aware of, even a layman knows if he has a short leg he is liable to strain his back and leg and have symptoms."
Dr. Taber did not feel that the complaints and symptoms of the right leg were "probably" related to the shortened left leg. He did, however, admit that they could "possibly" be related. He testified that he had found a mild effusion, or swelling, and increase in fluid in the right knee upon his examination in August.
Dr. Clyde J. Barker, Jr., M.D., examined the petitioner for the Welfare Department. Dr. Barker stated that petitioner gave him a history of his stiff left knee, and told him that walking on the stiff knee caused his right knee to hurt, and caused him to have lower back pain. Dr. Barker was asked if such complaints were consistent with walking on a short leg for a good length of time and having a stiff knee. When given the additional factor that there was no intervening cause or injury, he answered that it would be probable that walking on the shortened leg caused the symptoms.
Roger L. O'Toole, M.D., a physician practicing at the Veteran's Hospital, examined the petitioner in November 1967 for the purpose of rating him for possible veteran's benefits. Dr. O'Toole noted scoliosis *23 to the left of the lower thoracic and upper lumbar spine of approximately three-fourths of an inch. He also noted a pelvic tilt downward and left, approximately one and one-half to two inches, and that the left lower extremity was one and one-half inches shorter than the right. He noted an atrophy of two inches of the left thigh at all levels as compared to the right thigh. He found that the right knee was normal except for coarse patella-femoral crepitation with passive extension and foot flexion. Dr. O'Toole testified as follows:
"Q Doctor, given the history that was related to you by me and by the claimant, or by the Veteran at the time of his examination, is it reasonable and probable that barring any other accidents or injuries that the strain of walking on this injured knee has caused him discomfort in his back and the limitations and crepitations in the right knee?
"A Yes."
It is the opinion of the Court that the medical evidence is such that reasonable men can reach only the conclusion that the petitioner's symptoms are the result of the stiffening and shortening of the left leg, and that legal causation exists between the accident and the subsequent disabilities. In Pena v. Industrial Commission, 10 Ariz. App. 573, 460 P.2d 1002 (1969), this Court said:
"It is not the place or the position of the involvement of the injury, but rather the residual impairment resulting from the industrial injury which is controlling."
Where, as here, there is a disability to the back and symptoms in the right leg as the result of the left leg injury, the injury becomes an unscheduled one, and must be compensated under A.R.S. § 23-1044 subsec. C.
For the reasons stated above, the award is set aside.
STEVENS and CAMERON, JJ., concur.
NOTE: This case was decided under the law as it existed prior to January 1, 1969. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609939/ | 2 Wash. App. 348 (1970)
467 P.2d 868
RITA McCUTCHEON, as Guardian, et al., Respondents,
v.
RITA BROWNFIELD, Appellant.
No. 233-40902-1.
The Court of Appeals of Washington, Division One, Panel 2.
April 13, 1970.
*349 Clay Nixon, for appellant.
Frederick P. Holbrook and Eleanor Edwards, for respondent.
HOROWITZ, A.C.J.
Defendant, Rita Brownfield, appeals from a judgment setting aside a deed to her from the plaintiff, Grace Sandell, on the ground of undue influence. The basic question raised is whether substantial evidence supports the findings, conclusions and judgment. For convenience, we shall on occasion refer to Mrs. Sandell as the plaintiff, although a guardian and then a successor guardian were later substituted for the plaintiff.
The record shows there was substantial evidence to support the following statement of the case. Corinthian Corp. v. White & Bollard, Inc., 74 Wash. 2d 50, 51, 442 P.2d 950 (1968).
Plaintiff on April 10, 1967, executed, acknowledged and delivered to the defendant a quitclaim deed to virtually all of her property. The property consisted principally of a residence in which the plaintiff and defendant and the latter's four children had lived for many years. The children had been brought up principally under the care of the plaintiff. At the time of trial the children had grown and had left the home and the defendant was divorced for the second time and had returned from California to live in an apartment at the residence property. The residence property conveyed was income property and had a value of approximately $85,000. On January 12, 1968, on the petition of Rita McCutcheon, the defendant's daughter, and with plaintiff's consent, the petitioner had been appointed her guardian. The petition alleged and the court found "that said GRACE SANDELL is not incompetent but at times is unable to handle her own affairs due to her advanced age." *350 At the time of trial on April 5, 1968, however, plaintiff was incompetent and unable to testify.
There had long been a close and loving relationship between the plaintiff and her daughter as well as between the plaintiff and the four grandchildren. Plaintiff was thrifty, but believed that her daughter was not. There was an incident of a $4,000 mortgage loan obtained by the defendant pursuant to a general power of attorney dated May 11, 1963, delivered by the plaintiff to her daughter for a business venture of the daughter, as a result of which plaintiff had been compelled to pay off the loan from her savings.
It had long been plaintiff's desire to provide for her daughter and her grandchildren, all five of whom plaintiff came to refer to as her children. The intention was especially evident from her prior wills and a written memorandum dated October 19, 1966, directing a change in her 1962 will. Thus, her 1956 will left her property to her daughter for life with full power of disposition except that she was prohibited from giving the property away to persons other than her children, and a remainder interest to the children. Her 1962 will set up a testamentary trust in her property with provisions for the benefit of her daughter, but with a further provision that if her daughter moved from the residence the property was to be divided one-third to her daughter and one-sixth to each of the four grandchildren. The 1966 written memorandum provided that plaintiff's estate should be left to her daughter and grandchildren in equal shares, save that the daughter's share was charged with the $4,000 previously paid by the plaintiff on her mortgage loan. The April 10, 1967, will, executed on the same date as the deed here involved, devised plaintiff's property to her daughter, if living; otherwise to plaintiff's grandchildren and their respective issue by right of representation.
There was medical evidence based on the plaintiff's doctor's observations over a period of several months ending in December, 1967, while the plaintiff was hospitalized with a broken hip, that the plaintiff was a "typical senile cerebral *351 arteriosclerotic,"; that her condition was a result of a progressive organic disease which had become progressively worse and that in her doctor's opinion "this has been going on at least for six months to a year and maybe longer ..." The doctor testified:
There may be times they are lucid when they first start. And then there are intervals they say things out of context and they are kind of goofy.
He also testified that persons with plaintiff's condition "are just senile and old" and have "lost their power to reason and judgment and recall recent events. They live in the past." Defendant testified that at the date of the deed on April 10, 1967, her mother couldn't take care of the house any more; that she was getting forgetful about paying bills and collecting rents and that at her age she was not capable of handling these matters. Defendant further testified:
Q Had you ever had any discussion prior to that time in relation to the matter of transfer of her property to you?
A Yes, we had talked about this for a number of years. She wanted me always to have the property and at my death it would go to the children, and as the years grew on we talked about it several times, and she wanted to escape probate charges, so finally we just talked about it, decided to go down. She said for me to select a lawyer and she would be glad to have the property deeded over to me with there was to be no change, she would be there and I would be there and that it would go to the children. That was our idea.
Q This was to be an absolute deed, not a trust?
A No, it was a deed.
...
Q was your intention at ... the time of the deed, April 10, ... '67, that your mother's position in the house would still remain the same? Is that correct?
A Yes, just the same.
Q And her rights in the house would remain just the same?
A Yes, absolutely.
*352 Q And the purpose of the deed as far as you are concerned ... was to protect your mother's interest?
A Yes, that's true.
Q And you really didn't take the land for yourself?
A That's correct.
Defendant's attorney, selected by her to draft the instruments, testified:
She called me on the telephone and she indicated to me that she and her mother would like to come into my office and have wills drawn up and her mother deed some property to her because her mother was getting old and was unable to take care of her own affairs ...
Q Did Mrs. Brownfield before what reason did she give for wanting you to draw up the deed?
A She indicated that her mother was getting old, she was in her 80's or something, and that she was afraid that people would come around and cheat her mother, that her mother had forgotten to pay bills in the past and the sewer district had put a lien on the house or something for not paying the sewer bill, and her mother was forgetful at times about paying bills. She put bills in the drawer and would just forget about paying them, and things of that nature.
Defendant's attorney was not originally known to the mother and he never spoke to nor conferred with the mother alone. On April 10, 1967, the daughter brought the mother into the attorney's office to execute a deed and a will for the mother and a will for the daughter already prepared. After an explanation by the attorney, the instruments were executed and the wills witnessed. The attorney testified
Well, it was my understanding that they both wanted a will, and Mrs. Sandell wanted Mrs. Brownfield to have a will leaving everything to the children to insure that the children would have everything after Mrs. Brownfield died.
The will that he prepared for the defendant provided for a life estate in the plaintiff and a remainder interest in the children. He informed the mother "that the deed and Wills would take care of her worry of insuring that the property *353 would go to the grandchildren." However, the documents executed did not protect against the possibility of sale, mortgage or other disposition of the property by the defendant during her lifetime or against the possibility that she might revoke her will. The omission to provide this protection was apparently inadvertent but there is no affirmative evidence that plaintiff was informed of the inadequate protection afforded by the documents executed. The evidence is undisputed that prior to the execution of the documents involved, plaintiff did not receive independent legal or tax advice or independent business advice from anyone concerning the nature of the documents or their limitations or their provident or improvident character or as to alternate plans by which to accomplish the protection of the plaintiff during her lifetime and the interests of the defendant and her four children upon the plaintiff's death.
The deed was left in the custody of the daughter's attorney until August, 1967, when the daughter withdrew the deed and had it filed of record. She then mortgaged the property for $7,000, using part of the proceeds for paying the cost of repairs and improvements on the residence property and part of it for personal use including the payment of a personal dental bill.
Sometime later the plaintiff began to express concern to several people including her former son-in-law and her granddaughter, Rita McCutcheon, concerning whatever it was that she had signed. She stated that she wasn't sure what she had signed. In her deposition testimony read into evidence below, she testified that she did not intend to deed the property to her daughter and was not aware that she had done so. There was also evidence from the plaintiff that although she loved her daughter, she was aware of her spendthrift ways and would not wish to dispose of her property in a fashion that would imperil the ability of her grandchildren to receive the property.
Plaintiff, through her present counsel, on September 6, 1967, caused suit to be brought to set aside the deed. The theory of plaintiff's case below and on appeal was that *354 when the deed was executed, Mrs. Sandell was in a weakened mental condition and that the deed was executed as a result of defendant's undue influence. The court found that the defendant
is an intelligent and positive personality and in April, 1967 did not wish to wait for the probate of her mother's Wills. That at said time GRACE SANDELL was age 86 years and susceptible to pressures and fears of insecurity and safety; that at the time the guardian was appointed GRACE SANDELL was incompetent and suffering from severe symptoms of hardening of the arteries affecting her mental capacity and and [sic] been suffering said disease for a period of time.
The court further found that on April 10, 1967, defendant took Mrs. Sandell to the office of the attorney; that Grace Sandell did not know the attorney and had never talked to him previous to that time; "that said Attorney had GRACE SANDELL sign a Quit Claim Deed to RITA BROWNFIELD; that said deed covered all the property then owned by GRACE SANDELL plus other property previously owned." and that subsequently Grace Sandell was and is in a rest home under guardianship supported by social security and welfare. The court concluded "That the Defendant executed [sic] undue influence on GRACE SANDELL in obtaining the Quit Claim Deed to all of the property of GRACE SANDELL; ..." The judgment entered on September 9, 1968, set aside the quitclaim deed and quieted title in the plaintiff.
[1] Defendant first contends that the plaintiff's deposition taken in December, 1967, at the instance of defendant's attorney (not her attorney on appeal) was not admissible because plaintiff was mentally incompetent to testify. Defendant relies upon the medical testimony of Dr. Dale D. Popp, an orthopedic surgeon who examined Mrs. Sandell in Spokane while she was undergoing treatment for a hip fracture from September 15, 1967, to December 18, 1967, and upon the plaintiff's deposition testimony itself as showing confusion and lack of memory. RCW 5.60.050 provides that persons of "unsound mind" are not competent to testify. The statute, however, "refers to those who are without *355 comprehension at all, not to those whose comprehension is merely limited." State v. Hardung, 161 Wash. 379, 297 P. 167 (1931). If at the time of her deposition she understood the nature of an oath and was capable of giving a correct account of what she has seen and heard, her evidence was admissible. State v. Moorison, 43 Wash. 2d 23, 259 P.2d 1105 (1953). The fact that at the time of trial on April 15, 1968, after preliminary examination concerning her competency, the court excluded plaintiff's oral testimony does not necessarily prove that at the date of the deposition she was not a competent witness. The disease from which she was suffering was a progressive one. She might have been competent to testify when her deposition was taken in December, 1967, without being competent to testify in April, 1968, following. It was for the trial court, either in passing on the preliminary question of admissibility or in passing upon the motion to strike the deposition after the deposition testimony was heard, to determine either from the nature of the answers given to the questions asked or from expert medical testimony concerning her competency at the time that the deposition was taken or from both, whether the witness was competent to testify. See State v. Moorison, supra; CR 26(d). The trial court exercised its discretion in holding the deposition testimony admissible. Cf., Sumerlin v. Department of Labor & Indus., 8 Wash. 2d 43, 111 P.2d 603 (1941), overruled on other points; Windust v. Department of Labor & Indus., 52 Wash. 2d 33, 323 P.2d 241 (1958). The court's action is not reviewable here in the absence of abuse of discretion. State v. Wyse, 71 Wash. 2d 434, 429 P.2d 121 (1967). We find none here.
The evidence on the issue of Mrs. Sandell's competency on April 10, 1967, was in substantial conflict. The court made no express finding as to her competency on April 10, 1967; he limited his findings as to competency to the date that a guardian was appointed for her on January 12, 1968. The medical evidence, however, supported the court's finding that Grace Sandell at the time of the appointment of the guardian was "suffering from severe symptoms of hardening *356 of the arteries affecting her mental capacity and and [sic] been suffering said disease for a period of time."
[2-4] If the plaintiff was incompetent on April 10, 1967, the gift by deed of virtually her entire estate would have been void for plaintiff's want of capacity to make a gift. 38 Am.Jur.2d Gifts § 12 (1968). See Simpson v. Holbrook, 21 Wash. 410, 58 P. 207 (1899). However, plaintiff guardian's basic contention is that the defendant exercised undue influence upon her mother in obtaining the deed. The trial court agreed. The conclusions expressly state the defendant was guilty of "undue influence." This conclusion is capable of being construed and considered as a factual finding. See Ferree v. Doric Co., 62 Wash. 2d 561, 383 P.2d 900 (1963); Gray v. Fuller, 85 Wash. 13, 147 P. 402 (1915). Furthermore, if there is no express finding upon a material fact, the fact is deemed to have been found against the party having the burden of proof. Ingle v. Ingle, 183 Wash. 234, 48 P.2d 576 (1935). As later pointed out, the burden of proving the absence of undue influence when a confidential relationship exists between the parties is upon the defendant. The existence of undue influence is a factual question. 38 Am.Jur.2d Gifts § 108 (1968); cf., Gray v. Fuller, supra (fraud); In re Estate of McDonald, 60 Wash. 2d 452, 374 P.2d 365 (1962) (gift causa mortis). If a confidential relationship exists between mother and daughter, then evidence to sustain the gift between such persons
must show that the gift was made freely, voluntarily, and with a full understanding of the facts ... If the judicial mind is left in doubt or uncertainty as to exactly what the status of the transaction was, the donee must be deemed to have failed in the discharge of his burden and the claim of gift must be rejected.
38 Am.Jur.2d Gifts § 106 (1968).
[5] A confidential or fiduciary relationship between two persons may exist either because of the nature of the relationship between the parties historically considered fiduciary in character; e.g., trustee and beneficiary, principal and agent, partner and partner, husband and wife, physician *357 and patient, attorney and client; or the confidential relationship between persons involved may exist in fact. As stated in Restatement of Restitution § 166 d. (1937):
A confidential relation exists between two persons when one has gained the confidence of the other and purports to act or advise with the other's interest in mind. A confidential relation is particularly likely to exist where there is a family relationship...
Ambrosius v. Katz, 2 Ill. 2d 173, 117 N.E.2d 69 (1954); Vesy v. Giles, 108 N.E.2d 300 (Ohio Com. Pl. 1952); See Salter v. Heiser, 36 Wash. 2d 536, 550, 219 P.2d 574 (1950); cf., Collins v. Nelson, 193 Wash. 334, 345, 75 P.2d 570 (1938); 25 Am.Jur.2d Duress and Undue Influence §§ 38, 36, 37 (1966).
Parentage alone does not necessarily create a confidential relationship between parent and child. There must be something more. Zarnowski v. Fidula, 376 Pa. 602, 103 A.2d 905 (1954). However, the fact of parentage frequently furnishes the occasion for the existence of a confidential relationship. This is true when the parent may become dependent upon the child, either for support and maintenance, or for care or protection in business matters as well, or for both, and the child, by virtue of factors of personality and superior knowledge and the assumption of the role of adviser accepted by the parent, may acquire a status, vis-a-vis the parent, that will bring about the confidential relationship. 39 Am. Jur. Parent and Child §§ 95, 98, 99 (1942). Because undue influence is treated in law as a species of fraud (37 Am.Jur.2d Fraud and Deceit § 6 (1968); 25 Am.Jur.2d Duress and Undue Influence §§ 35, 36 (1966) evidence of a gift between persons in a confidential relationship must be clear, cogent and convincing. 38 Am.Jur.2d Gifts § 106 (1968); See Meyer v. Campion, 120 Wash. 457, 207 P. 670 (1922); cf., In re Estate of Hamilton, 26 Wash. 2d 363, 174 P.2d 301 (1946) and Whalen v. Lanier, 29 Wash. 2d 299, 186 P.2d 919 (1947). The existence of undue influence between persons in a confidential relationship is more readily inferred.
In the instant case the trial court's determination that *358 undue influence exists here is supported by the facts and cases, including (1) plaintiff's age and weakened or impaired mental condition;[1] (2) that the deed was contrary to Mrs. Sandell's prior intention that her grandchildren be protected expressed in a writing as late as October 19, 1966;[2] (3) that plaintiff had a concern to protect the defendant against her own improvidence, a concern that could be defeated by an outright deed; (4) that the documents were prepared by defendant's personal attorney without prior and separate consultation with the plaintiff.[3] The fact that the attorney was an independent contractor does not absolve the defendant from her duty to protect the plaintiff and to disclose to her fully the significance of the documents signed.[4] (5) that the preparation of both a deed and wills was without disclosure of their inadequate protection of the interest of the plaintiff in a life estate and the grandchildren's ultimate inheritance.[5] It would be strange indeed if the requirements of fairness and good faith which create a duty of disclosure on occasion even as between vendor and vendee or lessor and lessee and in certain instances when the parties involved deal with one another at arm's length[6] were relaxed in the case of a person in a confidential relationship with respect to a transaction in which the grantee has furnished no consideration; (6) that the transfer by plaintiff of substantially her entire estate by *359 way of gift left her dependent for support and maintenance upon her daughter and others;[7] (7) that there was an entire absence of independent advice to the plaintiff prior to the gift by deed. The absence of independent advice is not ipso facto fatal to the validity of the gift but an inference may be drawn that undue influence was exerted.[8]
[6] In our opinion, the court had the right to find from the facts reviewed, including the existence of a confidential relationship, that the deed was obtained by the exercise of undue influence.[9] We cannot substitute our findings for those of the trial court. Thorndike v. Hesperian Orchards, Inc., 54 Wash. 2d 570, 343 P.2d 183 (1959).
The judgment is affirmed.
UTTER and WILLIAMS, JJ., concur.
Petition for rehearing denied May 20, 1970.
NOTES
[1] Hattie v. Potter, 54 Wash. 170, 102 P. 1023 (1909); Tecklenburg v. Washington Gas & Elec. Co., 40 Wash. 2d 141, 241 P.2d 1172 (1952).
[2] In re Estate of Tresidder, 70 Wash. 15, 125 P. 1034 (1912). See In re Estate of Smith, 68 Wash. 2d 145, 411 P.2d 879, 416 P.2d 124 (1966).
[3] See Meyer v. Campion, 120 Wash. 457, 207 P. 670 (1922).
[4] See analogous negligence rule concerning nondelegable duties. W. Prosser, Torts § 70, at 483 (3d ed. 1964); 41 Am.Jur.2d Independent Contractors § 36 (1968); Wodnik v. Luna Park Amusement Co., 69 Wash. 638, 125 P. 941 (1912).
[5] See In re Estate of Hanson, 169 Wash. 637, 14 P.2d 702 (1932).
[6] Obde v. Schlemeyer, 56 Wash. 2d 449, 353 P.2d 672 (1960), noted in 36 Wash. L. Rev. 202 (1961); Ikeda v. Curtis, 43 Wash. 2d 449, 261 P.2d 684 (1953); Oates v. Taylor, 31 Wash. 2d 898, 199 P.2d 924 (1948); Perkins v. Marsh, 179 Wash. 362, 37 P.2d 689 (1934).
[7] Kennedy v. Currie, 3 Wash. 442, 28 P. 1028 (1892); Hattie v. Potter, 54 Wash. 170, 102 P. 1023 (1909) cf., Comment, 58 Mich. L. Rev. 90, 91 (1959).
[8] Meyer v. Campion, 120 Wash. 457, 207 P. 670 (1922); Zvolis v. Condos, 56 Wash. 2d 275, 352 P.2d 809 (1960); cf., In re Estate of Smith, 68 Wash. 2d 145, 411 P.2d 879, 416 P.2d 124 (1966).
[9] See summary in 25 Am.Jur.2d Duress and Undue Influence § 36 (1966). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609941/ | 467 P.2d 115 (1970)
Walter Paul ANUSHEVITZ, aka Chester J. Wiltse, Appellant,
v.
WARDEN, NEVADA STATE Prison, Respondent.
Tracy BOSLEY, Appellant,
v.
WARDEN, NEVADA STATE PRISON, Respondent.
Nos. 5867, 5868.
Supreme Court of Nevada.
March 25, 1970.
*116 James D. Santini, Public Defender, and Jeffrey D. Sobel, Deputy Public Defender, Las Vegas, for appellants.
Harvey Dickerson, Atty. Gen., Carson City, George E. Franklin, Jr., Dist. Atty., and Alan R. Johns and Neil J. Beller, Deputy Dist. Attys., Las Vegas, for respondents.
OPINION
MOWBRAY, Justice.
These two cases have been consolidated for the purposes of appeal, because the same issue is involved in each case.
The appellant-petitioners, Walter Paul Anushevitz and Tracy Bosley, commenced habeas proceedings in the district court under Nevada's Post-Conviction Relief Statute, NRS 177.315.[1] Both petitioners had been charged with felonies.[2] Each defendant pleaded guilty as charged. They were both represented by counsel at all stages of the proceedings.[3] Appellants concede that the record shows that their pleas were intelligently and voluntarily made.[4] The petitioner-defendants were *117 later sentenced. Anushevitz had six prior felony convictions and Bosley, six. After the petitioners were sentenced, they learned that, as a result of an opinion of the Attorney General (No. 489, February 8, 1968) construing NRS 213.110, they were ineligible for parole.[5]
Petitioners now assert that the district judges who received their pleas had the duty to advise them of NRS 213.110 and of their ineligibility for parole.
Petitioners argue in their opening briefs that the case of Munich v. United States, 337 F.2d 356 (9th Cir.1964), is controlling in their cases. In Munich, the court said at 361:
"* * * In our opinion one who, at the time of entering a plea of guilty, is not aware of the fact that he will not be eligible for probation or parole, does not plead with understanding of the consequences of such a plea." (Footnote omitted.)
In other circuits, however, the courts have not so held. In Jenkins v. United States, 289 F. Supp. 415 (N.D.Okl. 1968), the court in commenting on the Munich decision, stated at 417-418:
"* * * Other circuits do not go this far. See Trujillo v. United States (Fifth Cir.1967), 377 F.2d 266, * * * and Smith v. United States (1963), 116 U.S. App.D.C. 404, 324 F.2d 436 * * *. It is felt that the better rule and the one that the Tenth Circuit would adopt is that a failure to advise that probation cannot be granted in a narcotics conviction does not constitute a failure to adequately advise the accused of the `consequences' of a plea of guilty."
We decline to follow Munich in the instant cases, for in any event, in the context of these appeals we are satisfied that even the Ninth Circuit Court would be obliged to find the omission complained of harmless error.
In their supplemental brief, petitioners rely heavily on the United States Supreme Court decision in Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274, rendered June 2, 1969. Boykin, who had counsel, entered a guilty plea to five indictments for the common-law crime of robbery. The judge who received Boykin's plea asked no questions concerning the plea, and Boykin did not address the court.
Quite the contrary in the instant case. See footnote 4, supra. The district judge, by his colloquy with Anushevitz, demonstrated in the record that the plea was "voluntarily and knowingly made," as mandated by NRS 174.035(1).[6] We find *118 nothing in Boykin that suggests any duty upon the court to advise a defendant regarding the prospects for parole, the granting of which is wholly beyond the jurisdiction of the district judge. Not so, of course, in the case of probation, and the district judge covered that contingency in his colloquy.
The rights about which the High Court speaks in Boykin are constitutional trial rights. As Mr. Justice Douglas, in writing for the majority, said at 243, 89 S. Ct. at 1712:
"Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653. Second, is the right to trial by jury. Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491. Third, is the right to confront one's accusers. Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923."
On the other hand, parole is a matter of legislative grace. As the court said in Smith v. United States, 116 U.S.App. D.C. 404, 324 F.2d 436, 441 (1963): "[E]ligibility for parole is not a `consequence' of a plea of guilty, but a matter of legislative grace. It is equally true that non-eligibility for parole is not a `consequence' of a plea of guilty * * * rather, it is a consequence of the withholding of legislative grace." Our own court has so held. Eisentrager v. State Bd. of Parole Com'rs, 85 Nev. 672, 462 P.2d 40 (1969); Pinana v. State, 76 Nev. 274, 352 P.2d 824 (1960).
We find no merit in the appellants' applications for habeas, and we therefore affirm the rulings of the lower court in denying the writs.
COLLINS, C.J., and ZENOFF, BATJER, and THOMPSON, JJ., concur.
NOTES
[1] NRS 177.315 provides in pertinent part:
"1. Any person convicted of a crime and under sentence of death or imprisonment who claims that the conviction was obtained, or that the sentence was imposed, in violation of the Constitution of the United States or the constitution or laws of this state, or that the court was without jurisdiction to impose the sentence, or that the sentence exceeds the maximum authorized by law, or that the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding or remedy, may, without paying a filing fee, apply for a writ of habeas corpus under NRS 177.315 to 177.385, inclusive, to secure relief from the conviction or sentence."
[2] Anushevitz was charged with robbery; Bosley, with burglary.
[3] The Clark County Public Defender's office represented them from arraignment through sentencing.
[4] Judge Babcock, who received Anushevitz's plea, conducted the following colloquy with him before accepting his plea. (It is conceded that a similar inquiry was conducted before Bosley entered his plea.)
"THE COURT: Is the defendant [Anushevitz] ready to enter his plea?
"MR. LEGAKES [Deputy Public Defender, counsel for Anushevitz]: Yes, he is, your Honor.
"THE COURT: Chester J. Wiltse [another name used by Anushevitz], what is your plea to the information filed in these proceedings on May 23, 1968, charging you with the crime of robbery?
"MR. WILTSE: Guilty.
"THE COURT: Guilty?
"MR. WILTSE: Yes.
"THE COURT: Is your plea of guilty freely and voluntarily made
"MR. WILTSE: Yes.
"THE COURT: without threat or fear to yourself or anyone closely related to or associated with you?
"MR. WILTSE: Yes.
"THE COURT: You understand the nature of the charge against you?
"MR. WILTSE: Yes.
"THE COURT: What is the charge against you?
"MR. WILTSE: Robbery.
"THE COURT: Mr. Legakes, did you advise the defendant of the sentence that could be imposed by reason of his plea of guilty?
"MR. LEGAKES: Yes, I did, your Honor.
"THE COURT: What did you advise him?
"MR. LEGAKES: One to 15 years.
"THE COURT: Yes.
"Mr. Wiltse, has anyone made any promise of a lesser sentence, probation, reward, immunity or anything else to induce you to plead guilty?
"MR. WILTSE: No, sir.
"THE COURT: You understand the matter of probation and sentence is determined solely by the Court and by no one else?
"MR. WILTSE: Yes.
"THE COURT: Are you pleading guilty because in truth and in fact you are guilty and for no other reason?
"MR. WILTSE: I am guilty of the charge, yes.
"THE COURT: The Court accepts defendant's plea of guilty."
[5] NRS 213.110 provides in relevant part:
"1. Subject to the provisions of NRS 213.120, the board [state board of parole commissioners] shall have power to establish rules and regulations under which any prisoner who is now or hereafter may be imprisoned in the state prison and who has not previously been more than three times convicted of a felony and served a term in a penal institution, or who is imprisoned in a county jail, may be allowed to go upon parole outside of the buildings or inclosures, but to remain, while on parole, in the legal custody and under the control of the board and subject at any time to be taken within the inclosure of the state prison or county jail."
This statute and earlier ones of like effect had been the law for many years, but until the issuance of the Attorney General's Opinion No. 489, supra, they had not been generally followed.
[6] NRS 174.035(1):
"1. A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and consequences of the plea." (Emphasis added.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610129/ | 485 P.2d 352 (1971)
82 N.M. 596
TOWN OF CLAYTON, New Mexico, Plaintiff-Appellee,
v.
S.D. MAYFIELD and Gracie L. Mayfield, Defendants-Appellants.
No. 9155.
Supreme Court of New Mexico.
May 24, 1971.
John P. Isaacs, Clayton, E. Byron Singleton, Amarillo, Tex., for appellants.
Krehbiel & Alsup, Clayton, for appellee.
OPINION
COMPTON, Chief Justice.
From an order enjoining appellants from operating a junk yard upon premises located within the Town of Clayton, New Mexico, and directing appellants to abate the nuisance by removing the accumulated junk therefrom, the appellant, S.D. Mayfield, has appealed.
Appellant has raised several points of alleged error. The controlling issue, however, is whether the actions of the appellant constitute an abatable common law nuisance. The trial court specifically found that appellant's operation of the junk yard constituted a common law public nuisance as being contrary to the public health, safety and welfare.
Appellant asserts that the finding has no substantial support in the evidence. The junk yard was unfenced. There is evidence substantial in character that the junk yard constituted a fire and health hazard due to the accumulation of combustible materials in and around the cars; that the accumulation of water in and under the cars created a breeding ground for mosquitoes; that the accumulation of old cars were readily accessible, and attractive to young children, thus posing a safety hazard. Appellant himself testified that he intended to burn the old cars on the premises while processing them and that due to the nature of the combustible material in the cars, a great deal of smoke would be created. And there is evidence that the value of residential property in the area had decreased due to the presence of appellant's operation.
It is firmly established in this jurisdiction that nuisances that adversely affect the public health, welfare or safety may be enjoined. Mahone v. Autry, 55 N.M. 111, 227 P.2d 623, and cases cited therein.
Appellant asserts that appellee had an adequate remedy at law through the *353 enforcement of one of various town ordinances. It is noted that all the ordinances referred to by him contain penal provisions for violations. The fact that acts constituting a public nuisance are punishable criminally does not deprive equity of its power to enjoin a public nuisance where there is ample proof of irreparable injury to the public health, welfare or safety. State ex rel. Marron v. Compere, 44 N.M. 414, 103 P.2d 273. We think this is a proper case for injunctive relief.
A discussion of other points urged by appellant would serve no beneficial purpose. The judgment should be affirmed.
It is so ordered.
McMANUS and OMAN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3761427/ | JOURNAL ENTRY AND OPINION
Relator avers that he is the defendant in State v. Brown,
Cuyahoga County Court of Common Pleas Case No. CR-360296. Relator further avers that the court of common pleas granted relator's motion for transcripts and related case information and ordered respondent clerk to send a copy to relator. Relator complains that respondent clerk has not acted and requests that this court compel respondent to send the materials to relator.
Respondent has filed a motion to dismiss or, in the alternative, for summary judgment. Attached to the complaint is a copy of relator's motion for transcripts and related case information in which relator requests that the court of common pleas order the court reporter to prepare a transcript at state expense. Attached to respondent's motion is an affidavit of the court reporter who avers that she mailed the transcripts to relator on June 25, 1999. Relator has not responded to respondent's motion.
Relator has received the relief which he requested. As a consequence, this action is moot. "A writ will not issue to compel an act already performed. State ex rel. Jerningham v.Cuyahoga 723." State ex rel. Cockrell v. Russo (Mar. 5, 1998), Cuyahoga App. No. 73712, unreported, at 2. Additionally, relator's reliance on R.C. 149.43 is misplaced. Respondent does not have a duty to mail public records. State ex rel. Iacovone v. Kaminski (1998),81 Ohio St.3d 189, 690 N.E.2d 4.
We also note that, by entry dated June 30, 1999, this court ordered that relator deposit security for costs with the clerk and file an affidavit specifying the details of the claim as required by Loc.App.R. 45(B)(1)(a). Relator's failure to comply with the June 30, 1999 order is a sufficient basis for dismissal of this action.
Accordingly, respondent's motion to dismiss or, in the alternative, for summary judgment is granted. Relator to pay costs.
Writ denied.
ANN DYKE, J., CONCURS.
___________________________________ JAMES M. PORTER, ADMINISTRATIVE JUDGE | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2899277/ | NO. 07-08-0133-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MAY 29, 2009
______________________________
KENNETH HUFFAKER, APPELLANT
V.
WYLIE LP GAS, INC., INDIVIDUALLY, AND AS GENERAL PARTNER
OF T&B, LTD., A TEXAS LIMITED PARTNERSHIP, AND
T&B, LTD., A TEXAS LIMITED PARTNERSHIP, APPELLEES
_________________________________
FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2006-534,840; HONORABLE RUBEN REYES, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Kenneth Huffaker, appeals the granting of a no-evidence summary
judgment in favor of appellees, Wylie LP Gas, Inc. (individually, Wylie LP Gas), individually
and as General Partner of T&B, Ltd., and T&B, Ltd. (collectively, Wylie). We affirm the trial
court’s judgment.
Factual and Procedural Background
On or about February 27, 2006, an explosion and fire occurred at Wylie LP Gas’s
propane gas business property that spread to adjacent property owned by Huffaker. The
fire damaged and destroyed real and personal property of Huffaker. Huffaker filed suit
against Wylie to recover damages resulting from this fire.1
On January 10 and 11, 2008, Wylie filed a no-evidence motion for summary
judgment and a supplemental no-evidence motion for summary judgment in which Wylie
challenged, inter alia, whether Huffaker could produce evidence (1) that T&B, Ltd., or Wylie
LP Gas, as General Partner of T&B, Ltd., is a proper party to the suit; (2) of any of the
elements necessary to state claims for gross negligence, negligence per se, or res ipsa
loquitur; (3) of a breach of duty or that any breach of duty proximately caused Huffaker’s
damages in regard to the storage, maintenance, inspection, filling, or handling of propane
tanks; (4) Wylie’s implementation or monitoring of safety procedures was a breach of duty
or that any breach of duty proximately caused Huffaker’s damages; (5) Wylie had
knowledge of any person smoking in close proximity to the propane tanks or that such
smoking caused the explosion and fire; or (6) that Huffaker suffered compensable mental
or emotional anguish damages proximately caused by the explosion and fire.2 In response,
1
Other parties were involved in this lawsuit as plaintiffs, however, these other claims
have been settled and severed from the judgment before us.
2
A review of Huffaker’s live pleading, filed after Wylie’s no-evidence motions on
February 7, 2008, reveals that Huffaker abandoned his claims of gross negligence,
negligence per se, and res ipsa loquitur. As such, we will not address these claims as they
were no longer before the trial court when the trial court granted Wylie’s motions.
2
Huffaker filed summary judgment evidence consisting of deposition transcripts of former
Wylie employee David Rebber, current Wylie manager Ronald Bridges, and Wylie
President William Tipton. In addition, Huffaker provided transcripts of recorded statements
taken from Rebber and Bridges. Wylie objected to this evidence because it was unverified
and, therefore, constituted inadmissible hearsay. No ruling on Wylie’s objections are
contained within the record.
On February 25, 2008, the trial court granted Wylie’s no-evidence motions for
summary judgment. It is from this ruling that Huffaker now appeals.
By one issue, Huffaker contends that the trial court erred in granting Wylie’s no-
evidence motions for summary judgment because Wylie did not preserve objections to
Huffaker’s summary judgment evidence and because that evidence constitutes more than
a scintilla of evidence to support Huffaker’s claim that Wylie was negligent. We affirm the
trial court’s judgment.
Wylie’s Objections to Huffaker’s Evidence
In response to Huffaker’s presentation of summary judgment evidence, Wylie filed
objections to each of Huffaker’s six exhibits on the basis that the exhibits are unverified
and, therefore, constitute inadmissible hearsay. The trial court granted Wylie’s motions for
no-evidence summary judgment without ruling on Wylie’s objections to Huffaker’s summary
judgment evidence. On appeal, Huffaker contends that Wylie failed to preserve these
objections due to its failure to obtain a trial court ruling on them.
3
Deposition transcripts and excerpts are not required to be authenticated when
submitted as summary judgment evidence. McConathy v. McConathy, 869 S.W.2d 341,
341 (Tex.1994) (per curiam); McClure v. Attebury, 20 S.W.3d 722, 731 (Tex.App.–Amarillo
1999, no pet.). Thus, the issue of whether Wylie’s objections were preserved relates solely
to the recorded statements of Bridges and Rebber. Generally, documents submitted as
summary judgment evidence must be sworn to or certified. Llopa, Inc. v. Nagel, 956
S.W.2d 82, 87 (Tex.App.–San Antonio 1997, writ denied). Unauthenticated or unsworn
documents or documents not supported by affidavit are not entitled to consideration as
summary judgment evidence. Id. While defects in affidavits or attachments in response
to motions for summary judgment are generally waived unless properly preserved at trial,
a complete absence of authentication is a defect of substance that may be urged for the
first time on appeal. Blanche v. First Nationwide Mortgage Corp., 74 S.W.3d 444, 451
(Tex.App.–Dallas 2002, no pet.). Our review of the recorded statements reveals that none
of the three are certified, sworn, or supported by affidavit. Consequently, we conclude that
Wylie’s objection was an objection to a defect of substance that was not waived by Wylie’s
failure to obtain a ruling of the trial court. Id. Further, because there is a complete
absence of authentication of this evidence, neither the trial court nor this Court may
consider these statements as evidence in response to Wylie’s motions for summary
judgment. Llopa, Inc., 956 S.W.2d at 87.
Huffaker’s Negligence Claims
We now turn to the central issue in this appeal, which is whether the deposition
testimony of former Wylie LP Gas employee David Rebber, current Wylie LP Gas manager
4
Ronald Bridges, and Wylie LP Gas President William Tipton was more than a scintilla of
evidence to raise a genuine issue of material fact as to the elements of Huffaker’s
negligence claims challenged by Wylie’s motions for summary judgment.
Standard of Review
Because a no-evidence motion for summary judgment is, in essence, the same as
a pretrial directed verdict, we apply the same legal sufficiency standard. See Kelly v.
Demoss Owners Ass’n, 71 S.W.3d 419, 423 (Tex.App.–Amarillo 2002, no pet.). A no-
evidence motion for summary judgment is properly granted unless the non-movant brings
forth more than a scintilla of evidence to raise a genuine issue of material fact on the
elements challenged by the motion. See TEX . R. CIV. P. 166a(i); Ford Motor Co. v.
Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). More than a scintilla of evidence exists when
the evidence “rises to a level that would enable reasonable and fair-minded people to differ
in their conclusions.” Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995).
On the other hand, less than a scintilla of evidence has been described as evidence “so
weak as to do no more than create a mere surmise or suspicion.” King Ranch, Inc. v.
Chapman, 118 S.W.3d 742, 751 (Tex. 2003). In reviewing a summary judgment, we must
view all of the summary judgment evidence in the light most favorable to the non-movant.
See Roth v. FFP Operating Partners, L.P., 994 S.W.2d 190, 195 (Tex.App.–Amarillo 1999,
pet. denied). However, when the summary judgment does not specify the grounds
asserted in the motion that it was premised upon, it will be affirmed if any of the grounds
presented are meritorious. Kelly, 71 S.W.3d at 422.
5
Applicable Law
The elements of a negligence claim are duty, breach of that duty, and damages
proximately caused by the breach of duty. See Doe v. Boys Clubs of Greater Dallas, Inc.,
907 S.W.2d 472, 477 (Tex. 1995).
In assessing whether a duty exists, a reviewing court should consider factors such
as the risk, foreseeability, and likelihood of injury weighed against the social utility of the
actor’s conduct; the magnitude of the burden in guarding against injury; and the
consequences of placing the burden on the defendant. Greater Houston Transp. Co. v.
Phillips, 801 S.W.2d 523, 525 (Tex. 1990). When the defendant distributes a dangerous
article or agent, the defendant owes the public the degree of care proportionate to and
commensurate with the dangers involved. McAfee v. Travis Gas Corp., 137 Tex. 314, 153
S.W.3d 442, 447 (1941). When the defendant distributes a dangerous article or agent, it
owes a nondelegable duty to take all reasonable precautions to effectually protect third
parties from injury. Loyd v. Herrington, 143 Tex. 135, 182 S.W.2d 1003, 1004 (1944).3
Analysis
In its motions, Wylie contended that Huffaker could produce no evidence that either
T&B, Ltd., or Wylie LP Gas, in its capacity as General Partner of T&B, Inc., were proper
3
Because we conclude that Huffaker failed to produce more than a scintilla of
evidence to raise a genuine issue of material fact as to the duty Wylie owed Huffaker or
that Wylie breached that duty, it is not necessary for us to address Wylie’s summary
judgment ground that Huffaker could produce no evidence that any breach of duty
proximately caused Huffaker’s damages.
6
parties to this suit. According to the deposition transcript of Tipton, T&B, Ltd., owns the
real property and some of the equipment that Wylie LP Gas leases. Wylie LP Gas is the
General Partner of T&B, Ltd., and holds a one percent ownership interest in T&B, Ltd.
However, this is all of the evidence presented in regard to these two defendants. Huffaker
presented no evidence nor even alleges how T&B, Ltd., or Wylie LP Gas, as General
Partner of T&B, Ltd., owed a duty to Huffaker, breached that duty, or caused the damages
suffered by Huffaker as a result of the breach. Therefore, we affirm the trial court’s no-
evidence summary judgment as it relates to claims against T&B, Ltd., and Wylie LP Gas,
in its capacity as General Partner of T&B, Ltd. See TEX . R. CIV. P. 166a(i); Ford Motor Co.,
135 S.W.3d at 600.
As to Huffaker’s claims against Wylie LP Gas, individually, Wylie contends that
Huffaker is unable to present more than a scintilla of evidence to raise a genuine issue of
material fact as to the duty, or standard of care, Wylie LP Gas owed to Huffaker or that
Wylie LP Gas breached that duty.
Expert testimony is necessary when the alleged negligence is of such a nature as
not to be within the experience of a layperson. Turbines, Inc. v. Dardis, 1 S.W.3d 726, 738
(Tex.App.–Amarillo 1999, pet. denied) (citing Roark v. Allen, 633 S.W.2d 804, 809 (Tex.
1982)). The expert testimony must establish both the standard of care and the violation
of that standard. Id. However, even expert testimony that a particular action would be
prudent, beneficial, recommended, or desirable cannot be taken as evidence of the
standard of care or that the failure to take the action constituted a breach of that standard.
Id. at 739.
7
In the present case, Huffaker provided no expert testimony as to any of the theories
of liability asserted in his live pleading. Thus, we must analyze each of Huffaker’s theories
of liability and the evidence presented as to each to determine whether a layperson would
be able to ascertain the applicable standard of care in the absence of expert testimony.
Huffaker contends that Wylie LP Gas was negligent in the manner in which it stored
propane tanks at its facility. In support of this theory, Huffaker offered the testimony of
Tipton that, at the time of the fire, Wylie LP Gas was storing 11,000 full 20 pound propane
tanks at its facility. This factual testimony provides no insight into what the applicable
standard of care would have been for Wylie LP Gas. In fact, the only evidence relating to
the manner of storage of the propane tanks was Tipton’s testimony that the tanks were
stored in a manner that did not violate any rule or regulation of the Texas Railroad
Commission and that Wylie LP Gas took the additional step of using dividers to ensure that
the tanks did not touch one another, even though such a step was not required by any law.
As such, we do not find the evidence sufficient to allow an ordinary layperson to conclude
what the applicable standard of care was in regard to Wylie LP Gas’s storage of its
propane tanks nor that Wylie LP Gas breached this standard.
Huffaker also contends that Wylie LP Gas was negligent in failing to properly
maintain, handle, and inspect the propane tanks in its storage. In support of this
contention, Huffaker cites Bridges’s testimony that there were times when employees of
Wylie LP Gas did not properly check the tanks for leaks. However, Bridges also testified
that he began working for Wylie LP Gas sometime in the late 1980s. There is no evidence
of the frequency with which employees failed to properly check the tanks and, further, there
8
is no evidence as to how often a reasonable propane dealer would be expected to inspect
the tanks in its storage. While the testimony does establish that Bridges felt that there
were times when proper inspections were not performed, because the basis for his opinion
is not shown, we cannot conclude what the applicable standard of care was in regard to
Wylie LP Gas’s maintenance, handling, and inspection of the tanks nor does the evidence
raise a genuine issue of fact about that standard having been breached.
Huffaker contends that Wylie LP Gas was negligent in its filling of the propane
tanks, particularly in that it would overfill the tanks which would then require that some of
the liquid propane gas be bled off. Huffaker cites testimony of both Rebber and Bridges
that there were times when tanks would be overfilled and the tanks would then have to be
bled off. However, nothing in this testimony or in any evidence offered by Huffaker
establishes that the applicable standard of care would be that no tanks ever be overfilled
or that, if a tank was overfilled, that it should not be bled off. Because the filling of liquid
propane gas tanks lies beyond the experience of an ordinary layperson, we conclude that
Huffaker has provided no evidence of what the applicable standard of care is as it relates
to filling propane tanks and, even more so, whether bleeding off the excess propane in an
overfilled tank falls below the applicable standard of care.
Huffaker also contends that Wylie LP Gas failed to implement and monitor proper
safety procedures. The evidence that Huffaker relies on in support of this contention is that
Wylie LP Gas had not held fire drills, three employees were performing their work without
supervision, and that there were times when employees did not properly check for leaks
in the stored tanks. However, there is no evidence that a reasonable liquid propane dealer
9
would conduct fire drills or that, had Wylie held fire drills, the fire would have been
contained. Further, there is no indication why employees needed to be supervised at all
times or how the lack of supervision of these particular employees fell below the applicable
standard of care. As to the failure to properly inspect the stored tanks, that issue was
addressed above. Thus, there was no evidence presented that would allow a reasonable
layperson to identify the applicable standard of care in relation to Wylie LP Gas’s safety
procedures nor that Wylie LP Gas’s safety procedures fell below that standard.
Finally, Huffaker contends that Wylie LP Gas knowingly allowed smoking in close
proximity to the propane tanks. Rebber testified that he has seen employees “walk right
to the gate [of Wylie LP Gas’s facility] and throw a cigarette down” and that it “was
possible” that an employee was smoking just east of the propane tank storage area where
the fire started.4 Bridges testified that he was aware that the fire marshal found cigarette
butts inside the yard and that the employees were allowed to smoke inside the confines
of the gate of Wylie LP Gas’s facility. However, because there was no evidence offered
of the proximity of the area where smoking occurred to the propane tanks, we would have
to speculate that it was an unsafe distance. While we believe that a layperson could
conclude that smoking in close proximity to liquid propane gas tanks was a breach of the
applicable standard of care, Huffaker offered no evidence to raise a genuine issue of
material fact as to how close to the propane tanks employees were smoking.
4
Rebber further testified that he had no way of knowing whether someone was
smoking in that area at the time the fire started.
10
Because there is no expert evidence establishing the applicable standard of care
owed by Wylie LP Gas and because a layperson would not be able to determine the
applicable standard of care in regard to the theories of liability asserted by Huffaker, we
conclude that the trial court was correct in granting Wylie’s no-evidence summary judgment
motions.
Conclusion
For the foregoing reasons, we affirm the trial court’s judgment.
Mackey K. Hancock
Justice
11 | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2610132/ | 207 Kan. 493 (1971)
485 P.2d 1309
ZONA FISHER, Appellant,
v.
SEARS, ROEBUCK & COMPANY, Appellee.
No. 46,005
Supreme Court of Kansas.
Opinion filed June 12, 1971.
Emerson M. Pomeroy, of Topeka, argued the cause, and Elwaine F. Pomeroy and Allan A. Hazlett, both of Topeka, were with him on the brief for the appellant.
Robert D. Hecht of Scott, Quinlan, Hecht and Baxter, of Topeka, argued the cause and was on the brief for the appellee.
The opinion of the court was delivered by
FROMME, J.:
The plaintiff, Zona Fisher, appeals from an order of the trial court setting aside a plaintiff's verdict for $7,000 and entering judgment for defendant, Sears, Roebuck & Company. We will continue to refer to the parties as plaintiff and defendant.
This court on appeal has one controlling question before it. Did the trial court properly set aside a verdict in favor of plaintiff and *494 enter judgment in favor of defendant at the close of a jury trial?
There is no more difficult thing for a lawyer to explain to his client than that which happened in this case. A verdict was handed down by the jury after a trial but the court then ruled the plaintiff was not entitled to that verdict as a matter of law. The explanation lies in the application of the law to the particular facts of the case, and generally not in any failure of plaintiff's lawyer. However, this is of little consolation to the lawyer or his client.
K.S.A. 60-250 (b), in pertinent part, reads:
"Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. A party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; .. . If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed...."
This statute was enacted to facilitate the orderly administration of justice with dispatch. It permits the trial to proceed to a conclusion and then a judge is permitted to reconsider these motions. The statute does not give a trial court free reign to substitute its judgment for that of a jury. (Gard v. Sherwood Construction Co., 194 Kan. 541, Syl. ¶ 8, 9, 400 P.2d 995; Striplin v. Kansas Gas & Electric Co., 204 Kan. 324, 461 P.2d 825.) The standard to be used in measuring a defendant's motion for a directed verdict or for a judgment notwithstanding the verdict is the same. The question to be asked is whether there is any substantial evidence to sustain a verdict and judgment for plaintiff. Such motions should be sparingly and cautiously granted. (Striplin v. Kansas Gas & Electric Co., supra; Swearngin v. Sears Roebuck & Company, 376 F.2d 637 [1967].) In Striplin it was said the rule is simple but its application is perplexing, for it is always subject to the human equation. In passing on a motion for directed verdict the evidence must be viewed in a light most favorable to the opposing party (in this case the plaintiff). (See Christopherson v. Humphrey, 366 F.2d 323 [10 Cir.1966].)
Defendant in this case moved for a directed verdict at the close of plaintiff's evidence and again at the close of all evidence in the case. Both motions were denied. The trial proceeded and a verdict *495 was returned. The defendant filed a motion to set aside the verdict and enter judgment for defendant. This motion was taken under advisement and then sustained. The procedural requirements set forth in K.S.A. 60-250 (b) were complied with. So our concern on appeal is with the sufficiency of the evidence.
The propriety of granting or denying a motion for a directed verdict is tested by the same rule on appeal as in the trial court. The trial court is required to view the evidence and inferences therefrom most favorable to the party against whom the motion is made. The appellate court must do the same. (Striplin v. Kansas Gas & Electric Co., supra; see also Springfield Tent & Awning Co. v. Rice, 202 Kan. 234, Syl. ¶ 1, 447 P.2d 833.) The credibility of witnesses is no concern of the court on a motion for directed verdict. (2B Barron & Holtzoff, Federal Practice and Procedure, § 1075, p. 385.)
We turn to the facts in evidence. The plaintiff went to the Sears, Roebuck & Company store located at the White Lakes Shopping Center in Topeka to exchange a garment. Plaintiff was 78 years of age and alone when she entered the store. After inquiry she learned the store did not have the proper size of garment in stock. She was advised where a cash refund might be obtained and she was directed to take the escalator to the second floor to obtain it. On the way to the escalator she stopped to look at dresses in the ladies ready-to-wear department. The dresses were displayed in long double rows hung on display racks. At the end of each display rack and facing the main aisle was a platform on which a life-size mannequin stood. The aisle between the display racks had a clearance of 30 inches between the dresses and between the low display platforms at the end. The area where the dress racks and the display platforms were placed was carpeted. The display platforms were painted a light color. The carpet below was of a darker contrasting color. The tops of the display platforms were 8 or 9 inches from the floor. The main aisle at the end of the dress display was approximately 8 feet wide and floored with light colored tile. The display platforms were set back in the carpeted area 8 or 9 inches from the main aisle. The entire area was well-lighted.
Plaintiff testified she walked along between the dresses which were hanging on the racks until she approached the main aisle. She was looking up and away from where she was in order to locate the escalator. When she was about 2 feet from the front of the display *496 rack she turned to her right and stumbled over the corner of the display rack. She fell into the main aisle and received substantial injuries.
In a well reasoned memorandum opinion the trial court stressed the following facts pertinent to his decision:
"After careful consideration of all the evidence, the Court is convinced that the evidence with respect to negligence on the part of defendant was clearly insufficient as a matter of law to warrant submitting plaintiff's case to the jury.
"The displays in question consisted of a platform with a high back attached at a right angle to the platform. Mannequins were placed upon the platforms. The displays faced upon a wide, well-lighted corridor. Clothes racks were attached to the backs of the displays which were placed in such a way as to form an aisleway between racks and displays through which customers could walk. A number of such displays were in use at the time of plaintiff's accident.
"Due to the fact that the backs of the displays were the same width as the platforms, there was no basis in the evidence for plaintiff's contention that defendant had placed low platforms so as to protrude into the aisleway (formed by the displays). The displays, themselves, formed the aisleway and anyone traversing it in the same direction as the plaintiff would have been confronted by the high back of the display before coming into contact with the platform. If a business invitee had walked with sufficient clearance to avoid the high back, he would also have avoided the platform (which plaintiff contended caused her fall) unless he changed his course by veering into the corner of said platform which was in full view.
"The display was in no way defective. It was fully visible and nothing about it could be said to be hidden from view. The metal legs supporting the platform were set back under the platform in order to avoid contact with customers. The color of the platform was white and, therefore, contrasted with the brown carpet on the floor. The evidence further indicated that the store lights were on and the displays fully illuminated.
"The instant case is clearly distinguishable from those cases in which debris or a foreign substance on a floor created a dangerous condition (e.g. piece of meat, grease, piece of lettuce, etc.). In the case at bar there was nothing about the display which constituted a hidden defect, an unusual circumstance or a dangerous condition. Said display was where it was supposed to be and was utilized in a customary and obvious manner. The Court, therefore, concludes that there was insufficient evidence that the display in question created a dangerous condition on defendant's premises.
"Furthermore, there was no evidence that the use of such a display fell below the standard of ordinary care in the merchandising industry. The injury of plaintiff in connection with said display was not reasonably forseeable, and it cannot be said that the utilization of said display in defendant's store constituted a violation of defendant's duty to plaintiff to exercise ordinary care.
..............
"Any contention on the part of plaintiff that she was subjected to an unreasonable *497 risk of harm as a result of defendant's attractive display, was expressly rejected by plaintiff's own testimony. Said plaintiff testified that she was not looking at the display or the mannequin but was in fact looking for the escalator."
The law regarding the duty of those engaged in a retail business to keep the premises reasonably safe has been iterated in many of our cases. The proprietor of a store owes a duty to customers and other invitees to use care to keep the premises in a reasonably safe condition. (Knowles v. Klase, 204 Kan. 156, 460 P.2d 444.) A store proprietor is not an insurer of his customers' safety. (Steinmeyer v. McPherson, 171 Kan. 275, 232 P.2d 236; Little v. Butner, 186 Kan. 75, 348 P.2d 1022.) A store proprietor may be required to put up warning signs or install guardrails to protect customers from a particular condition if it creates a latent danger which would otherwise expose customers to an unreasonable risk of injury. (Marietta v. Springer, 193 Kan. 266, 392 P.2d 858.) However, there is no duty to warn or protect by guardrails if the object or condition causing the injury is normally present in similar stores, and if it is plainly visible and can be anticipated and avoided by the use of reasonable care on the part of the customers. (George v. Ayesh, 179 Kan. 324, 295 P.2d 660.)
In reviewing the many cases in this area it appears there is a sharp division of authority as to liability for injuries resulting from tripping over an object protruding into an aisle or passageway. (See Anno. 26 A.L.R. 2d 675.)
However, when injuries are caused from a customer failing to observe and avoid some piece of standard equipment properly placed, well-lighted and used in the store, the rule is generally against recovery. (See Anno. 33 A.L.R. 181, at p. 188, and 162 A.L.R. 958.)
The plaintiff in the present case is confronted with evidence about which there is no dispute. She tripped over a display platform on which was located a life-size mannequin. It was located in a well-lighted area, did not protrude into the aisle and was plainly visible to anyone using the premises. It was a display appliance normally used in such stores and by the use of reasonable care she could have anticipated and avoided it. There was no evidence the proprietor failed to keep the premises, including the display appliance, in a reasonably safe condition to prevent injuries to customers. Therefore, as a matter of law, the evidence failed to show a violation *498 of the proprietor's duty to customers and other invitees to use care to keep the premises in a reasonably safe condition.
Accordingly we hold the proprietor is not liable for injuries to plaintiff who fell over the display appliance which was being used in a usual manner in conducting the business. It was not shown the proprietor failed to keep the premises in a reasonably safe condition to prevent injuries to customers.
The plaintiff further argues that the trial court erroneously failed to consider her allegations that the defendant was negligent in failing to protect the customers by building uprights or guardrails around the display platforms.
A store proprietor is not required to put up warning signs or install guardrails to protect customers against injury from falling over a display appliance unless the use and location of a particular display creates a latent danger which would otherwise expose customers to an unreasonable risk of injury. (See Marietta v. Springer, supra.)
The location and nature of the display platform in this case did not create a latent danger. Therefore, there was no duty to provide guardrails.
We have conscientiously examined each point specified by plaintiff on appeal. Under the law governing a proprietor's duty to customers and under the facts of this case we must hold as a matter of law the evidence was insufficient to show defendant failed to use care to keep the premises in a reasonably safe condition. Accordingly the trial court did not err in setting aside the verdict and entering a judgment for defendant.
Judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610133/ | 15 Ariz. App. 1 (1971)
485 P.2d 591
EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, a corporation, Appellant,
v.
ADVANCE TRANSFORMER COMPANY, a corporation, and General Electric Company, a corporation, Appellees.
No. 2 CA-CIV 930.
Court of Appeals of Arizona, Division 2.
June 4, 1971.
Rehearing Denied June 25, 1971.
Review Denied September 28, 1971.
Browder, Gillenwater & Daughton by Robert W. Browder, Phoenix, for appellant.
Gaynor K. Stover, Tucson, for appellee Advance Transformer Co.
May, Dees & Newell by Willis R. Dees, Tucson, for appellee General Electric Co.
HOWARD, Judge.
This is an appeal from a summary judgment in favor of the appellees, third-party defendants below, on the third-party complaint of appellant, third-party plaintiff below. At the time of entry of this judgment, other claims remained to be adjudicated in the pending lawsuit but the summary judgment has the requisite finality for appeal purposes in that it contains the "express determination and direction" set forth in Rule 54(b), as amended, Rules of Civil Procedure, 16 A.R.S.
Briefly, the facts are as follows. In May, 1959, Howard P. Foley Company, a corporation, entered into an agreement with Robert E. McKee General Contractor, a corporation, to do certain electrical construction *2 work at St. Joseph's Hospital in Tucson. (McKee was the general contractor). Foley purchased certain fluorescent light fixtures to which were attached ballasts, and these fixtures were installed by Foley employees between 1959 and 1961. On July 20, 1966, one Richard Morgan, an electrician employed by St. Joseph's Hospital, was killed by electrocution when he touched an energized toggle bolt supporting one of the fixtures installed by Foley.
Mrs. Morgan, surviving widow of Richard Morgan, filed suit against McKee, Foley and others to recover damages for the wrongful death of her spouse. Foley settled and compromised Mrs. Morgan's claim for $190,000 and this sum was paid to Mrs. Morgan by appellant, Foley's liability insurer. Foley filed a third-party complaint against Advance Transformer and General Electric, seeking indemnification. It claimed that one of the ballasts designed, manufactured, assembled, distributed and sold by Advance Transformer and the capacitor located therein and designed, manufactured, assembled, distributed and sold by General Electric were:
"1. Designed, manufactured and assembled in a careless and negligent manner.
2. Defective in design, manufacture and assembly at the time they were placed on the market by Advance Transformer Co. and General Electric Company, at the time they were installed and at the time of the accident.
3. Unfit for their intended purpose because of the manner in which they were designed, manufactured and assembled.
4. Unreasonably dangerous and unsafe for their intended purpose because of the manner in which they were designed, manufactured and assembled."[1]
After its payment of the Morgan claim, appellant was substituted as third-party plaintiff. Advance Transformer and General Electric moved for summary judgment on two grounds, one, procedural, and two that since Foley was a tortfeasor, and appellant stood in Foley's shoes, there was no right of indemnity. Since we believe that summary judgment was appropriately granted on the second ground, we do not consider the propriety of the procedural basis for appellees' motion for summary judgment.
The following facts were admitted by appellant in response to the appellees' requests for admissions of facts: That the Foley-McKee contract required Foley to comply with all the laws, ordinances, regulations and building code requirements applicable to its work unless in conflict with contract requirements; that when Foley performed its electrical work, there was in effect an ordinance of the City of Tucson adopting that part of the National Electrical Code which required the fixture in question to be grounded; that the fixture should have been grounded according to the National Electrical Code and a Tucson city ordinance; that the subject fixture was installed by a Foley employee without grounding it; that the installation of the subject fixture without grounding was in violation of the National Electric Code and the electrical code of the City of Tucson, was a violation of law and was unlawful; that if the fixture had been grounded it would not have presented a hazard; that at the time of settlement with Mrs. Morgan, Foley could not have successfully defended against the allegation that the fixture was not grounded when installed by Foley; that failure to ground the fixture would be negligence as a matter of law; and that Foley settled with Mrs. Morgan because it was of the opinion that a jury would find that Foley was negligent in not grounding the fixture; that such negligence was the proximate cause of Mr. Morgan's death and that a jury verdict, by a great probability, would exceed the sum of $190,000.
*3 Thus we see the record reflects that appellant's insured was admittedly negligent in failing to ground the subject fixture. Assuming arguendo that appellees' products were defective in design, manufacture, or assembly, it is well settled in this jurisdiction that there can be no contribution or indemnity between joint tortfeasors. Pinal County v. Adams, 13 Ariz. App. 571, 479 P.2d 718 (1971) and cases cited therein. It is equally well settled that when one is liable because of a duty imposed by law although he had not actively participated in the wrong which was the immediate cause of the injury, then he has a right to indemnity from the party who actively caused the injury. Busy Bee Buffet v. Ferrell, 82 Ariz. 192, 310 P.2d 817 (1957); Thornton v. Marsico, 5 Ariz. App. 299, 425 P.2d 869 (1967); 7 Ariz. Law Review 59, 69 (1965).
Appellant cites cases such as London Guarantee and Accident Company, Ltd. v. Strait Scale Co., 322 Mo. 502, 15 S.W.2d 766 (1929); Hyland Hall & Company v. Madison Gas and Electric Co., 11 Wis. 2d 238, 105 N.W.2d 305 (1960); United Pacific Insurance Co. v. Balcrank, Inc., 175 Ohio St. 267, 193 N.E.2d 920 (1963); and First National Bank of Arizona v. Otis Elevator Company, 2 Ariz. App. 80, 406 P.2d 430, rehearing denied 2 Ariz. App. 596, 411 P.2d 34 (1965), in support of its position that it is not precluded from claiming indemnity against a manufacturer. We do not find these cases apposite. When Foley, acting through its employee, installed the subject fixture, it acted. Having actively participated in the wrong which caused Morgan's death, Foley was not "without personal fault" and therefore not within the purview of Busy Bee Buffet v. Ferrell, supra.[2] There being no factual issue as to Foley's active participation in the wrong which caused Morgan's death, the trial court properly ruled, as a matter of law, that there was no right of indemnity.
Judgment affirmed.
KRUCKER, C.J., and HATHAWAY, J., concur.
NOTES
[1] Although denominated a third-party complaint, a crossclaim was filed against McKee, which was unadjudicated at the time this appeal was taken.
[2] See also: Chrysler Corporation v. McCarthy, 14 Ariz. App. 536, 484 P.2d 1065 (filed May 17, 1971). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2236018/ | 929 N.E.2d 165 (2006)
367 Ill. App.3d 1083
EAST LAKE MANAGEMENT & DEVELOPMENT CORP.
v.
McGEE.
No. 1-05-2770.
Appellate Court of Illinois, First District
September 25, 2006.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610202/ | 485 P.2d 757 (1971)
Daniel Patrick GRACE, Petitioner,
v.
Curtis P. HARRIS, District Attorney, and the District Court of Oklahoma County, Oklahoma, Respondents.
No. A-16617.
Court of Criminal Appeals of Oklahoma.
May 19, 1971.
T. Hurley Jordan, Asst. Public Defender, Oklahoma County, Okl., for petitioner.
*759 Larry Derryberry, Atty. Gen., Sondra Fogley, Asst. Atty. Gen., Curtis P. Harris, Dist. Atty., Dick Blakley, Asst. Dist. Atty., for respondents.
*758 NIX, Judge:
This is an original proceeding by the petitioner, Daniel Patrick Grace, for a writ of prohibition to direct respondent to dismiss prosecution against him in Oklahoma County District Court Case No. CRF-71-444, charging Use of a Firearm in Commission of a Felony (21 O.S., § 1287). Petitioner claims his prosecution is barred by the constitutional double jeopardy prohibition; the statutory bar against double punishment for the same act, 21 O.S.Supp. 1970, § 11; and the doctrine of collateral estoppel.
Petitioner and a co-defendant were charged in the District Court of Oklahoma County, Case No. CRF-70-1155, with the crime of Robbery with Firearms, perpetrated on May 12, 1970. The co-defendant entered a plea of guilty and was sentenced on June 5, 1970, to fifteen years imprisonment. Petitioner was tried before a jury which found him guilty and sentenced him to 99 years imprisonment. Petitioner's conviction was affirmed on appeal, but the sentence modified to fifteen (15) years imprisonment on January 20, 1971. Grace v. State, Okl.Cr., 480 P.2d 285.
Thereafter, on February 19, 1971, an information was filed in the District Court of Oklahoma County, Case No. CRF-71-444, charging petitioner with using a firearm in commission of a felony, being the May 12, 1970, armed robbery. After preliminary examination, petitioner was held for trial on this charge. The claims asserted by petitioner in this proceeding were overruled in the preliminary and subsequently by the District Court.
Title 21, O.S.Supp. 1970, § 1287, enacted in 1969, provides:
"Any person who while committing or attempting to commit a felony uses a firearm or any other offensive weapon in such commission or attempt, whether the firearm is loaded or not, or who uses a blank or imitation firearm capable of raising in the mind of one threatened with such device a fear that it is a real firearm, or who uses an air gun or carbon dioxide or other gas-filled weapon, knife, dagger, dirk, switchblade knife, blackjack, axe, loaded cane, billy, hand chain or metal knuckles, in addition to the penalty by statute for the felony committed or attempted, shall be guilty of a felony for the use of such weapon or device, which shall be a separate offense, and shall be punishable by imprisonment in the penitentiary for a period of not less than two (2) years nor for more than five (5) years for the first offense, and for a period of not less than ten (10) years nor for more than twenty (20) years for any second or subsequent offense."
The origin of the Oklahoma Statute is not certain, but appears to be a derivation of the California Statute, Penal Code § 12022, which provides in relevant part:
"Any person who commits or attempts to commit any felony within this state while armed with any of the deadly weapons, as defined by subdivision (f) of Section 3024, upon conviction of such felony or of an attempt to commit such felony, shall in addition to the punishment prescribed for the crime of which he has been convicted, be punishable by imprisonment in a state prison for not less than five nor more than ten years. Such additional period of imprisonment shall commence upon the expiration or other termination of the sentence imposed for the crime of which he is convicted and shall not run concurrently with such sentence."
However, this California provision does not create a separate offense, but merely imposes additional punishment. Ex parte Shull, 23 Cal. 2d 745, 146 P.2d 417 (1944). Furthermore, the California courts have held that this statute encompassed only those felonies in which possession of a deadly weapon would not be a necessary element. People v. Pheaster, 215 Cal.App. *760 2d 754, 30 Cal. Rptr. 363 (1963). This Act was to provide for added punishment where a deadly weapon is not a necessary factor in the offense. Ex parte Shull, supra. It has been expressly held that in prosecution for robbery by firearms, Section 12022 is inapplicable "since the fact of being armed is essential to the conviction." People v. Floyd, 71 Cal. 2d 879, 80 Cal. Rptr. 22, 25, 457 P.2d 862, 865 (1969). Thus, in California a defendant cannot be additionally prosecuted for using a deadly weapon in committing a felony if the use of the weapon is an essential element in the felony committed.
The Oklahoma Constitution, Article II, § 21, provides:
"Nor shall any person be twice put in jeopardy of life or liberty for the same offense."
In the early case of Estep v. State, 11 Okla. Crim. 103, 143 P. 64 (1914), this Court held:
"The term `same offense' as used in the constitutional provision does not signify the same offense eo nomine, but the same criminal act, transaction, or omission."
"[A] single criminal act cannot be split up or subdivided into two or more distinct offenses and prosecuted as such. If the state elects, through its authorized officers, to prosecute an offense in one of its phases or aspects, and upon his trial the defendant is acquitted by a jury, it cannot afterwards prosecute the same criminal act or series of acts under color of another name. The state will not be permitted to split or divide up an offense into divers parts and punish each moiety. See Hirshfield v. State, 11 Tex. App. 207. A jeopardy on one information will bar a second whenever the proof shows the second case to be the same criminal act or transaction."
It is apparent that using a firearm is an essential and necessary element in the offense of robbery with firearms, 21 Ohio St. 1961, § 801. To convict for robbery under Section 801, it is necessary to prove the use of a firearm or dangerous weapon, otherwise a conviction cannot be obtained thereunder. The firearm use was intrinsic to the offense. To convict a defendant for robbery with firearms (21 O.S., § 801) and then separately try him for using a firearm while committing the robbery (21 O.S., § 1287) is patently putting the defendant in jeopardy for the same offense in direct violation of constitutional prohibition.
We, therefore, hold that it would be unconstitutional to prosecute under Section 1287 of Title 21, where the firearm or "weapon use" was an essential element or necessary factor in the commission of the primary felony.
Aside from the jeopardy question, there is involved herein the matter of an unnecessary prejudicial delay in filing the firearm charge under Section 1287 amounting to the denial of a speedy trial. The constitutional right to a speedy trial encompasses not only a delay in trial after arrest, but prohibits an unwarranted delay in the filing of a criminal charge.
"The right of a suspect to speedy determination of guilt or innocense is not lost merely because the delay in the process occurs before the formal charge, rather than after." Nickens v. United States, 116 U.S.App.D.C. 338, 323, F.2d 808 (1963). Therefore, it is recognized that "unreasonable pre-arrest delay may so prejudice a defendant as to amount to the denial of constitutional rights." State v. Baca, 82 N.M. 144, 477 P.2d 320, 323 (1970). "[A]n accused may be deprived of due process of law, if the lapse of time between the alleged commission of the offense and the filing of the accusation makes it difficult or impossible for the accused to prepare his defense." People v. Archerd, 3 Cal. 3d 615, 91 Cal. Rptr. 397, 413, 477 P.2d 421, 437 (1970). See: Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965); United States v. Jones, 403 F.2d 498 (7th Cir.1968); United States v. Capaldo, 402 F.2d 821 (2d Cir.1968); State v. Rountree, 106 N.J. Super. 135, 254 A.2d 337 (1969).
*761 The failure to afford a defendant a speedy trial prevents a timely preparation of a defense as witnesses may disappear and memories fade. This is most certainly true when the state delays filing the charge, thereby denying defendant notice that he will be required to prepare a defense. The state is obligated to file a charge as soon as it has knowledge of an offense, its perpetrator, and his location, where there is no reasonable cause to delay the filing.
It might also be inferred from the facts herein that the defendant is being penalized with the filing of an additional charge because he exercised his right to appeal and was partially successful. If a policy would "chill the assertion of constitutional rights by penalizing those who chose to exercise them, then it would be patently unconstitutional." United States v. Jackson, 390 U.S. 570, at 581, 88 S. Ct. 1209, at 1216, 20 L. Ed. 2d 138. Thompson v. State, 482 P.2d 627 (Okl.Cr., 1971). Whether intended or not, allowing such a delayed prosecution would have a chilling effect on a defendant's exercise of the right to appeal.
In People v. Hryciuk, 36 Ill. 2d 500, 224 N.E.2d 250 (1967), the court found an impermissible delay in filing a murder charge after the defendant's rape conviction was overturned where the state had full knowledge of the evidence indicating murder at the time they elected to prosecute for rape.
In the instant case, the armed robbery occurred on May 12, 1970. Yet it was not until some nine months later, February 19, 1971, that the state filed the charge under section 1287. No reason for this delay is offered. It is apparent the state knew of the crime and that a firearm was used as they promptly filed the armed robbery charge after its occurrence. Section 1287 was fully applicable at that time and the decision to file thereunder rested with the prosecutor.
Where the state knows of the commission of a crime, its apparent perpetrator, knows of the accused's location and even has custody of him on another charge, and fails to file a charge for nine months without showing good cause, the prosecution must be dismissed as a denial of the right to a speedy trial and due process of law.
It is, therefore, ordered that the District Court of Oklahoma County dismiss the prosecution, Case No. CRF-71-444, with prejudice to refiling the same.
Writ granted.
BRETT, J., concurs.
BUSSEY, P.J. (specially concurring):
I concur in the granting of the Writ for the reason that the conviction for Armed Robbery precluded a subsequent prosecution for Using a Firearm in the Commission of a Felony arising out of the armed robbery. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3101648/ | COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER ON MOTION FOR REHEARING
Appellate case name: Country Community Timberlake Village, L.P., Charles and Judith
Cayley, Dennis and Tiffany Dillard, Jim and Tina Dillard, Todd and
Samantha Downing, Kenneth and Penny Edwards, Stewart and Kelli
Guss, Rick and Donna Hawrylak, Leonard and Robbie Higgins, et al.
v. HMW Special Utility District of Harris and Montgomery Counties
Appellate case number: 01-12-00825-CV
Trial court case number: 912,608
Trial court: County Civil Court at Law No. 1 of Harris County
It is ordered that Appellants’ Motion for Rehearing is denied.
Justice’s signature: /s/ Rebeca Huddle
Acting for the Court
Panel consists of: Chief Justice Radack and Justices Bland and Huddle
Date: July 10, 2014 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3101660/ | Opinion issued July 8, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00533-CV
———————————
IN RE DENNIS GREGORY DODSON II, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
By petition for writ of mandamus, relator Dennis Gregory Dodson II
challenges the refusal of the District Clerk of Grimes County to accept a filing.1
1
The underlying case referenced in the relator’s petition is In the Matter of the
Marriage of Dennis Gregory Dodson II and Lucinda Mary Dodson and In the
Interest of Dennis Gregory Dodson III, Jacob Andrew Dodson and Destiny Marie
Dodson, Children, in the 278th District Court of Grimes County, Texas, the
Honorable Kenneth H. Keeling, presiding.
We deny relator’s petition for writ of mandamus. All outstanding motions
are dismissed as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Higley and Brown.
2 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2610130/ | 485 P.2d 500 (1971)
The PEOPLE of the State of Colorado, Plaintiff in Error,
v.
Richard Oliver BROWN, Defendant in Error.
No. 24685.
Supreme Court of Colorado, En Banc.
May 17, 1971.
Rehearing Denied June 14, 1971.
*501 Duke W. Dunbar, Atty. Gen., Harold Neufeld, Asst. Atty. Gen., Denver, Floyd Marks, Dist. Atty. Adams County, Stanley B. Bender, Chief Deputy Dist. Atty. Adams County, Commerce City, for plantiff in error.
Carroll & Bradley, P. C., John S. Carroll, Arvada, for defendant in error.
LEE, Justice.
This writ of error involves the constitutionality of the implied consent statute of the state of Colorado, 1967 Perm.Supp., C. R.S.1963, 13-5-30(3) et seq. The district court of Adams County held this statute to be unconstitutional, and in doing so voided the Adams County Court conviction of defendant in error, Richard Oliver Brown, of driving a motor vehicle while under the influence of intoxicating liquor in violation of C.R.S.1963, 13-5-30(1). We hold the implied consent law to be constitutional and therefore reverse the judgment of the district court.
Richard Oliver Brown was stopped at approximately 11:40 p. m. on January 15, 1968, by a Colorado state patrolman for failing to dim the headlamps of his automobile as he approached oncoming traffic. The officer, upon talking to Brown, noticed a distinct odor of alcohol and, upon Brown's failure to satisfactorily perform certain sobriety tests, Brown was arrested and taken to the Adams County jail for further investigation. The evidence was in *502 dispute as to whether Brown was advised of his rights as required by subsection 3(b) of the implied consent statute. However, Brown did consent in writing to submit to a blood test, when given his choice of submitting to a chemical test of his blood, breath or urine, for the purpose of determining the alcohol content of his blood. Blood was withdrawn from his body and the chemical analysis of the blood revealed an ethyl alcohol content of .202, which gave rise to the statutory presumption that Brown was under the influence of intoxicating liquor. C.R.S.1963, 13-5-30(2) (d). Thereupon, Brown was charged in the Adams County Court with the offense of operating a motor vehicle while under the influence of intoxicating liquor.
Trial was to the court. Prior to trial a motion was made to suppress evidence of the results of the blood test. It was Brown's contention that for a variety of reasons the implied consent statute was unconstitutional. The motion to suppress was denied and the results of the blood test were admitted into evidence. At the conclusion of the trial, the county court made a general finding of guilty. Brown's motion for a new trial was denied and appeal was taken to the district court.
We note that the district court did not direct that the case be tried de novo before the district court, as it might have done pursuant to 1965 Perm.Supp., C.R.S.1963, 37-15-10(2). The appeal was limited to review of the record on appeal and a consideration of the accompanying briefs and arguments. In spite of this method of review, the district court made a finding of fact on disputed evidence that Brown was not advised, either orally or in writing, of his rights as required by the implied consent statute. Such finding was contrary to the trial court's finding of advisement, implicit in its general finding on the issue of the defendant's guilt. Although the district court in conducting a trial de novo might find differently than the county court on an issue of fact, nevertheless, where, as here, the district court is reviewing the record on appeal from the county court, it is bound by the findings of the trial court which have been determined on disputed evidence. The record in the trial court supports the general finding on the issue of compliance with procedural requirements, as well as on the issue of defendant's guilt of the substantive charge.
Turning now to the problem of the constitutional validity of the implied consent law, the district court held the statute to be unconstitutional for reasons which we now discuss.
We would first of all note the summary discussion in 88 A.L.R. 2d 1064[c], where the author succinctly poses the complexity of the problem with which all states are faced concerning drunken drivers. As various implied consent statutes were enacted in an effort to cope with this problem, almost invariably each in turn has been attacked as unconstitutional for one or more reasons. In most instances, such statutes have been upheld as a valid exercise by the state under the police power of the right to regulate conduct which by its very nature directly affects the lives, health and general welfare of its citizens. Such has been the case in California, Iowa, Kansas, Missouri, Nebraska, New Jersey, New York, North Dakota, Ohio, Oregon, South Dakota, Vermont and Virginia. See Annots., 88 A.L.R. 2d 1064 and A.L.R.2d Later Case Service.
The district court, in reversing Brown's county court conviction, ruled that the implied consent statute violated the due process guarantees of the United States Constitution and the Colorado constitution. We do not direct our attention to each particular constitutional provision which the district court felt was offended by the implied consent statute, as some of them have no relevance to the problem at hand. An academic discussion, therefore, would be of no value in resolving this controversy. We do, however, find guidance in the briefs of the parties as to the fundamental constitutional questions considered by the court in *503 arriving at its general finding of unconstitutionality.
I.
It is argued in support of the court's decision that there is an inalienable right to travel upon and use the highways of this state, which cannot, by reason of the Ninth Amendment to the United States Constitution and section 3 of article II of the Colorado constitution, be limited, circumscribed or denied. Cited as authority for this position is People v. Nothaus, 147 Colo. 210, 363 P.2d 180. On the contrary, this case clearly and explicitly recognizes that limitations may be placed upon an inalienable or inherent right based upon a proper exercise of the police power. This Court, in recognizing that the regulation and control of traffic upon the highways has a definite relationship to the public safety, expressly declared that the general assembly could establish standards of fitness and competence which a citizen must meet before he is entitled to exercise the right to drive upon the highways; and likewise, the general assembly may declare when by an abuse of that right or other just cause the right to drive may be curtailed and the license of a driver revoked. In other words, there is no constitutionally guaranteed illimitable right to drive upon highways. Mr. Justice Pringle, in Love v. Bell, Colo, 465 P.2d 118, disposes of this misconception in the following language:
"* * * While this Court has characterized an individual's right to use the public highways of this state as an adjunct of the constitutional right to acquire, possess, and protect property, yet this Court has clearly held that such a right might be limited by a proper exercise of the police power of the state based upon a reasonable relationship to the public health, safety, and welfare. People v. Nothaus, 147 Colo. 210, 363 P.2d 180."
II.
It was further contended in the district court and is argued here that the implied consent law does not meet the constitutional requirements of due process.
Without setting out the statute verbatim, we note its basic provisions were as follows: 1. A driver on a highway of this state shall be deemed to have given his consent to a chemical test of his blood, breath, or urine to determine the alcohol content of his blood, if charged with driving while under the influence of intoxicating liquor. 2. Preliminary to the chemical test, there must be an arrest of the driver based upon reasonable grounds to believe the driver was driving while under the influence of intoxicating liquor. 3. At the time of the request for the test, the driver must be advised by the officer, orally, and by written notice in both English and Spanish, of the driver's rights under the statute and the probable consequences of a refusal to submit to such a test. 4. The choice is given the driver as to whether there shall be a blood test; if he chooses not to have a blood test, then the officer shall determine whether a breath test or urine test shall be administered. 5. If the driver refuses to submit to the test requested, then the test shall not be given; and the arresting officer shall then file with the motor vehicle department a written report of the refusal, signed by the officer under oath, stating reasonable grounds for his belief that the driver was driving while under the influence of intoxicating liquor. 6. The department shall then issue a notice to the driver to show cause why his privilege to operate a motor vehicle should not be revoked at a hearing to be held. 7. If at the hearing reasonable grounds are not established by a preponderance of the evidence, the hearing shall terminate and no further administrative action shall be taken towards suspension of the license. 8. On the other hand, if reasonable grounds are established, the burden shifts to the driver to show on competent medical advice that his physical condition was such that a test would have been inadvisable, or that the administration of the test would not have been in conformity with the rules and regulations of the state board of *504 health, or in conformity with the statute; and in default thereof, the department shall suspend the driver's license for six months. 9. The driver upon petition may have judicial review of the department's decision in the district court under C.R.S. 1963, 13-4-27.
The district court held, first, that due process is denied by the statute for the reason that it compels a citizen to choose either his right to refuse to surrender evidence (blood) that would help convict him, or the right to retain his license to drive. The argument urges that if he submits to the blood test, the state will use the evidence to convict him and then suspend his license; whereas, if he refuses the blood test, the state will invoke the administrative procedures to revoke his license. This argument is premised upon the false assumption that the driver has an unfettered, inalienable right to drive upon the highways, which we have heretofore discussed. Additionally, Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908, holds that there is no constitutional right to refuse to surrender blood for a chemical analysis to determine its alcohol content. In People v. Sanchez, Colo., 476 P.2d 980, we held the right to refuse a blood test under our implied consent law was a statutory right only and as such was subject to the sanction of possible suspension of one's driver's license. We find no merit in this argument.
Second, the district court held the implied consent statute violates due process because it creates a crimethat of refusing to consent to a blood test, punishable by forfeiture of the right to driveand yet it denies the fundamental rights to which everyone is entitled when charged with a criminal offense: such as the right to trial by jury in a court rather than an administrative tribunal; the right to be tried in the county or district where the offense was committed; the right to a presumption of innocence unless proven guilty beyond a reasonable doubt; the right of confrontation of witnesses; and other basic rights. All of these contentions have been considered and uniformly rejected in numerous cases where the proposition has been urged in connection with implied consent laws. See State v. Starnes, 21 Ohio St. 2d 38, 254 N.E.2d 675, and cases cited therein; Annots., 88 A.L.R. 2d 1066 and 96 A.L.R. 2d 612.
III.
Another proposition urged upon the district court to reinforce its determination of unconstitutionality was that the implied consent law enforces warrantless and unreasonable searches and seizures. We consider this matter to have been put to rest by Schmerber v. California, supra, People v. Sanchez, supra, and Compton v. People, 166 Colo. 419, 444 P.2d 263. Although it has been determined that the taking of blood is an intrusion of the person and a search within the meaning of the constitutions, such is not an unreasonable search and seizure violative of the Fourth Amendment to the United States Constitution or section 7 of article II of the Colorado constitution.
IV.
Another argument advanced to support the decision below is that the statute unconstitutionally sanctions an invasion of one's right of privacy, a position supported by the dissenting opinions in Schmerber v. California, supra, and Breithaupt v. Abram, 352 U.S. 432, 77 S. Ct. 408, 1 L. Ed. 2d 448. We follow the law as announced by the majority in Breithaupt, supra, where Mr. Justice Clark, speaking for the Supreme Court of the United States, stated:
"As against the right of an individual that his person be held inviolable, even against so slight an intrusion as is involved in applying a blood test of the kind to which millions of Americans submit as a matter of course nearly every day, must be set the interests of society in the scientific determination of intoxication, one of the great causes of the mortal hazards of the road. And the more so since the test likewise may establish *505 innocence, thus affording protection against the treachery of judgment based on one or more of the senses. Furthermore, since our criminal law is to no small extent justified by the assumption of deterrence, the individual's right to immunity from such invasion of the body as is involved in a properly safeguarded blood test is far outweighed by the value of its deterrent effect due to public realization that the issue of driving while under the influence of alcohol can often by this method be taken out of the confusion of conflicting contentions."
V.
Unconstitutionality is urged on the basis that the implied consent law permits violations of the privilege against self-incrimination. This Court has held in numerous decisions that the federal and state constitutional privilege against self-incrimination is concerned with and limited to testimonial compulsion, as distinguished from compulsion to exhibit physical characteristics. Sandoval v. People, Colo., 473 P.2d 722; Vigil v. People, 134 Colo. 126, 300 P.2d 545. In Schmerber v. California, supra, the court specifically ruled:
"* * * We hold that the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends."
See also State v. Kenderski, 99 N.J.Super. 224, 239 A.2d 249; Heer v. Department of Motor Vehicles, 252 Or. 455, 450 P.2d 533.
VI.
Although it is contended that the implied consent law is an impermissible burden on interstate commerce, and therefore unconstitutional, no authority is cited in support of this proposition. We regard Love v. Bell, Colo., 465 P.2d 118, as decisive of this contention. There it was noted that the state power to regulate the use of its highways is broad and pervasive. The United States Supreme Court, in Bibb v. Navajo Freight Lines, 359 U.S. 520, 79 S. Ct. 962, 3 L. Ed. 2d 1003, clearly indicated a traffic safety statute would not be invalidated unless the "* * * total effect of the law as a safety measure is so slight or problematic as to not outweigh the national interest in keeping interstate commerce free from interferences which seriously impede it * * *." We regard the implied consent statute, which was enacted for the purpose of reducing accidents, deaths and injuries on our public highways, as a significant traffic regulation and no more burdensome as to interstate commerce than any other traffic regulation enacted for a similar public purpose, to which interstate commerce is and has been subjected in the several states.
VII.
Lastly, it is urged that the statute is unconstitutional for the reason that the general assembly altered or amended the bill enacting the statute on its passage through the House and Senate so as to change its original purpose, contrary to the limitations of section 17 of article V of the Colorado constitution. Section 17 of article V provides, "No law shall be passed except by bill, and no bill shall be so altered or amended on its passage through either house as to change its original purpose."
The record shows that Senate Bill No. 32, as originally introduced, was entitled: "Concerning the operation of vehicles, and relating to driving while under the influence of intoxicating liquors or drugs, or while any person's ability to operate a vehicle is impaired by alcohol." In addition to amending and re-enacting existing provisions of C.R.S. 1963, 13-5-30, the bill created an additional misdemeanor, that of driving "* * * any vehicle in this state while such person's ability to operate a vehicle is impaired by the consumption of alcohol." As finally adopted, Senate Bill *506 No. 32 did not contain the foregoing provision but rather contained sections (3)(a) through (3)(i) concerning implied consent, and was entitled: "Concerning the operation of vehicles and relating to driving while under the influence of intoxicating liquors or drugs."
Our inquiry therefore is simply whether the deletion of the provision for the offense of driving while ability is impaired by alcohol, and the amendments made and adopted relating to implied consent during the course of legislative proceedings, amounted to an impermissible change in the purpose of the original bill as to violate section 17 of article V of the Colorado constitution. We hold that there was no such prohibited change in the purpose of the bill that would render its enactment a nullity. In re Amendments, 19 Colo. 356, 35 P. 917, concerned the interpretation of section 17 of article V and indicated that the controlling reason for the limitation imposed was to prevent bills from being introduced dealing with a certain subject and afterwards being so amended as to relate to an entirely different subject. See also Airy v. People, 21 Colo. 144, 40 P. 362; People v. United Mine Workers, 70 Colo. 269, 201 P. 54; 158 A.L.R. 421. The purpose of the bill as originally introduced, as supported by the record of the legislative proceedings, was to regulate the operation of motor vehicles and to deal with drivers who operate vehicles after having consumed alcohol or drugs. We can perceive no material difference in the purpose of the bill as finally adopted, merely because the legislature in its wisdom chose to change the means by which the purpose of the act was to be accomplished. The bill as finally adopted merely substituted one means for another in an effort to accomplish the same purpose. This in our view does not equate with an entirely different subject.
The judgment is reversed and the cause remanded to the district court with directions to order the county court to reinstate its judgment of conviction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1114290/ | 651 So.2d 1060 (1995)
MERCHANTS AND FARMERS BANK OF KOSCIUSKO, MISSISSIPPI
v.
STATE of Mississippi ex rel. Mike MOORE, Attorney General, and Pete Johnson, Auditor of Public Accounts, for the Use and Benefit of Rankin County, Mississippi.
No. 92-CA-00019-SCT.
Supreme Court of Mississippi.
March 9, 1995.
George Dorrill, Thornton Guyton Dorrill & Pettit, Kosciusko, for appellant.
Michael C. Moore, Atty. Gen., Larry E. Clark, Asst. Atty. Gen., Jackson, for appellee.
Before DAN M. LEE, P.J., and SULLIVAN and BANKS, JJ.
BANKS, Justice, for the Court:
This is a dispute between the State of Mississippi and Merchants & Farmer's Bank regarding the rental proceeds in the hands of the bank. The dispositive issue is whether the bank was required to give notice to the borrower before it could take possession of the rental property under the terms of the security agreements. We hold that no notice was required and that the proceeds are therefore not subject to the garnishment. Accordingly, we reverse and render.
*1061 I.
As collateral for a $2.1 million loan, Irl Dean Rhodes pledged Colonial Shopping Center in Jackson, Mississippi, and its rents, pursuant to the combination of a deed of trust and security agreement and an assignment of leases. The agreement provided for the collection of interest, the principal amount, escrow account, attorney fees, and all other reasonable expenses including, but not limited to, payment of insurance on the secured property. The security agreement also set forth the bank's and Rhodes' obligations and rights in the event of a default. The loan was subsequently renewed on several occasions, with the last time being in May of 1991.
Some time after the May renewal of the loan, the bank learned that Rhodes was insolvent when he failed to pay the insurance on the shopping center, as required under the contract, and that his net worth was substantially less than when the loan was renewed. In October 1991, the Bank discovered that the State had a $100,000 judgment against Rhodes when it (the bank), as the holder of Rhodes' escrow funds and rental accounts, was served with writs of garnishment. The Bank also discovered that Georgia Federal Bank and Omni Bank of Mantee also had judgments against Rhodes in the amounts of $1,581,000 and $1,199,175.87 respectively.
In light of these judgments against Rhodes, his insolvency and the writs of garnishment the Bank deemed itself insecure and on November 5, 1991, notified Rhodes telephonically and by letter that it was accelerating the debt and taking possession of the shopping center. The Bank then took possession of the shopping center, commenced foreclosure proceedings and notified the shopping center tenants of all the changes. The Bank also notified Wideman-LaFoe, the management company which collected the rents from the shopping center tenants, that it would be taking possession of the shopping center and that all rents collected thereafter should be turned over to the Bank instead of Rhodes.
On November 7, 1991, the shopping center tenants were issued writs of garnishment by the State. The bank subsequently filed a motion to quash the writs of garnishments against it and the tenants of the shopping center in the Rankin County Chancery Court. The bank claimed that it had a lien against the rental income from the shopping center tenants by virtue of the terms of the Deed and Trust and the Assignment of Leases. In response, the State claimed that the bank did not have a lien or liens against the rents superior to lien of the State pursuant to its judgment against Rhodes.
At trial, the Rankin County Chancery Court, overruling the motion to quash, found the bank guilty of laches and that the Deed of Trust required 30 days notice prior to taking possession. The court held that the State was entitled to the rents of the shopping center from the time the writs were served until the time of the Bank could legally take possession, which, as the court construed the deed of trust and assignment, was 30 days. The bank perfected an appeal to this court.
II.
A.
The State's sole argument is that the trial court was correct in concluding that the bank could not take possession without first giving Rhodes 30 day notice. The Bank argues that the chancery court's holding is based upon an erroneous interpretation of the deed of trust and assignment. We agree with the bank.
A court is obligated to enforce a contract executed by legally competent parties where the terms of the contract are clear and unambiguous. Humble Oil & Refining Co. v. Standard Oil Co. (Ky.), 229 F. Supp. 586, (D.C.Miss. 1964) reversed 363 F.2d 945 (5th Cir.Miss. 1966), certiorari denied 385 U.S. 1007, 87 S.Ct. 714, 17 L.Ed.2d 545 (1967). The pertinent terms of the contract in this case are as follows:
[Introductory Paragraph]
If debtor shall pay said indebtedness promptly when due and shall perform all covenants made by the Debtor, then this conveyance shall be void and of no affect. If Debtor shall be in default as provided in Paragraph 9, then in that event, the entire *1062 indebtedness, together with all interest accrued thereon, shall, at the option of the Secured Party, be and become at once due and payable without notice to Debtor, and Trustee shall, at the request of Secured Party, sell the Property conveyed, or a sufficiency thereof, to satisfy the indebtedness at public outcry to the highest bidder of cash. (Emphasis Supplied).
[Paragraph 7]
7. As additional security Debtor hereby assigns to Secured Party all rents accruing on the Property. Debtor shall have the right to collect and retain the rents as long as Debtor is not in default as provided in Paragraph 9. In the event of default, Secured Party in person, by an agent or by a judicially appointed receiver shall be entitled to enter upon, take possession of and manage the Property and collect the rents. (Emphasis Supplied).
[Paragraph 8]
8. This Deed of Trust (indenture) may not be assumed by any buyer from the Debtor. Any attempted transfer of any interest in this property (including but not limited to possession) will constitute a default and Secured party may accelerate the entire balance of the indebtedness.
If Secured party elects to exercise the option to accelerate, Secured party shall send Debtor notice of acceleration by certified mail. Such notice shall provide a period of thirty days from the date of mailing within which Debtor may pay the indebtedness in full. If Debtor fails to pay such indebtedness prior to the expiration of thirty days, Secured Party may, without further notice to Debtor, invoke any remedies set forth in this Deed of Trust.
[Paragraph 9]
9. Debtor shall be in default under the provisions of this Deed of Trust if Debtor (a) shall fail to comply with any of Debtor's covenants or obligations contained herein, (b) shall fail to pay any of the indebtedness secured by, or any installment thereof or interest thereon, as such indebtedness, installment or interest shall be due by contractual agreement or by acceleration, (c) shall become bankrupt or insolvent or be placed in receivership, (d) shall, if a corporation, a partnership or an unincorporated association be dissolved voluntarily or involuntarily, or (e) if Secured Party, in good faith deems itself insecure and its prospect of repayment seriously impaired.
The terms Deed of Trust clearly do not explicitly require notice except in the instance of an attempted transfer by the debtor of the secured property. Furthermore, the assignment of leases, at clause (b) under the section entitled "Terms and Conditions" states in pertinent part:
(b) Upon or at any time after such default, Assignee may at its option without notice and without regard to the adequacy of the security, either in person or by agent, with or without bringing any action or proceeding, or by receiver appointed by a court, take possession of the premises described in the Leases and hold, manage, lease and operate the same on such terms and or such period of time as the Assignee may deem proper... . (Emphasis Supplied)
Thus, in addition to the deed of trust not explicitly requiring notice of acceleration in the event of a default, the assignment of leases does explicitly state that notice is not required before the bank can take possession where there has been a default.
Here, Rhodes defaulted on the loan when he became insolvent and when he failed to pay the insurance on the shopping center. Because of this default, the bank was entitled to accelerate the loan and take possession without notice as set forth by the terms of the deed of trust and security agreement and the assignment of leases.
The State's argument that the clause in the deed of trust regarding notice, which appears as a part of paragraph 8, applies to all of the provisions of the document and is not a part of paragraph 8, but merely an unnumbered paragraph which happened to be placed in between paragraph 8 and 9 is without merit. Any rational reading of the instrument reveals that this clause is clearly part of paragraph 8 and merely expands upon the Bank's duties and rights in the event of a attempted transfer by the debtor. The introductory paragraph of the Deed of *1063 Trust unambiguously provides that in the event of default, the indebtedness to the Bank becomes payable at once without notice. Thus, the notice clause in paragraph 8 serves only to distinguish acceleration based on default from acceleration based on transfer. Paragraph 7, which speaks to the banks entitlement to take possession of the property in the event of default, does not contain a requirement of notice.
B.
As the bank correctly asserts, the chancery court's application of the doctrine of laches in this case is erroneous because there is no evidence in the record which indicates that a delay, if we assume that there was one, resulted in any injustice or disadvantage to the State.
Before laches can be invoked to bar litigation, the following three independent criteria must be satisfied: (1) delay in asserting a right or claim; (2) that the delay was not excusable; and (3) that there was undue prejudice to the party against whom the claim is asserted. Allen v. Mayer, 587 So.2d 255 (Miss. 1991). See Also Vanlandingham v. Meridian Creek Drainage Distr., 191 Miss. 345, 2 So.2d 591 (1941).
In the instant case, the chancery court reasoned that laches was applicable because the Bank, being fully aware of Rhodes' financial situation by virtue of the vast amount of publicity surrounding Rhodes' insolvency and his financial statements, waited until the State made diligent application of its rights before asserting its (the Bank) claim to the rents. Thus, the chancellor concluded, the Bank should have acted sooner than it did.
This Court has held that time is only one element of laches and that there must be some other element of change in the conditions and relations of the parties, or intervention of the rights of third persons to the extent that it would be inequitable to permit the party to assert his rights. Smith v. Smith, 211 Miss. 481, 52 So.2d 1 (1951). In other words, "[d]elay is not laches unless it results in hardship to another." Clement v. R.L. Burns Corp., 373 So.2d 790, 797 (Miss. 1979). The State has not shown any harm resulting from the Bank's alleged delay. The fact that the bank acted two days, rather than two months or two years before the State's writs of garnishment is of no moment. Thus, we find that the chancery court erred in its application of the doctrine of laches.
III.
For the foregoing reasons the judgment of the chancery court is reversed and rendered.
REVERSED AND RENDERED.
HAWKINS, C.J., DAN M. LEE and PRATHER, P.JJ., and SULLIVAN, PITTMAN, McRAE, JAMES L. ROBERTS, Jr. and SMITH, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1456177/ | 867 F.Supp. 1287 (1994)
Ricky Dan HASHOP, Cathy Hines-Torregano, Ubaldo Garcia, and James Spencer, Jr.
v.
ROCKWELL SPACE OPERATIONS COMPANY.
Civ. A. No. G-94-111.
United States District Court, S.D. Texas, Galveston Division.
November 9, 1994.
*1288 *1289 *1290 *1291 F. Eric Fryar, Susman Godfrey, Houston, TX, for plaintiffs.
Ernest E. Figari, Jr., Gary David Eisenstat, Figari & Davenport, Dallas, TX, for defendant.
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
KENT, District Judge.
This is an action brought by Plaintiffs Ricky Dan Hashop ("Hashop"), Cathy Hines-Torregano ("Hines-Torregano"), Ubaldo Garcia ("Garcia"), and James Spencer, Jr. ("Spencer") pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. In addition, Plaintiff Hashop has also brought an FLSA retaliatory discharge claim against Defendant Rockwell Space Operations Company ("RSOC") pursuant to 29 U.S.C. § 215. Before the Court now are cross-motions for summary judgment brought by Plaintiffs and Defendant. Plaintiffs urge the Court to grant partial summary judgment against Defendant RSOC on the grounds that it does not have an affirmative defense of exemption under 29 U.S.C. § 213. By contrast, Defendant argues that the Court should grant summary judgment against all of Plaintiffs' claims on the grounds that (1) Plaintiffs are exempt from the overtime compensation provisions of the FLSA because they are exempt "professionals" under 29 U.S.C. § 213, (2) Plaintiffs' FLSA claims are barred by the appropriate statute of limitations, and (3) Plaintiff Hashop's retaliatory discharge claim is invalid. For the reasons stated below, Plaintiffs' Motion for Partial Summary Judgment is GRANTED and Defendant's Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART.
1. Factual Background
On January 13, 1993, Plaintiffs filed this purported class action, seeking recovery for uncompensated overtime and retaliation (Hashop only) under the FLSA. This Court denied class certification by an Order on April 6, 1994 and restricted Plaintiffs to their individual claims. Plaintiffs are Network Communication Systems ("NSS") Instructors, who train Space Shuttle ground control personnel during simulated missions. Plaintiffs simulate, and provide instruction on, all communications, data, tracking, and telemetry information that ordinarily flows between the Space Shuttle and the Johnson Space Center Mission Control Center ("Mission Control").[1]
Mission Control in Houston, Texas tracks, maintains contact with, and controls the Space Shuttle through a network of satellites, ground stations, the Goddard Space Flight Center in Maryland ("Goddard"), and the White Sands NASA Ground Terminal in New Mexico ("White Sands"). This network makes it possible for Mission Control to send or receive tracking data, telemetry, commands, and voice communications with the Space Shuttle. During simulations, Mission Control remains unchanged; the actual equipment and control personnel are the same for both simulated and real missions. The astronauts and flight crew are aboard the Shuttle Mission Simulator ("Simulator") instead of the actual Space Shuttle. The NSS Instructors provide the link between Mission Control and the shuttle mission Simulator during simulations. As NSS Instructors, Plaintiffs simulate all tracking data, commands, and voice communications between the Simulator and Mission Control. The NSS Instructors also simulate the activities *1292 that would ordinarily occur at Goddard, White Sands, and remote ground stations.
Plaintiffs' overall job goal as NSS Instructors is to train Mission Control personnel by simulating the foregoing systems in integrated simulations of Space Shuttle missions. This goal comprises four discrete activities: scripting, console work, post-console work, and support activities. The first of these, scripting, involves the development of the outline for simulated missions. Representatives from each group within RSOC's training division meet to develop mission scripts. RSOC's customer, the Simulation Supervisor ("Simsup"), moderates these meetings. Depending on their work schedules, each Plaintiff takes his or her turn serving as the NSS representative at script meetings unaccompanied by a supervisor.
Once the script is complete, Plaintiffs run the "console," from which they perform NSS functions during simulated missions. The console consists of nine computer screens, three keyboards, light pens, and voice communication interfaces. The console allows Plaintiffs to monitor and alter NSS functions to achieve mission objectives. Plaintiffs also make and receive voice calls with the Simsup, Simulator instructors, Mission Control, and the simulation control area adjacent to Mission Control. In addition, NSS Instructors are responsible for helping to "troubleshoot" problems that arise with the NSS equipment during simulations.
After the simulated mission is over, Plaintiffs take part in debriefing Mission Control. During debriefing, Plaintiffs tell Mission Control personnel whether or not they handled simulated NSS anomalies correctly. In addition, they try to determine if their simulated anomalies faithfully reproduce real ones; if a simulated anomaly is not as realistic as it can be, Plaintiffs attempt to change future simulations.
Finally, Plaintiffs also engage in various activities that support their goal of training Mission Control personnel for upcoming missions. These tasks involve writing workbooks and technical guides and travelling to sites to learn more about the network they simulate.
Plaintiff Hashop worked at RSOC from June, 1990 to November, 1993, when he was terminated. Hashop claims that he began voicing his concerns about uncompensated overtime over two years before he was discharged, primarily in the first half of 1991, when he called the RSOC ombudsman. He also confronted his supervisor, Roger Lawley, at a staff meeting in the same time period.
During the latter part of 1991, Hashop received a Performance Appraisal that stated he did not meet all of his job requirements, though the same report also praised him for other aspects of his job performance. He was consequently placed on a formal Performance Improvement Plan ("PIP"), which he successfully completed ahead of schedule by early 1992. This result was confirmed by an internal memo from Lawley that also warned Hashop to sustain his new level of performance.
Throughout 1992, Hashop managed to do just that, but beginning in 1993, his problems with follow-through on the job began to resurface. Jerry Angeley, the supervisor of RSOC's training support group, warned Hashop verbally and in writing about his problems on May 5, June 23, and July 29, 1993. On September 2, 1993, Hashop received a negative performance rating and was placed on a second PIP, which he successfully completed on October 6, 1993. Hashop complained that his performance was not being fairly evaluated, and he accused Angeley of lying about his performance. As a result, Hashop decided to secretly taperecord a conversation with Angeley in October, 1993.
In that same month, Hashop complained about his PIP and Angelely's alleged lying to RSOC's Human Resources Department member Melissa Vaughn. Notably, Hashop did not complain to Vaughn about overtime compensation. Vaughn investigated Hashop's complaint and listened to his secretly recorded audiotape of Angeley. When she learned that Hashop's recording violated both NASA and RSOC rules, Vaughn informed Lawley, who concluded that the accusations against Angeley were unfounded. Believing Hashop's conduct to be disruptive *1293 to the employer-employee relationship, Lawley and Vaughn determined that Hashop should be terminated. On November 4, 1993, RSOC discharged Hashop.
2. Standard for Summary Judgment
Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. A fact is material if its resolution in favor of one party might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A genuine issue of material fact exists if there is a genuine issue for trial that must be decided by the trier of fact. In other words, summary judgment should not be granted if the evidence indicates that a reasonable fact-finder could find in favor of the nonmoving party. Id. See also Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
In ruling on a Motion for Summary Judgment, the Court must accept the evidence of the nonmoving party and draw all justifiable inferences in his favor. Credibility determinations, weighing of the evidence, and the drawing of reasonable inferences are left to the trier of fact. Anderson v. Liberty Lobby, supra, 477 U.S. at 255, 106 S.Ct. at 2513.
Under Fed.R.Civ.P. 56(c), the moving party bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once this burden is met, the burden shifts to the nonmoving party to establish the existence of a genuine issue for trial. Matsushita, supra, 475 U.S. at 585-87, 106 S.Ct. at 1355-56; Leonard v. Dixie Well Serv. & Supply, Inc., 828 F.2d 291, 294 (5th Cir. 1987).
Where the moving party has met its Rule 56(c) burden, the nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.' Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita, supra, 475 U.S. at 586-87, 106 S.Ct. at 1356 (quoting Fed.R.Civ.P. 56(e)) (emphasis in original).
3. Analysis
1. The Statute of Limitations Claim
As an initial matter, RSOC argues that Plaintiffs' FLSA claims are barred by the applicable statute of limitations.[2] All FLSA actions are governed by a two-year statute of limitations unless the Defendant is found to have willfully violated the FLSA, in which case the appropriate time limitation is three years. 29 U.S.C. § 255(a). It is undisputed in this case that all four of the Plaintiffs were initially hired well in excess of either of these statutory time limits. Nevertheless, the Court finds that in this case Plaintiffs' claims are not time-barred.
The issue in an FLSA case such as the one now before the Court is whether the claim made by the Plaintiffs is a continuing violation of the Act or whether the alleged decision not to pay overtime compensation is a single violation of the statutory requirements. The Fifth Circuit has stated that the continuing violation theory encompasses two kinds of cases. The first includes cases in which the original violation occurs outside *1294 the statutory period but which is closely related to subsequent violations that are not time-barred. In this kind of case, a Plaintiff may recover for all violations on the theory that they constitute one continuing type of violation. Hendrix v. Yazoo City, 911 F.2d 1102, 1103-04 (5th Cir.1990). The second type of case involves an initial violation that also occurs outside the statutory period but which is repeated later. In this type of case, each subsequent violation begins a new statute of limitations period, and recovery may be had for those violations that occur within a period of limitations. Id.
By contrast, a single violation occurs where a facially neutral method of administering an initial act of discrimination merely gives effect to that original violation. For example, the discriminatory adoption of a facially neutral seniority system is a single violation that triggers the statute of limitations rather than a continuing violation renewed with each paycheck. Lorance v. AT & T Technologies, Inc., 490 U.S. 900, 109 S.Ct. 2261, 104 L.Ed.2d 961 (1989). Likewise, when a city unilaterally reduces the base salary of its firefighters in direct violation of a Congressional order not to do so, it constitutes a single violation of the FLSA. Hendrix, supra, 911 F.2d at 1103.
In this case, the Court finds that if the FLSA has been violated at all, it is a continuing violation renewed with each paycheck rather than a single violation subsequently barred by the statute of limitations. The Fifth Circuit has found in a similar FLSA case that "[a] cause of action accrues at each regular payday immediately following the work period during which the services were rendered for which the wage or overtime compensation is claimed." Halferty v. Pulse Drug Co., 821 F.2d 261, 270, mod. on other grounds, 826 F.2d 2 (5th Cir.1987). In Halferty, an ambulance dispatcher was classified as an independent contractor rather than an employee as required by the FLSA, thereby allowing the employer to claim that the employee was exempt from the FLSA overtime provisions. Id. at 262-63. Likewise, the Circuit has also found that a violation of the Equal Pay Act, which is enforced through the FLSA, creates a separate cause of action at each regular payday. Hodgson v. Behrens Drug Company, 475 F.2d 1041, 1050 (5th Cir.1973), cert. denied, 414 U.S. 822, 94 S.Ct. 121, 38 L.Ed.2d 55 (1973). More recently, the Eleventh Circuit also found that where an employee claims to have been improperly classified as exempt from the FLSA's overtime provisions, "[e]ach failure to pay overtime constitutes a new violation of the FLSA." Knight v. Columbus, Georgia, 19 F.3d 579, 581 (11th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 318, 130 L.Ed.2d 280 (1994). In Knight, the Eleventh Circuit stated that it is not the employer's rationale for refusing to pay overtime compensation that creates the employee's cause of action, but the actual failure to receive overtime payments with each paycheck when they have accrued. Id. Because this case is squarely within the parameters set forth in Halferty, the Court finds that the claims brought by the Plaintiffs in this case constitute a continuing alleged violation of the FLSA renewed with each paycheck. Consequently, Defendant's Motion for Summary Judgment on the grounds that Plaintiffs' claims are time-barred is DENIED.
2. Plaintiffs' Exempt Status as "Professionals"
As a second ground for summary judgment, Defendant argues that Plaintiffs' claims for uncompensated overtime should be dismissed because Plaintiffs are exempt professionals under the FLSA. The FLSA exempts "any employee employed in a bona fide executive, administrative, or professional capacity ..." 29 U.S.C. § 213(a)(1). The employer bears the burden of proving an employee's exempt status. Paul v. Petroleum Equipment Tools Co., 708 F.2d 168, 169 (5th Cir.1983). As with all exemptions to the FLSA, the employer's claim of exemption must be construed narrowly and in favor of the employee. See Brennan v. Greene's Propane Gas Service, Inc., 479 F.2d 1027, 1032 (5th Cir.1973).
Determination of professional status is guided by regulations issued by the Secretary of Labor and the Administrator of the Wage and Hour Division. When an employee earns more than a minimum weekly salary *1295 of $250, these regulations allow an employer to use a "short test" to meet its burden of proving an employee's professional status. Under this test, the employer must show that the employee's "primary duty consists of the performance of work requiring knowledge of an advanced type in a field of science or learning, or work as a teacher in the activity of imparting knowledge ... which includes work requiring the consistent exercise of discretion and judgment." 29 C.F.R. §§ 541.3(e) & 541.315.[3]
Defendant RSOC first argues that Plaintiffs are exempt professionals under this "short test" because of their status as instructors whose primary duty is the scripting, console, post-console, and support work by which Plaintiffs train Mission Control personnel for the NASA Space Shuttle program. Defendant claims that this is an "activity of imparting knowledge" under 29 C.F.R. § 541.3(a)(3). (See Defendant's Motion for Summary Judgment, at 7).
The Court finds Defendant's argument on this point to be utterly without merit. 29 C.F.R. 541.301(g)(1) clearly states that a requisite for the teacher exemption is that the employee be engaged "in this activity as a teacher in the school system, or educational establishment or institution by which he is employed." It is patently clear that RSOC is not a "school system" or an "educational establishment"; instead, it is a large, for-profit corporation engaged in the aerospace industry. Although Defendant relies on Wilks v. District of Columbia, 721 F.Supp. 1383 (D.D.C.1989) as support for its position, that case is wholly inapposite to the facts at hand. In Wilks, teachers in a correctional institution were held to fall within the professional exemption because they were certified by the District of Columbia Public Schools and were full-time, professional educators. In this case, however, there is no contention that any of the Plaintiffs are certified teachers. Thus, although Wilks suggests that courts may be willing to extend the teacher exemption beyond traditional schools under some circumstances, nothing in this case suggests that any of the Plaintiffs have ever been trained as teachers or can even arguably be said to fall within the guidelines of 29 C.F.R. 541.301(g)(1). See Wilks, supra, 721 F.Supp. at 1385 (stating that "[t]he ordinary meaning of the term `educational institution' is `school.'").[4]
Nevertheless, the remaining two requirements of the professional exemption the performance of work requiring knowledge of an advanced type and the consistent use of discretion in the performance of that work present this Court with the difficult task of determining whether the duties and qualifications of the highly skilled aerospace personnel in this case make them technicians or "professionals" for FLSA purposes. Defendant claims that the Plaintiffs in this case are professionals because of their educational background and duties; Plaintiffs counter this assertion with the claim that they "are truly the assembly line workers of the Information Age." (Plaintiff's Motion for Partial Summary Judgment, Instrument # 19, at 3).
There are three elements of the "learned" professional requirement:
[1] the knowledge [must] be of an advanced type. Thus, generally speaking, it must be knowledge which cannot be attained at the high school level.
[2] it must be knowledge in a field of science or learning[, and]
*1296 [3] [t]he requisite knowledge ... must be customarily acquired by a prolonged course of specialized intellectual instruction and study.
29 C.F.R. § 541.301(b), (c), (d). The Court is guided in its interpretation of this regulation by an attachment to a letter prepared by the Office of Personnel Management, the agency charged with the enforcement of the FLSA's overtime provisions against government agencies. The letter is meant to assist government agencies in classifying their employees for FLSA purposes. The FPM letter defines professional employees, at a minimum, as those who perform work that:
(a)(1) ... requires knowledge in a field of science or learning customarily and characteristically acquired through education or training that meets the requirements for a bachelor's or higher degree ... or [involves] work comparable to that performed by professional employees on the basis of specialized education or training and experience which has provided both theoretical and practical knowledge of the specialty, including knowledge of related disciplines and new developments in the field.
Palardy v. Horner, 711 F.Supp. 667, 670 (D.Mass.1989) (quoting Federal Personnel Manual System Letter No. 551-7).
By their very terms, neither the C.F.R. regulation nor the FPM letter requires that employees have college degrees to qualify for professional status, despite Defendant's apparent assumption to the contrary; they may perform work comparable to that done by other professional employees. Nevertheless, professionals must acquire their advanced knowledge through a "prolonged course of specialized intellectual instruction and study." 29 C.F.R. § 541.301(d). In the vast majority of cases, such a course of study must be a prerequisite to entry into the field in question. Id. Thus, broadcast journalists are not "professionals" for FLSA purposes because the study of journalism is not required to become a competent journalist. Freeman v. Nat'l Broadcasting Co., 846 F.Supp. 1109, 1154-55 (S.D.N.Y.1993). Likewise, the academic requirement of a bachelor's degree in one of the social sciences to become a probation officer does not make such officers "professionals" because the study of the social sciences is a general, rather than a specialized, academic training. Dybach v. Florida Dept. of Corrections, 942 F.2d 1562, 1565 (11th Cir.1991).
In this case, the record suggests that no specialized course of instruction prior to employment by RSOC was required by the Defendant for employees to be eligible for admission to the NSS Instructor training program. This is not, however, equivalent to the Plaintiffs' claim that no specialized course of study was required to become an actual NSS Instructor. It is undisputed that the Plaintiffs in this case did, in fact, have college degrees in fields such as electronic engineering and mathematics.[5] In addition, many of them studied physics, analog and digital circuits, computer programming, and radio frequency communications. (Defendant's Motion for Summary Judgment, at 4). Although the Court is genuinely impressed by the prodigious accomplishments of these Plaintiffs, its legal determination of their status is not determined by the credentials they brought to their jobs but rather by the qualifications required by their employer.
All parties acknowledge that RSOC's employee requisition forms state that the prospective NSS Instructor must have a "BSEE, Electronics Eng. Technology, CS [computer science], Physics or Math degree or equivalent experience or knowledge of the NSS and/or MCC operations." (Plaintiffs' Motion for Partial Summary Judgment, at 15-16). Clearly, no specific course of study is required by this list; indeed, no degree in any subject is a prerequisite as long as the candidate has "equivalent experience" or "knowledge" of the operations. Deposition *1297 testimony of Roger Lawley, RSOC's manager of the training department that includes NSS Instructors, makes this clear. Lawley stated that some of his exempt employees might have degrees in the life sciences like biology or paleontology or might have no degree at all. (Lawley Depo., Plaintiffs' Motion for Partial Summary Judgment, at 5-6). Although Lawley stated that an NSS Instructor candidate should have a background in "electronic concepts," he explicitly stated that an intelligent person with a degree in mathematics who had no training in electronics or physics would still be eligible. Id.
Nevertheless, NSS Instructors are not certified as Instructors merely on the basis of the qualifications they bring to the initial candidacy itself; they must also undergo an extensive and highly specialized in-house training program that may last up to one year. This curriculum includes subjects such as "Orbiter Communications Systems," "Ground Network Systems," "Space Network Systems," and "Console Pages and Loops." Plaintiffs were required to take a test on each topic and to achieve a score of at least 70% to obtain NSS Instructor certification. The tests involved questions relating to both the practical and theoretical aspects of the subjects involved, and Plaintiffs were required to provide written answers, descriptions, and diagrams. (See Defendant's Motion for Summary Judgment, at 4-5).
The Court believes that this specialized training program brings Plaintiffs within the specialized learning portion of the "professional" exemption. Plaintiffs object that RSOC's instruction is merely an "apprenticeship" or "on-the-job training" program, a form of training prohibited by 29 C.F.R. § 541.301(d). That regulation is meant to exclude "quasi-professions as journalism in which the bulk of the employees have acquired their skill by experience rather than by any formal specialized training." But, the program in question patently does not consist of an "on-the-job" training method where employees learn by doing. Indeed, it is inconceivable to this Court that anyone could learn to operate a simulation system for something as complex as the Space Shuttle program by "hands-on" training or an "apprenticeship" program, both of which clearly refer to methods of instruction far more appropriate in journalism or the mechanical arts. Cf. Palardy, supra, 711 F.Supp. at 669-71 (finding that on the job training included teaching skills such as the repair, testing, and overhaul of naval ship equipment).
In deciding this issue, the Court is aware that the rapid development in technology may require that employees receive specialized training subsequent to their formal education to execute the complex jobs they are called on to perform. 29 C.F.R. § 541.301(e)(2) states that "[t]he areas in which professional exemptions may be available are expanding" as knowledge and technology develop. This is certainly true insofar as it relates to the learning required to perform the complex tasks undertaken by the Plaintiffs. To this Court's knowledge, there is no undergraduate degree program in Space Shuttle Operations which the Plaintiffs in this case could have taken to qualify them to be NSS Instructors. Thus, the extensive, highly specific course of study offered by RSOC, combined with the general technical background required for NSS Instructors, certainly brings the Plaintiffs out of a mere apprenticeship form of program into the knowledge of an advanced type required for the professional exemption.
This does not, however, make Plaintiffs "professionals" for FLSA purposes. They must also consistently exercise discretion in their work to qualify. 29 C.F.R. § 531.305(a) requires that a professional employee "must perform work which requires the consistent exercise of discretion and judgment in its performance" (emphasis added). Professional work is thus characterized by the application of special knowledge "with discretion and judgment" and is not "[p]urely mechanical or routine work." 29 C.F.R. § 541.305(b). Based on these criteria, and narrowly construing the exemption in favor of the employees, the Court does not believe that the Plaintiffs in this case have exercised the kind of discretion and judgment necessary *1298 to bring them within the professional employee exemption.[6]
In deciding this issue, the Court recognizes that the professional exemption found in 29 C.F.R. § 541.301 et seq. does not contain an explanation or an elaboration of what is meant by the consistent use of discretion beyond the passages quoted above. However, the Court believes that, at a minimum, such discretion must involve the authority to make basic decisions that affect the fundamental operation of the enterprise in question without seeking guidance from superiors as a matter of course. In Paul, supra, 708 F.2d at 171, for example, the Fifth Circuit found that an airline pilot was an exempt professional because he had the ability to decide when weather conditions might make take-off impossible and to decide whether a plane was airworthy. Such decisions go to the very operation of an aircraft and suggest that discretion must involve more than the mere application of skills and techniques acquired through an employee's training; it must also have some fundamental, independent ability to effect the operation the employee is involved in to distinguish a "professional" from a highly trained technician. Cf. Martin v. Penn Line Service, Inc., 416 F.Supp. 1387, 1390 (W.D.Pa.1976) (construing the broader, but similar, discretion requirement for the administrative exemption to demand more than a reliance on skills acquired by training).
It is undisputed that during the Simulation scripting process, one of the Plaintiffs is designated the NSS expert and attends a meeting unaccompanied by a supervisor. Defendant claims that during these meetings the Plaintiff-expert exercises discretion by providing technical guidance and advice to the Simsup. (See Defendant's Brief in Support of Motion for Summary Judgment, at 10). The Court fails to see how this goes beyond the duties of a highly trained technician. Jerry Angeley, the supervisor of RSOC's training support group, stated that all the inputs on the script are approved by the Simsup and that most of the proper responses to malfunctions are listed in a manual. (Angeley Depo., Plaintiffs' Motion for Partial Summary Judgment, at 43, 47). The parameters of each malfunction are dictated by the capabilities of the Simulators and by the script scenario, which the NSS Instructor does not create. (Plaintiffs' Motion for Partial Summary Judgment, at 7). Thus, the Plaintiffs certainly use their advanced training and experience to make decisions, but only within a well-defined framework that the Court finds inconsistent with "discretion and judgment." Cf. Martin, supra, 416 F.Supp. at 1390 (holding that helicopter pilots whose flight decisions were made within prescribed work assignments did not use discretion under the administrative exemption).
Defendant also argues that during the simulation itself, Plaintiffs are the expert on NSS operations and must use their discretion to make last-minute changes and to advise the Simsup on the technical feasibility of changes. Again, however, the Court finds no meaningful distinction between such activities and those that would be performed by a highly trained technician. Plaintiffs point out that the configuration procedures are mechanical tasks, and Plaintiff Hashop testified that most of the simulation activity is routine work. (Id. at 7-8). There is no evidence that NSS Instructors have the discretion to change how or when simulations *1299 are operated or to use their discretion in any way other than to make technical recommendations within the parameters set out by the script or the Simsup.
Finally, Defendant argues that Plaintiffs show discretion in the fact that during the debriefing, they tell Mission Control personnel whether or not the NSS anomalies were correctly handled.[7] In addition, Defendant claims that Plaintiffs also engage in discretionary activity by writing workbooks and by travelling to remote sites to gather information. The Court does not find this to be sufficient evidence of a consistent use of discretion to say that Plaintiffs are exempt professionals as a matter of law. When NSS Instructors provide feedback to Mission Control, they merely respond to Mission Control personnel based on responses received during the simulation. Plaintiff Hashop agreed to the suggestion that during the debriefing he would say: "`You did the right thing. You did the wrong thing; here's what we suggest you do next time if this occurs again,' things like that, in response to whatever the MCC person did." (Hashop Depo., Defendant's Motion for Summary Judgment, at 45). This is not so much an exercise of "discretion" as it is technical feedback based on the perceptions of a highly trained technician. Nothing suggests that the Plaintiffs are authorized to make any independent decisions effecting the operation of the debriefing or that they have any discretion to act outside the parameters of the carefully defined debriefing routine. Likewise, Hashop himself makes clear that any research done in relation to writing or revising manuals was heavily guided by the NSS Instructors' supervisor, who set up the guidelines within which the research was to be conducted. (Id. at 54).
The Court once again acknowledges the genuine accomplishments of these skilled Plaintiffs, who perform important and advanced work in a critical industry. However, it agrees with them that their actual duties as NSS Instructors do not rise to the level of professionals for FLSA purposes when the exemption is narrowly construed in their favor and against RSOC. Thus, Plaintiffs' Motion for Partial Summary Judgment is GRANTED, and Defendant's Motion for Summary Judgment in regard to the exempt status of Plaintiffs is DENIED.
3. Plaintiff Hashop's Retaliatory Discharge Claim
Plaintiff Hashop has also brought an individual claim against RSOC, claiming that he was discharged in violation of 29 U.S.C. § 215, which prohibits the discharge or discrimination against any employee for filing a complaint under the FLSA. In order to succeed on such a retaliatory discharge claim, Hashop must prove the same elements that would be required under a Title VII claim. Strickland v. MICA Information Systems, 800 F.Supp. 1320, 1323 (M.D.N.C. 1992) (citing Brock v. Richardson, 812 F.2d 121, 123 (3d Cir.1987)). A Title VII claim requires intentional discrimination, and under the familiar McDonnel Douglas/Burdine framework, the Court employs a three-part test designed to determine the motivation of the defendant in taking the challenged action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 255 n. 10, 101 S.Ct. 1089, 1095 n. 10, 67 L.Ed.2d 207 (1981). First, the plaintiff is required to establish a prima facie case wherein he must establish the elements of the discrimination claim. If the plaintiff meets these requirements, a presumption of discrimination arises. Bodenheimer v. PPG Industries, Inc., 5 F.3d 955 (5th Cir.1993).
Second, the defendant may then rebut this presumption by articulating a legitimate, nondiscriminatory reason for the alleged discriminatory action. Olitsky v. Spencer Gifts, Inc., 964 F.2d 1471 (5th Cir. 1992). An employer meets this burden by proffering admissible evidence of an explanation *1300 that would be legally sufficient to justify a judgment for the employer. Guthrie v. Tifco Indus., 941 F.2d 374, 376 (5th Cir. 1991). The defendant need not persuade the trier of fact that there was no intentional discrimination; he need only produce evidence on that point. St. Mary's Honor Center v. Hicks, ___ U.S. ___, ___, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407, 416 (1993).
Third, once the employer satisfies this burden, the presumption of discrimination established by the employee's prima facie case dissolves. Burdine, supra, 450 U.S. at 255 n. 10, 101 S.Ct. at 1095 n. 10. The employee's burden of persuasion then arises, and the plaintiff must produce evidence that the employer's proffered reasons are mere pretexts, the real reason for the action having been based on an impermissible animus. Id. at 256, 101 S.Ct. at 1095; Bodenheimer, supra, 5 F.3d at 959.
In this case, the Court finds that even where the record as a whole is looked at in the light most favorable to the nonmoving party, no reasonable fact finder could determine that the Plaintiff has made a prima facie case of retaliatory discrimination. A plaintiff must show three things to establish a prima facie case of retaliation: (1) he engaged in an activity protected by Title VII; (2) an adverse employment action followed; and (3) there was some causal connection between the activity and the adverse action. Collins v. Baptist Memorial Geriatric Center, 937 F.2d 190, 193 (5th Cir.1991). The plaintiff need not show that the protected activity was the sole factor motivating the adverse action, but he must show that "but for" the protected activity, he would not have been subjected to the action he claims is discriminatory. Id.; Jones v. Flagship Int'l, 793 F.2d 714, 724 (5th Cir.1986).
The parties in this case hotly contest the question of whether Hashop's internal and informal complaint bring him within an activity protected by the FLSA. Yet, assuming arguendo that such a showing has been made, and also assuming that an adverse employment action followed, Hashop's claim is still without merit as a matter of law. Plaintiff cannot show in this case that "but for" the protected activity he would not have been terminated. Jones, supra, 793 F.2d at 724. The only evidence Plaintiff has produced on this point is supervisor Lawley's agreement that Hashop's secret tape-recording of Angeley was not "automatically grounds for discharge." (Lawley Depo., Plaintiffs' Motion for Partial Summary Judgment, at 47). It is obvious, however, that the fact that Hashop's actions were not necessarily automatic grounds for termination is not the same as saying that they were not sufficient grounds and that "but for" Hashop's informal complaints about overtime work he would not have been terminated.
Plaintiff Hashop has failed to point out that his own summary judgment evidence clearly shows that RSOC had ample grounds for dismissal. A March 15, 1992 company regulation clearly states that certain actions by employees "will be sufficient cause for and may result in corrective action up to and including discharge." Included among the list of prohibited acts are two rules Lawley listed as grounds for dismissal in his November 17, 1993 Internal Team Letter on Hashop's termination. These are: Rule 7, which prohibits the possession of recording devices on company property without authorization; and Rule 10, which forbids disruptive or unprofessional behavior. (See Plaintiffs' Motion for Partial Summary Judgment, PX15). In addition, a June 21, 1989 Management Instruction letter from NASA's General Counsel (which applies to NASA contractor employees) clearly states that no recording devices may be used in conversations. Id.
These regulations provide clear evidence that RSOC had the authority under its internal regulations to discharge Hashop for secretly tape-recording his conversation with Angeley. Indeed, there is no evidence in this case that Hashop was anything more than an "at will" employee of RSOC under the Texas state presumption that all employees are "at will" unless otherwise shown. Sabine Pilot Service v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985). While Hashop's termination may have been within the discretion of RSOC management, that does not mean that it could not have served as an independent cause for his firing. Thus, there is absolutely no showing whatsoever in this case that *1301 "but for" Hashop's complaints he would not have been discharged.
Yet even if the Court assumes that Plaintiff has made out a prima facie case on these facts, Hashop's claim still fails as a matter of law. Plaintiff fails to point out that under St. Mary's, supra, ___ U.S. at ___, 113 S.Ct. at 2742, 125 L.Ed.2d at 407, RSOC can rebut a presumption of discrimination by showing a legitimate, nondiscriminatory reason for Hashop's termination. Importantly, RSOC need not convince the trier of fact that its proffered reason was the actual motivation for its action; it need only show reasons which, if taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action. Id.
For the reasons stated above, the Court finds that RSOC has clearly shown such a reason. Not only did Hashop violate internal regulations of the company, he also conducted himself in a manner that RSOC found to be a breach of trust. (Defendant's Brief in Support of its Motion for Summary Judgment, at 17). As an "at will" employee, both of Hashop's violations are justifiable grounds for termination, and the Court finds that RSOC has demonstrated a nondiscriminatory reason for its action. This is an especially compelling conclusion in this case because RSOC has failed to take any adverse action against the remaining Plaintiffs in this case for their roles in this FLSA complaint. The Court therefore finds that Defendant RSOC has shown that Plaintiff Hashop's retaliatory discharge claim is invalid as a matter of law, and Defendant's Motion for Summary Judgment on the retaliation claim is GRANTED.
4. Conclusion
For the reasons stated above, the Court finds that Plaintiffs have demonstrated that Defendant RSOC does not have an affirmative defense that the Plaintiffs are exempt employees, and Plaintiffs' Motion for Partial Summary Judgment is GRANTED. Consequently, Defendant's Motion for Summary Judgment is DENIED insofar as it relates to the claim that Plaintiffs are exempt professionals for FLSA purposes. Defendant's Motion is also DENIED insofar as it argues that Plaintiffs' claims are barred by the statute of limitations. Finally, Defendant's Motion for Summary Judgment against Plaintiff Hashop's retaliatory discharge claim is GRANTED, and Hashop's FLSA discharge claim is hereby DISMISSED WITH PREJUDICE.
Furthermore, all other relief not specifically granted herein is DENIED. Insofar as Defendant has made objections to, or motions to strike, affidavit and deposition testimony produced in this case, such motions are also DENIED. All parties are to bear their own costs. It is further ORDERED that the parties file no further pleadings on this issue in this Court, including motions to reconsider and the like. Instead, the parties are instructed to seek any further relief to which they feel themselves entitled in the United States Court of Appeals for the Fifth Circuit, as may be appropriate in due course.
IT IS SO ORDERED.
NOTES
[1] Hashop joined RSOC in June, 1990; Hines in September, 1990; Spencer in October, 1990; and Garcia in October, 1990. Each Plaintiff was classified as an exempt professional by RSOC when originally hired.
[2] The complex briefs and motions in this case contain a good deal of discussion as to whether the two-year or three-year statute of limitations should be applied. However, Defendant RSOC's Motion for Summary Judgment fails to request the Court to determine which of the two time periods should properly be applied in this case; it merely states that "Plaintiffs' claims for uncompensated overtime should be dismissed in their entirety because they are barred by the FLSA statute of limitations." (Defendants' Motion for Summary Judgment, Instrument # 16, at 18). This Court will not address questions not properly brought before it, and in deciding that Plaintiffs' claims are not time-barred, the Court does not decide which of the two limitation periods should apply in this case.
[3] 29 C.F.R. 541.3(e) requires that an employee qualifying for the professional exemption must be paid on a salary basis. Defendant has presented a detailed analysis of such a basis for Plaintiffs' salaries, and it is undisputed that the Plaintiffs are salaried employees. (See Defendant's Motion for Summary Judgment, at 2-3).
Defendant also points out that Plaintiff Hines' pay was reduced after an extended medical leave in March and April, 1994 pursuant to 29 C.F.R. § 541.118(a)(3), which allows deductions for absences for sickness or disability once an employee has exhausted his or her leave allowance under the employer's compensation plan. Plaintiffs have made no response to this argument in any summary judgment response, and the Court therefore finds that Defendant has borne its summary judgment burden on this point.
[4] Although C.F.R. § 541.301(g)(2) applies the teacher exemption to instructors in aircraft flight and automobile driving, it seems clear that such employment is assumed to take place in some organized "school-like" setting. This is manifestly different from the corporate, in-house training operation found in this case.
[5] Plaintiffs make much of the fact that three of them had B.S. degrees from DeVry Institute, a trade school that is not fully accredited. However, the Court does not find this a defining fact. Whatever its merits relative to traditional, fully-accredited colleges, a DeVry B.S. degree is clearly a degree beyond the high school level. Whether such a degree qualifies the Plaintiffs as engineers or not, it is clear that FLSA exemptions are based on the activities conducted in a job, not the job title itself. See Brock v. National Health Corp., 667 F.Supp. 557, 563 (M.D.Tenn.1987).
[6] The Court notes that Plaintiffs have cited with alarming frequency the C.F.R. guidelines for "discretion" as it applies to the administrative exemption, 29 C.F.R. § 541.201 et seq., as if it applied to the wholly separate and distinct C.F.R. category of professional exemption without further explanation. Similarly, Plaintiffs rely on Dalheim v. KDFW-TV, 706 F.Supp. 493 (N.D.Tex.1988), aff'd., 918 F.2d 1220 (1990), without pointing out to the Court that that case never once addresses the issue of discretion as it relates to the professional exemption. Although Defendant has vigorously complained about this misstatement of the proper C.F.R. sections, it has also erred in this regard. (See Defendant's Response to Plaintiffs' Motion for Partial Summary Judgment, at 10). For example, Defendant has urged the Court to be guided by Donovan v. Flowers Marine, Inc., 545 F.Supp. 991 (E.D.La. 1982) without pointing out that Donovan was not concerned with the professional exemption at all.
This Court, which has one of the heaviest civil dockets in the country, is dismayed that both parties in this case have felt free to flood the Court with an unwarranted amount of deposition and affidavit testimony, but have not taken the time to make consistently clear and accurate statements of the law.
[7] Defendant also points to the fact that Hashop considered himself the "ideas man" for NSS Instructors as evidence of "initiative and imagination." (Defendant's Motion for Summary Judgment, at 12). This argument fails on two counts. First, how Plaintiff subjectively perceived himself is irrelevant to his exercise of discretion. Secondly, nothing in § 541.301 et seq. suggests that "initiative and imagination" have anything to do with "discretion." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2236024/ | 929 N.E.2d 220 (2010)
WEIGAND CONSTRUCTION CO., INC., and Ohio Farmers Insurance Co., Appellants-Defendants/Cross-Appellees,
v.
STEPHENS FABRICATION, INC., and Ball State University Board of Trustees, Appellees-Plaintiffs/Cross-Appellants.
No. 18A02-0910-CV-953.
Court of Appeals of Indiana.
June 25, 2010.
*222 Michael L. James, Brian P. Clifford, Baker & Daniels LLP, Fort Wayne, IN, Attorneys for Appellants.
Robert S. Schein, Matthew R. Strzynski, Krieg DeVault LLP, Carmel, IN, Attorneys for Appellee Stephens Fabrication, Inc.
OPINION
BAKER, Chief Judge.
Appellants-defendants/cross-appellees Weigand Construction Co., Inc. (Weigand), and Ohio Farmers Insurance Co. (the Surety), appeal the trial court's orders denying their motion to dismiss the complaint against them that was filed by appellee-plaintiff/cross-appellant Stephens Fabrication, Inc. (Stephens), denying their summary judgment motion, and granting *223 Stephens's summary judgment motion. Weigand argues that this lawsuit did not survive Stephens's voluntary bankruptcy proceedings and that Stephens's claim for additional compensation was not timely made pursuant to the terms of the parties' contract. Finding that the lawsuit survived bankruptcy but that the claim was not timely made, we affirm in part, reverse in part, and remand with instructions.
FACTS
At some point prior to early 2002, Ball State University (BSU) hired Weigand to be the General Contractor for the Music Instruction Building project (the Project). In early 2002, Weigand sought bids from potential subcontractors to perform structural steel construction. Stephens submitted a bid, and on April 19, 2002, Weigand accepted Stephens's bid. On May 1, 2002, Weigand confirmed its acceptance with a Purchase Order, which served as the contract between Weigand and Stephens.
Among other things, the Purchase Order contained a "flow down provision," which provided, in essence, that the terms and conditions of the Weigand-BSU contract also applied to Stephens. Appellants' App. p. 117. Thus, Section 4.3.2 (the Claim Provision) of the Weigand-BSU contract applied to Stephens, and provided that if a party sought additional payment in addition to what was initially agreed upon,
[c]laims [for the additional payment] by either party must be initiated within 21 days after occurrence of the event giving rise to such Claim or within 21 days after the claimant first recognizes the condition giving rise to the Claim, whichever is later. Claims must be initiated by written notice to the Architect and the other party.
Id. at 232.
Weigand hired Stephens to fabricate and supply the Project's structural steel. Additionally, Stephens was to engineer the connections between the structural steel members that would form the roof trusses and to create detailed "shop drawings" to be used by Stephens's production personnel in building the trusses to the engineer's dimensions. Stephens was unable to perform the engineering and detailing itself, so it hired two sub-subcontractors Cecil Wilson (Wilson) and Argo Engineering (Argo)to meet its contractual obligations to Weigand.
In June 2002, BSU's architect made several changes to the design of the Project's steel trusses. The architect sent revised architectural drawings to Weigand, which sent the drawings to Stephens. Stephens received the revised drawings on June 13, 2002, and sent them to its detailing subcontractor, Wilson. Wilson met with Argo on July 11, 2002, and they discussed the fact that the architect's revisions would require substantial changes to their own calculations. Among other things, they would have to make the connection platesthe heavy steel plates bolted to the intersections of the trusses' structural memberslarger. According to Stephens, Wilson and Argo did not communicate these needed revisions to Stephens at that time.
Nine months later, on April 22, 2003, a Stephens employee orally informed a Weigand employee that the design changes would cause extra work and expense for Stephens above and beyond that originally contemplated in the Purchase Order. That conversation was the first time Stephens had informed Weigand that its work would cost more than originally contemplated. Stephens did not provide a written claim for the extra work until May 28, 2003. To keep the Project on schedule, Weigand directed Stephens to comply with *224 its contractual obligations and deliver the structural steel trusses as scheduled. Weigand agreed to submit Stephens's claim for extra payment to BSU for resolution while work on the Project progressed, as Weigand was required to do under the terms of its contract with BSU. BSU rejected the claim, determining that it was untimely because it failed to comply with the Claim Provision.
On September 3, 2004, Stephens filed a complaint against Weigand, BSU,[1] and Ohio Farmers Insurance[2] for breach of contract, alleging that it was owed $161,124.61 plus interests, attorney fees, and costs for "extra labor and materials for additional work on the Project." Id. at 107. Two months later, Stephens filed a Voluntary Petition for Relief under Chapter 7 of the U.S. Bankruptcy Code. The causes of action against Weigand, its Surety, and BSU were listed as intangible assets of the bankrupt company, which stayed the litigation. On January 4, 2007, the Trustee issued a Final Report, which stated that the claims against Weigand, its Surety, and BSU had been fully administered. Id. at 156. The final bankruptcy decree was entered on May 18, 2007.
On June 8, 2007, Stephens filed a motion for a status conference in the instant litigation. Stephens alleged that its claims had survived the bankruptcy despite the Trustee's filings that represented that the claims had been fully administered. On January 29, 2008, Weigand filed a motion to dismiss the complaint, arguing that because the Trustee had fully administered the causes of action, Stephens no longer had any causes of action in its possession. Stephens responded, attaching an affidavit from the Trustee, who attested that his intent had been to abandon the lawsuit back to Stephens. Id. at 168-72. The Trustee attached a revised Report, which indicated that the lawsuit was now "deemed abandoned" rather than fully administered. Id. at 171. Neither the bankruptcy court nor Stephens's creditors were given any notice of the change in the asset's classification. On April 9, 2008, the trial court denied Weigand's motion, concluding that the Trustee had "indicate[d] the Claim in question ha[d] been abandoned back to Stephens, and Stephens is now free to pursue the Claim." Id. at 15. Weigand now appeals that order.
On September 24, 2008, Weigand filed a motion for summary judgment, arguing that Stephens's claim for payment was untimely because it did not comply with the Claim Provision. Stephens responded and filed a cross-motion for summary judgment. Following a hearing, the trial court granted summary judgment in Stephens's favor on January 6, 2009. On July 17, 2009, the trial court held a hearing to determine the amount of Stephens's damages, ultimately awarding $268,179.85 in Stephens's favor. Weigand now appeals the order granting summary judgment in Stephens's favor and the amount of damages. Stephens cross-appeals, arguing that the trial court erred by excluding prejudgment interest during the period before and during the bankruptcy proceeding.
DISCUSSION AND DECISION
I. Effect of Bankruptcy Proceedings
Weigand first argues that this lawsuit did not survive Stephens's bankruptcy *225 proceedings and that the trial court should have granted its motion to dismiss the complaint on this basis. We apply a de novo standard of review to a trial court's decision to grant or deny a motion to dismiss for failure to state a claim. PricewaterhouseCoopers, LLP v. Massey, 860 N.E.2d 1252, 1256 (Ind.Ct.App.2007).
Stephens's commencement of bankruptcy proceedings created a separate legal estate. 11 U.S.C. § 541(a). After filing the bankruptcy petition, title to all of Stephens's property, including its causes of action, passed to the Trustee. After a bankruptcy proceeding is closed, the bankrupt party may not sue unless the Trustee abandoned the cause of action. Dallas Cabana, Inc. v. Hyatt Corp., 441 F.2d 865, 867 (5th Cir.1971); see also In re Mars Builders, Inc., 397 B.R. 255, 257 (Bankr. W.D.Pa.2008) (holding that "a bankruptcy trustee ... cannot abandon a legal claim merely by failing to prosecute it, whatever its reason may be for not doing so").
Here, Stephens's Trustee listed the litigation herein as "fully administered" rather than "abandoned" in the final report. Appellants' App. p. 156-57. "Fully administered" is not defined in the bankruptcy code, but the bankruptcy guidelines explain that the term is broad and expressly includes assets that have been abandoned. Appellee's App. p. 5. The bankruptcy code provides that after an estate is fully administered and the court has discharged the trustee, the court shall close the case. 11 U.S.C. § 350(a). Thus, the term "fully administered" refers to non-substantive administrative functions, as a bankruptcy case cannot be closed unless all assets have been fully administered.
Here, the form completed by the Trustee offers two boxes to check next to each assetone that says "abandoned," and one that says "fully administered." Appellants' App. p. 156. Next to the line containing the instant lawsuit, the Trustee checked only the "fully administered" option, leaving the "abandoned" option blank.[3]Id. The better practice, it seems, would be to check both boxes when, as here, the Trustee intends to abandon an asset back to the debtor. There is no dispute herein, however, that the Trustee did, in fact, intend to abandon this lawsuit back to Stephens. The Trustee decided not to pursue this claim for several reasons, including the value of the claim, the procedural posture of the claim, and the Trustee's inability to retain counsel to prosecute the claim within the bankruptcy. Id. at 169. Under these circumstances, we believe that to find that Stephens no longer possessed these claims following the bankruptcy would be to elevate form over substance to a degree we cannot countenance. Thus, although we are sympathetic to Weigand's arguments, we find that the trial court properly denied its motion to dismiss.
Given this finding, we note that included in Stephens's lawsuit against Weigand was a claim under the base contract that is separate and apart from the additional costs requested in the Claim. Specifically, Stephens argued that it was owed $39,408.09 for unpaid sums under the base contract and for certain materials. Weigand does not dispute this claim, it has merely argued that the entire complaint should be dismissed based on this above argument. Inasmuch as we have found that Weigand was not entitled to a dismissal, however, we affirm the portion of *226 the trial court's order awarding $39,408.09 plus attorney fees, prejudgment interest, postjudgment interest, and costs of collection to Stephens.
II. Claim Provision
Weigand next argues that Stephens is not entitled to its extra costs because its Claim was untimely pursuant to the Claim Provision. The trial court decided this issue on summary judgment, granting Stephens's motion and denying Weigand's. Summary judgment is appropriate only if the pleadings and evidence considered by the trial court show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Owens Corning Fiberglass Corp. v. Cobb, 754 N.E.2d 905, 909 (Ind.2001); see also Ind. Trial Rule 56(C). On a motion for summary judgment, all doubts as to the existence of material issues of fact must be resolved against the moving party. Owens Corning, 754 N.E.2d at 909. Additionally, all facts and reasonable inferences from those facts are construed in favor of the nonmoving party. Id. If there is any doubt as to what conclusion a jury could reach, then summary judgment is improper. Id.
An appellate court faces the same issues that were before the trial court and follows the same process. Id. at 908. The party appealing from a summary judgment decision has the burden of persuading the court that the grant or denial of summary judgment was erroneous. Id. When a trial court grants summary judgment, we carefully scrutinize that determination to ensure that a party was not improperly prevented from having his or her day in court. Id.
Construction of the terms of a written contract is a question of law, to which we apply a de novo standard of review. Collins v. McKinney, 871 N.E.2d 363, 372 (Ind.Ct.App.2007). If the contract language is unambiguous and the parties' intent is discernible from the written contract, we give effect to the terms of the contract. Fackler v. Powell, 891 N.E.2d 1091, 1096 (Ind.Ct.App.2008), trans. denied. When a contract is unambiguous, the terms as expressed within the four corners of the document are conclusive, and we do not construe the contract or look to extrinsic evidence, instead merely applying the contractual provisions as written. Id. The terms of a contract are not ambiguous merely because the parties disagree as to the interpretation. Id.
A. Claim Timeliness
Here, the Claim Provision of the Weigand-BSU contract, which was incorporated into the Weigand-Stephens contract, provides as follows:
[c]laims [for the additional payment] by either party must be initiated within 21 days after occurrence of the event giving rise to such Claim or within 21 days after the claimant first recognizes the condition giving rise to the Claim, whichever is later. Claims must be initiated by written notice to the Architect and the other party.
Appellants' App. p. 232 (emphases added). It is undisputed that Stephens received the revised structural steel drawings on June 13, 2002, and the revised architectural drawings on June 20, 2002. Stephens sent those revised drawings to its engineering and detailing subcontractors, Wilson and Argo. Stephens has acknowledged that these "revisions constituted a significant change in scope of work to the Project for Stephens and constituted a major change to the methodology to the steel fabrication on the Project." Id. at 276-77. Argo and Wilson, Stephens's subcontractors, discussed the revisions on July 11, 2002, and determined that the revisions would require *227 significant changes to the engineering calculations.
Notwithstanding the facts that Stephens had all of the revised drawings in its possession by June 20, 2002, and that Stephens's sub-contractors knew by July 11, 2002, that the revisions constituted a significant change to Stephens's portion of the Project work, the first time that Stephens informed Weigand that it was requesting additional payment was on April 22, 2003. At that time, a Stephens employee had a discussion with a Weigand employee, orally informing the Weigand employee "of the issues surrounding the change in scope of work" caused by the design changes. Id. at 279. And it was not until May 28, 2003, that Stephens actually submitted written notice of its intent to make a Claim for additional payment.
Thus, Stephens waited for eleven months from the time it had received the revisions and ten months from the time its sub-contractors had realized the implications of those revisions to provide written notice of its Claim as required by the Claim Provisionfar beyond the twenty-one days required by the contract.
Stephens argues that Wilson and Argo did not communicate the changes in the scope of Stephens's portion of the Project to Stephens until April 2003, so it did not realize until that time that additional work and cost would be required. Initially, we observe that it is Stephens's responsibility to require adequate communication with its sub-contractors. Stephens could have included a "flow-down provision" in its contracts with Argo and Wilson, as Weigand did in its contract with Stephens, so that Argo and Wilson would be responsible for abiding by the same terms as Stephens. In that way, Stephens could have ensured that it complied with the terms of its contract with Weigand.
Even so, however, it is undisputed that at the very latest, Stephens was actually aware on April 22, 2003, that it would be making a Claim for additional payment. At that time, Stephens orally notified a Weigand employee of its circumstances. Stephens waited for an additional thirty-four days, until May 28, 2003, to provide the written Claim to Weigand. As noted above, the Claim Provision required Stephens to submit written notice of a Claim to Weigand within twenty-one days "after occurrence of the event giving rise to such Claim" or within twenty-one days "after the claimant first recognizes the condition giving rise to the Claim," whichever is later. Appellants' App. p. 232. Giving Stephens every benefit of the doubt, it is undisputed that it recognized the condition giving rise to the Claim by April 22, 2003. It failed to submit written notice of that Claim within twenty-one days. Therefore, pursuant to the terms of the contract, its Claim was untimely.[4]
In addition to the twenty-one-day rule, the Claim Provision also provides that any "Claim for an increase in the Contract Sum ... be given before proceeding to execute the Work," except in the case of certain emergencies. Id. Here, although Stephens had not yet begun fabricating the steel or assembling the trusses when it *228 submitted its Claim, itvia its subcontractorshad already executed the engineering portion of its work. Indeed, this work was completed and invoiced to Stephens before any Claim was made. Stephens does not dispute that its scope of work for the Project included engineering services, nor does it dispute that this work was performed before notice was given. Therefore, Stephens submitted its Claim after it had already proceeded to execute the work, so its Claim was also untimely in this regard.
B. Waiver
Stephens argues that Weigand waived the Claim Provision. Specifically, Stephens directs our attention to the undisputed fact that when Stephens orally informed Weigand of its intent to submit a Claim on April 22, 2003, the Weigand employee involved in the conversation directed Stephens to deliver the materials and maintain the delivery schedule for the Project and that the issue of Stephens's additional costs would be resolved at a later time. Additionally, the Weigand employee stated that Stephens was required to comply with the Project changes and meet its obligations for the Project or face an action for breach of contract from Weigand. Stephens argues that when Weigand insisted that Stephens proceed as scheduled, notwithstanding Stephens's intent to submit a Claim for the additional costs, Weigand waived the Claim Provision requirement that Stephens submit written notice within twenty-one days.
We cannot agree. Weigand did not promise Stephens that it would receive the funds requested in its forthcoming Claim regardless of the timeliness of that Claim. Rather, it directed Stephens to comply with the remaining portions of the contract with an assurance that Weigand would submit the Claim to BSUas required by the terms of the Weigand-BSU contract at a later date, when Stephens submitted the Claim. Indeed, in its letter acknowledging Stephens's first written notice of its Claim, Weigand stated that it was "supportive" of Stephens's efforts to recover its costs but warned Stephens that BSU might deny the Claim as untimely:
... The primary concern that I have is the fact that this request was not made at the time that your consultants knew of this change from the Contract Documents. It always puts us in a difficult position when the parties involved are not given an opportunity to respond to a significant cost increase prior to the work already being completed.... Although I hope that this does not become an issue, we must recognize that the very fact of this delay in notice is a basis for denial of the request for extra money out of hand....
Appellants' App. p. 325. It is evident from the record, therefore, that although Weigand insisted that Stephens comply with its contractual obligations, it never promised that Stephens's Claim would be approved. Furthermore, we decline to hold that a party's insistence that its counter-party comply with its contractual obligations acts as a waiver of the party's contractual rights.
In any event, the parties' contract also provides that
[n]o action or failure to act ... shall constitute a waiver of a right or duty afforded ... under the Contract, nor shall such action or failure to act constitute approval of or acquiescence in a breach thereunder, except as may be specifically agreed in writing.
Id. at 250. Thus, even if the record showed undisputed facts that would support a waiver argumentwhich it does notthis contractual provision would prevent us from finding that Weigand waived its right to enforce the Claim Provision. *229 Therefore, we find that Weigand did not, in fact, waive its right to enforce its rights under the contract.
C. Weigand Breaches
Finally, Stephens argues that Weigand cannot enforce the contract against Stephens because Weigand "repeatedly, materially, and substantially" breached its own contractual obligations to Stephens. Appellee's Br. p. 29. Indeed, a party may not insist upon the performance of a contract or a provision thereof where that party is personally guilty of a material or substantial breach of the contract. Tomahawk Village Apts. v. Farren, 571 N.E.2d 1286, 1293 (Ind.Ct.App.1991).
1. AISC Code
First, Stephens argues that Weigand failed to comply with the provisions of the AISC Code requiring that Weigand clearly and individually communicate any design revisions to Stephens. The provision of the AISC Code to which Stephens directs our attention states that "all revisions, including revisions that are communicated through the annotation of Shop and/or Erection Drawings ... shall be clearly and individually indicated in the Contract Documents," which included the Architect's Drawings. Appellee's App. p. 71; Appellants' App. p. 223. There is no requirement, therefore, that Weigand clearly and individually communicate any revisions to Stephens; instead, Weigand was simply required to indicate those revisions in the Contract Documents, including the Architect Drawings. It provided Stephens with the revised Architect Drawings, and had no further contractual obligation to highlight the Project revisions. Moreover, it is evident that Stephens's subcontractors readily understood the revisions and their import, inasmuch as they altered their engineering work accordingly. Thus, we decline to find a breach on this basis.
2. Communication Regarding Trusses
Next, Stephens argues that Weigand breached the contract by failing to communicate directly with Stephens "regarding the issues involving the trusses...." Appellee's Br. p. 31. Specifically, Stephens complains that the Project architect communicated directly with Argo, Stephens's sub-contractor, rather than with Stephens itself. The Project architect, however, was not an employee of Weigand. Instead, it was acting at the behest of BSU. Stephens has offered no legal authority establishing that the actions of the Project architect can lead to a breach by Weigand; thus, we decline to find a breach in this regard.
3. Failure to Pay Stephens for the Extra Work
Stephens next argues that Weigand breached the agreement by failing to pay Stephens the amount requested in its Claim. This, of course, is the precise dispute at issue in this appeal, and to conclude that "Weigand has waived its right to insist that Stephens comply with the contract's notice provisions because Weigand refused to pay Stephens extra money due to Stephens's failure to comply with those provisions" is to accept a circular argument and abandon logic, which we will not do. Reply Br. p. 25. Thus, we decline to find a breach in this regard.
4. Response to Submittal Requests
Finally, Stephens notes that during its work on the Project, it sent Weigand numerous submittals, change orders, and requests for information on a variety of issues. Stephens argues that although Weigand was contractually obligated to respond to such requests within two weeks of receipt, Weigand's responses were repeatedly delayed, at times significantly so. Stephens fails to explain, however, how *230 these delays relate in any way to the revisions, the Claim, or the central issues involved in this appeal. We decline to find that Weigand's unrelated delays in responding to Stephens's submittals act as such a material or substantial breach of the contract that it is now prohibited from enforcing the Claim Provision against Stephens.[5]
The relevant underlying facts herein are not disputed, and we have found as a matter of law that Stephens's claim failed to comply with the contract's Claim Provision. Therefore, Weigand, rather than Stephens, is entitled to summary judgment in its favor on Stephens's complaint.
III. Cross-Appeal
Stephens cross-appeals, arguing that the trial court erred by excluding the periods before and during bankruptcy from the prejudgment interest calculation. We will consider this argument to the extent that it bears on the approximately $40,000 to which we have found Stephens is entitled. We review a trial court's decision to deny prejudgment interest for an abuse of discretion. Whited v. Whited, 859 N.E.2d 657, 664 (Ind.2007).
The trial court excluded the period prior to Stephens's bankruptcy, January 1, 2004, to November 1, 2004, finding that to award prejudgment interest for that period would constitute a windfall to which Stephens is not entitled. We cannot agree. Prejudgment interest is warranted in a contract case if the terms of the contract make the claim ascertainable and the amount of the claim rests upon mere computation. Bank One, N.A. v. Surber, 899 N.E.2d 693, 705 (Ind.Ct.App.2009), trans. denied. Here, it is undisputed that Weigand owes Stephens $39,408.09 under the base contract. Ascertaining the amount of prejudgment interest owed on that amount is a simple calculation, and there is no reason to exclude the pre-bankruptcy period from the calculation.
The trial court also excluded the period of time during the intervening bankruptcy proceeding. It is established, however, that prejudgment interest may continue to accrue notwithstanding bankruptcy proceedings. See In re Investment Bankers, Inc., 4 F.3d 1556, 1566 (10th Cir.1993) (holding that an award of prejudgment interest during bankruptcy proceeding serves to compensate a party of a defendant's use of funds that were wrongfully withheld during pendency of suit); In re Chattanooga Wholesale Antiques, Inc., 930 F.2d 458, 465 (6th Cir.1991) (holding that the defendant was properly assessed prejudgment interest during the pendency of bankruptcy proceedings because the defendant had the use of money it was not entitled to). Therefore, we find that the period of time during Stephens's bankruptcy proceeding should not be excluded from the calculation of prejudgment interest.
CONCLUSION
In sum, we have found that Stephens's claims against Weigand, Weigand's Surety, and BSU survived the bankruptcy proceedings. Given that ruling, Stephens is entitled to the unpaid sums under the base contract: $39,408.09 plus attorney fees, prejudgment interest including the periods of time before and during the bankruptcy proceeding, postjudgment interest, and costs of collection to Stephens. We have also found, however, that Stephens's Claim for additional compensation was untimely under the terms of the relevant contracts *231 and that Weigand is entitled to enforce the contractual provisions in this regard. Therefore, we reverse the trial court's summary judgment order.
The judgment of the trial court is affirmed in part, reversed in part, and remanded with instructions to enter summary judgment in Weigand's favor and calculate the amount of damages owed to Stephens, which is the total sum of $39,408.09 plus attorney fees, pre- and post-judgment interest, and costs of collection.
DARDEN, J., and CRONE, J., concur.
NOTES
[1] Stephens alleged that BSU was required to pay the "retainage" it was withholding from Weigand's contract directly to Stephens for the additional work pursuant to Indiana Code section 5-16-5.5-1.
[2] Evidently, Ohio Farmers Insurance was Weigand's Surety, having issued a payment bond for the Project. Stephens alleged that the Surety was required to pay Stephens for its additional costs.
[3] Indeed, the Trustee checked "fully administered" but not "abandoned" for all of Stephens's assets aside from the proceeds of an equipment auction. In a later affidavit, the Trustee attached a revised Final Report, which checked "abandoned" in addition to "fully administered" for all of these assets. Appellants' App. p. 171.
[4] Stephens directs our attention to a portion of the Code of Standard Practice published by the American Institute of Steel Construction (the AISC Code), which was incorporated into the Stephens-Weigand contract. The AISC Code requires a modification of the contract price when the scope of Stephens's work was changed. Appellee's Br. p. 5. The next section of the AISC Code, however, required that Stephens make any request for contract price adjustments "in a timely manner." Reply Br. p. 6. Here, we have found that Stephens's request was untimely; therefore, the AISC Code does not require us to reach a different result.
[5] Inasmuch as we have found that Stephens is not entitled to the extra compensation requested in its Claim, we need not consider the parties' arguments about the way in which Stephens calculated its damages. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2984210/ | Order filed April 24, 2014
In The
Fourteenth Court of Appeals
____________
NO. 14-12-00775-CR
____________
JOHN WOODS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Cause No. 1331540
ORDER
The clerk’s record was filed October 12, 2012. Our review has determined
that a relevant item has been omitted from the clerk’s record. See Tex. R. App. P.
34.5(c). The record does not contain a certified bill of costs.
The Harris County District Clerk is directed to file a supplemental clerk’s
record on or before May 22, 2014, containing a certified bill of costs.
PER CURIAM | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2610162/ | 207 Kan. 557 (1971)
485 P.2d 1377
GILL MORTUARY (MILLIE E. GILL, Appellant,
v.
SUTORIS, INC., and PAUL E. SUTORIS, Appellees.
No. 46,029
Supreme Court of Kansas.
Opinion filed June 12, 1971.
Orlin L. Wagner, of Wichita, argued the cause, and Michael D. Wilson, of Wichita, was with him on the brief for the appellant.
Richard T. Foster, of McDonald, Tinker, Skaer, Quinn and Herrington, of Wichita, argued the cause and was on the brief for the appellees.
The opinion of the court was delivered by
HARMAN, C.:
The action in district court was one to compel specific performance of two leases of billboard space on each side of a business building or, in the alternative, for damages for failure to perform.
Trial was to the court. At the conclusion of plaintiff's evidence the court sustained defendants' motion for involuntary dismissal. Plaintiff appeals from that order.
The matters at issue can best be understood by reciting the findings made by the trial court:
"2. `Gill Mortuary', the name by which the plaintiff is designated in this *558 action, is the business name employed by Millie E. Gill in the operation of a mortuary located at 243 North Emporia Avenue, Wichita, Kansas. Hugh W. Gill, Jr. is employed as the manager of said mortuary, and is the agent for its owner.
"3. Clinton A. Park was president of R.W. Park & Sons, Inc., a corporation, which for many years owned and operated an establishment for the sale of grave stones and monuments in a store building located at 1707 East Douglas Avenue, owned by said R.W. Park & Sons, Inc. and legally described as follows, to-wit: [description].
"4. Prior to 1962, R.W. Park & Sons, Inc. leased space atop said building to the Coca Cola Bottling Company for its billboards. On December 21, 1962, R.W. Park & Sons, Inc. entered into two lease agreements with Hugh Gill, Jr., in the name of Gill Mortuary, as lessee.
"5. Under one of said leases (Plaintiff's Exhibit # 2), Gill Mortuary was granted the right and permission to occupy space described in said lease as the `West side of roof at 1707 East Douglas' for a term of sixty (60) months, unless sooner terminated as provided in said lease, commencing on January 1, 1963. Under the other said lease (Plaintiff's Exhibit # 3), Gill Mortuary was granted the right and permission to occupy space described in said lease as the `East side of roof at 1707 East Douglas' for a term of sixty (60) months unless sooner terminated as provided in said lease, commencing on February 3, 1963.
"6. Although not expressly stated in said leases, the Court finds that it was the intent of the parties thereto for Gill Mortuary to be granted the right and permission to erect `electrical displays', i.e. illuminated billboards, on the west and east sides of the roof of said buildings where there had been Coca Cola signs previously, for a monthly rental stipulated in said leases. Large, illuminated billboards advertising the Gill Montuary were erected under said leases, on the east and west sides of the roof of said building at 1707 East Douglas Avenue in Wichita, Kansas.
"7. In each of said leases, Gill Mortuary was granted an option to renew the agreement for a period of sixty (60) months, provided `said option to be exercised in writing at least ninety (90) days prior to expiration of this lease'.
"8. It was further provided in each lease that in the event R.W. Park & Sons, Inc. might sell, lease or rent the property at 1707 East Douglas, after the lease, or extension thereof, had been in effect thirty-six (36) months, said lessor could terminate the lease by giving lessee ninety (90) days notice. The Court finds that it was the intent of the parties to said leases that the same could be terminated at any time after said leases had been in effect for thirty-six (36) months, in the event the property was sold, leased or rented, whether or not the leases were still within the basic sixty-month term or had been extended.
"9. On or about June 22, 1966, R.W. Park & Sons, Inc. listed the property for sale with Bill Earnest, a realtor associated with the B.J. Watkins Realty Company. This realtor negotiated with Sutoris, Inc., defendant herein, for the purchase of the property owned by R.W. Park & Sons, Inc. At about the same time, Sutoris, Inc. completed the purchase of all the separate properties on the *559 south side of the 1700 block of East Douglas, adjoining the R.W. Park & Sons, Inc. property on both sides.
"10. Said Bill Earnest informed Paul E. Sutoris, president of Sutoris, Inc., of the provisions for termination contained in said leases.
"11. On December 6, 1966, Clinton A. Park, on behalf of R.W. Park & Sons, Inc., and Paul E. Sutoris, on behalf of Sutoris, Inc., executed a real estate contract (Plaintiff's Exhibit # 1), which included, among other things, a provision that the buyer would honor `an existing lease on a sign which has approximately two (2) years duration left; all income from said sign to go to the sellers who agree to remove and relocate said sign, at seller's expense, so as not to deter or distract from the buyer's proposed use of the property.'
"12. Clinton A. Park promptly informed Hugh Gill, Jr., of the sale of the premises, and Hugh Gill, Jr., agreed to have the signs removed. Hugh Gill had knowledge that the building would be demolished by Sutoris, Inc.
"13. Thereafter, Clinton A. Park, on behalf of R.W. Park & Sons, Inc., executed a General Warranty Deed, dated March 16, 1967, conveying the property to Sutoris, Inc., without reservation or exception. The deed was recorded the same date.
"14. Following delivery of the deed to said property to Sutoris, Inc., and more than ninety days after notice was given to him by Clinton A. Park of the sale of said property, Hugh Gill had the billboards removed, at the expense of Gill Mortuary. Rental for the space occupied by said signs was paid each month until said billboards were removed, and Gill Mortuary was not in default in the payment of the rent under said leases at the time the billboards were removed.
"15. Thereafter, the building at 1707 East Douglas and the other buildings on the south side of the 1700 block on Douglas Avenue were demolished and the entire tract of land cleared. Sutoris, Inc., then commenced construction of a large, substantial and attractive brick building of special design and decor for the purpose of operating a car wash enterprise. Said building, completed at the time of this trial, occupies most of the south side of the 1700 block on East Douglas Avenue, without distinction as to previous boundaries. The present use of the land, and the improvements constructed thereon, are wholly and distinctly different from the prior uses and structures thereon, and are not identifiable therewith.
"16. From the evidence, the Court finds that no person informed Sutoris, Inc., or its officers, employees or agents, of any intention by the plaintiff to re-establish the Gill Mortuary billboards on the premises purchased by Sutoris, Inc., from R.W. Park & Sons, Inc., or claimed any continuing leasehold estate in the premises, until February 8, 1968, at which time the building constructed by Sutoris, Inc., was substantially completed.
"17. From the evidence, the Court finds there was no mutual understanding or agreement, written or oral, between or among any of the parties involved, for any modification or suspension of the terms of the Gill Mortuary leases, so as to have extended said leases or prevented their expiration on December 31, 1967 and February 2, 1968, respectively, by their own terms.
"18. On February 8, 1968, and more than sixty months from the commencement of said leases, Hugh Gill, Jr. advised Sutoris, Inc. that Gill Mortuary *560 was electing to exercise the option to extend the leases, and that Gill Mortuary's sign company had been instructed to proceed with erection of said signs. (Plaintiff's Exhibit # 4.)
"19. On February 19, 1968, Sutoris, Inc., through its attorney, notified Hugh Gill, Jr. that if it was assumed the leases had not theretofore expired or been terminated, it was giving notice of termination of said leases at that time."
Recapitulating the more significant events chronologically, the five year term leases between appellant Millie E. Gill and the initial lessor or building owner by their terms became effective January 1, 1963, and February 3, 1963; the lessor entered into a contract of sale for the building with appellees on December 6, 1966, and conveyed title to the building to the latter by warranty deed March 16, 1967; appellant removed her signs from the building either in March or April, 1967, and appellees thereafter constructed the carwash enterprise on the entire block in question; on February 8, 1968, appellant exercised its claimed option to renew the leases, and on February 19, 1968, appellees declared the leases terminated.
Based on its findings the trial court made the following conclusions:
"1. Paul E. Sutoris, defendant herein, is not the owner of any property involved in this lawsuit, and any act on his part was done in his capacity as president of Sutoris, Inc., defendant corporation, and not by him individually. Wherefore, the Court concludes that said Paul E. Sutoris is not a proper party defendant in this action.
"2. The right and permission to Gill Mortuary to occupy space on the roof of the building formerly located at 1707 East Douglas, terminated when Hugh Gill removed the plaintiff's billboards after notice of sale of the premises, at the expense of Gill Mortuary and in compliance with said lessee's obligations under said lease in the event of termination, when said Hugh Gill knew the building was to be demolished, without making known to any party to the transaction any intent, claim or belief that he did not agree to, or acquiesce in the termination of said leases and the destruction of said leasehold estates.
"3. In addition to the foregoing, said leases expired by their own terms on December 31, 1967 and February 2, 1968, respectively, and any purported attempt by the plaintiff to extend said leases beyond those dates was ineffective.
"4. In addition to the foregoing, if said leases were not terminated and did not otherwise expire, as stated herein, the said leases were terminated by Sutoris, Inc. on February 19, 1968.
"5. The plaintiff's evidence is insufficient to establish any right, in equity, to compel the defendants Sutoris, Inc. or Paul E. Sutoris to specifically perform said lease agreements.
"6. Said leases, relied upon by the plaintiff, are impossible of performance.
*561 "7. The plaintiff is not entitled to damages or specific performance, on account of the plaintiff's laches, acquiescence, waiver, estoppel and unexcusable delay in presenting any right or claim of a leasehold on the premises which Sutoris, Inc. purchased from R.W. Park & Sons, Inc. free and clear of all encumbrances.
"8. The plaintiff has not established the amount of any ascertainable damages as a result of the removal of the billboards in controversy; and the amount of loss or damage, if any, sustained by the plaintiff is wholly speculative and incapable of measurement by this Court, based upon the plaintiff's evidence."
The court thereupon entered judgment against appellant.
In urging reversal appellant treats the trial court's action as though it amounted to entry of summary judgment rather than an order sustaining a motion for involuntary dismissal. She argues the court erroneously failed to construe the evidence strictly against appellees and liberally in favor of appellant. No such rule prevails where trial is to the court. In the oft-cited case of Mackey-Woodard, Inc. v. Citizens State Bank, 197 Kan. 536, 419 P.2d 847, we held:
"Where the defendant in an action tried to the court without a jury moves for involuntary dismissal of the action at the close of the plaintiff's case pursuant to the provisions of K.S.A. 60-241 (b), based on the ground that upon the facts and the law the plaintiff has shown no right to relief, the trial judge has the power to weigh and evaluate the evidence in the same manner as if he were adjudicating the case on the merits and making findings of fact at the conclusion of the entire case, overruling Pennsylvania National Mutual Cas. Co. v. Dennis, 195 Kan. 594, 408 P.2d 575." (Syl. ¶ 7.)
Actually appellant does not in any of her contentions question the existence of substantial evidence in the record to support the trial court's findings. Hence if those findings justify any of the several conclusions of law adverse to appellant, and the judgment rendered thereon, appellant cannot prevail.
Among other matters, the trial court concluded the two leases had by their own terms expired prior to any attempt by appellant to exercise the renewal option and therefore the attempt was ineffective (Concl. No. 3).
Each lease contained a provision it could be renewed for an additional period of five years at the option of the lessee, such option to be exercised in writing at least ninety days prior to the expiration of the lease. Appellant argues she did in fact timely exercise the option to renew. She bases this argument on her contention the leases were suspended for a period of time while the old building was being razed and the new structure was being built, and that the leases did not expire until July 1, 1969. Upon *562 what legal premise the leases remained viable until that date is not made clear. Appellant has conceded throughout that the terms of the leases are clear and unambiguous. In finding No. 17 the trial court specifically found there was no mutual understanding or agreement, written or oral, between the parties for any modification or suspension of the terms of the leases so as to have extended them or prevented their expiration on December 31, 1967, and February 2, 1968. Mutuality is required in order to amend the terms of a contract and one party cannot unilaterally change its terms (Guy Pine, Inc. v. Chrysler Motors Corp., 201 Kan. 371, 376, 440 P.2d 595; Fast v. Kahan, 206 Kan. 682, 481 P.2d 958). Hence the purported exercise of the options to renew made on February 8, 1968, came too late.
Appellant complains the trial court actually made an oral finding from the bench at the conclusion of her evidence to the effect the leases were still in their base period. These comments were made in connection with the court's discussion of the February 19, 1968, termination by appellees to indicate that in any event following a sale of the building after the leases had been in operation for a period of thirty-six months (which situation existed) the appellees could rightfully terminate. Beyond this, however, where inconsistency exists, express written findings of fact formally made and entered as the judgment of the court must prevail over informal oral remarks previously made from the bench (see cases cited in 2B Barron and Holtzoff, Federal Practice and Procedure, rules ed., 1970 Pocket Part, § 1128, note 93, p. 199).
Appellant stresses the fact that appellees in their contract for the purchase of the building acknowledged the existence of and agreed to honor the signboard leases. This fact, however, does not advance appellant's cause inasmuch as appellees have done nothing in violation of the leases. Even their final termination of the leases, assuming they were still in effect, was specifically authorized by a clause in the leases and would be operative despite any extension or renewal clause in them (see Batchelor's Building Maintenance Service, Inc. v. Douglas Avenue Corp. Inc., 205 Kan. 149, 468 P.2d 189, in which a termination by notice clause in a contract for janitorial service for a building was held to take precedence over a clause providing that one year's contract rights would be guaranteed in event the building owner sold the building).
Appellant's argument essentially is that appellees cannot avoid *563 their contractual duty simply because they do not wish to have the billboard displays re-erected, which, as indicated, disregards plain provisions in the leases as to termination dates and the right to cancel upon sale after thirty-six months' operation.
We have considered other matters raised by appellant, including the exclusion of an exhibit offered by her to show removal and relocation costs of the signs, but find nothing to warrant disturbing the judgment and it is affirmed.
APPROVED BY THE COURT. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610163/ | 485 P.2d 1226 (1971)
CITY OF NORTH BEND, an Incorporated City of the State of Oregon, and Tck Corporation, an Oregon Corporation, Appellants,
v.
COUNTY OF COOS, a Body Politic and Corporate of the State of Oregon, Respondent.
Supreme Court of Oregon.
Argued and Submitted May 7, 1970.
Decided June 16, 1971.
*1227 Robert E. Thomas, North Bend, argued the cause for appellants. With him on the briefs were Flaxel, Todd & Flaxel, North Bend.
Robert E. Brash, Dist. Atty., Coquille, argued the cause for respondent. With him on the brief was Jerry O. Lesan, Deputy Dist. Atty., Coquille.
Before McALLISTER, P.J., O'CONNELL, C.J., and SLOAN,[*] DENECKE, HOLMAN, TONGUE and HOWELL, JJ.
O'CONNELL, Chief Justice.
This appeal is from a judgment sustaining a demurrer to a complaint seeking equitable relief with regard to the title of certain tidelands in Coos county.
The essential facts of the complaint are as follows: The city of North Bend acquired the tidelands and other property by deed from defendant in 1942. The deed was properly recorded. It contained a provision that any property not used for the purpose of an airport within five years would revert to defendant. In December, 1959, North Bend approached defendant about obtaining a release of its remaining interest in the property transferred in 1942. Defendant agreed to release its interest and executed a quitclaim deed to North Bend on January 14, 1960, in exchange for $4,000. Because of mutual mistake, defendant's remaining interest in only a portion of the property transferred to plaintiff in 1942 was included. About the first of 1968 the parties discovered their mistake. Plaintiff requested that defendant release its interest in all of the tidelands. Defendant refused. Plaintiffs allege that they are in possession of all the disputed property. They contend that the reversionary clause in the original deed clouds their title and that they should be allowed to quiet their title to the tidelands in question or to reform the 1960 quitclaim deed to include such lands.
Defendant demurred generally to the complaint on two grounds: (1) that plaintiffs failed to allege that defendant had waived its sovereign immunity, and (2) that the complaint failed to state a cause of action under any theory. The trial *1228 court sustained the demurrer without stating its reason.
Defendant concedes, however, that the complaint states a cause of action under ORS 105.605, the statutory provision authorizing suits to quiet title. We agree. Plaintiffs have alleged an interest in and possession of the disputed property and that defendant has an adverse claim. These allegations are sufficient for a suit to quiet title; it is unnecessary for a plaintiff to allege the source of his title.[1] The issue, then, is whether the first ground justifies sustaining the demurrer.
Plaintiffs contend that governmental immunity is no defense because the legislature has waived immunity by statute in this type of case. More specifically, plaintiffs argue that this case comes within the provisions of ORS 30.320, which waives immunity in suits upon contract. ORS 30.320 provides, in part:
"A suit or action may be maintained against any county and against the State of Oregon by and through and in the name of the appropriate state agency upon a contract made by the county in its corporate character, or made by such agency and within the scope of its authority * * *."
Plaintiffs' complaint alleges that plaintiff city made a request to defendant county for the release of defendant's "possible reversionary interest" in the property in question; that the request "was accepted by the defendant on condition that the City of North Bend pay to the defendant the sum of $4,000 and the city fully performed its part of said agreement by payment of said sum to the defendant." The complaint goes on to allege that the county executed a quitclaim deed to a part only of the land which was subject to defendant's reversionary interest. It is then alleged that the reversionary clause in the original deed to the city "placed a cloud upon the title of the plaintiffs"; that plaintiffs "are entitled to equitable relief to quiet their title to said land," and that defendant be required to convey said land to plaintiffs or to reform said deed "to include the omitted land."
The prayer for relief requests a decree (1) declaring plaintiffs to be the sole owners of the land in question; (2) that defendant's interest is inferior and subject to the rights of plaintiffs; (3) ordering defendant to execute a deed releasing any interest in the land by reason of the reversionary clause in the original deed, and (4) reforming the quitclaim deed releasing defendant's reversionary interest to include the omitted property.
Defendant contends that the complaint is sufficient only to allege a cause of suit to quiet title and to remove a cloud from the title and does not contain allegations sufficient to allege a "suit or action * * * upon a contract made by the county." (ORS 30.320).
Although plaintiffs' request for relief is couched in the terms commonly found in a suit to quiet title or to remove a cloud therefrom, the complaint can also be regarded as a request for specific performance of defendant's agreement to execute a deed releasing its reversionary interest in the property.[2] Plaintiffs can establish clear title only if they can prove that a contract was made with the defendant county as alleged in their complaint. The suit is, therefore, basically a suit "upon a contract" and falls within the provisions of ORS 30.320.
This interpretation of ORS 30.320 comports with our previous pronouncement in State by and through Dept. of Finance and Administration v. Shinkle, 231 Or. 528, *1229 539, 373 P.2d 674, 680 (1962) that the doctrine of sovereign immunity should "be held within the narrowest limits * * *."
Defendant argues that the present case is controlled by Kern County Land Co., et al. v. Lake County, 232 Or. 405, 375 P.2d 817 (1962). That was a suit to quiet title in which plaintiff's claim did not rest upon a consensual arrangement with the defendant but upon some other theory. In that case we noted that the plaintiff's claim did not arise "from any other instrument embodying the terms of a contract," and we then concluded from the nature of plaintiff's assertions that plaintiffs rested their claim "upon a theory incompatible with the existence of mutual assent." 232 Or. at 411, 375 P.2d at 820.
The present case is clearly distinguishable because, as we have already pointed out, plaintiffs' claim is based entirely upon an alleged contract between them and the defendant county.
It is argued that the deed from the county to the city merged the contractual rights of the parties and thus precludes plaintiffs from relying upon the alleged agreement between plaintiff city and the county.
The doctrine of merger should operate only where it is reasonable to assume that the parties contemplated the extinction of their contractual rights and duties upon the execution of the deed. That clearly cannot be assumed in the present case. If plaintiff's allegations are supported by evidence, the quitclaim deed executed by the county failed to include the property in question and thus destroy the county's reversionary interest, not because the county purported to fulfill its contractual obligations but rather in violation thereof. Under the circumstances merger clearly does not apply.[3]
It is our conclusion, then, that plaintiffs' complaint can be construed as a suit "upon a contract" and that therefore the demurrer to the complaint should have been overruled.
Reversed and remanded.
NOTES
[*] Sloan, J., resigned September 30, 1970.
[1] Savage v. Savage, 51 Or. 167, 94 P. 182 (1908).
[2] Paragraph 3 of the prayer of plaintiffs' complaint requests a decree "ordering the defendant to execute and deliver to the plaintiffs a deed releasing and quitclaiming any interest in said property * * * by reason of the reversionary clause contained in said deed from defendant to the plaintiff."
[3] Cox v. Bowman et ux., 213 Or. 154, 323 P.2d 60 (1958) is in point. In that case the court held that where a deed constitutes only a part performance of a pre-existing contract the unperformed provisions of the contract are not merged in the deed unless it is shown that the parties intended otherwise. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/372214/ | 610 F.2d 811
Hinesv.Garrison
No. 78-8396
United States Court of Appeals, Fourth Circuit
11/13/79
1
E.D.N.C.
DISMISSED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1876106/ | 490 So. 2d 1252 (1986)
John Martin HIGDON, Petitioner,
v.
STATE of Florida, Respondent.
No. 66753.
Supreme Court of Florida.
May 15, 1986.
Rehearing Denied August 1, 1986.
Craig Stephen Boda, Daytona Beach, for petitioner.
Jim Smith, Atty. Gen. and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for respondent.
EHRLICH, Justice.
This case is before us to answer a question certified by the district court to be of great public importance, to wit:
IS THE SCHEDULE OF LESSER INCLUDED OFFENSES PROMULGATED BY THE FLORIDA SUPREME COURT IN 1981 IN ERROR IN CLASSIFYING VEHICULAR HOMICIDE (§ 782.071) AS A NECESSARILY LESSER INCLUDED OFFENSE OF D.W.I. MANSLAUGHTER (§ 860.01)?
Higdon v. State, 465 So. 2d 1309, 1311 (Fla. 5th DCA 1985). We have jurisdiction. Art. V, § 3(b)(5), Fla. Const.
We answer the certified question in the affirmative. Houser v. State, 474 So. 2d 1193 (Fla. 1985).[1] We adopt the reasoning of the dissent of Judge Dauksch to the decision below. 465 So.2d at 1311. See, e.g., Ray v. State, 231 So. 2d 813 (Fla. 1969). We quash the decision of the district court and remand for action in accord with this opinion.
It is so ordered.
BOYD, C.J., and ADKINS, OVERTON, SHAW and BARKETT, JJ., concur.
McDONALD, J., concurs in result only.
NOTES
[1] Defendant was charged by information with two counts (2 victims) of manslaughter by driving while intoxicated pursuant to section 860.01, Florida Statutes (1981). If he had also been charged with vehicular homicide pursuant to section 782.071, Florida Statutes (1981), the present problem would not have arisen. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610140/ | 485 P.2d 1115 (1971)
Fred G. GRANATO, Appellant,
v.
CITY OF PORTLAND, by and through Its Commission of Public Docks, Respondent, John R. Charmley, Defendant. James V. Strader, Appellant,
v.
City of Portland, by and through Its Commission of Public Docks, Respondent.
Court of Appeals of Oregon, Department 2.
Argued and Submitted May 26, 1971.
Decided June 10, 1971.
Bernard Jolles, Portland, argued the cause for appellants. With him on the brief were Franklin, Bennett, Des Brisay & Jolles, Portland.
Stephen R. Frank, Portland, argued the cause for respondent. With him on the brief were Tooze, Powers, Kerr, Tooze & Peterson, Portland.
Before SCHWAB, C.J., and FORT and THORNTON, JJ.
SCHWAB, Chief Judge.
The question raised by this appeal is:
Does ORS 30.265(2) (b) which grants immunity from liability to a public body for `any claim for injury or death of any person covered by the Workmen's Compensation Law' provide immunity from liability for a public body whose negligence injures a person who is engaged in the course of his employment for another and entitled to workmen's compensation benefits?
We hold that it does, and, therefore, that the trial judge properly entered a judgment on the pleadings against the plaintiffs.[1]
*1116 ORS 30.265 as it read at the time of the accidents in question provided:
"(1) Subject to the limitations of ORS 30.260 to 30.300, every public body is liable for its torts and those of its officers, employes and agents acting within the scope of their employment or duties, whether arising out of a governmental or proprietary function.
"(2) Subsection (1) of this section does not apply to:
"* * *
"(b) Any claim for injury to or death of any person covered by the Workmen's Compensation Law.
"* * *"
Plaintiffs here argue that the purpose of the exception set forth in ORS 30.265 was to grant immunity to municipal corporations only in a suit against a municipality by its own employes. This obviously was not the legislative intent in enacting ORS 30.265(2) (b), because ORS 30.265(2) (f), presently ORS 30.265(2) (e), provides that a public body shall not be liable for tort as to:
"(f) Any claim against a public body as to which the public body is immune from liability or its liability is limited by the provisions of any other statute."
ORS 656.002(13)[2] and ORS 656.016[3] require the defendant to provide workmen's compensation coverage for its employes. ORS 656.018(1) provides that every employer who satisfies the duty required by ORS 656.016
"* * * is relieved of all other liability for compensable injuries to his subject workmen * * *."
As plaintiffs' brief points out, the Supreme Court of only one of three states with tort claims acts containing exceptions similar to those found in ORS 30.265(2) have interpreted this statute. The three states are Iowa, Hawaii, and Minnesota. The pertinent portion of the Minnesota statute is identical to the Oregon statute. The Minnesota court, in disposing of the same contention the plaintiffs make here, said:
"To accept the interpretation plaintiff would have us adopt would render the exception redundant. Any person who sustains a work-related injury while employed by a municipality is precluded by * * * the Workmen's Compensation Act from bringing a tort action for damages against his employing municipality. While a municipal employee injured under circumstances which create a liability in a third party other than his employer may elect to sue the third party, the liability of his employer, including a municipality, is made exclusive under the compensation act. If the exception were intended to apply only to employees of the defendant municipality, surely the significance *1117 of substituting words such as `any municipal employee' for `any person' would not have been overlooked by the legislature. The weakness of plaintiff's argument is that essentially it is directed at the wisdom of the limitation embodied in language which, it must be acknowledged, is clear and free from ambiguity * * *." McCarty v. Village of Nashwauk, 286 Minn. 240, 175 N.W.2d 144, 147 (1970).
Affirmed.
NOTES
[1] Both plaintiffs were employed as long-shoremen by employers other than the Commission of Public Docks. Each sustained an injury in the course of his employment for which he received workmen's compensation benefits from his employer. Both claimed their injuries were due to negligence of the defendant and the maintenance of its facility.
[2] ORS 656.002(13) provides:
"`Employer' means any person, including receiver, administrator, executor or trustee, and the state, state agencies, counties, municipal corporations, school districts and other public corporations or political subdivisions, who contracts to pay a remuneration for and secures the right to direct and control the services of any person."
[3] ORS 656.016 provides:
"(1) Every employer subject to ORS 656.001 to 656.794 is required to assure that his subject workmen will receive the compensation for compensable injuries provided in ORS 656.001 to 656.794 either by:
"(a) Filing an application with the State Accident Insurance Fund and contributing to the Industrial Accident Fund the fees and premiums provided under ORS 656.442; or
"(b) Qualifying as a direct responsibility employer under ORS 656.405 and 656.409. However, this state and political subdivisions therein may not become direct responsibility employers.
"(2) Any employer required by statutes of this state other than ORS 656.001 to 656.794 or by the rules, regulations, contracts or procedures of any agency of this state or a political subdivision therein to provide or agree to provide workmen's compensation coverage, either directly or through bond requirements, shall have the right to provide such coverage by either of the methods provided in subsection (1) of this section." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610143/ | 485 P.2d 1095 (1971)
Albert W. SCHMECK and Earl Whitlock, Respondents,
v.
Frank R. BOGATAY, Appellant.
Supreme Court of Oregon.
Argued and Submitted April 8, 1971.
Decided June 16, 1971.
*1096 Stanley C. Jones, Jr., Klamath Falls, argued the cause for appellant. With him on the brief was J. Anthony Giacomini, Klamath Falls.
Blair M. Henderson, Klamath Falls, argued the cause for respondents. With him on the brief was Arthur A. Beddoe, Klamath Falls.
Before McALLISTER, P.J., and DENECKE, HOLMAN, TONGUE, HOWELL and BRYSON, JJ.
TONGUE, Justice.
This is an action to enforce payment of additional rent alleged to be due under the provision of a lease which increased the minimum monthly rental payments from $450 to $625 per month upon the occurrence of conditions which are the subject of this controversy. The case was tried before the court, sitting without a jury. Defendant appeals from a $2,800 judgment for plaintiffs.
In November 1961 plaintiffs leased to defendant a building in downtown Klamath Falls for operation of a shoe store. Defendant had previously been a tenant on the same premises and had also owned two other shoe stores. The other stores, however, had been operated by managers. Although defendant had devoted some time to the other shoe stores, he had his "headquarters" in the building leased from plaintiffs, where he spent most of his time and also personally engaged in the selling of shoes at that store.
The 1961 lease provided for payment of either a minimum monthly rental of $450 or 5% of the yearly gross receipts, whichever was larger. The lease then included the following new provisions:
"Lessee agrees to personally operate a general retail shoe business in said premises during customary business hours, and in the event Lessee shall engage in some new business which should prevent Lessee from devoting his time and efforts to the operation of the business in the leased premises, then the minimum monthly rental to be paid by Lessee to Lessor shall be increased to $625.00 per month."
Plaintiff Schmeck testified that the store was a "first-class" shoe store at that time, but that there had been "talk" of defendant looking for a location for a new store and that the purpose of this provision was to "protect" the lease in the event that defendant should "go into a new store."
Under the 1961 lease, effective January 1, 1963, the store apparently prospered until 1965. The evidence shows that during the period of 33 months from January 1, 1963, to October 1, 1965, the gross sales were such that for only three months (two in early 1963 and one in 1964) a rental payment of 5% of the gross sales would have been less than $625 per month. The average monthly gross sales during that period exceeded $15,600, so as to produce, at 5%, a monthly rental of over $780.[1]
In 1965 defendant bought a building two blocks from the leased premises. Upon learning this, plaintiff Schmeck was admittedly "unhappy" or "angry" at the prospect of losing a good tenant. Defendant also *1097 spent $45,000 in remodeling that building for a new shoe store. Plaintiff then consulted his attorney for advice.
On August 6, 1965, plaintiffs' attorney wrote a letter to defendant stating plaintiff Schmeck's understanding that defendant intended "to remove your retail shoe business to another location." The letter then referred to various lease provisions and included the following statement:
"Your attention is further directed to the term of the lease wherein you agree to personally operate a general retail shoe business during customary business hours and in the event that you should engage in some new business which should prevent you from devoting your time and efforts to the operation of the business in the leased premises, then the minimum monthly rental to be paid my clients would be increased to $625.00 per month."
Upon receiving the letter defendant took it to his attorney for advice. He then decided that instead of closing the leased store, as he had planned to do, he would continue its operation for the remainder of the term of the lease, but under a manager.
Accordingly, on October 1, 1965, defendant opened his new shoe store. Since he had more room at that location, he kept his stock inventory there for all of his stores. He also moved his personal office to the new store and it became the center of his operations. As a result, he then spent the "bulk" of his time at the new store and also personally sold shoes there, whereas previously he had spent the "bulk" of his time at the leased store and had personally sold shoes there. Plaintiff Schmeck also testified that, according to his observations, defendant installed cheaper lines of shoes at the leased store and that all of defendant's advertising was for the benefit of the new store.
Beginning abruptly with the month of October 1965, the gross sales for the leased store dropped to less than 25% of their former volume and continued at that level, with operations at a loss, for the remaining 15 months of the lease. As a result, during none of these months was the volume of gross sales such that 5% of such sales would exceed $450 per month, much less $625. Accordingly, and beginning with that month, plaintiffs were paid the minimum rental of $450 per month.
Plaintiff Schmeck testified that at some time after defendant opened the new store on October 1, 1965, he asked defendant if he was going to pay the "extra rent" (i.e., $625 per month) and that defendant said he had been "advised against it" and was not going to do so. Plaintiffs accepted the minimum monthly rental payments of $450, however, and never made any further demand for payment of $625 per month or any complaint about the manner in which defendant was operating either the old or new store until after the expiration of the lease. They then filed this action.
Defendant admitted, however, that after opening the new store he spent the "bulk" of his time there and that he did not know of any reason why the business at the leased store should not have continued at the same level as in the past if he had continued to "operate it as (he) had previously operated it."
In support of the contention that the trial court erred in denying defendant's motion for an involuntary nonsuit and in finding that plaintiffs' claim was not barred by waiver or estoppel, defendant's primary contentions are: (1) that the provision in the lease for an increase in monthly rentals from $450 to $625 was a promise conditioned upon two future events: (a) the entry into a "new business," and (b) a business which, of itself, "prevented" defendant from devoting his efforts to the old store and that both of these two events did not occur; (2) that the trial court, in construing the lease to require defendant's personal presence in operation of the leased store, misconstrued the lease "as if it contained language not present therein"; (3) that the conduct of the parties constituted a "practical construction" of the lease so as not to require *1098 the increased rental payment of $625 per month; and (4) that by continued acceptance of rental payments of $450 per month, without objections, plaintiffs waived any right to payments of $625 per month and are estopped to claim otherwise.
The trial court, after carefully considering all of the evidence, found that the intent of the parties in including the lease provision in dispute was that the defendant "be personally present in the business being conducted on the leased premises during the term of the lease" and that, on the contrary, "defendant was not present to conduct the business on the premises during the term of the lease." After examining the record, we agree with these findings and in this interpretation of the lease provision.
There was ample evidence to support the finding that in adding this new provision plaintiffs intended to "protect" the lease, including the substantial rentals previously received on a percentage of gross sales, by the addition of this new provision; that in order to do so it was intended that defendant should continue to "personally operate" the shoe store in the leased premises in the same manner as in the past; that, for the same reason, it was intended that the term "new business" should include any new business in which defendant might engage, including a new shoe store, and that if defendant engaged in the operation of a new shoe store in such a manner as to prevent him from continued personal operation of the old shoe store, the minimum monthly rentals were to be increased to $625.
Defendant raises the question whether, at the time of entry into that "new business" on October 1, 1965, defendant was then "prevented" from continuing to "personally operate" the old shoe store. Thus, defendant cites authorities for the proposition that no duty arises under a "conditional promise" dependent upon future events until all of the future events making up the condition have occurred.
Defendant is mistaken, however, in assuming that all of the "future events making up the condition" must have occurred when he first opened the new store on October 1, 1965, in order for the lease provision to become effective. The term "engage in a new business" is not so limited in point of time. Thus, defendant not only moved his office and inventory to the new store on October 1, 1965, but as each month passed defendant continued to devote the "bulk" of his time to the operation of the new store, including the personal sale of shoes, whereas he had previously devoted the "bulk" of his personal time and efforts to the operation of the leased store. Under these facts, there can be no doubt but that defendant "engaged" each month in a new business which "prevented" him from "devoting his time and efforts to the operation of the business in the leased premises," as provided by the lease provision.
Thus, the trial judge was correct, both legally and from a very practical standpoint, in holding that the "conditions" of the lease provision had "occurred" and that this was what the parties intended to protect against by that provision in the lease. For the same reasons, defendant's contention that the trial court misconstrued the lease must also be rejected.
We next consider defendant's contention that the conduct of the parties, including the acceptance of payment of $450 as rent each month, without complaint regarding the manner in which defendant was conducting either the new store or the leased store, constituted a "practical construction of the lease so as not to require the increased rental payments of $625 per month." In making that contention, however, defendant would have the court ignore the letter written by plaintiffs to defendant shortly before opening his new store and warning that plaintiffs would insist upon compliance with this very provision in the lease. Defendant would also ignore the testimony of plaintiff Schmeck that after defendant opened the new store *1099 he asked defendant whether he was going to pay the increased rental payments and was told that defendant had been advised not to do so.
In view of this evidence, defendant's contention of "practical construction," which implies the construction of a contract by both parties, must be rejected. For the same reason, defendant's contention that plaintiffs waived compliance with the lease provision in question must be rejected, since waiver must be manifested in some unequivocal manner and requires an intent to relinquish a known right. Waterway Terminals v. P.S. Lord, 242 Or. 1, 26, 406 P.2d 556 (1965). In this case, on the contrary, plaintiffs' conduct was not an "unequivocal" construction of the lease to the effect claimed by defendant and, in addition, plaintiffs had no intention to so construe the lease or to waive the benefits of the lease provision.
This leaves for consideration defendant's contention that plaintiffs are estopped by their conduct from enforcing that provision of the lease. Thus, defendant contends that if plaintiffs had refused to accept the monthly rental payments of $450 or had otherwise communicated any objections concerning defendant's performance of the lease, defendant "could have and would have remedied his conduct, if any, to the extent necessary to satisfy the requirements of the lease," but that instead plaintiffs accepted such monthly payments as full payment for each month, without raising any question or objection, and should be estopped to claim later that the payments were not accepted as full payment for each month. More specifically, defendant contends that performance of conditions of a contract is not only waived by acceptance of performance different from the performance required by the contract, but that acceptance or acquiescence may also be the ground for an estoppel without any change of position by the party claiming the estoppel, it being required only that the acts of the other party were such as to mislead the party claiming the estoppel to continue the course already begun, believing it to be acceptable to the other party.
It is true that estoppel by conduct, as distinguished from waiver, may not require proof of intent. Ashley v. Pick, 53 Or. 410, 417, 100 P. 1103 (1909); Boyce v. Toke Point Oyster Co., 145 Or. 114, 118, 25 P.2d 930 (1933); First National Bank of Portland v. Stretcher, 169 Or. 532, 538, 129 P.2d 830 (1942), and Hemshorn, Deceased, Lelek v. Hemshorn, 184 Or. 364, 376, 198 P.2d 597 (1948). Cf. Waterway Terminals v. P.S. Lord, supra, 242 Or. at 26, 406 P.2d 556. But see Earls et ux. v. Clarke et al., 223 Or. 527, 530-531, 355 P.2d 213 (1960).
It may also be true that, under some circumstances, there may be an estoppel by consent or acquiescence, despite the fact that there has been no change of position by the party claiming the estoppel, where the conduct of the other party has been such as to mislead the party claiming the estoppel to continue a course of conduct already begun, believing it to be acceptable to the other party. Harvey Radio Laboratories v. United States, 115 F. Supp. 444, 449, 126 Ct. Cl. 383, cert. den. 346 U.S. 937, 74 S. Ct. 377, 98 L. Ed. 425 (1953); Mahoning Investment Co. v. United States, 3 F. Supp. 622, 630, 78 Ct. Cl. 231, cert. den. 291 U.S. 675, 54 S. Ct. 526, 78 L. Ed. 1064 (1933); and United States v. Hanna Nickel Smelting Company, 253 F. Supp. 784 (D. Or. 1966), aff'd 400 F.2d 944 (9th Cir.1968). See also 3 Pomeroy, Equity Jurisprudence (5th ed.) 230, § 813.
It is clear, however, as held in Foster v. Agri-Chem, Inc., 235 Or. 570, 576-577, 385 P.2d 184, 187 (1963), quoting 5 Corbin, Contracts 984, § 1245:
"* * * The mere receipt of the defective performance is not in itself sufficient to discharge the claim to damages for the breach. There must be an expression of assent to accept it in satisfaction and as a complete discharge * * * of the obligor's duty * * *."
*1100 To the same effect, see City of Hillsboro v. James & Yost, 240 Or. 433, 446, 402 P.2d 511 (1965).
In this case, on the contrary, while it is true that plaintiffs accepted payment each month of rental payments of $450, that was no "expression of assent to accept it in satisfaction and as a complete discharge." Instead, both by letter dated August 6, 1965, and by subsequent conversation, plaintiffs indicated their intention to enforce the lease provision under which monthly rental payments of $625 should have been made.
Furthermore, it is also well established that silence or passive acquiescence is not alone sufficient to constitute an estoppel by conduct from asserting a right. Waterway Terminals v. P.S. Lord, supra, 242 Or. at 24, 406 P.2d 556. In addition, there must have been a duty to speak or give notice and there will be no estoppel unless the other party was not only ignorant of the truth and otherwise entitled to rely upon such conduct, but also unless he did in fact rely upon such conduct and, as a result, was misled into doing or refraining from doing something that he would not otherwise have done or refrained from doing. Ashley v. Pick, supra, 53 Or. at 416-417, 100 P. 1103; Marshall v. Wilson, 175 Or. 506, 518, 154 P.2d 547 (1944). See also United States Nat. Bank of Portland v. Erickson et al., 208 Or. 141, 152, 300 P.2d 449 (1956).
In this case, however, as previously noted, plaintiffs gave notice by letter dated August 6, 1965, of their intention to assert the rights conferred by the lease provision. Thus, defendant knew that plaintiffs intended to assert such rights and had no right to rely upon either plaintiffs' silence or their acceptance of the monthly rental payments of $450 or to claim that he was misled by such conduct. See also Fraser v. Portland, 81 Or. 92, 95-96, 158 P. 514 (1916); State ex rel. Security Savings and Trust Co. v. School District No. 9, 148 Or. 273, 288, 31 P.2d 751, 36 P.2d 179 (1934); Bradford v. Western Oldsmobile, Inc., 222 Or. 440, 452, 353 P.2d 232 (1960); and Pilloud et ux. v. Linn-Benton Park Ass'n, 228 Or. 324, 330, 365 P.2d 116 (1961).
Finally, the trial court found from the evidence in this case that "there was no showing of a change of operation on the part of the defendant by reason of the failure of the plaintiffs to protest." In other words, defendant failed to sustain his burden to prove that he did, in fact, rely upon plaintiffs' conduct and was misled to his prejudice by such conduct into either doing or refraining from doing anything that he would not otherwise have done or refrained from doing. Upon examination of the entire record, we hold that there was substantial evidence to support that finding by the trial court. Cf. Bradford v. Western Oldsmobile, Inc., supra, 222 Or. at 452-453, 353 P.2d 232.
For all of these reasons, the judgment of the trial court is affirmed.
Affirmed.
NOTES
[1] As previously noted, however, the actual computation of rental payments was computed on the basis of 5% of the yearly gross sales. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3355348/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION
By his petition filed June 30, 1998, petitioner seeks a writ of habeas corpus. For reasons hereinafter stated, the action is dismissed.
The petition alleges that on March 27, 1996, petitioner received an eight-year sentence for a violation of the Connecticut General Statutes and that he remains illegally confined under this sentence. Petitioner has set forth his claim in two counts. The gist of both counts of the petition is that the Commissioner of Correction has failed to credit petitioner with over 330 days of good time under an illegal interpretation of Public Act 93-219, (now General Statutes § 18-100d) involving a crime committed on or after October 1, 1994.
General Statutes § 18-100d provides as follows:
Notwithstanding any other provision of the general statutes, any person convicted of a crime committed on or after October 1, 1994, shall be subject to supervision by personnel of the Department of Correction or the Board of Parole until the expiration of the maximum term or terms for which he was sentenced.
In Velez v. Commissioner of Correction, 250 Conn. 536 (1999), the Supreme Court held that in light of its language and CT Page 119 legislative history, § 18-100d renders the good time statutes inapplicable to persons, like the petitioner, sentenced to terms of imprisonment for crimes committed on or after October 1, 1994.
Accordingly, it must be concluded that the petitioner is not legally entitled to the good time sentence reduction claimed in the petition and the petition must be dismissed.
Joseph J. Purtill Judge Trial Referee | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1876115/ | 260 S.W.3d 374 (2008)
Johnnie ADAMS, Appellant,
v.
STATE of Missouri, Respondent.
No. WD 67855.
Missouri Court of Appeals, Western District.
January 29, 2008.
S. Kate Webber, Kansas City, MO, for appellant.
Shaun J. MacKelprang, Jefferson City, MO, for respondent.
Before LISA WHITE HARDWICK, P.J., JAMES M. SMART, JR., and JAMES EDWARD WELSH, JJ.
ORDER
Johnnie Adams appeals the circuit court's judgment denying his Rule 24.035 motion for post-conviction relief after an evidentiary hearing. We affirm. Rule 84.16(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610196/ | 5 Wash. App. 68 (1971)
485 P.2d 626
McDONALD CONSTRUCTION CO., Appellant,
v.
JOHN S. MURRAY et al., Respondents and Cross-appellants, UNITED PACIFIC INSURANCE COMPANY, Appellant.
No. 513-40749-1.
The Court of Appeals of Washington, Division One Panel 2.
June 1, 1971.
Lycette, Diamond & Sylvester and Lyle L. Iversen, for appellant.
Moriarty, Long, Mikkelborg & Broz, Charles P. Moriarty, Jr., and Alec W. Brindle, for respondents and cross-appellants.
JAMES, J.
By the terms of a written contract, McDonald Construction Company undertook the construction of an addition to a commercial building owned by the John S. Murray marital community. Significant to the litigation culminating in this appeal is a provision of the contract requiring McDonald to complete its work within 75 calendar days. Substantial evidence supports the trial judge's finding that 239 days elapsed before the building was ready for occupancy.
McDonald brought this action to recover the unpaid balance of the contract price.
The trial judge found that the Murrays had been damaged by reason of McDonald's failure to complete construction within the time limited. The balance found to be due *69 McDonald under the terms of the contract was credited and the Murrays were given a judgment against McDonald for the sum of $4,056.05.
McDonald's first assignment of error is that "[t]he court assessed damages for delay upon an invalid basis." However, both in oral argument and its written brief, McDonald concedes that the court applied a proper measure of damages, i.e., the reasonable rental value of the premises for the delay period. McDonald's argument is, in essence, that there was no substantial evidence upon which the court could determine the reasonable rental value of the premises. In finding of fact 11, the trial judge found that: "The reasonable rental value of the premises is determined to be $600 per month ..." The finding was not set out in McDonald's brief nor was error assigned thereto. By the provisions of CAROA 43, we must accept finding of fact 11 as an established fact. Iverson v. Graham, 59 Wash. 2d 96, 366 P.2d 213 (1961), Plywood Supply, Inc. v. Karr, 1 Wash. App. 596, 463 P.2d 176 (1969).
McDonald's second assignment of error is that "[t]he findings of fact do not support the judgment." McDonald makes no argument to support this assignment other than its argument that the evidence does not support finding of fact 11. Clearly the judgment of the trial court is fully supported by the findings.
The Murrays assign error to the trial judge's finding of fact that McDonald and the Murrays agreed to resolve a dispute concerning backfill material and that the agreement was reflected in a change order which provided that the Murrays would be chargeable with the cost of backfill material estimated to be in the sum of $1,500 but with any variance from that figure to be subject to later arbitration. The Murrays' contention is that by the terms of the contract, McDonald was required to provide all backfill material. Their argument fails to recognize that it was the trial judge's finding of fact that the parties agreed to the terms of the change order. While it may be true that under the terms of the basic contract McDonald was required to furnish *70 suitable backfill material, there was no reason why the parties could not modify the contract by their subsequent agreement. The trial judge's finding is supported by substantial evidence.
The trial judge found as a fact that Queen Anne News, Inc. was not a party to the construction contract and that its only relationship to the transaction was as a prospective tenant for the premises McDonald undertook to construct. Consequently, Queen Anne News was dismissed from the action.
Queen Anne News claims that the delay in completion of the premises caused it to lose anticipated profits. It asserts a right to recover from McDonald upon the legal theory that it was a third-party beneficiary of the construction contract.
[1] A third-party beneficiary is one who, though not a party to the contract, will nevertheless receive direct benefits therefrom. In determining whether or not a third-party beneficiary status is created by a contract, the critical question is whether the benefits flow directly from the contract or whether they are merely incidental, indirect or consequential. 17 Am.Jur.2d Contracts § 305 (1964). An incidental beneficiary acquires no right to recover damages for nonperformance of the contract. Restatement of Contracts, § 147 (1932). "[I]t is not sufficient that the performance of the promise may benefit a third person, but that it must have been entered into for his benefit, or at least such benefit must be the direct result of performance and so within the contemplation of the parties." (Footnote omitted.) 17 Am.Jur.2d Contracts § 304 (1964). "The question whether a contract is made for the benefit of a third person is one of construction. The intention of the parties in this respect is determined by the terms of the contract as a whole construed in the light of the circumstances under which it was made." Grand Lodge of Scandinavian Fraternity of America v. United States Fid. & Guar. Co., 2 Wash. 2d 561, 569, 98 P.2d 971 (1940).
In regard to the requisite intent, in Vikingstad v. Baggott, *71 46 Wn. (2d) 494, 282 P. (2d) 824, we recognized the rule stated in 81 A.L.R. 1271, 1287, that such "intent" is not a desire or purpose to confer a benefit upon the third person, nor a desire to advance his interests, but an intent that the promisor shall assume a direct obligation to him.
American Pipe & Constr. Co. v. Harbor Constr. Co., 51 Wash. 2d 258, 266, 317 P.2d 521 (1957).
Queen Anne News points out that the evidence established that McDonald was aware of the fact that it was to become the Murrays' tenant when the addition to the Murrays' building was completed. Queen Anne News argues that the Murrays' intent, together with McDonald's knowledge thereof, is sufficient to afford the News the status of a third-party beneficiary.
We do not agree. Any benefit which Queen Anne News could assert would be derived from the intervening tenancy agreement which it had with the Murrays. Queen Anne News derived no direct benefit from the construction contract and consequently had no right of action against McDonald because of McDonald's breach of performance. The trial judge did not err in dismissing Queen Anne News' cross-complaint.
We find no error and affirm the judgment in all respects.
FARRIS, A.C.J., and SWANSON, J., concur.
Petition for rehearing denied July 19, 1971.
Review denied by Supreme Court August 26, 1971. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1913810/ | 981 A.2d 939 (2009)
COM.
v.
WOODRUFF.
No. 705 MDA 2008.
Superior Court of Pennsylvania.
July 2, 2009.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876119/ | 260 S.W.3d 865 (2008)
In the Interest of B.H.
No. WD 68947.
Missouri Court of Appeals, Western District.
August 26, 2008.
Jennifer Ann George, Princeton, MO, for appellant.
Jason Slade Spillerman, Trenton, MO and Gary Lee Gardner, Attorney General Office, Jefferson City, MO, for respondent.
Before HAROLD L. LOWENSTEIN, Presiding Judge, PAUL M. SPINDEN, Judge, and VICTOR C. HOWARD, Judge.
ORDER
PER CURIAM.
B.P. appeals the circuit court's judgment terminating her right to parent her child, B.H. We affirm in this per curiam order entered pursuant to Rule 84.16(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2899451/ | NO. 07-08-0259-CV; 07-08-0260-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
APRIL 20, 2009
______________________________
THE STATE OF TEXAS, APPELLANT
V.
JAMES GREEN D/B/A ALLSTATE BAIL BONDS, APPELLEE
_________________________________
FROM THE COUNTY COURT AT LAW #1 OF POTTER COUNTY;
NO. 9098-1, 9099-1; HONORABLE W. F. “CORKY” ROBERTS, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
OPINION ON MOTION TO DISMISS
Appellant, the State of Texas, appeals from two judgments that each remitted $720,
minus accrued interest, from a previous bond forfeiture in favor of appellee, James Green
d/b/a Allstate Bail Bonds. Green has filed a motion to dismiss the State’s appeal for want
of jurisdiction. We grant the motion and dismiss the appeal for want of jurisdiction.
Green is the surety for two $1500 bonds on Daiton Earl Nivens. On March 31,
2006, the cases against Nivens were called for trial, but Nivens failed to appear. As a
result, on April 7, 2006, the trial court entered Judgment Nisi as to the bonds and ordered
both forfeited to the State. Green filed motions to quash the bonds. However, prior to any
hearing on the motions, the trial court entered an Agreed Final Judgment that ordered
forfeiture of $900 of the bond in each case and assessed costs of court associated with
the cases against Green. This agreed final judgment was signed by Green.
On December 19, 2007, Green filed an affidavit of incarceration notifying the Sheriff
of Potter County that Nivens was incarcerated in the Randall County Detention Center. On
the same date, Green filed a Special Bill of Review, under the authority of Texas Code of
Criminal Procedure article 22.17,
requesting that the Final Judgments entered in these
cases be reformed and that all or part of the forfeited bonds be remitted to Green. After
hearing Green’s bill of review, the trial court entered Judgment remitting $720 on each
case to Green, minus accrued interest.
The State filed Notices of Appeal on each of these Judgments. In addition, the
State requested findings of fact and conclusions of law, but no findings and conclusions
are contained within the record.
On February 24, 2009, Green filed a Motion to Dismiss the State’s Appeal for Want
of Jurisdiction. In the motion, Green contends that, due to the holding in State v. Sellers,
790 S.W.2d 316 (Tex.Crim.App. 1990), the State is not permitted to appeal in bond
forfeiture cases. In Sellers, the Court reviewed the history of articles 44.42
and 44.01
of
the Texas Code of Criminal Procedure. After analyzing these articles and applying them
to the facts of the case, the Court held that “neither Article 44.42 nor Article 44.01(a)(2) . . .
authorizes the State’s appeal in these causes.” Id. at 321. However, in its analysis of
article 44.01(a)(2), the Court was addressing the State’s argument that the trial court’s final
judgment was a modification of the trial court’s previous judgment nisi. The Court
explained that a judgment nisi is not enforceable by the State and, therefore, a “final
judgment following trial upon a judgment nisi cannot be considered an ‘order’ that ‘modifies’
an earlier ‘judgment’” as those terms are used in article 44.01(a)(2). Id.
By contrast, the present case does not involve the State’s attempt to appeal a
purported modification of a judgment nisi by way of a final judgment. Rather, the State is
actually appealing a reformation of a final judgment in a bond forfeiture case under article
22.17. See Tex. Code Crim. Proc. Ann. art. 22.17. The majority of the cases that have
addressed appeals of rulings on article 22.17 special bills of review have addressed the
defendant’s appeal and, thus, are inapplicable to the issue of our jurisdiction over the
State’s appeal.
In the only case addressing the issue of the State’s right to appeal a remittitur
ordered under article 22.17, see State v. Maldonado, 936 S.W.2d 14 (Tex.App.–San
Antonio 1996, no writ), the Court, believing itself bound by the “holding and implications”
of Sellers, concluded that article 44.01(a)(2) does not authorize the State to appeal a trial
court’s order entered pursuant to article 22.17. Id. at 16. While the Court acknowledged
that the facts of the case were distinguishable from those presented in Sellers,
it indicated
that the State “has not made this argument in this case.” Id. Of course, whether a court
has jurisdiction over an appeal is a question of law and the proponent of the court’s
assertion of jurisdiction is not obligated to argue for the existence of the court’s jurisdiction.
The Court additionally states that, “. . . it would be ironic, at best, if the State could appeal
an order of remittitur entered in a bill of review proceeding when, under Sellers, it plainly
could not appeal the same order if it were entered in a bond forfeiture proceeding within
the period of the trial court’s plenary power.” However, the basis for the Sellers holding
that the State cannot appeal an order entered within the period of the trial court’s plenary
power is that the order entered during the trial court’s plenary power is not a final order that
would bring it within the purview of article 44.01(a)(2). See Sellers, 790 S.W.2d at 320-21.
In the present case as well as in Maldonado, the State is appealing a final judgment that
was “reformed” in accordance with the procedure identified in article 22.17 and, thus, ironic
or not, it falls within the express terms of article 44.01(a)(2), as acknowledged by the
Maldonado Court. Maldonado, 936 S.W.2d at 16. The Maldonado Court’s discomfort in
their reliance on Sellers is illustrated by the closing statement in the opinion, “While the
Texas Court of Criminal Appeals may ultimately hold that article 44.01(a)(2) authorizes the
State to appeal an order entered pursuant to article 22.17, we believe ourselves bound by
the holding and implications of Sellers. Accordingly, the State’s appeal is dismissed for
want of jurisdiction.”
While we question the analysis of the Maldonado Court, we do not question its
holding. Sellers instructs us that article 44.42 does not authorize the State to appeal a final
judgment in a bond forfeiture proceeding. See Sellers, 790 S.W.2d at 319. However,
Sellers further provides that article 44.42 does not prohibit the State’s appeal in a bond
forfeiture case if otherwise authorized by the legislature. See id. We are aware of no
legislative authorization contained within the Code of Criminal Procedure or elsewhere that
would authorize the State to take a direct appeal from a final judgment in a bond forfeiture
proceeding. Thus, were we presented with the State’s direct appeal from a final judgment
in a bond forfeiture proceeding, we would have no pause in dismissing the appeal for want
of jurisdiction.
But, the present case is not a direct appeal from a final judgment in a bond forfeiture
proceeding. Rather, it is an appeal of a reformation of a final judgment. While we
acknowledge the State’s argument that article 44.01(a)(2) appears to authorize the State
to appeal an order that “arrests or modifies a judgment,” including a judgment in a bond
forfeiture proceeding, we find that it would be logically inconsistent for that article to
authorize the appeal of a modification of a final judgment, while at the same time not
authorizing the appeal of the original judgment.
Because we must construe statutory provisions in a manner that avoids illogical or
absurd results, see Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991), we hold
that article 44.01(a)(2) does not authorize the State to appeal a reformation of a final
judgment in a bond forfeiture proceeding.
For the foregoing reasons, we dismiss the State’s appeal for want of jurisdiction.
Mackey K. Hancock
Justice | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2228890/ | 2 N.Y.3d 810 (2004)
814 N.E.2d 429
781 N.Y.S.2d 259
SIGNATURE REALTY, INC., Appellant,
v.
TIM TALLMAN, Doing Business as TALLMAN'S TIRE AND AUTO SERVICE, Respondent.
Court of Appeals of the State of New York.
Argued April 28, 2004.
Decided June 3, 2004.
Law Office of Richard L. Wolfe, Utica (Richard L. Wolfe of counsel), for appellant.
Kowalczyk, Tolles & Deery, LLP, Utica (Robert K. Hilton, III, of counsel), for respondent.
Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur in memorandum.
*811 OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the case remitted to Supreme Court for further proceedings in accordance with this memorandum.
As we recently stated in R/S Assoc. v New York Job Dev. Auth. (98 NY2d 29, 32 [2002]), "when parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms" (see also Reiss v Financial Performance Corp., 97 NY2d 195, 198 [2001], quoting W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). Nothing in the parties' agreement limits the commission to the initial lease period. On the contrary, an option to renew a lease for three five-year periods, as provided for in the subject lease, would fall within the broad category of "a lease, rental arrangement or other occupancy," unambiguously requiring payment of 10% of the rent over the period of occupancy.
Given that plaintiff did not cross-move for summary judgment, this Court is not empowered to grant it summary relief (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-111 [1984]).
Order, insofar as appealed from, reversed, etc. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2228906/ | 814 N.E.2d 126 (2004)
351 Ill. App.3d 333
286 Ill.Dec. 476
HOMEBRITE ACE HARDWARE, Appellant,
v.
The INDUSTRIAL COMMISSION, et al., Kevin Schnoeker, Appellee.
No. 5-03-0650 WC.
Appellate Court of Illinois, Fifth District, Industrial Commission Division.
June 8, 2004.
*128 Aileen M. Solovy, James A. Santucci, Chilton, Yambert, Porter & Young LLP, Chicago, for Appellant.
Bruce R. Cook, Cook, Ysursa, Bartholomew, Brauer & Shevlin, Belleville, for Appellee.
Justice CALLUM delivered the opinion of the court:
Claimant, Kevin Schnoeker, filed an application for adjustment of claim under the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2002)) while working for employer, Homebrite Ace Hardware. Following a hearing on claimant's section 19(b) petition (820 ILCS 305/19(b) (West 2002)), the arbitrator awarded claimant 54 weeks of temporary total disability (TTD) benefits and directed employer to authorize claimant's prescribed cervical spine surgery. The Industrial Commission (Commission) affirmed and adopted the arbitrator's decision, and it remanded the case for further proceedings pursuant to Thomas v. Industrial Comm'n, 78 Ill.2d 327, 332-35, 35 Ill.Dec. 794, 399 N.E.2d 1322 (1980). The circuit court confirmed the Commission's decision, and employer timely appealed. We affirm and remand pursuant to Thomas, 78 Ill.2d at 332-35, 35 Ill.Dec. 794, 399 N.E.2d 1322.
I. BACKGROUND
Claimant worked for employer as paint department manager. In 2000, claimant had worked for employer for 10 years and had managed the paint department for about 5 years. On November 6, 2000, claimant heard a pop in his back while he unloaded five-gallon buckets of driveway sealer from a pallet. He continued working, but felt back pain about four hours later. Claimant reported his injury to employer and did not return to work.
*129 On November 9, 2000, claimant saw a doctor who worked with his family physician, Dr. Garces. Claimant related the popping episode and complained of low back pain. The associate diagnosed a possible disc herniation or bulging and prescribed pain medication and light work duty. The associate also referred claimant to Dr. Charisse Barta, a neurologist. Claimant returned to Dr. Garces's office for followup visits on November 14, and 28, 2000, and complained of continued lumbar pain. Dr. Garces prescribed physical therapy and suggested light duty work for four hours per day for two weeks.
Dr. Barta examined claimant on November 30, 2000, and diagnosed low back pain and ordered an MRI of claimant's lumbosacral spine. She next examined claimant on December 28, 2000. In her notes, she wrote that claimant's lumbar MRI revealed a herniated disc at L3-L4 and a disc bulge at L4-L5. She also stated that claimant could return to work with a restriction of no lifting over 10 pounds. Dr. Garces subsequently referred claimant to Dr. Christopher Heffner, a neurosurgeon.
According to claimant, about six weeks to two months after the accident, he began feeling pain in his neck and upper back. Claimant testified that he had never experienced any neck problems before his injury, but he did experience back problems on several occasions.
At his deposition, Dr. Heffner, a board-certified neurosurgeon, testified that he first examined claimant on January 30, 2001. Claimant explained that he continued to experience back pain that radiated to his right posterior hip. He also had difficulty sleeping and with sexual function. Dr. Heffner reviewed claimant's MRI films and diagnosed herniated lumbar disc disease with back pain and hip pain. Dr. Heffner prescribed steroid medication and a TENS unit. Claimant was already off of work and Dr. Heffner agreed with that recommendation. Over employer's counsel's objection, he opined that claimant's condition was causally related to his work accident.
Dr. Heffner next saw claimant on February 13, 2001. At this time, claimant complained of pain to his neck that radiated to his arm. Dr. Heffner opined, over counsel's objection, that claimant's condition at this time was causally related to his work accident. Following two lumbar epidural injections, claimant complained at a March 6, 2001, visit, of neck and low back pain, but no pain radiating to his legs. Dr. Heffner ordered another injection and continued physical therapy. During a March 29, 2001, visit, claimant complained of neck pain that radiated to his right arm and to the back of his head. The MRI films revealed degenerative changes of the C5-C6 disc with some posterior disc bulging. Dr. Heffner recommended cervical traction. Again, over counsel's objection, he opined that claimant's condition at this time was causally related to his work accident. Dr. Heffner continued to keep claimant off of work and recommended continued physical therapy and home cervical traction.
Dr. Heffner next saw claimant on April 20, 2001. He felt that claimant's neck was a more significant problem at this time and discussed with claimant surgical intervention. During a May 17, 2001, visit, claimant complained of neck and lower back pain and posterior headaches. He also complained of pain radiating from his neck to his right upper shoulder and arm. Dr. Heffner's continuing diagnosis was a herniated lumbar disc and cervical degenerative disc disease. He again discussed with claimant surgical intervention with respect to his cervical spine. Claimant again saw Dr. Heffner on June 21, and July 31, 2001. *130 His condition had not significantly changed.
Claimant agreed to undergo the cervical surgery, and it was scheduled for September 10, 2001. However, he did not undergo the procedure because employer did not authorize it. Dr. Heffner did not see claimant again after July 31, 2001, and never released him to return to work. According to Dr. Heffner, as of July 31, 2001, claimant's lower back condition had improved, and claimant did not complain of radicular pain to his leg. Dr. Heffner advised claimant to treat the condition on an as-needed basis. He testified that he would have released claimant to return to work if the cervical condition had not developed. Dr. Heffner further stated that he did not issue a report about causation with respect to claimant's cervical spine.
On July 16, 2001, Dr. R. Peter Mirkin examined claimant on employer's behalf and reviewed his MRI films. In his evaluation, Dr. Mirkin stated that there was no relationship between claimant's neck condition and his work injury. He noted that claimant's neck pain did not develop for several months after the injury. Dr. Mirkin also stated that claimant had a very small disc bulge in his neck and that he would not recommend surgery for it because it would not be beneficial. He recommended that claimant return to work.
On February 5, 2002, the arbitrator awarded claimant 54 weeks' TTD benefits for the period November 7, 2000, through November 21, 2001, and directed employer to authorize the treatment prescribed by Dr. Heffner, including the cervical spine surgery. Finding Dr. Heffner's causation opinion credible, the arbitrator found that claimant's condition of ill-being, including his cervical condition, was causally related to his work accident.
On November 18, 2002, the Commission, with one commissioner dissenting, affirmed and adopted the arbitrator's decision. In addition, it found that employer could not reasonably claim surprise by Dr. Heffner's causation opinion and thus overruled employer's objections to his testimony. The Commission remanded the case for further proceedings pursuant to Thomas, 78 Ill.2d at 332-35, 35 Ill.Dec. 794, 399 N.E.2d 1322.
On September 17, 2003, the circuit court confirmed the Commission's decision. Employer timely appealed.
II. STANDARDS OF REVIEW
The first issue on appeal involves an evidentiary ruling. Evidentiary rulings made during the course of a workers' compensation case will not be disturbed on review absent an abuse of discretion. Mobil Oil Corp. v. Industrial Comm'n, 327 Ill.App.3d 778, 788, 261 Ill.Dec. 924, 764 N.E.2d 539 (2002). An abuse of discretion occurs where no reasonable person would take the view adopted by the lower tribunal. Trettenero v. Police Pension Fund of the City of Aurora, 333 Ill.App.3d 792, 801, 267 Ill.Dec. 468, 776 N.E.2d 840 (2002).
The second and third issues on appeal involve causation and the medical expenses award. The Commission is charged with determining the question of causation, and we will not disturb its finding unless it is against the manifest weight of the evidence. Horath v. Industrial Comm'n, 96 Ill.2d 349, 356, 70 Ill.Dec. 741, 449 N.E.2d 1345 (1983). The claimant has the burden of proving that the medical services were necessary and the expenses were reasonable. Gallentine v. Industrial Comm'n, 201 Ill.App.3d 880, 888, 147 Ill.Dec. 353, 559 N.E.2d 526 (1990). What is reasonable and necessary is a question of fact for the Commission, and its determination will not be overturned unless it is against the manifest weight of the evidence. *131 F & B Manufacturing Co. v. Industrial Comm'n, 325 Ill.App.3d 527, 534, 259 Ill.Dec. 173, 758 N.E.2d 18 (2001). The test for determining whether a factual finding is against the manifest weight of the evidence is if there was sufficient evidence in the record to support the Commission's determination. Beattie v. Industrial Comm'n, 276 Ill.App.3d 446, 450, 212 Ill.Dec. 851, 657 N.E.2d 1196 (1995).
III. ANALYSIS
A. Evidentiary Ruling
Employer first argues that the Commission erred in overruling employer's objections to Dr. Heffner's causation testimony, which were based on Ghere v. Industrial Comm'n, 278 Ill.App.3d 840, 215 Ill.Dec. 532, 663 N.E.2d 1046 (1996), because no report was tendered to employer in advance of the testimony notifying employer that Dr. Heffner would testify about the issue.
Section 12 of the Act provides, in relevant part:
"In all cases where the examination is made by a surgeon engaged by the injured employee, and the employer has no surgeon present at such examination, it shall be the duty of the surgeon making the examination at the instance of the employee, to deliver to the employer, or his representative, a statement in writing of the condition and extent of the injury to the same extent that said surgeon reports to the employee and the same shall be an exact copy of that furnished to the employee, said copy to be furnished the employer, or his representative, as soon as practicable but not later than 48 hours before the time the case is set for hearing. * * * If such surgeon refuses to furnish the employer with such statement to the same extent as that furnished the employee, said surgeon shall not be permitted to testify at the hearing next following said examination." 820 ILCS 305/12 (West 2002).
The purpose of having the claimant's physician send a copy of his or her records to the employer no later than 48 hours prior to the arbitration hearing is to prevent the claimant from springing surprise medical testimony on the employer. Ghere, 278 Ill.App.3d at 845, 215 Ill.Dec. 532, 663 N.E.2d 1046.
In Ghere, the employee died of a heart attack while working as a flagman for employer. The employee's doctor testified that he treated the employee on several occasions, but never treated him for heart problems. The arbitrator sustained the employer's objection to the physician's testimony concerning whether the employee's work activities or environment could or might have precipitated his heart attack because the opinions were not furnished to the employer 48 hours before the hearing. On appeal, this court found that the physician's causation opinion would have gone beyond the contents of his medical records because there was no mention of causation in the records or that the physician ever treated the employee for a heart condition. Accordingly, we held that there was nothing in the records to put the employer on notice that the physician had an opinion regarding causation that the employer could have requested, and we upheld the arbitrator's exclusion of the testimony. Ghere, 278 Ill.App.3d at 846, 215 Ill.Dec. 532, 663 N.E.2d 1046.
Here, employer contends that the Commission cannot arbitrarily determine when an opinion constitutes surprise testimony. It suggests that the Commission must strictly adhere to Ghere and thus any undisclosed opinion testimony must be deemed as surprise and be barred. Employer argues that it would be unduly burdensome for a court to have to regularly *132 inquire as to what parties expect an opposing witness to testify to in order to guarantee no surprise. We disagree.
We find no indication in Ghere that its holding must be so strictly interpreted. The Ghere court examined the physician's records and treatment history to determine whether the employer was put on notice regarding the possibility that the physician might provide causation testimony. The court did not set forth a bright-line rule or presumption that undisclosed opinion testimony constitutes surprise. Furthermore, Ghere is factually distinguishable because the physician in Ghere had never treated the employee's heart condition, whereas Dr. Heffner did treat claimant for his neck problems. Dr. Heffner's records contain details about his treatment of claimant's neck complaints and therefore the records put employer on notice that Dr. Heffner might testify as to a causal relationship between the neck condition and claimant's work accident. Indeed, the only contested issue at arbitration was claimant's cervical injury. Employer's suggestion that Dr. Heffner's testimony should have been excluded is not well taken under these facts.
In sum, we conclude that the Commission did not abuse its discretion in admitting Dr. Heffner's causation testimony.
B. Causation
Next, employer argues that the Commission's causation determination is against the manifest weight of the evidence. To obtain compensation under the Act, a claimant must show, by a preponderance of the evidence, that he or she suffered a disabling injury that arose out of and in the course of the claimant's employment. Baggett v. Industrial Comm'n, 201 Ill.2d 187, 194, 266 Ill.Dec. 836, 775 N.E.2d 908 (2002). In analyzing the "arising out of" component, we are primarily concerned with a causal connection. Sisbro, Inc. v. Industrial Comm'n, 207 Ill.2d 193, 203, 278 Ill.Dec. 70, 797 N.E.2d 665 (2003).
Employer contends that, notwithstanding the Ghere objections discussed above, Dr. Heffner's causation opinion was fundamentally flawed. It asserts that Dr. Heffner opined only that there was a "possibility" of a causal relationship between claimant's neck condition and his work accident and did not explain how the cervical complaints related to the lumbar complaints and arose out of the occurrence. According to employer, at no time during the 98 days following claimant's accident did his physical examinations or recitations of his medical history indicate that claimant had any cervical complaints. Moreover, Dr. Heffner did not explain how a patient complaining of lumbar pain could develop radiating symptoms upwards into the cervical region that could be causally related to the same injury.
It is the Commission's function to weigh the testimony on causation (Pollard v. Industrial Comm'n, 91 Ill.2d 266, 277, 62 Ill.Dec. 924, 437 N.E.2d 612 (1982)), and we cannot conclude here that its reliance on Dr. Heffner's testimony was unreasonable. During his deposition, Dr. Heffner testified on four occasions regarding the causal relationship between claimant's neck condition and his work accident. In his response to the first question, which related to claimant's condition as of February 13, 2001, Dr. Heffner stated that it was reasonable to assume that there was a causal relationship. When asked to clarify this response with respect to claimant's complains of pain radiating upward to his neck, Dr. Heffner testified, "Yes, I think that's all part of the same problem." Next, addressing claimant's condition as of a March 6, 2001, office visit, Dr. Heffner opined, in relevant part, "I think his situation does seem to be causally related to the *133 events of November." During the third interchange, which addressed causation as of claimant's March 29, 2001, visit, Dr. Heffner opined, in relevant part, "it is possible that the neck problem, in particular the pain problem relating to his neck, may be related to that, yes." Finally, when asked to opine on causation as of claimant's last office visit on July 31, 2001, Dr. Heffner replied, "Yes, I do think that there is certainly the possibility of causal relationship, yes."
Reading the foregoing responses as a whole, we conclude that Dr. Heffner's causation testimony was not speculative or equivocal. Cf. McRae v. Industrial Comm'n, 285 Ill.App.3d 448, 452-53, 220 Ill.Dec. 969, 674 N.E.2d 512 (1996) (physician's opinion that claimant's work "may well have caused" claimant's condition of ill-being was equivocal and ambiguous). Nevertheless, even if one medical witness is equivocal on the question of causation, it is for the Commission to determine which medical opinion is to be accepted, and it may attach greater weight to the treating physician's opinion. Williams v. Industrial Comm'n, 244 Ill.App.3d 204, 210, 185 Ill.Dec. 43, 614 N.E.2d 177 (1993); see also Caterpillar Tractor Co. v. Industrial Comm'n, 97 Ill.2d 35, 43, 73 Ill.Dec. 392, 454 N.E.2d 252 (1983). We cannot conclude here that the Commission's adoption of Dr. Heffner's testimony was unreasonable.
We also reject employer's contention that Dr. Heffner's failure to explain the link between claimant's lumbar complaints and his cervical complaints renders the Commission's reliance on his causation testimony unreasonable. It was sufficient that Dr. Heffner testified as to a causal connection. He was not necessarily required to link claimant's various complaints.
Finally, we also reject employer's argument that the passage of 98 days between claimant's work accident and his first complaints of cervical pain necessarily renders Dr. Heffner's causation testimony suspect. Dr. Heffner testified that claimant did not relate any neck problems prior to his work accident and that there was a causal relationship between claimant's work accident and his neck condition. It is the Commission's function to judge the credibility of the witnesses, to draw reasonable inferences from their testimony, and to resolve any conflicts in claimant's favor. Sisbro, Inc., 207 Ill.2d at 207, 278 Ill.Dec. 70, 797 N.E.2d 665. We cannot conclude that the Commission's resolution of the causation issue was against the manifest weight of the evidence.
C. Medical Expenses
Employer's final argument is that the Commission erred in awarding claimant prospective medical benefits when it directed employer to authorize claimant's cervical surgery. According to employer, a prospective medical benefits award is an extraordinary form of relief that is available only when it is the only available option. We disagree.
Section 8(a) of the Act entitles a claimant to compensation for all necessary medical, surgical, and hospital services "thereafter incurred" that are reasonably required to cure or relieve the effects of injury. 820 ILCS 305/8(a) (West 2002). Specific procedures or treatments that have been prescribed by a medical service provider are "incurred" within the meaning of the statute, even if they have not yet been paid for. Plantation Manufacturing Co. v. Industrial Comm'n, 294 Ill.App.3d 705, 710, 229 Ill.Dec. 77, 691 N.E.2d 13 (1997).
In Bennett Auto Rebuilders v. Industrial Comm'n, 306 Ill.App.3d 650, 655-56, 239 *134 Ill.Dec. 767, 714 N.E.2d 1064 (1999), this court held that the Commission's order directing the employer to provide written authorization for a prescribed surgery was proper. In that case, which involved a section 19(b) petition, one of the claimant's physician's prescribed a lumbar microdiscectomy. The employer refused to authorize the surgery, and the claimant had not been released to return to work. The Commission found the surgical procedure reasonable and necessary and ordered the employer to provide written authorization for the claimant to undergo the procedure. On appeal, the employer argued that the Commission's future medical expense award was against the manifest weight of the evidence because only one physician had opined that the surgery was necessary. This court disagreed and upheld the Commission's award. We held that it was within the Commission's province to adopt the medical opinion that recommended the surgery. Bennett, 306 Ill.App.3d at 655, 239 Ill.Dec. 767, 714 N.E.2d 1064. Additionally, as the case involved a section 19(b) petition, we upheld the Commission's directive to the employer to provide written authorization because the opportunity to challenge the cost of the surgery in subsequent proceedings remained available to it. Bennett, 306 Ill.App.3d at 656, 239 Ill.Dec. 767, 714 N.E.2d 1064.
Here, employer attempts to distinguish Bennett by arguing that all of claimant's symptomology in that case pertained to the same part of the body, whereas, here, claimant is claiming injury to a different part of the body than that for which he was initially treated. Given that we have upheld the Commission's causation finding with respect to claimant's cervical condition, we find this distinction irrelevant as it pertains to the medical expenses award, and conclude that Bennett controls.
We emphasize that claimant is entitled to recover only reasonable medical expenses that are causally related to his work accident and that are determined to be required to diagnose, relieve, or cure the effects of his injury. 820 ILCS 305/8(a) (West 2002). Therefore, as we noted in Bennett, 306 Ill.App.3d at 656, 239 Ill.Dec. 767, 714 N.E.2d 1064, because issues regarding entitlement to additional TTD benefits and permanency remain open for determination in further proceedings, employer may challenge the reasonableness of the cost of claimant's cervical surgery in subsequent hearings.
In sum, we conclude that the Commission's award of prospective medical benefits was not against the manifest weight of the evidence.
IV. CONCLUSION
For the foregoing reasons, the judgment of the circuit court of St. Clair County is affirmed, and the cause is remanded to the Commission for further proceedings pursuant to Thomas, 78 Ill.2d at 332-35, 35 Ill.Dec. 794, 399 N.E.2d 1322.
Affirmed; cause remanded.
McCULLOUGH, P.J., and HOFFMAN, HOLDRIDGE, and GOLDENHERSH, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1545274/ | 216 B.R. 672 (1997)
In re The ELI WITT COMPANY, Debtor.
Bankruptcy No. 96-15441-8P1.
United States Bankruptcy Court, M.D. Florida, Tampa Division.
November 26, 1997.
Robert A. Soriano, Tampa, FL, for Debtor.
Robert A. Schatzman, Miami, FL, Stuart Hertzberg, Detroit, MI, for Creditor Committee.
ORDER ON AMERICAN HOME ASSURANCE COMPANY AND AMERICAN INTERNATIONAL GROUP, INC.'S (AIG) MOTIONS FOR PARTIAL SUMMARY JUDGMENT ON AIG'S APPLICATIONS FOR ADMINISTRATIVE EXPENSE FOR THEMSELVES AND FOR THE USE AND BENEFIT OF THE STATE OF FLORIDADEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION AND FOR THE USE AND BENEFIT OF THE STATE OF ALABAMADEPARTMENT OF REVENUE AND DEBTOR'S OBJECTIONS TO APPLICATIONS FOR ADMINISTRATIVE EXPENSES OF AIG
ALEXANDER L. PASKAY, Chief Judge.
THIS IS a yet to be confirmed Chapter 11 case and the contested matters presented for *673 this Court's consideration are the Motions for Partial Summary Judgment on the Applications for Allowance of Administrative Expense filed by American Home Assurance Company and American International Group, Inc. (AIG); and Eli Witt's (Debtor) objections to the same. AIG filed the Applications on their own behalf and for the use and benefit of the State of Florida, Department of Business and Professional Regulation and for the use and benefit of the State of Alabama, Department of Revenue. The Applications are challenged by the Debtor which contends that the claim of AIG is not entitled to administrative expense priority pursuant to Section 503(b) of the Bankruptcy Code.
In its Applications, AIG requests an allowance of an administrative expense against the Debtor's estate for taxes which arose as a result of post-petition sales of cigarettes. AIG also asserts an administrative expense claim, in an amount to be determined by this Court at a later time, for stamps used on packages of cigarettes sold post-petition and for which the Debtor has not paid to the State of Florida or the State of Alabama. The issue to be determined at this time is when the liability occurred, specifically whether the liability occurred when (a) the Debtor received the tax stamps; (b) when the stamps were affixed to the cigarettes' packages; or (c) when the cigarettes were sold.
The Court heard argument of counsel, has considered the record including the stipulated facts, and based on the foregoing, now finds and concludes as follows:
The Debtor filed its voluntary Chapter 11 Bankruptcy Petition on November 12, 1996 (Filing Date). At all relevant times, the Debtor was a wholesale dealer of cigarettes in Florida and a distributing agent of cigarettes in Dade County, Florida pursuant to Florida Statutes, Chapter 210. Additionally, at all relevant times the Debtor was a wholesale dealer of cigarettes pursuant to Alabama Code Title 40, Chapter 25.
Prior to the Filing Date, the Debtor had been provided with cigarette tax stamps by Florida and revenue stamps by Alabama for which the Debtor had not paid. Under the relevant tax statutes, dealers must purchase tax stamps by paying for them on receipt or obtain them on credit by securing a bond. AIG has issued certain bonds in favor of Alabama and Florida with respect to tax stamps received by the Debtor on credit. As of the Filing Date these stamps, provided and unpaid for, were either still unaffixed to packaged cigarettes or affixed to packaged but unsold cigarettes. It is further without dispute that subsequent to the filing, the Debtor sold a yet to be determined volume of packaged cigarettes upon which these provided yet unpaid for stamps were affixed. On October 14, 1997, the State of Alabama, Department of Revenue filed it's Notice of Joinder to AIG's Application for Allowance of Administrative Expense. (Doc. No. 509A).
It is the contention of AIG that the Debtor's liability to the States for the cigarette taxes arises at the sale of the cigarettes. However, prior to the sale of the packaged cigarettes the dealer must obtain stamps from the States which represent the anticipated tax to be collected by the dealer and, in turn, paid to the States. In its Motion for Partial Summary Judgment, AIG seeks an administrative expense for the unpaid tax obligation which arose from post-petition sales of cigarettes.
AIG asserts that the right to payment arises at the sale of the packaged cigarettes. Thus, the liability for the stamps acquired pre-petition but which were used on packages of cigarettes sold post-petition, is a post-petition liability and entitled to an administrative expense. AIG contends that there is a distinction between the collection of the tax and the actual transaction giving rise to the tax.
With respect to Florida law, to illustrate this contention, AIG points to Florida Statutes § 210.05(5), which provides for the sale of "stamped but untaxed cigarettes" to the Seminole Tribe. Further, this Statute prohibits the dealer from collecting from the purchaser, that being the Seminole Tribe, "the tax imposed by § 210.02." AIG asserts that this is further clarification that the triggering event for the liability is the transaction described in FLA. STAT. § 210.02, that being the sale or transaction within the state. *674 See also Seminole Tribe of Florida v. State Dept. of Bus. Reg., Div. of Alcoholic Beverages and Tobacco, 496 So. 2d 193 (Fla.App.1st Dist.1986).
AIG also points to Florida Statutes, § 210.11, which governs refunds. Section 210.11 states that when stamped cigarettes
". . . have been sold and shipped into another state for the sale or use therein, or have become unfit for use and consumption or unsalable, or have been destroyed, the dealer involved shall be entitled to a refund. . . . "
This Chapter also provides for the redemption of unused stamps and thus, further supports AIG's position.
In Alabama, cigarette taxes are governed by Title 40, Chapter 25 of the Alabama Code. Specifically, Alabama Code § 40-25-2(f) states in part,
"[T]he purpose and intent of this provision that the tax levied is in fact a levy on the ultimate consumer or user with the wholesaler, distributor, jobber, or retail dealer acting merely as an agent of the state for the collection and payment of the tax to the state."
However, Alabama does not provide for a refund of any taxes paid by a dealer on cigarettes which were subsequently lost by theft, casualty, or failure to sell for any reason. State v. Killian Wholesale Grocery, Co., 289 Ala. 691, 271 So. 2d 499 (1972); Butler & Kennamer Wholesale Company v. State, 293 Ala. 216, 301 So. 2d 178 (1974).
As an alternative argument on behalf of Alabama, AIG asserts a trust fund theory. In support of this theory, AIG refers back to Alabama Code § 40-25-2(f). Pursuant to this Statute, as quoted above, the dealer acts merely as an agent of the State for the collection and payment of the tax on the sale of cigarettes and/or other tobacco products. Accordingly, AIG asserts that the money the Debtor collects from a purchaser for the tax is held in trust for the State. In this respect, AIG seeks an administrative expense for the entire unpaid tax obligation arising from prepetition and post-petition sales of cigarettes. However, AIG does not seek a determination of this issue in its Motion for Partial Summary Judgment.
The Debtor asserts that the obligation to the States arises at the time the stamps are acquired and not at the time of the actual sale of the cigarettes. Thus, stamps acquired pre-petition, to be affixed on packages of cigarettes which were not actually sold until post-petition, give rise to a pre-petition unsecured claim against the Debtor's estate and are not entitled to administrative expense priority.
Section 503 of the Bankruptcy Code defines an administrative expense as "the actual, necessary costs and expenses of preserving the estate including wages, salaries, commissions for services rendered after the commencement of the case." Administrative expenses under § 503 "should be narrowly construed in order to maximize the value of the estate preserved for the benefit of all creditors." In re Colortex Industries, Inc., 19 F.3d 1371, 1377 (11th Cir.1994).
Additionally, the Bankruptcy Code defines a claim as a "right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured." 11 U.S.C. § 101(5). It was Congress' intention for the definition of claim "to have a wide scope." In re Chateaugay Corp., 944 F.2d 997 (2nd Cir.1991).
Clearly at the time the Debtor entered into the agreement with AIG, AIG became conditionally liable to the States and the Debtor became conditionally liable to AIG. The States had a right to payment from AIG, albeit only if the Debtor did not pay the States for its tax stamp liability. Additionally, AIG had a right to payment from the Debtor only if the Debtor did not pay the States and thus AIG had to pay the States on the Debtor's behalf. Nevertheless, AIG's conditional right to payment from the Debtor arose pre-petition, when the Debtor entered into the agreement with AIG.
Further, one must concede that the Debtor's liability for the stamps, was not triggered until the tax stamps were obtained. *675 However, since the agreement with AIG was pre-petition and the tax stamps were obtained pre-petition, it is fair to say that these are pre-petition liabilities and do not fall into the category of administrative expense. The fact that the cigarettes were sold post-petition is of no consequence. Additionally, the fact that the Debtor may have been entitled to a refund in the event that the cigarettes were unfit for use or destroyed, is also without consequence.
By analogy, case law has established that the post-petition use of tax stamps, obtained pre-petition, was not an event which gave rise to an administrative expense claim. See In re Yanks, 49 B.R. 56 (Bankr.S.D.Fla.1985) (private insurer not entitled to administrative expense priority for post-petition payments made under insurance policy where all operative acts and legal relationships occurred pre-petition); Grady v. A.H. Robins Co., Inc., 839 F.2d 198 (4th Cir.1988), cert. denied, 487 U.S. 1260, 109 S. Ct. 201, 101 L. Ed. 2d 972 (1988) (if tortious acts or breach of warranty occurred pre-petition, the claim is a pre-petition claim); In re Chateaugay Corp., 944 F.2d 997 (2nd Cir.1991) (response costs incurred by EPA were pre-petition claims if these costs concerned the release or threatened release of hazardous waste occurring pre-petition); In re Broaddus Hosp. Ass'n, 159 B.R. 763 (Bankr.N.D.W.Va.1993) (where injury occurred pre-petition and private insurer paid claim post-petition, private insurer stepped into the shoes of the injured party and was denied administrative priority status); In re Chateaugay Corp., 177 B.R. 176 (S.D.N.Y.1995), judgment aff'd by, 89 F.3d 942 (2nd Cir.1996) ("[W]orkers' compensation payments paid on behalf of the debtor in possession to employees for pre-petition injuries should not be classified as an administrative expense."). Here, the Debtor obtaining the tax stamps was the action which caused the Debtor's liability and AIG's claim. Since the Debtor obtained these stamps pre-petition, AIG's claim arose pre-petition. AIG's claim, therefore, is a pre-petition, unsecured claim, not entitled to administrative expense.
Accordingly, it is
ORDERED, ADJUDGED AND DECREED that AIG's Motion for Partial Summary Judgment on State of Alabama, Department of Revenue's Application for Allowance of Administrative Expense (Doc. No. 486A) be, and the same is hereby denied.
It is further
ORDERED, ADJUDGED AND DECREED that summary judgment is hereby entered in favor of the Debtor and against AIG to the extent that AIG seeks to impose liability for an administrative expense for that portion of the amount due the State of Alabama by the Debtor for stamps provided and unpaid for as of the filing of the bankruptcy petition. AIG, on behalf of itself and the State of AlabamaDepartment of Revenue shall have an unsecured claim in an amount to be determined at a final evidentiary hearing, for that portion of amounts due by the Debtor for stamps provided and unpaid for as of the filing of the bankruptcy petition.
It is further
ORDERED, ADJUDGED AND DECREED that AIG's Motion for Partial Summary Judgment on State of Florida Department of Business and Professional Regulation's Application for Allowance of Administrative Expense (Doc. No. 486C) is hereby denied. It is further
ORDERED, ADJUDGED AND DECREED that summary judgment is hereby entered in favor of the Debtor and against AIG to the extent that AIG seeks to impose liability for an administrative expense for that portion of the amount due the State of Florida by the Debtor for stamps provided and unpaid for as of the filing of the bankruptcy petition. AIG, on behalf of itself and the State of FloridaDepartment of Business and Professional Regulation shall have an unsecured claim in an amount to be determined at a final evidentiary hearing, for that portion of amounts due by the Debtor for stamps provided and unpaid for as of the filing of the bankruptcy petition. It is further
ORDERED, ADJUDGED AND DECREED that a pretrial conference is hereby scheduled before the undersigned in Courtroom C, 4921 Memorial Highway, Tampa, *676 Florida 33634 on December 8, 1997 at 11:00 am to determine (a) the amount of AIG's unsecured claim; and (b) whether AIG is entitled to an administrative expense for any amounts held by the Debtor in trust as an agent of the State of Alabama pursuant to Alabama Statutes, Chapter 25. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876131/ | 260 S.W.3d 433 (2008)
Leonard McCORD, Appellant,
v.
STATE of Missouri, Respondent.
No. ED 90061.
Missouri Court of Appeals, Eastern District, Division Three.
August 19, 2008.
S. Kristina Starke, St. Louis, MO, for appellant.
*434 Jeremiah W. (Jay) Nixon, Atty. Gen., Jaime Pamela Rasmussen, Jefferson City, MO, for respondent.
Before ROBERT G. DOWD, JR., P.J., CLIFFORD H. AHRENS, J., and SHERRI B. SULLIVAN, J.
ORDER
PER CURIAM.
Leonard McCord ("movant") appeals the judgment of the trial court denying his motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15 after an evidentiary hearing. Movant claims the motion court clearly erred in denying his motion because he was denied effective assistance of both trial and appellate counsel.
We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.
The judgment of the trial court is affirmed in accordance with Rule 84.16(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3349275/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION
This is a petition by the City of Norwalk to vacate or modify certain portions of an arbitration award made by the Connecticut State Board of Mediation and Arbitration ("State Board") pursuant to General Statutes 52-418(a)(4), 52-419.
This case began when the chief of police in Norwalk took disciplinary action against a Norwalk police officer who, within the course of three days in January 1988, was involved in two separate automobile accidents, one of which caused personal injuries to another driver. The chief decided that the officer would not be permitted to operate a police vehicle for one year, from March 1, 1988 to February 28, 1989, and that the officer would be on probation for six months starting March 1, 1989 in the operation of motor vehicles. The chief's decision also provided that the officer was to "complete a defensive driver training course that will be set up by Deputy Chief Harry Rilling within the one year suspension from driving a police motor vehicle." It appears that the police department did not arrange such a course for the officer during the one year suspension period, and did not do so until later that summer, which meant that the officer could not drive a police vehicle until August 10, 1989. Thus, in effect the officer was prohibited from driving a police vehicle for almost eighteen months rather than twelve as originally ordered.
The officer filed a grievance and, according to the collective bargaining agreement between the plaintiff and the defendant, AFSCME Council 15, Local 1727, the matter was referred to the State Board.1
The issues before the State Board were phrased as follows: "Was discipline taken against Officer Mark DeVito for just cause? If not, what shall the remedy be?" The State Board decided that one year suspension from operating a police vehicle was proper and had been imposed "for just cause." The State Board, however, went on to say that because the driver training course had been delayed through the fault of the defendant City of Norwalk, the officer should be awarded CT Page 1241 $4,274.00 because of the money he lost during the period March 1, 1989 to August 10, 1989, when he should have been able to perform extra duty jobs that required a police vehicle.
The defendant seeks to vacate the award on two grounds. The first is that the officer failed to file a grievance within twenty-one days after receipt of written notice of the disciplinary decision as required by the collective bargaining agreement, and therefore the Board had no jurisdiction to hear the appeal.
The second argument is that by awarding monetary damages to the officer, the Board exceeded the issues that were before it. General Statutes 52-118 provides for the vacating of an award only if the arbitrators exceed their powers or so imperfectly executed them that no mutual, final and binding award has been made. See also Hartford v. Local 760, 6 Conn. App. 11, 13, 502 A.2d 429 (1986).
I disagree with the first argument of the City for two reasons. First, this grievance was filed on April 11, 1988, which was within twenty-one days of the notification by the chief on March 30, 1988 of his disciplinary action. The City claims that because the disciplinary action was effective March 1, 1988, the appeal must be taken with twenty-one days of that date. However, I believe that the twenty-one day period begins to run from the date of notification of the disciplinary action. Secondly, the plaintiff never gave advance notice to the State Board of this claim of lack of jurisdiction, contrary to General Statutes 31-97(b) which requires that all issues be brought to its attention at least ten days before the hearing. See also Regulations 31-91-23(b).
I do, on the other hand, agree with the City that the State Board exceeded the scope of the issues that were submitted to it, because the first issue was whether the discipline was for just cause. The Board said it was, and therefore should not have reached the second issue as to what the "proper remedy should be," which issue was premised on the Board not finding "just cause" for the discipline. See Hartford v. Local 760, supra, 14.
Even if the issue of money damages had been properly bought before the State Board, I believe there was a mathematical miscalculation by the Board in its awarding $4,274.00 to the police officer. The exhibits indicate that with respect to the type of job for which a police car is required, e.g., at the Norwalk municipal beach or park, so-called seasonal jobs, the officer lost $1,411, measured by the difference between what he earned on similar jobs for the corresponding five and a half month period in the prior year before the CT Page 1242 suspension of his driving privileges, as compared with extra pay for the same period in 1988, during which he could have operated a police car had the City organized a driver's course for him as promised by the chief. ($2,046 as compared with $635)
In conclusion, the award of the State Board is modified so as to delete the monetary award to the officer, and is otherwise confirmed.
SO ORDERED.
Dated at Stamford, Connecticut this twenty-eighth day of August, 1990.
WILLIAM B. LEWIS, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3095498/ | Opinion filed October 21,
2010
In The
Eleventh
Court of Appeals
__________
No. 11-10-00246-CV
__________
JIMMY
RAY YATES ET AL, Appellants
V.
ABILENE INDEPENDENT
SCHOOL DISTRICT ET AL, Appellees
On
Appeal from the 350th District Court
Taylor
County, Texas
Trial
Court Cause No. 244445-B
M
E M O R A N D U M O P I N I O N
The
parties have filed in this court a joint motion to dismiss the appeal. The
motion is granted, and the appeal is dismissed.
PER
CURIAM
October 21, 2010
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J. | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1571134/ | (2008)
BOEHRINGER INGELHEIM INTERNATIONAL GMBH and Boehringer Ingelheim Pharmaceuticals, Inc., Plaintiffs,
v.
BARR LABORATORIES, INC. and Mylan Pharmaceuticals, Inc., Defendants.
Civil Action No. 05-700-JJF.
United States District Court, D. Delaware.
June 26, 2008.
MEMORANDUM OPINION
FARNAN, District Judge.
This action was brought by Plaintiffs, Boehringer Ingelheim International GMBH and Boehringer Ingelheim Pharmaceuticals, Inc. (collectively, "Boehringer"), against Defendants, Barr Laboratories, Inc. ("Barr") and Mylan Pharmaceuticals, Inc. ("Mylan") (collectively, "Defendants"), in connection with the Abbreviated New Drug Applications ("ANDAs") filed by Defendants seeking to market generic versions of MIRAPEX®, a drug developed and sold by Boehringer. Boehringer is the record owner of U.S. Patent No. 4,886,812 (the "'812 patent"), which covers pramipexole dihydrochloride, the active ingredient in MIRAPEX®.
Defendants have stipulated that by filing their ANDAs they have infringed claim 7 of the '812 patent. Boehringer has also alleged infringement of claims 5, 9 and 10 of the '812 patent. Defendants have contested infringement of these claims and assert that claims 3, 4, 5, 7, 9 and 10 of the '812 patent are invalid for nonstatutory double patenting.
The Court conducted a bench trial, and this Memorandum Opinion constitutes the Court's Findings of Fact and Conclusions of Law on the issues tried.
BACKGROUND
I. Procedural History
A. Civil Action No. 05-700
On August 10, 2005 and September 12, 2005, Barr advised Boehringer by letter that it had submitted Abbreviated New Drug Application No. 77-724 seeking approval to engage in the commercial manufacture, use and sale of generic pramipexole dihydrochloride tablets in 0.125, 0.25, 0.5, 1.0 and 1.5 mg strengths prior to the expiration of the '812 patent and certifying pursuant to 21 U.S.C. § 355(j)(2)(A)(vii)(IV) that the '812 patent is invalid and/or not infringed by Barr's proposed generic product. Forty-five days later, Boehringer filed Civil Action No. 05-700 against Barr asserting infringement of both the '812 patent and U.S. Patent No. 4,843,086 (the "'086 patent"). The '086 patent has since expired leaving only the '812 patent at issue in this action.[1]
In response to an Amended Complaint filed by Boehringer, Barr filed an Answer and Counterclaims denying infringement and asserting the defense of invalidity. Barr also counterclaimed for a declaratory judgment of noninfringement and invalidity of the '812 patent. Approximately one year later, Barr filed an Amended Answer and Counterclaims contending that the asserted claims of the '812 patent were unenforceable due to inequitable conduct. By Stipulation the following year, the Court dismissed Barr's inequitable conduct counterclaim with prejudice.
B. Civil Action No. 05-854
On October 26, 2005, Mylan advised Boehringer that it had also submitted a similar ANDA to that which was filed by Barr seeking approval to engage in the commercial manufacture, use and sale of generic pramipexole dihydrochloride tablets in the same strength as Barr and certifying that the '812 patent is invalid or not infringed by Mylan's proposed generic product. In response, Boehringer filed Civil Action No. 05-854 on December 12, 2005, alleging infringement of the '812 patent. On January 31, 2006, this action was consolidated with the action pending against Barr.
II. Factual Background
A. The Parties
Plaintiff Boehringer Ingelheim International GmbH is a corporation organized and existing under the laws of Germany, with an office and place of business in Ingelheim, Germany. Plaintiff Boehringer Ingelheim Pharmaceuticals, Inc. is a corporation organized and existing under the laws of the State of Delaware with its principal place of business in Ridgefield, Connecticut.
Defendant Barr is a corporation organized and existing under the laws of the State of Delaware with its principal place of business in Pomona, New York. Defendant Mylan is a corporation incorporated under the laws of the State of West Virginia with its principal place of business in Morgantown, West Virginia.
B. Mirapex® And The Patents At Issue
The '086 patent and the '812 patent share the same specification and same title, "Tetrahydro-Benzthiazoles, The Preparation Thereof and Their Use as Intermediate Products or as Pharmaceuticals." The '086 patent issued on June 27, 1989, to Dr. Karl Thomas GmbH of Biberach an der Riss, Germany, the assignee of named inventors, Gerhart Griss, Clauss Schneider, Rudolf Hurnaus, Walter Kobinger, Ludwig Pichler, Rudolf Bauer, Joachim Mierau, Diter Hinzen and Gunter Schingnitz. TX 2. The '812 patent also shares the same inventors as the '086 patent, and issued nearly six months later, on December 12, 1989, to the same assignee as the '086 patent. D.I. 190 at Ex. 1, ¶ 5. Plaintiff Boehringer Ingelheim International GmbH is the assignee and record owner of both the '086 and '812 patents.
Mirapex® is the brand name for a pharmaceutical product containing pramipexole dihydrochloride, which is manufactured, marketed and sold by Boehringer in the United States. TX 513 at 56; Trial Tr. (Vol.1), D.I. 206 at 33:15-17, 223:11-23. Mirapex® is covered by certain claims of the '812 patent. TX 419; TX 99 at BARR909. On July 1, 1997, the United States Food and Drug Administration ("FDA") approved Mirapex® for the treatment and symptoms of idiopathic Parkinson's disease. D.I. 190 at Ex. 1, ¶ 7. In November 2006, the FDA also approved Mirapex® for the treatment of moderate to severe Restless Leg Syndrome ("RLS"). TX 419. Plaintiff Boehringer Ingelheim Pharmaceuticals, Inc. is the holder of NDA No. 020667 for Mirapex®. TX 406, 426, 509, 546.
C. Prosecution History Of The '812 Patent
1. The '374 Patent/947 Application
The prosecution history of the '812 patent begins with its "grandfather" application, U.S. Patent Application No. 06/810,947 (the "'947 application") filed on December 15, 1985. TX 46 at 3; TX 786 (Stempel Dep.) 462:2-5, 462:13. The '947 application included 15 claims directed to a variety of compounds, including pramipexole, the methods of using those compounds and the methods of preparation of those compounds. TX 46 at BARR000114-118. On September 4, 1986, the PTO issued a restriction pursuant to 35 U.S.C. § 121 and Section 806.05(h) of the PTO's Manual of Patent Examining Procedure ("MPEP"), which required the applicant to restrict the inventions set forth in the '947 application to one of ten possibilities. Id. at BARR000274-276; TX 786 (Stempel Dep.) 260:23-24; 261:6-25. Grouping these possibilities into categories, the Examiner found that five groups (I-V) were directed to different pharmaceutical compounds, two groups (VI-VII) were directed to the methods of manufacture and three groups (VIII-X) were directed to methods of use. Id. The Examiner further found that the compound groups were distinct from each other, as well as from the methods of manufacture and methods of use. Id. at BARR000274-278. As a result of this restriction, the Examiner requested the applicants to elect a subset of the then-pending claims and to combine some of the groups stating that the "[applicants must elect either (A) one of the compound groups I-V and one of the utility groups VIII-X (composition and utility to be limited to elected compound type for examination) or (B) one of the process groups VI and VII." Id. at BAR000277 (emphasis added); TX 786 (Stempel Dep.) 263:4-10, 263:21-264:10.
In response to the restriction, Boehringer elected to prosecute the invention described in Group II which was pyrrolidinyl-substituted benzothizoles and the invention described in Group IX which was a method for treating Parkinsonism. Id. at BARR000279. These claims ultimately issued as U.S. Patent No. 4,731,374 (the "'347 patent"). D.I. 190 at Ex. 1, ¶ 7. However, Boehringer also reserved its right to prosecute claims related to the unelected subject matter in later divisional applications. TX 46 at BARR00279.
2. The '086 Patent/'197 Application
One of these divisional applications was U.S. Application No. 07/124,197 (the "'197 application"), which ultimately issued as the '086 patent on June 27, 1989. TX 2, TX 46, TX 286 at 73; D.I. 190 at Ex. 1, ¶ 18. The '197 application contained a complete copy of the '974 application, including the original fifteen claims asserted in the '947 application. TX 46; TX 286 at BARR00491-495. In the first Office Action by the PTO, some claims were allowed and others were rejected under 35 U.S.C. § 103 and the doctrine of nonstatutory double-patenting in light of the '374 patent. TX 286 at BARR504. However, the applicant responded to this action by canceling all the claims and adding new claims which were directed to methods of using tetrahydrobenzthiazole compounds to treat a variety of medical conditions. Id. at BARR000578-600. These new claims embodied Groups VIII-X as delineated by the Examiner of the '947 application.[2] TX 46 at BARR000275-276; TX 286 at BARR000503, BARR000578-598. In addition, these new claims omitted reference to pyrrolidino compounds with respect to methods of treating Parkinson's disease as set forth in the '374 patent. Id. After noting that "[n]one of the new claims are directed to the subject matter of former claims 1-8," which covered compounds, the applicant "reserved the right to present claims directed to the subject matter of these cancelled claims in a divisional application, under 37 CFR 1.60." Id. at BARR000593. The applicant also responded to the nonstatutory double patenting rejection by arguing that the parent '947 application was subject to a restriction requirement, such that the '374 patent could not be used as a reference to support an obviousness-type double patenting rejection. Id. at BARR000595. After assessing the applicant's response, the Examiner lodged no objection to the applicant's plan to pursue the compound claims in subsequent divisional applications, and the Examiner allowed the new claims to issue as the '086 patent. TX 2, TX 286 at BARR601; D.I. 190 at Ex. 1, ¶ 18.
3. The '812 Patent/671 Application
During the pendency of the '197 application, the same Examiner was also examining the '671 application filed on October 12, 1988, as a divisional application of the then pending '197 application. TX 99 at BARR000674, D.I. 190 at Ex. 1, ¶ 20. The '671 application ultimately issued as the '812 patent. The '671 application included a complete copy of the '197 application, which included the fifteen claims originally set out in both the '197 and '947 applications. TX 99 at BARR000662-66. Shortly after filing the '671 application, the applicant filed a preliminary amendment cancelling all the claims directed to methods of making and using tetrahydrobenzthiazoles (claims 9-15) and amending the regaining compound claims 1-8 to delete all references to the pyrrolidino compounds. Id. at BARR000677. A second preliminary amendment added two additional compound claims which the applicant maintained were directed to a subgeneric aspect of the inventions. Id. at BARR000678-679. As a result of these preliminary amendments, the '671 application claimed, a subset of the inventions originally claimed in the '947 application.
In the first Office Action, the Examiner rejected claims 1-5 and 8 of the '671 application under the doctrine of obviousness-type double patenting in light of claims 1-7 of the '374 patent. Id. at BARR000776. At a May 4, 1989 interview, the applicant reached an agreement with the Examiner that the obviousness-type double patenting rejection would be withdrawn on the basis that the claims were not directed to pyrrolidino compounds, and therefore, were not directed to the same subject matter as the '374 patent. Id. at BARR000786. The applicants further noted during the prosecution of the '671 application that "implicit in the above mentioned restriction requirement was a finding by the examiner in charge of the prior application that the ten inventions set forth in the requirement are not obvious, one over the other, such that the double patenting rejection was improper." Id. The applicants also recited their "understanding . . . that the obviousness-type double patenting rejection will be withdrawn and that no terminal disclaimer need be filed." Id. Shortly thereafter, the claims of the '671 application issued as the '812 patent. TX 3, TX 99 at BARR000789.
DISCUSSION
I. Infringement Of Claims 5, 7, 9 And 10 Of The '812 Patent
A. Applicable Law
A patent is infringed when a person "without authority makes, uses or sells any patented invention, within the United States during the term of the patent. . . ." 35 U.S.C. § 271(a). Determining infringement requires a two step inquiry. Step one requires a court to construe the disputed terms of the patent at issue. Step two requires a court to compare the accused products with the properly construed claims of the patent. Step one is a question of law; step two is a question of fact. Markman v. Westview Instruments, Inc., 52 F.3d 967, 979-81 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996).
Infringement may be proven under either of two theories: literal infringement or the doctrine of equivalents. Literal infringement occurs when each element of at least one claim of the patent is found in the alleged infringer's product. Panduit Corp. v. Dennison Mfg. Co., 836 F.2d 1329, 1330 n. 1 (Fed.Cir.1987). The party asserting infringement has the burden of proof and must meet its burden by a preponderance of the evidence. SmithKline Diagnostics, Inc. v. Helena Labs. Corp., 859 F.2d 878, 889 (Fed.Cir.1988) (citations omitted).
B. Analysis
Defendants have stipulated that the filing of their ANDAs infringes claim 7 of the '812 patent. With respect to claims 5, 9 and 10 of the '812 patent, Defendants did not contest infringement at trial. However, in their post-trial briefing Defendants contend that their proposed ANDA products do not infringe claims 5, 9 and 10.
1. Claim 5
Defendants contend that claim 5 is not infringed because in its application for a Patent Term Extension, Boehringer did not list claim 5 as a claim that covered pramipexole dihydrochloride. Thus, Defendants contend that Boehringer is estopped from asserting that claim 5 encompasses pramipexole, and therefore, claim 5 cannot be infringed by Defendants' proposed ANDA products.
The prosecution history of a patent constitutes the public record of the patentee's representations concerning the scope and meaning of the claims. Hockerson-Halberstadt, Inc. v. Avia Group Int'l, Inc., 222 F.3d 951, 957 (Fed.Cir. 2000). Competitors are entitled to rely on the representations made during the prosecution of a patent in determining the legality of their conduct. Id. While the prosecution history of a patent limits the interpretation of claims so as to exclude interpretations that were disclaimed during prosecution, Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1576 (Fed. Cir.1995), the disclaimer or disavowing actions must be both clear and unmistakable. Cordis v. Medtronic Ave., Inc., 511 F.3d 1157, 1177 (Fed.Cir.2008).
Defendants' argument regarding claim 5 rests solely on the omission of claim 5 from Boehringer's Patent Term Extension application. However, the terms of claim 5 incorporate claim 3, and the Patent Term Extension application indicates that "claim 3 is applicable because it reads on compounds of formula la." TX 99 at BARR818. Boehringer further explained in its application that pramipexole dihydrochloride falls within claim 3 because it "is the dihydrochloride salt of a compound of the formula la wherein R1 R2 and R3 are all hydrogen and R4 is n-propyl." Id. Thus, the statements that establish that pramipexole dihydrochloride fall within claim 3 are equally attributable to claim 5 which refers to claim 3. In light of these statements, the Court cannot conclude that Boehringer's omission of claim 5 from the Patent Term Extension application is a clear and unmistakable disclaimer that claim 5 encompasses pramipexole.
With respect to the infringement of claim 5, the Court further finds that Dr. Klibanov provided adequate testimony at trial to establish the infringement of claim 5 by the proposed ANDA products. Tr. (Vol.1), D.I. 206 at 235:1-241:3. Defendants do not claim that any element of claim 5 is missing from their proposed ANDA products, see D.I. 216 at DFF ¶ 138, and Defendants did not present any evidence during trial to rebut Dr. Klibanov's testimony. Accordingly, the Court concludes that Boehringer has established infringement of claim 5 by a preponderance of the evidence.
2. Claims 9 and 10
Defendants also contend that claims 9 and 10 of the '812 patent do not mention or refer to salts, and therefore, claims 9 and 10 should be limited to the free bases of the specified compounds and should not include acid addition salts. Because Defendants' ANDAs claim pramipexole dihydrochloride, an acid addition salt of pramipexole, Defendants contend that their proposed ANDA products do not infringe claims 9 and 10.
Defendants' argument is essentially a claim construction argument that has been waived as a result of Defendants' failure to press the argument at the time for claim construction proceedings. In fact, the parties raised no disputed terms for claim construction. However, even if Defendants' argument is considered on the merits, the Court concludes that claims 9 and 10 embrace acid addition salts, and in particular pharmaceutically acceptable acid addition salts, because the specification repeatedly incorporates into the compounds of the claimed invention the aforementioned salts. TX 3; see also Tr. (Vol.1), D.I. 206 at 242:21-246:10; 257:6-24. Moreover, even if claims 9 and 10 are limited to the free bases of the specified compounds, the Court concludes that the proposed ANDA products would infringe because, as Defendants concede in their post-trial submissions, the administration of the proposed ANDA products to a human produces the free base of pramipexole dihydrochloride. D.I. 216 at DFF ¶ 11; Tr. (Vol.1), D.I. 206 at 231:14-233:3, 246:10-247:13; Tr. (Vol.2), D.I. 207 at 489:19-23. As with claim 5 of the '812 patent, Defendants did not rebut Dr. Klibanov's testimony regarding the ANDA products' infringement of claims 9 and 10, and the Court finds his testimony adequate to establish infringement. Tr. (Vol.1), D.I. 206 at 241:4-250:18. Accordingly, the Court concludes that Boehringer has established infringement of claims 9 and 10 by a preponderance of the evidence.
II. Invalidity Of Claims 3, 4, 5, 7, 9 And 10 of the '812 Patent
Defendants challenge the validity of claims 3, 4, 5, 7, 9 and 10 of the '812 patent on the basis of nonstatutory double patenting. Specifically, Defendants contend that the asserted claims of the '812 patent are expressly and inherently anticipated by the earlier method claims of the '086 patent, and thus, not patentably distinct from the '086 patent. Defendants also contend that the '812 patent is not patentably distinct from the earlier filed '086 patent because the asserted claims of the '812 patent are obvious in light of the method claims of the '086 patent.
In response, Boehringer contends that the claims of the '086 and '812 patents are materially different in several respects such that nonstatutory double patenting does not apply to invalidate the '812 patent. Specifically, Boehringer contends that the '086 and '812 patents claim different statutory subject matter and are directed to different users. Boehringer also contends that secondary indicia of nonobviousness may be considered by the Court, and if considered, support a conclusion that the '812 patent is not invalid".
In addition to these substantive arguments, Boehringer also contends that the issue of nonstatutory double patenting has been rendered moot by Boehringer's filing of a Terminal Disclaimer with the PTO during the trial in this matter. Defendants challenge Boehringer's Terminal Disclaimer as an evidentiary matter[3], and in any event, contend that the Terminal Disclaimer is both untimely and ineffective.
A. The Effect Of The Terminal Disclaimer
Boehringer terminally disclaimed "only the. terminal part of the statutory term of the '812 patent which would extend beyond the 1,564 days after the full statutory term of the '086 patent as that term is defined in 35 U.S.C. § 154, so that by virtue of this disclaimer, the '812 patent will expire on October 8, 2010." TX 548. The 1,564 day extension to which Boehringer refers is the extension Boehringer received on the '812 patent term pursuant to 35 U.S.C. § 156. Section 156 allows the term of a patent covering a new drug to be extended for a period of up to five years to compensate the patent holder for time consumed by the regulatory drug approval process which would otherwise deprive the patent holder of the full benefit of the patent's term. As a result of this patent term extension, the original expiration date of the '812 patent, December 12, 2006, was extended to March 25, 2011. By its Terminal Disclaimer, Boehringer disclaimed five and a half months of its term extension. This five and a half months is the period of time between the expiration date of the '086 patent on June 27, 2006, and the original expiration date of the '812 patent, December 12, 2006.
According to Boehringer, Defendants have never contested the validity of the 1,564-day extension it received on the '812 patent. Rather, Boehringer contends that Defendants' only argument is that Boehringer should not have received the additional five and a half months it received because of the alleged double patenting of the '812 patent in light of the '086 patent. Boehringer contends that the '812 patent will now expire on the same date that the '086 patent would have expired if the Section 156 patent term extension had been applied to it. In advancing this argument, Boehringer points out that the Patent Examiner withdrew his double patenting rejection of the ' 812 patent, and Boehringer confirmed with the PTO that a terminal disclaimer did not need to be filed. However, Boehringer points out that if such a terminal disclaimer "had . . . been filed at the time vis-a-vis the '086 patent, the addition of the § 156 patent term extension would have resulted in precisely the same expiration date." D.I. 213 at 19.
In response, Defendants contend that the Terminal Disclaimer cannot cure the double patenting issue presented in this case because the '086 patent has already expired. According to Defendants, the disclaimer cannot "remedy the double patenting problem because the '812 patent became incurably invalid when the '086 patent expired and Boehringer continued to prevent the public from freely practicing that invention with a longer patent term." D.I. 211 at 16. Defendants contend that by maintaining the allegedly invalid '812 patent, Boehringer unlawfully withheld from the public rights that expired when the '086 patent expired. Defendants also contend that the Section 156 extension of the '812 patent only applies to FDA-approved uses of pramipexole; however, Boehringer maintained the full scope of the '812 patent for months after the '086 patent expired. Because a patent term extension only extends existing patent rights and does not create new ones, Defendants contend that if the '812 patent is incurably invalid, there are no patent rights to be extended under Section 156.
Terminal disclaimers allow a patentee or applicant to "disclaim or dedicate to the public the entire term, or any terminal part of the term, of the patent granted or to be granted." 35 U.S.C. § 253. Terminal disclaimers can be used to cure nonstatutory double patenting problems that arise both before the PTO and/or after issuance of the patent. 3A Donald S. Chism, Chism on Patents § 9.04[4][a]-[b] (2005); see e.g., Ventana Med. Sys., Inc. v. Biogenex Labs., Inc., 473 F.3d 1173, 1184 n. 4 (Fed.Cir.2006); Perricone v. Medicis Pharm. Corp., 432 F.3d 1368, 1375 (Fed. Cir.2005). Specifically, a terminal disclaimer operates to "tie[ ] the affected patents together" such that they expire on the same date and are enforceable only during the time period in which they share the same owner. Chism, supra § 9.04[5] at 9-115. The filing of a terminal disclaimer is not a concession that the later filed patent is invalid for obviousness-type or nonstatutory double patenting. See e.g., Motionless Keyboard Co. v. Microsoft Corp., 486 F.3d 1376, 1385 (Fed.Cir.2007); Ortho Pharm. Corp. v. Smith, 959 F.2d 936 (Fed. Cir.1992); Quad Environmental Techs. Corp. v. Union Sanitary Dist., 946 F.2d 870, 20 U.S.P.Q.2d 1392, 1394-1395 (Fed. Cir.1991).
Section 253 does not state a time period for the filing of a terminal disclaimer, and the case law has not provided a clear answer to this question. Chism, supra § 9.04[4][b] at 9-113. In fact, no Federal Circuit decision has squarely determined whether a terminal disclaimer entered after the issuance of the second patent will cure double patenting. Id. District courts and commentators have taken competing approaches to this question with some refusing to give any weight to disclaimers filed after a double patenting attack has been launched[4] and others giving weight to terminal disclaimers filed as late as after the commencement of an infringement suit.[5]Id. At least one court in the latter camp has also rejected the notion that a disclaimer must be filed without unreasonable delay. Id. (citing Bayer AG v. Barr Labs., 798 F.Supp. 196 (S.D.N.Y. 1992)).
In this case, a dual problem is presented in that the terminal disclaimer was not only filed at or near the conclusion of trial in this action, but it was also filed after the expiration of the earlier '086 patent.[6] Though not clear holdings, the Federal Circuit has at least suggested in dicta, that for a terminal disclaimer to be effective the earlier filed patent must not have expired at the time of the filing of the disclaimer. In re Lonardo, 119 F.3d 960, 965 (Fed.Cir.1997) ("With obviousness-type double patenting, however, a terminal disclaimer may overcome that basis for unpatentability, assuming that the first patent has not expired") (emphasis added); Eli Lilly and Co. v. Barr Laboratories, Inc., 251 F.3d 955, 967 n. 5 (Fed.Cir. 2001) (recognizing that a terminal disclaimer could not cure nonstatutory double patenting where earlier patent had already been disclaimed, and therefore, had no remaining patent term).
Boehringer contends that each of these cases is distinguishable from the circumstances here because neither case involved a terminal disclaimer in the context of a Section 156 patent term extension, and no terminal disclaimer was actually filed in either case. Boehringer contends that in this case, the '812 patent has received a second, independent four year term as the result of the Section 156 extension. According to Boehringer, the Court should be guided by Merck & Co. v. Hi-Tech Pharmacal Co., 482 F.3d 1317, 1324 (Fed.Cir. 2007), because Merck involved both a patent term extension under Section 156 and a terminal disclaimer under Section 253.
In Merck, a terminal disclaimer was filed with respect to the '413 patent during its prosecution to overcome the Examiner's rejection on the grounds of obviousness-type double patenting. The terminal disclaimer linked the expiration of the '413 patent to the '115 patent, the patent over which the double patenting rejection was based. The term of the '115 patent was then extended in connection with Uruguay Round Agreements Act, so that its expiration date was reset from June 30, 2004 to December 12, 2004. Merck then obtained from the PTO a Section 156 patent term extension on the '413 patent which resulted in a new expiration date of April 28, 2008. The defendants argued that because the '413 patent was subject to a terminal disclaimer that linked its expiration date to the '115 patent, the '413 patent could not be the recipient of a Section 156 extension. In essence, the defendants argued that "Merck disclaimed any extension of its term beyond the expiration of the '115 patent and is thus foreclosed from obtaining a term extension under § 156." Id. at 1321. The Federal Circuit rejected this argument and concluded that "a patent term extension under § 156 may be applied to a patent subject to a terminal disclaimer." 482 F.3d at 1317.
The Court does not read Merck to be dispositive of the issue here. In Merck, the earlier patent was not expired at the time the terminal disclaimer was filed, and the later patent was first disclaimed and then extended. In this case, the earlier '086 patent expired well before the disclaimer on the '812 patent was filed, and the '812 patent was extended before the disclaimer was filed. In these circumstances, the Court is not persuaded that Merck supports a departure from the suggestion in Lonardo and Lilly, that a terminal disclaimer may overcome a nonstatutory double patenting rejection only if the earlier patent has not yet expired.[7] Accordingly, the Court concludes that the terminal disclaimer filed by Boehringer is ineffective to moot the double patenting issue raised in this case.[8]
B. Whether Defendants' Nonstatutory Double Patenting Defense Is Precluded By 35 U.S.C. § 121
The third sentence of 35 U.S.C. § 121 can shield a patent from an attack based upon nonstatutory double patenting in certain circumstances. The relevant provision of Section 121 is the third sentence, which provides:
A patent issuing on an application with respect to which a requirement for restriction under this section has been made, or on an application filed as a result of such a requirement, shall not be used as a reference either in the Patent and Trademark Office or in the courts against a divisional application or against the original application or any patent issued on either of them, if the divisional application is filed before the issuance of the patent on the other application.
35 U.S.C. § 121.
Section 121 is strictly applied. As the Federal Circuit has explained, "§ 121 only applies to a restriction requirement that is documented by the PTO in enough clarity and detail to show consonance. The restriction documentation must identify the scope of the distinct inventions that the PTO has restricted, and must do so with sufficient clarity to show that a particular claim falls within the scope of the distinct inventions." Geneva Pharms., Inc. v. GlaxoSmithKline PLC, 349 F.3d 1373, 1382 (Fed.Cir.2003). The burden is on the patent holder to prove that Section 121 applies. Id. at 1381.
Boehringer contends that Section 121 applies to prevent the '086 patent from being used as a reference. Specifically, Boehringer contends that the '197 application that issued as the '086 patent was filed as a result of the restriction requirement imposed during the prosecution of the '947 application which issued as the '374 patent. Boehringer also contends that the '812 patent application was filed before the issuance of the '086 patent, and therefore the timing requirements of Section 121 are satisfied. Lastly, Boehringer contends that consonance was maintained between the claims of the '812 patent and the restriction requirement because the '812 patent does not claim any subject matter that was elected in either the '374 or '086 patents.
In response to Boehringer's assertions, Defendants contend that Section 121 does not apply in this case for three reasons. First, the '671 application which resulted in the '812 patent was not filed "as a result of a restriction requirement. Second, the '671 application was filed after the issuance of the '374 patent which was the original patent that was subject to the restriction requirement during its prosecution. Third, the claims of the '812 patent are not consonant with the restriction requirement.
As an initial matter, the parties' disagreement concerning the application of Section 121 centers on whether the '812 patent itself had to be filed as a result of a restriction requirement or whether the '086 patent being used as a reference against the '812 patent had to be filed as a result of a restriction requirement. Boehringer's argument apparently rests upon the plain language of Section 121. As expressly worded, the "as a result of [a restriction] requirement" language used in Section 121 appears to apply to the patent being "used as a reference"in this case, the '086 patent. 35 U.S.C. § 121 ("A patent issuing on an application with respect to which a requirement for restriction under this section has been made, or on an application filed as a result of such a requirement, shall not be used as a reference. . . .") (emphasis added). In support of its argument, Boehringer directs the Court to the Federal Circuit's decision in Geneva and this Court's decision in Union Carbide.
In Geneva, the Federal Circuit examined whether three patents referred to as the 2000/01 patents were shielded from a nonstatutory double patenting rejection in light of a third patent referred to as the '720 patent, because the '720 patent issued from a divisional application of a common parent, the '007 application. Ultimately, the Federal Circuit concluded that Section 121 could not be used to shield the 2000/01 patents from invalidation in light of the '720 patent, because the allegedly restricted claims were not pending at the time, and the alleged restriction requirement was not sufficiently memorialized to show consonance. In discussing the application of Section 121, however, the Federal Circuit explained that "if the 2000/01 patents and the '720 patent trace their lineage back to a common parent which was subject to a restriction requirement, then § 121 intervenes to prevent a nonstatutory double patenting rejection." 349 F.3d at 1378 (emphasis added).
Boehringer uses this sentence from Geneva to support its position that the plain language of Section 121 focuses only on the patent being used as a reference, here the '086 patent. Because there is no dispute that the '086 patent was in common lineage with the '947 application/'347 patent, which was subject to a restriction requirement, Boehringer contends that Section 121 should preclude the '086 patent from being used as a reference. However, the Court understands Geneva to have focused on both the patent being used as a reference, the '720 patent, and the patents subject to invalidation, the 2000/01 patents. More recently, in Bristol-Myers Squibb, the Federal Circuit appears to have emphasized that the "as a result of a restriction requirement" language in Section 121 focuses on the patent being subject to invalidationhere the '812 patent. In this regard, the Federal Circuit explained that a patentee "is entitled to invoke the statutory prohibition against the use of the [earlier] patent `as a reference' against the divisional application that resulted in the [later] patent only if the divisional application was filed as a result of a restriction requirement and is consonant with that restriction requirement." Bristol-Myers Squibb Co. v. Pharmachemie B.V., 361 F.3d 1343, 1347-1348 (Fed. Cir.2004) (emphasis added); see also Gerber Garment Tech., Inc. v. Lectra Sys., Inc., 916 F.2d 683, 687 (Fed.Cir.1990) ("The prohibition against use of a parent application `as a reference' against a divisional application applies only to the divisional applications that are "filed as a result of a restriction requirement.").
The Court understands Boehringer's argument which identifies the tension between the plain language of Section 121 and the manner in which that section has been interpreted by the Federal Circuit. However, the Court must adhere to the interpretation that has been advanced by the Federal Circuit and maintain its focus on the patent subject to invalidation, here the '812 patent.
With the '812 patent as the focus, the parties also raise competing legal and factual arguments. First, Boehringer contends that even if the '812 patent is considered, the '812 patent is the result of a restriction requirement, because like the '086 patent, the '812 patent was in common lineage with the '947 application/'347 patent on which a restriction requirement was originally made by the Patent Examiner. D.I. 231, SCOL ¶ 97.
Boehringer's "common lineage" argument, however, paints too broad a brush stroke. The appropriate inquiry is more narrow. Specifically, the Court must determine whether the '671 application/'812 patent was filed "as a result of a restriction requirement. The '812 patent was filed as a division of the '197 application which matured into the '086 application. It was not filed as a divisional of the '947 application, which matured into the '374 patent. The 197 application/'086 patent was not itself the subject of any restriction requirement, and the Court is not persuaded, based on the evidence in the record, that the restriction requirement from the '947 application/'347 patent carried over into the '671 application/'812 patent. TX 99; TX 286 at BARR000503; TX 46 at BARR000275-276; TX 786 (Stempel Dep.) at 298:3-21, 470:5-8, 487:11-22, 489:24-490:15, 492:4-493:18, 616:4-617:2, 617:10-12; TX 787 (Hurnaus Dep.) at 196:19-197:10, 197:18-22, 198:3-7, 198:9-16, 198:20-199:2, 199:5-10, 199:13-17; TX 791 (Schneider Dep.) at 162:14-164:6. In fact, the Boehringer attorney responsible for prosecuting the '812 patent acknowledged that the restriction requirement applied only to the '947 application. Moreover, during the prosecution of the '671 application/'812 patent, the Examiner neither referred to the earlier restriction requirement nor imposed any new one.
Boehringer contends that the filing of its preliminary amendment to the claims of the '671 application/'812 patent demonstrates that the '671 application/'812 patent was filed "as a result of the earlier restriction requirement. However, the prosecution history of the '812 patent presents a different motive. Specifically, the prosecution history suggests that Boehringer chose to file the preliminary amendment canceling the claims in the '086 patent in order to place them in the later '671 application/' 812 patent because of concerns over potentially interfering matter in a patent, filed by Eli Lilly, No. 747,748. As Boehringer explained to the PTO during the prosecution of the '086 patent, "[i]n view of the particular pertinence of [the Lilly application] to claims 1-8, these claims have been canceled and will be reinstated in a divisional application. . ." TX 286 at BARR000600. These claims were then placed in the '671 application to "advance the prosecution of the ['086 patent] and [so] that issues presented by [the Lilly application] will be more easily dealt with . . ."[9]Id.; TX 704 (Boehringer's Response to Interrogatory No. 36) at pp. 24-25; TX 786 (Stempel Dep.) at 542:5-543:5, 544:12-16, 544:19-545:6, 558:21-561:7.
As the Federal Circuit recently explained in Pfizer, Inc. v. Teva Pharms. USA, Inc., the purpose of Section 121 is to prevent a patentee who has complied with a division requirement imposed by the PTO from being penalized with a double patenting rejection based on the very same application from which the subsequent application was divided. 518 F.3d 1353, 1361 (Fed.Cir.2008); Applied Materials, Inc. v. Advanced Semiconductor Materials America, Inc., 98 F.3d 1563, 1568 (Fed. Cir.1996) ("[W]hen the existence of multiple patents is due to the administrative requirements imposed by the Patent and Trademark Office, 35 U.S.C. § 121 provides that the inventor shall not be prejudiced by having complied with those requirements."). In this case, the record suggests that the claims in the '086 patent which were divided out and placed into the '671 application/'812 patent were not divided so as to adhere to a restriction requirement, but to address concerns related to the Lilly patent and hasten the approval of the '086 patent in light of those concerns.[10] Accordingly, the Court concludes that Boehringer has not satisfied its burden of demonstrating that Section 121 applies to preclude the use of the '086 patent as an invalidating reference.
C. Nonstatutory Double Patenting
1. Applicable Law
The basic premise of double patenting is that the same invention cannot be patented twice. The proscription against double patenting takes two forms: statutory double patenting and nonstatutory double patenting. Statutory double patenting is rooted in the language of 35 U.S.C. § 101, which provides that "an inventor is entitled to a single patent for an invention." Although Section 101 precludes an inventor from obtaining more than one patent on the same invention, it only prohibits a second patent on subject matter which is identical to that claimed in the earlier patent. Robert L. Harmon, Patents and the Federal Circuit at 1148 (8th ed.2007). Nonstatutory double patenting, also known as obviousness-type double patenting, is a judicially created doctrine designed "to prevent claims in separate applications or patents that do not recite the `same' invention, but nonetheless claim inventions so alike that granting both exclusive rights would effectively extend the life of patent protection." Perricone v. Medicis Pharmaceutical Corp., 432 F.3d 1368, 1371 (Fed.Cir.2005). In this regard, nonstatutory double patenting prevents inventors from obtaining unearned, extended patent protection by drafting claims that vary only slightly from the earlier patent. These principles are consistent with the purpose of patent protection, to protect and reward true innovation.
"Double patenting is altogether a matter of what is claimed." General Foods Corp. v. Studiengesellschaft Kohle mbH, 972 F.2d 1272, 1277 (1992). Claims must be read as a whole in analyzing questions of nonstatutory double patenting. Id. Importantly, the earlier filed patent is not to be treated as a prior art reference. In other words, the earlier patent's disclosure cannot be used to show nonstatutory or obviousness-type double patenting. In re Metoprolol Succinate Patent Litig., 494 F.3d 1011, 1018 (Fed.Cir.2007). Herein lies the primary distinction between obviousness and obviousness-type double patenting. Obviousness relates to what is disclosed, regardless of whether or not it is actually claimed, whereas obviousness-type double patenting focuses solely on that which is claimed. Id.; Geneva, 349 F.3d at 1378 n. 1.
In examining the scope of what is claimed for purposes of nonstatutory double patenting, the Court applies a two-step analysis:
First, as a matter of law, a court construes the claim in the earlier patent and the claim in the later patent and determines the differences. Second, the court determines whether the differences in subject matter between the two claims render the claims patentably distinct. A later claim that is not patentably distinct from an earlier claim in a commonly owned patent is invalid for obvious-type double patenting. A later patent claim is not patentably distinct from an earlier patent claim if the later claim is obvious over, or anticipated by, the earlier claim.
Eli Lilly, 251 F.3d at 968 (footnote and citations omitted). The party asserting invalidity based on nonstatutory double patenting must demonstrate invalidity by clear and convincing evidence. Symbol Techs., Inc. v. Opticon, Inc., 935 F.2d 1569, 1580 (Fed.Cir.1991).
2. Analysis
The Court's nonstatutory double patenting analysis begins with the basic tenets of claim construction. Claim construction begins with the words of the claims themselves. The words of a claim are generally given their ordinary and customary meaning. Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed.Cir.2005). "The ordinary and customary meaning of a claim term is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing date of the patent application." Id. The claim language is, in turn, informed by the specification and the prosecution history of the patent.
In this case, the parties have a threshold dispute concerning the qualifications of one of ordinary skill in the art. Defendants contend that a person of ordinary skill in the art for the '086 and '812 patents would possess a combination of skills in chemistry, pharmacology, and/or biological evaluation of pharmaceutical compounds. In contrast, Boehringer contends that the claims of the '086 patent are directed to physicians. Boehringer further contends that this difference between the '086 patent and the '812 patent is a substantial difference relevant to the nonstatutory double patenting inquiry.
The Court has reviewed the testimony of the experts presented on this issue and concludes that a person of ordinary skill in the art for both patents is a person with a combination of skills in chemistry, pharmacology, and/or biological evaluation of pharmaceutical compounds. The Court believes this conclusion is consistent with the testimony of all of the experts who testified, including Defendants' expert, Dr. Anslyn, and Boehringer's expert, Dr. Klibanov. Notably, Dr. Klibanov did not testify regarding the skill in the art vis-á-vis the '086 patent and addressed only the '812 patent. However, the '086 patent and the '812 patent share the same specification and the same inventors, including individuals who were chemists.[11] TX 2; TX 3; TX 787 (Hurnaus Dep.) 9:6-12, 13:4-18, 14:6-10, 15:22-16:6, 36:9-36:16, 36:21-37:9; TX 791 (Schneider Dep.) 8:16-25, 9:14-10:3, 10:20-11:2, 12:9-21, 19:18-20:7. Based on this evidence, the Court is not persuaded that the '086 patent is directed solely to medical doctors. Indeed, such a conclusion would exclude at least some of the inventors of the patent from the definition of one of ordinary skill in the art. Daiichi Sankyo Co., Ltd. v. Apotex, Inc., 501 F.3d 1254, 1257 (Fed.Cir.2007) (rejecting argument that method of treatment claims were directed only to medical doctors where inventors had backgrounds in other subjects).
Boehringer directs the Court to the testimony of Defendants' expert, Dr. Anslyn, to support its argument that the '086 patent is directed only to medical doctors. However, Boerhinger's characterization of Dr. Anslyn's testimony on this issue is overstated. While Dr. Anslyn suggested that a medical doctor might be among the people who would be considered skilled in the art, he did not limit the credentials of one skilled in the art to an M.D. degree, and instead described other qualifications consistent with the Court's conclusion. Specifically, Dr. Anslyn referred to a person of skill in the art as including a person with a "Ph.D. in pharmacology, physiology, toxicology, neuroscience and/or an M.D. degree with post-graduate training in neurology or equivalent training and experience," along with "some familiarity with or an understanding of the drug discovery and development process as it relates to neuroscience and/or neuropharmacology." Tr. (Vol.3), D.I. 208, 685:9-685:18. As Dr. Anslyn explained this might include a person with medical training, but it also includes others, like someone with a "more chemical background." Id. at 685:18-686:20. That only a physician might be able to lawfully prescribe to a patient the method for treatment outlined in the '086 patent does not mean that others with the aforementioned background and experience would be excluded from the definition of a hypothetical person of ordinary skill in the art.
Having established the contours of a person of ordinary skill in the art, the Court turns to the claim language. The plain language of claims 3, 4, 5, 7, 9 and 10 of the '812 patent is directed to pharmaceutical compounds. Specifically, these claims refer to a tetrahydro-benzthiazole compound, or a pharmaceutically acceptable acid additional salt thereof. None of these claims indicate a use or method of use for the described compounds.
In contrast, the claims of the '086 patent, including claims 9, 19, 29 and 39, upon which Defendants base their nonstatutory double patenting argument, are by their express terms directed to a method of use. Specifically, the claims are directed to four particular methods of lowering blood pressure, lowering heart rate, treating Parkinson's disease or Parkinsonism and treating schizophrenia. None of the claims of the '086 patent are directed to the compounds themselves.
In addition, the '812 patent and the '086 patent have different utilities. The utility of the '086 patent is described in the enumerated methods of use claimed in the patentparticularly the treatment of Parkinson's disease, Parkinsonism, schizophrenia, elevated heart rate or high blood pressure. In contrast, the utility of '812 patent lies in the properties of the claimed compounds, including pramipexole, which can be used to treat several medical conditions which are not listed in the '086 patent.
Although there are differences between the '812 patent and the '086 patent, as discussed above, the Court concludes that those differences are insufficient to support the patentability of the '812 patent in light of the '086 patent. The earlier '086 patent is directed to methods of treatment using tetrahydrobenzthiazoles. Tr. (Vol.2), D.I. 207 at 471:20-472:21. Tetrahydrobenzthiazoles are the compounds claimed in the later '812 patent. Id. at 480:16-481:5. In fact, the compounds claimed in claim 3 of the '812 patent are identical to the compounds used in the method described in claim 23 of the '086 patent. Id. at 481:6-10, 483:8-484:14. Likewise, the compounds claimed in claim 7 of the '812 patent are identical to the compounds used in the methods of claims 9,19, 29 and 39 of the '086 patent. Id. at 481:11-482:18, 493:11-20. At trial, Defendants' expert, Dr. Anslyn, testified that it would be impossible for one to practice one or more of seventeen claims of the '086 patent, claims 7-10, 17-20, 23, 27-30 and 37-40, without necessarily using or forming compounds claimed in claims 3, 4, 5, 7, 9 and 10 of the '812 patent. Id. at 482:19-483:7, 484:15-485:1, 485:22-486:20, 487:4-491:1, 493:21-495:10. Thus, one skilled in the art would recognize that in order to practice the method claims of the '086 patent, one must have the specified compounds. Id. at 477:22-478:19. 482:19-483:7, 484:15-485:1, 485:22-486:20, 488:10-491:1, 493:21-495:10; 570:1-571:6; TX 789 (Mierau Dep.) 64:2-10, 65:9-13, 66:24-67:4, 67:7-14, 67:17-18; TX 790 (Schingnitz Dep.) 159:10-24. Boehringer did not rebut the testimony of Dr. Anslyn on these issues, and instead, focused its cross-examination of Dr. Anslyn on whether one skilled in the art of the '086 patent must have medical degree.
Boehringer also contends that despite the aforementioned similarities, the '086 and '812 patent are distinct because the '086 patent is limited to certain utilities, while the compound claims of the '812 patent have been shown to have use for the treatment of conditions different from those specified in the '086 patent, like RLS, depression, fibromyalgia and the possibility of neuroprotection. However, there is precedent from both the Federal Circuit and its predecessor court, the Court of Customs and Patent Appeals (the "CCPA"), indicating that Boehringer's argument is an insufficient basis to support a conclusion that the patents are distinct. For example, the CCPA has explained:
It would shock one's sense of justice if an inventor could receive a patent upon a composition of matter, setting out at length in the specification the Useful purposes of such composition, manufacture and sell it to the public, and then prevent the public from making any beneficial use of such product by securing patents upon each of the uses to which it may be adapted.
In the case at bar, appellant received a patent upon his composition of matter because he had invented something new and useful. He could not have received such a patent unless he had disclosed its utility. Such disclosure of usefulness did not constitute separate inventions, but an essential part of a single invention.
In re Byck, 48 F.2d 665, 666-67 (CCPA 1931) (emphasis added); In re Christmann, 128 F.2d 596, 600 (CCPA 1942) (same). This approach to double patenting was adopted by the Federal Circuit in the Geneva-Pfizer line of cases. See Geneva, 349 F.3d at 1386; Pfizer, 518 F.3d at 1363 n. 8. In Geneva, the Federal Circuit concluded that two sets of claims were not patentably distinct where the earlier claims were directed to a compound and the earlier patent disclosed a utility for the compound, and the later claims claimed that utility as a method of using the compound. In concluding that a compound and a previously disclosed method of using the compound constitutes a single invention for which only one patent may be granted, the Federal Circuit observed that it "does not consider the [compound] claim in a vacuum, as a simple compound, without considering the compound's disclosed utility." 349 F.3d at 1385. The Federal Circuit adhered to this approach in Pfizer when it considered nonstatutory double patenting in the context of a later patent claiming a method of using a composition with an earlier patent claiming the composition itself. In Pfizer, the Federal Circuit stated, "[W]e agree with the district court that the [later] patent merely claims a particular use described in the [earlier] patent of the claimed compositions of the [earlier] patent. The asserted claims of the [later] patent are therefore not patentably distinct over the claims of the [earlier] patent." 518 F.3d at 1363.
Boehringer contends that this line of cases is distinguishable from the circumstances here because those cases were limited to compounds having a single utility, but pramipexole has multiple utilities. The Court agrees that both Geneva and Pfizer involved single utility compounds; however, the Court does not read the rationale of Geneva and Pfizer to be limited to that circumstance. Indeed, case law from the CCPA suggests that this distinction is irrelevant:
The claims in the instant case are not directed to any particular use although. . . appellants rely in part upon the new use to justify their contention for allowance of the new claims. Unquestionably, under the stated circumstances the allowance of the appellants' claims would be an extension of the appellants' monopoly not warranted by law. If they were to obtain a patent including the instant claims, they would presumptively be given a monopoly for seventeen years on the exclusive use of the compound for any purpose.
Christmann, 128 F.2d at 599-600 (emphasis added). In the Court's view, allowing Boehringer to secure a new patent on a compound which was itself specifically identified in the earlier method claims of the '086 patent is precisely the type of monopolistic conduct the doctrine of nonstatutory double patenting was designed to prevent. Patent protection is designed to reward true innovation, and the Court cannot conclude that the alleged "new" uses of tetrahydrobenzthiazoles are sufficient to support their separate patentability where, as here, those same compounds were precisely claimed as the compounds to be used in the methods described in the '086 patent.
Boehringer also urges the Court to consider secondary indicia of nonobviousness in its double patenting analysis, which Boehringer contends weigh in favor of the validity of the '812 patent. Courts have disagreed on whether it is appropriate to consider secondary indicia of nonobviousness in the context of nonstatutory double patenting.[12] On this issue, the Federal Circuit has held that "[o]bviousness requires inquiry into objective criteria suggesting non-obviousness, but nonstatutory double patenting does not." 349 F.3d at 1378, n. 1. While the Court understands this statement to indicate that secondary indicia of nonobviousness are not required to be considered in the nonstatutory double patenting inquiry, the Court does not read this statement to suggest that secondary indicia of nonobviousness are irrelevant. Rather, the Court believes there is discretion to be applied between the idea of maintaining the focus on what is claimed rather than what is disclosed, while simultaneously considering factors beyond the scope of the claim language like secondary indicia of nonobviousness. To the extent that secondary indicia of nonobviousness should be considered by the Court, the Court concludes that, in the context of this case, those factors presented by Boehringer are insufficient to overcome the nonstatutory double patenting issue presented here. Richardson-Vicks Inc. v. Upjohn Co., 122 F.3d 1476, 1483 (Fed.Cir.1997); see also Agrizap, Inc. v. Woodstream Corp., 520 F.3d 1337, 1344 (Fed.Cir.2008) (holding that objective evidence of nonobviousness, including commercial success, copying and satisfaction of long-felt need, could not overcome "such a strong prima facie case of obviousness"). The evidence in this case offered as secondary considerations of nonobviousness is mixed and unpersuasive, and as such, it neither fully supports nor fully negates obviousness, to the extent that such evidence should even be considered for purposes of nonstatutory doublepatenting.[13] Accordingly, the Court declines to place any significant weight on the secondary considerations of nonobviousness in this case.
In sum, the Court concludes that the '812 patent which claims tetrahydrobenzthiazoles is obvious in light of the '086 patent, which claims methods of using tetrahydrobenzthiazoles for the treatment of certain illnesses. Accordingly, the Court concludes that Defendants have established by clear and convincing evidence that the '812 patent is invalid on the grounds of nonstatutory double patenting.
CONCLUSION
For the reasons discussed, the Court concludes that Boehringer has demonstrated by a preponderance of the evidence that Defendants' ANDA products infringe the asserted claims of the '812 patent. However, the Court concludes that Defendants have established by clear and convincing evidence that the '812 patent is invalid on the grounds of nonstatutory double patenting. Because an invalid patent cannot be infringed, the Court will enter judgment in favor of Defendants on both issues. Accordingly, Defendants shall submit a proposed form of Final Judgment Order within ten (10) days of the date of the Court's Memorandum Opinion and accompanying Order.
ORDER
At Wilmington, this 26 day of June 2008, for the reasons set forth in the Memorandum Opinion issued this date;
IT IS HEREBY ORDERED that:
1. Claims 3, 4, 5, 7, 9 and 10 of U.S. Patent No. 4,886,812 are invalid on the grounds of nonstatutory double patenting.
2. Defendants shall submit with notice to Plaintiffs a proposed Final Judgment Order within ten (10) days of the date of this Order.
NOTES
[1] This action was initially assigned to the Honorable Kent A. Jordan.
[2] The '947 application/'347 patent was examined by Examiner Ceperley. The '086 and '812 patents were both examined by Examiner Gerstl.
[3] The Court will address the parties' evidentiary objections by a separate Memorandum Opinion and Order.
[4] See CMI Corp. v. Lakeland Constr. Co., 184 U.S.P.Q. 721, 735 (N.D.Ill.1975) ("The filing of a terminal disclaimer, three days before trial, does not obviate the vices of double patenting and will not serve as a rebuttal to the double patenting defense in this case."); see also Dunner, Gambrell & White, Patent Law Perspectives Sec. A.6-11 (1975) (discouraging consideration of terminal disclaimers filed after a double patenting challenge).
[5] See Technicon Instruments Corp. v. Coleman Instruments, Inc., 255 F.Supp. 630, 636, 641 (N.D.Ill.1966), aff'd 385 F.2d 391 (7th Cir. 1967) (considering a terminal disclaimer, even though it was filed after the beginning of trial, and concluding that it was sufficient to cure invalidity).
[6] To the extent that Boehringer argues that the PTO confirmed during the prosecution of the '812 patent that a terminal disclaimer need not be filed, the Court notes that this discussion came in the context of a rejection of the '812 patent over the '374 patent. The issue of whether Boehringer needed to file a terminal disclaimer in light of the '086 patent was not clearly addressed.
[7] Boehringer argues that the result of its terminal disclaimer is that the '812 patent expires on "the same date it would have expired had Boehringer applied the patent term extension to the '086 patent." D.I. 213 at 19. However, the fact remains that Boehringer did not seek a Section 156 extension on the '086 patent. It chose to put that extension on the '812 patent. Accordingly, the Court is not persuaded that Boehringer's observation is relevant to the facts here.
[8] While the Court does not rest its holding on the timing of the filing of the terminal disclaimer, the Court is concerned about Boehringer's delay in filing for several reasons. As at least one commentator has noted, an unreasonable delay in filing a terminal disclaimer "`may be a form of the very "extension of monopoly" the terminal disclaimer provision was designed to avoid.'" Chism, supra at § 9.04[4][b] at 9-114 (quoting Dunner, Gambrell & White, Patent Law Perspectives Sec. A.6-11 (1975)). Moreover, extensive delay in filing a document which may ultimately moot a double patenting issue can have harsh effects on the judicial system as a whole resulting in gamesmanship during trial, and/or a waste of the Court's and the parties' resources.
[9] Boehringer's concern over the Lilly patent was also echoed in its internal documents. TX 127; TX 133 at BOE131840
[10] Having concluded that the '812 patent was not filed "as a result of" a restriction requirement, the Court need not consider the parties' remaining arguments concerning the application of Section 121.
[11] The Court considers the fact that the patents have the same disclosure in determining the qualifications of one of ordinary skill in the art; however, the Court recognizes that this fact is not dispositive of the nonstatutory double patenting inquiry.
[12] Compare Applera Corp. v. MJ Research Inc., 363 F.Supp.2d 261, 264 (D.Conn.2005) ("In addition, the double patenting inquiry does not include an examination of the motivation to modify the prior art, nor does it involve inquiry into objective criteria suggesting nonobviousness.") with Eli Lilly and Co. v. Zenith Goldline Pharms., Inc., 364 F.Supp.2d 820, 911 (S.D.Ind.2005) ("[T]he factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. § 103 are employed when making an obvious-type double patenting analysis," including "objective indicia of nonobviousness.") (citations omitted) (emphasis added).
[13] For example, Boehringer's expert, Dr. Olanow testified that pramipexole had several unexpected properties, specifically, its use for the treatment of RLS, fibromyalgia, depression and as a neuroprotector. Tr. (Vol.1), D.I. 206 at 69:14-115:15. However, on cross-examination, Dr. Olanow conceded that the use of dopamine agonists, which includes pramipexole, had been suggested by others for the treatment of RLS. Id. at 169:172:13; 182:2-183:1. Further, Dr. Olanow acknowledged that while there are studies showing that pramipexole has positive effects on conditions like depression and fibromyalgia, those studies have not definitely proven that pramipexole is an effective treatment' for these conditions and there is still an unmet need insofar as treatment for these conditions is concerned. Id. at 120:13-8, 122:18-22, 124:16-125:3, 125:22-126:9, 145:14-20, 158:10-15, 160:20-161:8. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876135/ | 260 S.W.3d 927 (2008)
STATE of Missouri, Respondent,
v.
Donald W. PRESTON, Defendant/Appellant.
No. ED 90236.
Missouri Court of Appeals, Eastern District, Division Two.
September 2, 2008.
*928 Kent Denzel, Columbia, MO, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Roger W. Johnson, Asst. Atty. Gen., Jefferson City, MO, for respondent.
Before ROY L. RICHTER, P.J., LAWRENCE E. MOONEY and GEORGE W. DRAPER, III, JJ.
ORDER
PER CURIAM.
The defendant, Donald W. Preston, appeals the judgment entered by the Circuit Court of Lincoln County following his conviction by a jury of one count of attempt to manufacture a controlled substance (methamphetamine), section 195.211 RSMo. (Supp.2007). The court sentenced the defendant as a prior drug offender to fifteen years' imprisonment. Finding no error, we affirm.
We have reviewed the parties' briefs and the record on appeal. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been provided with a memorandum, for their information only, setting forth the reasons for this order.
We affirm the trial court's judgment pursuant to Rule 30.25(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876240/ | 283 So. 2d 307 (1973)
Curtis E. JONES
v.
Jack BRYANT.
No. 5723.
Court of Appeal of Louisiana, Fourth Circuit.
September 26, 1973.
*309 Gordon K. Konrad, Gretna, for defendant, plaintiff in reconvention-appellant.
W. W. Thimmesch, Metairie, for plaintiff, defendant in reconvention, appellee.
Before LEMMON, J., and FEDOROFF and GAUTHIER, JJ., Pro Tem.
LEMMON, Judge.
Jack Bryant, the owner of certain immovable property, has appealed from a money judgment against him in favor of Curtis E. Jones, who formerly leased the property and operated a bar and lounge on the premises. The issues on appeal primarily involve the sufficiency of evidence.
During the term of the lease, the business faltered, and Jones requested to be released from his obligations under the lease. Bryant agreed to the release by written contract dated February 1, 1968, in consideration for Jones' transfer of all "right, title and interest in and to the business". Additionally, Bryant executed a promissory note on the same day payable to Jones and his business partner, Gerald Lemoine, the note reciting Bryant's promise to pay a certain sum "for Outdoor Sign located on premises." The terms of the note coincided with the remining installment payments owed by Jones and Lemoine from the original purchase of the sign.
Jones instituted this suit to enforce collection of the note. Bryant defended on the basis that Jones had agreed to repair the sign as a condition of the sale and had failed to do so. Bryant also filed a reconventional demand, as well as a third party *310 demand against Lemoine, seeking recovery of the amount that he expended to discharge numerous business debts left unpaid by Jones and Lemoine.
After a trial on the merits the trial court rendered judgment in favor of Jones in the full amount of the promissory note, subject to a credit for the payment of certain debts found to have been due by Jones and Lemoine. Bryant appealed suspensively.
PRINCIPAL DEMAND
Bryant contends that Jones' alleged promise to repair the sign constituted a suspensive condition and that Jones' failure to fulfill this condition nullified the sale and rendered the note unenforceable.
Bryant admitted the sign had not been in usable condition for some time prior to February 1. He nevertheless executed the promissory note, containing an unconditional promise to pay, in connection with the purchase of the sign. Under these circumstances he cannot void the sale on the basis that the consideration was inadequate or worthless, in the absence of a showing that his consent to the sale was obtained by fraud or misrepresentation. In this respect Bryant testified that Jones and Lemoine had agreed to repair the sign, but Jones insisted that Bryant had indicated his construction company's employees would perform the repairs. There was no evidence as to the value of the sign when the transaction occurred.
The trial judge held that Bryant accepted the sign in its condition at the time he signed the note. After reviewing the record, we concur with this holding.
However, Bryant contends that the trial court should not have awarded attorney's fees. The note provided:
"If the above be not paid when due and it should be placed in the hands of an attorney-at-law for collection, there shall be due attorney's fees and court costs paid for by Jack Bryant."
No amount of fee was specified in the note, nor was any evidence offered as to services performed by the attorney or the value thereof.
When a promissory note contains a provision for an attorney's fee, but the note does not specify the amount of such fee, the maker is deemed to have agreed to pay a reasonable fee. If the holder presents no evidence on the reasonableness of the fee, the court may fix the fee without express evidence on the point. Hood Motor Co. v. Easley, 165 So. 2d 688 (La. App. 1st Cir. 1964); 18 A.L.R.3rd 734, 741.
In setting a fee, the court must consider both the amount and the value of the services performed. As to evidence on the amount of services, we distinguish the present case, in which an attorney on behalf of his client is suing a third party on a promissory note, from the case in which an attorney sues his own client for services performed. In the latter situation, the attorney must introduce evidence as to the amount of services, since this evidence would not otherwise be in the record of the action to collect the fee. In the present case, however, the record of the note collection proceedings reflects all or much of the attorney's services, although the attorney may introduce additional evidence as to services not apparent from the record. Therefore, the trial court properly set the fee based on the record without requiring additional evidence as to the amount of services performed.
As to evidence on the value of the services, testimony of an expert is admissible and perhaps helpful, but is not essential. The trial judge, in view of his experience at the bar and on the bench, is qualified to determine the reasonable value of an attorney's services, although he would require the assistance of expert testimony in setting the fee of an architect or a physician.
*311 The trial judge fixed the fee at 331/3% of the $622.41 note, or $207.47. Although the percentage rate is higher than that set in other cases, such as Moore Steel, Inc. v. Clear Lite Window Co., 178 So. 2d 376 (La.App. 4th Cir. 1965), the fee in terms of dollars is not excessive and does not constitute an abuse of discretion.
INCIDENTAL DEMANDS
Jones first testified that the business owed no debts on February 1, but later in answer to questions about specific amounts stated that he did not remember whether or not there were unpaid balances on that date. Bryant produced invoices (which constituted hearsay evidence introduced without objection) that indicated balances due on or before February 1.
The trial judge found that certain of the debts paid by Bryant were in fact owed by Jones and Lemoine, but that Bryant failed to prove the other debts were incurred before he took over the business. In order to review this judgment, it is necessary for us to examine each debt denied by the trial judge.[1]
Jones had rented a piano from Hall Piano Company for $50.00 per month. Bryant introduced a check to Hall in the amount of $58.00 dated March 4 and an invoice dated March 2, stating that "This balance was due on January first 1968." Inasmuch as Jones introduced a $50.00 check to Hall dated January 29, the trial judge ruled that Jones' account had been paid through that date. However, the invoice constituted sufficient proof that after Jones' payment, there was still a balance of $58.00 which had been overdue since January 1. Furthermore, Bryant testified without contradiction that he did not continue renting from Hall after he took over the business. This item should have been allowed.
A $55.86 debt to the Times Picayune was denied in part on the basis that Jones paid $44.47 on January 29 and the itemized invoice did not reflect a credit for the payment. Nevertheless, the bill represented a charge due by Jones and Lemoine which Bryant was compelled to pay, irrespective of other charges paid by Jones. This item should have been allowed in full.
Chalmette Linen Service's invoice indicated a balance forwarded on January 31 of $34.15. This was disallowed on the basis that Bryant actually took over the business two or three weeks before the February 1 agreement and failed to prove the debt pre-dated his take-over.
Bryant had refused to execute the agreement until he was assured all debts were paid. On January 29 Jones issued checks in payment of numerous bills, and on February 1 the parties executed the agreement transferring the business and releasing the lease obligations. Jones admitted this date was "when I got out of business." Even if Bryant did begin operating the business a few days or a few weeks before the effective date, Jones and Lemoine impliedly agreed to pay all continuing business debts through the date of the transfer. Under the circumstances of this case, the effective date of the transfer, and not the date of physical take-over, should determine which party is responsible for the normal, continuing business expenses. This item should have been allowed.
The same reasoning applies to the New Orleans Disposal Service bill. The January monthly charge of $12.00 should have been allowed, in addition to the $60.00 due for service prior to January.
Bryant introduced a check dated July 9, 1968 to Louisiana Power & Light Company and a letter from that company. The letter informed Bryant that a deposit refund check, endorsed by Jones, could not *312 be credited to Bryant's present account, since payment on the July 9 check had been stopped and a new check issued to Jones at another address. The trial judge correctly concluded that Bryant did not prove this payment represented a debt of the former lessees which he had been compelled to pay, but rather indicated that the lessees' account with that creditor had been fully settled.
The final claim is for two payments made to Jefferson Parish and the State of Louisiana. Bryant testified that he was unable to get a liquor license from the Parish because Jones had failed to pay taxes due "prior to February 1." Bryant couldn't contact Jones but explained the situation to Lemoine. Bryant then issued a check dated March 14, 1968 to Lemoine, who cashed the check and paid the overdue taxes. Shortly thereafter, State tax collectors sought taxes due by Jones and Lemoine. Bryant issued another check, dated April 2, 1968 in the amount of $179.49, to Lemoine, who endorsed it to the business, which in turn paid the taxes owed to the State. The trial judge held that Bryant failed to prove the taxes were assessed for the period during which the lessees operated the business.
The record is not precisely clear on the point. However, Bryant clearly testified that the taxes were due for a period prior to February 1, and neither Jones nor Lemoine contradicted this. Furthermore, Lemoine affirmatively answered a question as to whether he used the proceeds of the check to "pay the sales tax that was due by you two for the business." Although Lemoine was confused as to why this procedure was used, Bryant's uncontradicted testimony and the corroborative evidence preponderate in favor of a conclusion that the payments were for obligations incurred while Jones and Lemoine were operating the business. The rule that the judgment of the trial court will not be disturbed unless manifestly erroneous is not applicable here, where the question is one of sufficiency and preponderance of the evidence, rather than an issue of resolving conflicting testimony or determining credibility of witnesses. Blue Streak Enterprises v. Cherrie, 263 So. 2d 734 (La.App. 4th Cir. 1972).
DECREE
The judgment did not adjudicate the incidental demands, but rather awarded judgment on the principal demand subject to a credit. More properly, there should have been separate adjudications of each demand, particularly since a new party was brought into the action by the third party petition.
Accordingly, the judgment of the trial court is amended and recast as follows:
It is ordered, adjudged and decreed that there be judgment in favor of Curtis E. Jones and against Jack Bryant in the sum of Six hundred twenty-two and 41/100 ($622.41) Dollars, plus attorney's fees in the amount of $331/3% of the amount of the judgment, together with legal interest on each installment from the date due until paid;
It is further ordered, adjudged and decreed that there be judgment in favor of Jack Bryant and against Curtis E. Jones and Gerald Lemoine, in solido, in the sum of Seven hundred and 11/100 ($700.11) Dollars, plus legal interest from February 1, 1968 until paid;
It is further ordered, adjudged and decreed that each party bear his own court costs.
Amended and recast.
NOTES
[1] There was no appeal from the judgment awarding Bryant credit in the amount of $172.00. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609963/ | 467 P.2d 814 (1970)
Louis BRAVO, Plaintiff in Error,
v.
The PEOPLE of the State of Colorado, Defendant in Error.
No. 23030.
Supreme Court of Colorado, In Department.
April 13, 1970.
*815 Edward H. Sherman, Public Defender, Michael L. Bender, Asst. Public Defender, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., George E. DeRoos, Asst. Atty. Gen., Denver, for defendant in error.
PRINGLE, Justice.
Louis Bravo, the defendant, brings this writ of error from his conviction for the crime of forgery. The case for the People consisted of the testimony of two witnesses and one exhibit, a check purportedly issued by one Bruce Sutherland. Mr. Sutherland testified that he had lost some checks at one time and identified the check in question as one of his checks but denied that he had signed the check. He testified that he had never seen the defendant prior to trial.
George Kuhls testified that he was working as a clerk in King Sooper's grocery on the evening of January 14, 1966, and that on that night he cashed the check for a Paul Padilla after checking the man's driver's license. He identified the defendant as being the man for whom he cashed the check. He testified that he had not seen the defendant before that night and had not seen him again until the trial date. On cross-examination Mr. Kuhls testified that the district attorney showed him a picture before the trial and asked him if this was the man who cashed the check. The defendant did not take the stand to testify.
The defendant argues that under the circumstances of this case, the identification practice followed by the district attorney of showing a single picture of the defendant to the sole identifying witness shortly before trial was so unnecessarily suggestive and conducive to mistaken identification at the trial that the defendant was denied due process of law under the test set forth in Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199. We do not agree.
We do not know from the record that the picture shown to the witness by the district attorney was of the defendant, and we do not know whether the witness identified the man in the picture. However, even conceding the facts to exist as argued by the defendant, we do not find such an identification to have resulted in a denial of due process of law under the facts of this case.
It may well be said that the practice of showing suspects or their photographs singly to persons for the purpose of identification is suggestive. Whether or not such a practice is so unnecessary or so conducive to mistaken identification at the trial that the defendant is denied due process of law is a question which must be gleaned from the totality of the circumstances. Stovall v. Denno, supra. As this Court pointed out in Neighbors v. People, Supreme Court, 467 P.2d 804, announced April 6, 1970, suggestiveness of pretrial identification by itself is not necessarily conclusive on the question of due process at the trial.
Mr. Kuhls testified that while he could not remember the names or faces of the other estimated one hundred people for whom he cashed checks on the day of the forgery, he specifically remembered the defendant because of another incident which occurred immediately after the forged check was cashed. Some other person called Mr. Kuhls' attention to the presence of the defendant in the store. Mr. Kuhls saw the defendant outside the front window of the store and pointed him out to the manager. The defendant was taken to the manager's office where Mr. Kuhls again saw him.
The record indicates that there were peculiar circumstances which caused Mr. Kuhls to make a special note of the person who cashed the forged check. While the necessity for conducting such a suggestive identification does not appear in the record, it does not appear that the identification was so conducive to mistaken identification at trial that we can say the defendant was denied due process of law. See Neighbors v. People, supra.
The judgment is affirmed.
HODGES, GROVES and LEE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609971/ | 12 Ariz. App. 1 (1970)
467 P.2d 76
Reggie BACCHUS and Helen Bacchus, husband and wife, Appellants,
v.
FARMERS INSURANCE GROUP EXCHANGE, Appellee.
No. 2 CA-CIV 674.
Court of Appeals of Arizona, Division 2.
March 26, 1970.
Rehearing Denied May 4, 1970.
Review Granted June 2, 1970.
Russo, Cox & Dickerson, by Vernon F. Dickerson, Tucson, for appellants.
Chandler, Tullar, Udall & Richmond, by D.B. Udall, Tucson, for appellee.
HATHAWAY, Judge.
On April 7, 1967 appellants suffered severe and permanent personal injuries as the result of an automobile accident caused by an uninsured motorist. Pursuant to their policy with Farmers Insurance Group Exchange, the appellants' claims were submitted to an arbitrator through the American Arbitration Association.
On April 16, 1968 the arbitrator awarded the sum of $8,200 to the appellant Reggie T. Bacchus and the sum of $10,000 to the appellant Helen V. Bacchus. The arbitrator provided in the award that the sums awarded were exclusive of any rights to recover under the medical pay portion of the policy.
Farmers refused to exclude the medical payments as provided in the award. Appellants, therefore, brought this lawsuit asking the superior court to confirm the arbitrator's award. Farmers contended that the arbitrator did not have authority to set off the previously paid medical expenses against the amount due under the uninsured motorist coverage.
The parties stipulated that the court needed to hear evidence only on the issue of whether the determination of the arbitrator was conclusive. They further stipulated that an affirmative conclusion was dispositive, but a negative conclusion required the court to also determine the issue concerning the set off of medical payments.
The matter was tried to the court, sitting without a jury, and the court found against the plaintiffs finding that Farmers "did not intend to submit to the arbitrator the issue of interpretation of the policy concerning deduction of payments already made, and therefore the court finds that such issue was not submitted to the arbitrator."
Plaintiffs appeal from the adverse judgment contending first that the medical pay *2 set off issue was submitted to the arbitrator and that he was authorized to make an award. The applicable arbitration provision in the policy provides:
"In the event the insured and the company do not agree that the insured is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle under this Part II (Uninsured Motorist Coverage) or do not agree as to the amount of payment which may be owing hereunder, then, upon written demand of either, the matter or matters upon which the insured and the company do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon an award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The insured and the company each agree to consider itself bound by any award made by the arbitrator(s) pursuant to this Part II."
Resolution of two areas of potential disagreement by arbitration is contemplated by the foregoing provisions:
(1) Whether the insured is legally entitled to recover damages from the uninsured motorist.
(2) The amount which may be owing.
An arbitrator's authority is generally circumscribed by the agreement from which his power to act is derived. 6 C.J.S. Arbitration and Award § 48, p. 190. The testimony is conflicting concerning the intent of the parties on submission of the question of offset and medical payments. Their intent as expressed in the quoted provision supports the trial court's finding as does testimony, though conflicting.
We have recently dealt with the second question raised on this appeal inquiring into the validity of the provision requiring a set off of medical payments against the uninsured motorist coverage in Caballero v. Farmers Insurance Group, 10 Ariz. App. 61, 455 P.2d 1011, where we stated:
"While offsets attempting to reduce mandatory coverages will not be permitted, there is nothing to prevent the insurer and a person desiring to have medical expenses insurance from employing any provisions with respect to the payment or non payment of these benefits which they choose." 455 P.2d at 1014
The difference of an uninsured provision in this instance as compared with the liability provision in Caballero is of no consequence.
Judgment affirmed.
KRUCKER, J., and LAWRENCE GALLIGAN, Judge of the Superior Court, concur.
NOTE: Judge LAWRENCE HOWARD having requested that he be relieved from consideration of this matter, Judge LAWRENCE GALLIGAN was called to sit in his stead and participate in the determination of this decision. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876153/ | 490 So. 2d 235 (1986)
STATE of Florida, Petitioner,
v.
Robert A. EDWARDS, Respondent.
No. 86-640.
District Court of Appeal of Florida, Fifth District.
June 26, 1986.
*236 S. Ray Gill, State Atty., Richard A. Howard, and Thomas Carle, Asst. State Attys., Bushnell, for petitioner.
Howard H. Babb, Jr., Public Defender, L. Hunter Limbaugh, and J.F. Johnson, Jr., Asst. Public Defenders, Tavares, for respondent.
DAUKSCH, Judge.
This cause came before the court on a petition for writ of certiorari filed by the State to quash the order of the trial court granting, in part, defendant's motion in limine.
Defendant, a prisoner at Sumter Correctional Institution, was indicted for the first degree murder of another prisoner. Most of the witnesses who were to testify at trial were either inmates or guards at the Sumter Correctional Institution. Pursuant to a motion in limine filed by the defendant, the trial court entered an order prohibiting the State or its witnesses from using the words "prison", "prisoner", "penitentiary", or "guard" at any stage of the trial. The State argues that the trial court departed from the essential requirements of law in prohibiting the use of the specified words. We agree, and grant the petition for writ of certiorari.
As stated in Tompkins v. State, 386 So. 2d 597 (Fla. 5th DCA) rev. den., 392 So. 2d 1380 (Fla. 1980), a case where defendant prisoner was charged with the sexual battery of another prisoner, "[T]he fact and place of perpetration are ingredients of a crime and are germane to proof required for conviction... . [R]eferences to this defendant's conviction and inmate status were inevitable due to the fact that the crime was committed in a prison... ." Id. at 599.
Certiorari is the appropriate remedy to review pretrial evidentiary rulings which are clearly erroneous where no remedy is available upon appeal of the final disposition. See e.g. State v. Busciglio, 426 So. 2d 1233 (Fla. 2d DCA 1983); State v. Horvatch, 413 So. 2d 469 (Fla. 4th DCA 1982); State v. Steinbrecher, 409 So. 2d 510 (Fla. 3d DCA 1982).
The order of the trial court prohibiting the use of the words "prison", "prisoner", "penitentiary," or "guards" is a departure from the essential requirements of law and any possible prejudice to the defendant by references to his status as a prisoner can be cured by an appropriate instruction to the jury.
The petition for writ of certiorari is granted and that portion of the trial court's order in dispute is quashed.
UPCHURCH and COWART, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3356397/ | The action is to recover damages for injuries to plaintiff's real property and to personal property of which the plaintiff is alleged to have been the bailee, which damages are alleged to have been caused by the maintenance of a nuisance by the defendant. The nuisance is alleged to have consisted of the condition of the dams, bulkheads, gates and other appurtenant fixtures at the southerly end of Hanover Pond in the City of Meriden.
The obvious reason for basing the claim upon nuisance rather than negligence is that section 1680c of the 1935 Cumulative Supplement to the General Statutes provides in part that: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence .... shall be brought but within one year from the date of the act or omission complained of."
In the present case the act or omission complained of occurred on and prior to September 20, 1938, whereas the action was not instituted until January 20, 1940. The above statute was pleaded in defense of any claim based upon negligence, hence such defense would bar the plaintiff from recovery upon *Page 313
such ground. If then the plaintiff is entitled to recover at all it must be upon the theory of nuisance.
In addition to the above defense, the defendant has alleged that the injuries complained of by the plaintiff were caused by an act of God consisting of an extraordinary storm and unusual conditions of weather on September 19, 1938 and September 20, 1938 in and about the vicinity constituting the watershed of the Quinnipiac River at and above the dam referred to in the complaint, and at and above the plaintiff's property, which resulted in causing unprecedented volumes of water to flow into and down the Quinnipiac River and over, across and past the land of the plaintiff, which unprecedented volumes of water were the sole cause of damage to the plaintiff's property.
This defense is denied by the plaintiff and the issues presented are, first, whether plaintiff's property was in fact injured on the date alleged, and second, whether such injury was solely and proximately caused by an act of God. That the plaintiff's property was in fact injured on September 21, 1938, there can be no question. The evidence disclosed that at about 2 o'clock a.m. on that date a building and part of the land of the plaintiff, as well as certain personal property which the plaintiff claimed was in the building, were swept away and destroyed by a flood of water which came from the so-called Hanover Pond. Whether the defendant is legally liable to the plaintiff therefor depends upon whether such destruction was proximately due to its maintenance of a nuisance as alleged.
As previously stated, the nuisance is alleged to have consisted of the condition of the dams, bulkheads, gates and other appurtenant fixtures at the southerly end of Hanover Pond. These structures were in part, at least, located upon land of the defendant, and in the deed by which it acquired such land the defendant covenanted to maintain and keep them in repair. The claim of the plaintiff is that the defendant failed to thus keep and maintain them and that as a result of such failure the structures became and were a nuisance. The defendant claims that it did not fail in its duty to properly maintain the structures in question and that the condition thereof did not constitute a nuisance. It further claims that the condition of the structures was not a proximate cause of the plaintiff's damage. A nuisance arises from the creation *Page 314
or maintenance of a condition having a natural tendency to cause danger and inflict injuries. Gonchar vs. Kelson,114 Conn. 262, 271; Stoto vs. Waterbury, 119 id. 14; Brock-HallDairy Co. vs. New Haven, 122 id. 321, 326; Hassett vs. Palmer,
126 id. 468, 476.
According to the evidence it appeared that the property of the defendant was acquired by it on August 27, 1937, and consisted of a tract of land approximately 300 feet in width and 660 feet in length upon which were factory buildings designed to permit the machinery therein to be operated by water power. The property was bounded on the south by Main Street in East Meriden and on the north by a large body of water known as Hanover Pond. This pond had been created more than 75 years ago by the building of a dam and embankments across the Quinnipiac River. The dam consisted of a substantial sandstone wall backed up by an earth embankment, which was topped by heavy squared timber upon which there was a concrete slab. The total width of the dam was 171 feet and its height from the downstream river bed to the top of the spillway was about 17 feet. To the east of the spillway was located what are known as blow-off gates. These gates consisted of a heavy wooden structure, 431/2 feet in width embedded in masonry abutments. At the bottom of this structure there were four wooden gates, each of which covered apertures three feet square. These gates operated upon iron cogs which were attached to upright timbers, and were designed for use in lowering the water in the pond when such was desired. Structurally these gates were in good condition on September 20, 1938. On that date two were entirely open, one was half-way open and the fourth was partly open. When water began to rise to an alarming extent on September 20, 1938, the defendant endeavored by all reasonable means to completely open all of the aforesaid gates, but a flood of water, due to an unprecedented rainfall which had occurred on that and several days previously, had brought down into the pond debris, including logs, stumps of trees, shrubbery, and so forth, and deposited them against the north side of said gates in such manner and to such extent as to prevent any further opening thereof, and the inability of the defendant to open said gates was not due to any negligence on its part.
A heavy earth embankment extended westerly from the *Page 315
westerly abutment of the dam to a raceway or fore-bay channel, which raceway was designed to carry water from the pond through a penstock into the water wheel inside the factory building. This channel was about 20 feet in width. At the pond end of the channel there was a structure about 23 feet in width and about 20 feet in height, consisting of heavy wooden timbers embedded in masonry abutments. The purpose of this structure was to hold back the water from the pond and to release through four gates, similar to those before described, only such quantities of water as were desired to have flow through the raceway into the water wheel of the defendant's building. On September 20, 1938, these gates were closed and had been for some time prior thereto. At the time there was no engine in the defendant's building which required water power and the raceway structure was maintained merely as a dam to hold back the water from the pond. While some of the timbers of this structure showed signs of decay on their surface and while there were cracks between the planks which formed the face of the structure, repairs which had been made thereto in March, 1938, fortified the then existing condition and rendered the wooden portion in a reasonably safe condition to withstand the pressure of water against the pond side thereof on September 20, 1938.
As previously stated, this wooden structure was embedded in masonry abutments. These abutments were each about 12 feet square and about 20 feet high. One was located at the east and the other at the west side of the so-called raceway gates. That the easterly abutment was in a reasonably safe condition to withstand the pressure of water from the pond on September 20 and 21, 1938, is self-evident, as it completely withstood the flood in question. Across the top of the westerly abutment there was a crack extending downward for a distance of four feet into the masonry, but there was no satisfactory evidence that this crack in any way affected the strength of this abutment or of the raceway gate structure. Consequently it cannot be found that the westerly abutment was other than in a reasonably safe condition.
The westerly side of the aforesaid westerly abutment formed the northwest boundary of the defendant's land. To the west thereof the pond in question bordered upon land of one Flora B. Pendexter. To the north of and separating the Pendexter property from the pond there was an embankment composed *Page 316
of a double stone wall with earth between and on the top thereof there were stone slabs. This embankment was about two and one-half feet higher than the crest of the spillway portion of the dam and was of the same height as the raceway gate structures.
From all of the evidence offered upon the subject of the condition of the banks and structures at the southerly end of Hanover Pond it is found that they were in a reasonably safe condition to withstand any ordinary pressure of water which the pond contained or had contained prior to September 20, 1938, and consequently did not constitute a nuisance within the legal meaning of that term.
For six days prior to September 20, 1938, considerable rain had fallen, constituting in all a rainfall of eight and six-tenths inches. On September 20, 1938, an additional rainfall of six and one-tenth inches occurred. Such a rainfall was unprecedented during the history of Hanover Pond. The drainage into the pond covered an area of 95 square miles and the unprecedented rainfall caused the water in the pond to rise to a height above that which had ever before occurred. During the afternoon of September 20, 1938, the water rose in the pond to such an extent that it not only flowed over the spillway and platform of the blow-off gates before mentioned but also flowed over the embankment to the west of the so-called raceway gate structures. This flow of water increased as the hours passed and caused an erosion of the bank somewhere within an area of 60 feet to the west of the westerly abutment of the raceway gates. The water flowing over this bank swirled to the west, eroding property located to the north of the plaintiff's property and finally, at about 2 o'clock a.m. on September 21, 1938, eroded the embankment which contained the westerly abutment to the raceway gates to such an extent as to cause such abutment to give way and carry with it the aforementioned wooden structure which constituted the raceway gates themselves. When this occurred a great body of water was released from the pond, which water, swirling to the west, eroded the plaintiff's property and carried away a portion thereof, together with the building thereon.
From the foregoing, and all of the other facts and circumstances which the evidence disclosed, it is found that the destruction of the plaintiff's property was not proximately caused *Page 317
by the maintenance of a nuisance by the defendant, but was solely and proximately due to an act of God.
For the foregoing reasons judgment may enter for the defendant upon the issues of the complaint, and for the defendant to recover of the plaintiff its costs. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1216495/ | 701 P.2d 80 (1984)
The PEOPLE of the State of Colorado, Plaintiff,
v.
Robert Manley TYNAN, Hazel Arelena Selman, and Donald Hoffman, Defendants-Appellees,
And Concerning: the Colorado Department of Social Services, Petitioner-Appellant.
No. 83CA0590.
Colorado Court of Appeals, Div. I.
November 8, 1984.
Rehearing Denied December 6, 1984.
Certiorari Denied June 10, 1985.
*81 Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Laura E. Udis, Asst. Atty. Gen., Valerie McNevin-Petersen, Asst. Atty. Gen., Denver, for plaintiff.
Lee Jay Belstock, Denver, for defendants-appellees.
STERNBERG, Judge.
The Colorado Department of Social Services (Department) appeals the denial of the Department's verified petition for release *82 of certain suppressed and sealed corporate records. We affirm.
In 1978, grand juries in two counties were convened to investigate the activities of defendants. Members of the newly established Medicaid Fraud Unit, which included members of the Attorney General staff, were sworn as grand jury investigators. The grand juries were dismissed without returning an indictment or true bill, but the prosecution instituted parallel state criminal and federal civil proceedings. During hearings on pretrial motions in the criminal action, the trial court determined that the proceedings before it were part of the grand jury process, and because the statutory releases of grand jury records had not been obtained, the records and hearing transcripts could not be publicly released.
In 1980, the trial court dismissed the criminal action because of substantive due process violations, and the evidence which had been seized was suppressed. In 1981, the Department applied to the Colorado Supreme Court for an order that the trial court allow it access to the records needed for prosecution of the civil action. The action was dismissed for failure to file a timely brief. The defendants and the Department separately petitioned the trial court for rulings concerning the use of certain corporate records in the federal civil suit; the trial court held that its previous ruling was res judicata to the petitions, and it therefore granted defendants' motion to dismiss and denied the Department's motion for release. The Department then filed other petitions and requests for rulings with the supreme court, the judges in charge of the two grand juries, and, again, the trial court. All refused to grant the relief requested, and this appeal followed.
I.
The Department first contends that the trial court did not have jurisdiction to find that the records were grand jury records and subject to the statutory provisions of secrecy, and further, that as a matter of law these were not grand jury records. We disagree.
In the absence of limiting legislation, the jurisdiction of the district courts is unrestricted and sweeping, and subject matter jurisdiction is not precluded simply by the absence of a statute specifically designating a forum. In re A.W., 637 P.2d 366 (Colo.1981). Hence, because there is no statutory limitation of grand jury jurisdiction to the supervising judge of the grand jury, jurisdiction could be exercised by the trial court.
Moreover, here, where there was incomplete disclosure to the judges supervising the grand juries, and where the trial court had before it the full evidence of the investigation and how the records were obtained, the trial court not only had jurisdiction, but actually was in the better position to determine whether the documents in question were grand jury records and whether they should be disclosed. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979).
Under § 16-5-205(4), C.R.S. (1978 Repl. Vol. 8) the "report" of the grand jury is to remain secret, and for purposes of that statute the term "report" is "all inclusive" so as to prevent the grand jury process from being used as a subterfuge to obtain information for use in other proceedings. In re State Grand Jury Investigation, 197 Colo. 460, 593 P.2d 967 (1979). That the corporate records involved here were initially compiled independently of the grand jury process is not dispositive, for the requirement of secrecy is to protect the information gathering process, not just the final report. United States v. Sells Engineering, Inc., 463 U.S. 418, 103 S.Ct. 3133, 77 L.Ed.2d 743 (1983).
The trial court found that even if the records had not been presented to the grand jury, they were obtained as a direct result of grand jury activities, and were grand jury records subject to the statutory requirements of secrecy. This finding has support in the record, and thus will not be *83 disturbed on review. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979).
II.
We also disagree with the Department's contention that even if the records are grand jury records, the trial court abused its discretion by not releasing the records for use in the civil proceedings.
The secrecy given to grand jury proceedings is not absolute. Release of the records is permitted after an indictment is returned, Crim.P. 6.2, or if the record would exonerate the person requesting it. Section 16-5-205(4), C.R.S. (1978 Repl.Vol. 8). Also, if a grand jury undertakes a bona fide criminal investigation, facts incidentally brought to light may be used for other legitimate purposes after a court has held a hearing and determined that the prosecution's "particularized need has overcome the traditional shroud of secrecy," and ordered the material released. United States v. Sells Engineering, Inc., supra; Granbery v. District Court, 187 Colo. 316, 531 P.2d 390 (1975).
Here, before refusing to release the records, the trial court did hold a hearing concerning the release of the grand jury materials for use in the civil action. There was ample evidence from which it could find that the needs of the prosecution could not overcome the countervailing policy of secrecy. The trial court dismissed the criminal proceedings because of substantive due process violations in the production of evidence. Also, without seeking court approval or a release from grand jury secrecy, the prosecution used the information developed in that constitutionally flawed criminal investigation to file the civil action. Under these circumstances, we conclude the trial court acted properly and within its discretion in refusing disclosure. See United States v. Sells Engineering, Inc., supra; United States v. Gold, 470 F.Supp. 1336 (D.Ill.1979); United States v. John Doe, 341 F.Supp. 1350 (S.D.N.Y.1972).
III.
The Department's contention that collateral estoppel should have been applied against defendant is raised for the first time on appeal, and thus, we do not consider it. Matthews v. Tri-County Water Conservancy District, 200 Colo. 202, 613 P.2d 889 (1980).
IV.
Finally, the Department claims that the trial court's application of res judicata to its petition for a ruling on confidentiality was erroneous as a matter of law. Again, we disagree.
In denying the Department's petition, the trial court applied res judicata in the sense of claim preclusion, and found that its previous ruling was conclusive of the rights of the parties in this suit on the same claim. See Pomeroy v. Waitkus, 183 Colo. 344, 517 P.2d 396 (1973). In determining that res judicata could properly be invoked, the court employed the principles of Pomeroy v. Waitkus, supra, and found: (1) identical issues; (2) a final judgment on the merits; (3) same party or privity with the party in the prior adjudication; and (4) full and fair opportunity to litigate the issue.
The trial court found that the claims were the same to all intents and purposes because the request for clarification was merely another attempt to relitigate the court's previous order forbidding public access to the grand jury materials. It also found that the previous ruling was a final judgment because the supreme court had dismissed and not reinstated the appeal from that ruling. See Ratcliff v. Kite, 36 Colo.App. 261, 541 P.2d 88 (1975).
The identity of parties or their privies for res judicata purposes is a factual determination of substance, not mere form. American Triticale, Inc. v. Nytco Service, Inc., 664 F.2d 1136 (9th Cir.1981); Expert Electric, Inc. v. Levine, 554 F.2d 1227 (2d Cir.1977), cert. denied, 434 U.S. 903, 98 S.Ct. 300, 54 L.Ed.2d 190 (1977). Generally, where the court finds a sufficient identity of interest, and participation *84 in or control of the prior litigation, a party not formally named may still be bound. See United States v. ITT Rayonier, 627 F.2d 996 (9th Cir.1980); Restatement (Second) of Judgments § 39 (1980); cf. Montana v. United States, 440 U.S. 147, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979) (preclusion under collateral estoppel of non-party who assumed control over litigation). Even if the parties are distinct legal entities, their interests in the civil and criminal prosecutions can make one privy to another. See Irizarry v. City of New York, 357 N.Y.S.2d 756, 79 Misc.2d 346 (1974) (separate legal entities of state and city were in privity where the criminal prosecutor was "the People," but the city had knowledge and control of the facts supporting the basic issues involved in the criminal proceeding); United States v. ITT Rayonier, supra (in appropriate circumstances, one government agency can be held to represent another).
Here, the trial court specifically found that the parties were in fact the same, since the Attorney General's office represented both interests and had controlled the litigation throughout the case. Whether the Attorney General was acting as Special District Attorney in the Medicaid Fraud Unit, or as the representative of the People and the Department at trial and on appeal, the court found that the differences were in name only. Inasmuch as there was evidence that the Medicaid Fraud Unit, through the Attorney General, prosecuted the case from the inception of the investigation, used information derived from the investigation for both the criminal and civil actions, and filed the actions almost simultaneously, the court's finding is supported by the record and is binding on appeal. Page v. Clark, supra. The parties have fully litigated this issue at every opportunity, and although the Department did not participate by name in all proceedings, it is bound by the earlier rulings under the doctrine of res judicata.
Judgment affirmed.
PIERCE and BABCOCK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1125830/ | 342 So.2d 1284 (1977)
FARIS, ELLIS, CUTRONE, GILMORE & LAUTENSCHLAEGER
v.
JOBOB TOWING, INC.
No. 7885.
Court of Appeal of Louisiana, Fourth Circuit.
February 15, 1977.
*1285 Greenberg & Dallam, Alan James Boudreaux, Gretna, for plaintiff-appellee.
White, Fray & White, William J. White, Jr., Robert H. Fray, Gretna, for defendant-appellant.
Before GULOTTA, SCHOTT and MORIAL, JJ.
GULOTTA, Judge.
Defendant appeals from a judgment for attorney's fees for professional services rendered by plaintiff to defendant in connection with maritime litigation.
Jobob carried liability insurance with Employers Commercial Union Insurance Company which contained a $5,000.00 deductible clause. The maritime claim against Jobob and its insurer was for a sum well in excess of the deductible amount. In a settlement of the claim, Jobob contributed the sum of $3,000.00. Subsequent to the compromise, plaintiff billed defendant the sum of $1,568.00 for attorney's fees. Defendant refused to pay the fees and this suit followed.
Defendant seeks to be exonerated from the payment of the fees on the ground that the insurer must bear the cost because it, not defendant, employed plaintiff.
In written reasons for judgment, the trial judge concluded that the insurance contract between Jobob and Employers Commercial confers upon the insurer the authority to name the attorney who will represent the assured in defense of the litigation. In this regard, he cited the following clause in the policy:
"This Company shall have the option of naming the attorneys who shall represent the assured in the prosecution or defense of any litigation or negotiations between the assured and third parties concerning any claim, loss or interest covered by this policy, and this Company shall have the direction of such litigation or negotiations. If the assured shall fail or refuse to settle any claim as authorized by the Company, the liability of the Company to the assured shall be limited to the *1286 amount for which settlement could have been made."
Because the sum of the amount of Jobob's contribution toward the settlement and the amount of attorney's fees did not exceed the $5,000.00 deductible amount in the insurance contract, the trial judge reasoned that Jobob was responsible for the payment of the attorney's fees. In this connection, he relied on another clause of the insurance contract:
"The sum of $5,000.00 shall be deducted from the total amount of any or all claims (including claims for sue and labor, collision liability, general average and salvage charges) resulting from any one accident. * * *"
According to the trial judge, "the total amount of any or all claims" in the above quoted section includes not only the third party's claim for damages but also an insurer's claim for attorney's fees for providing representation of the insured growing out of the liability claim covered by the contract of marine insurance.
Defendant contends, on appeal: 1) that no privity of contract existed between Jobob and plaintiff; and, 2) that the policy of insurance does not contain any provisions which make the insured responsible for payment of attorney's fees. According to defendant, the $5,000.00 deductible clause applies only to the liability claims brought by third parties against defendant and does not apply to the fees of attorneys employed by the insurer in defense of those claims.
Clearly, no privity of contract exists between plaintiff and defendant.[1] Although the policy, by its terms, confers upon the insurer the right to name the attorneys who shall represent the insured, this provision is silent on the payment of attorney's fees. It is clear that the purpose of the insurer's option to name the attorneys is to permit the insurance company to obtain counsel of its own choosing to represent not only its interests, but, the interests of the insured in order to assure that any defenses raised by the insured are not in conflict with the insurer's interests.
We do not agree with the trial court's interpretation that the provision of the policy stating, "The sum of $5,000.00 shall be deducted from the total amount of any or all claims . . ." includes claims for attorney's fees in addition to claims made by third parties for damages asserted against the insured. Indeed, we reach an opposite conclusion and do not interpret the phrase "any or all claims" to include a claim for attorney's fees growing out of representation of the named insured. Since we and the trial judge differ on the interpretation of this provision, it is safe to conclude the provision, at best, is ambiguous.
The trial judge, in interpreting the policy to mean that the deductible clause included attorney's fees, relied, to some extent, on the testimony of Oscar A. Paysse, a retired insurance broker and adjuster, regarding usage and custom in the marine insurance field.[2] Irrespective of the testimony of this expert who stated that the deductible clause in marine insurance contracts includes attorney's fees, we are influenced and persuaded to reach a different result. In this connection, we rely on the settled jurisprudential rule that ambiguities in insurance contracts must be interpreted in favor of the insured and against the insurer. *1287 See Simon v. Switzerland General Insurance Co., 238 So.2d 257 (La.App.3d Cir. 1970), writ refused, 256 La. 897, 240 So.2d 232 (1970), where ambiguity in the term "Coastal Waters" as used in a marine insurance contract was interpreted favorably to the insured. See also: Jennings v. Louisiana and Southern Life Insurance Company, 290 So.2d 811 (La.1974); Schonberg v. New York Life Insurance Company, 235 La. 461, 104 So.2d 171 (1958); Albritton v. Fireman's Fund Ins. Co., 224 La. 522, 70 So.2d 111 (1953).
Applying the jurisprudence, we are led to the conclusion that the $5,000.00 deductible clause does not include a claim for attorney's fees incurred in representation of the insured where a claim is brought against the insured and the attorney is employed by the insurer. We are further persuaded by the fact that it would have been a relatively simple matter for the insurer to include in the policy a provision that the deductible amount was to be applied to claims "including fees of the attorneys selected by the insurer to represent the insured". The inclusion of this suggested phrase, or a similar one, would have erased any ambiguity concerning the payment of attorney's fees. In its absence, however, the policy must be interpreted against the insurer, and plaintiff is not entitled to recovery against Jobob. See LSA-C.C. art. 1958.[3]
Accordingly, the judgment of the trial court is reversed and set aside. It is now ordered that plaintiff's suit against Jobob Towing, Inc., be dismissed at plaintiff's costs.
REVERSED AND RENDERED.
SCHOTT, J., concurred in result and filed opinion.
SCHOTT, Judge, concurring in the result:
I respectfully disagree with my colleagues to the effect that no privity of contract exists between plaintiff and defendant. I submit that the contract of employment was made in defendant's behalf by the insurer pursuant to a mandate which was contained in the insurance policy. Under that mandate defendant gave to the insurer the option of naming its attorneys, which option it exercised. LSA-C.C. Art. 2985 defines a mandate as "an act by which one person [in this case defendant] gives power to another [in this case the insurer] to transact for him and in his name, one or several affairs [in this case the employment of plaintiff as defendant's attorney]."
In holding, however, that there is privity between plaintiff and defendant it becomes necessary to determine whether the attorney's fees incurred by the insurer and defendant with the plaintiff are to be included in the $5,000 deductible. This involves an interpretation of the following provision of the contract of insurance:
"The sum of $5,000.00 shall be deducted from the total amount of any or all claims (including claims for sue and labor, collision liability, general average and salvage charges) resulting from any one accident. This deduction does not apply to claims for total or constructive total loss. For the purpose of this clause each accident shall be treated separately, but it is agreed that a sequence of damages arising from the same accident shall be treated as due to that accident. (Emphasis supplied)
In my opinion the word "claims" is not ambiguous and cannot be construed to mean the fees now claimed by plaintiff. This follows from a reading of the policy as a whole.
The policy contemplates claims by defendant for damage to or loss of its vessels as well as claims by other vessels or their owners for damage or loss resulting from collisions with defendant's vessels. With respect to this coverage the policy provides:
*1288 "Warranted that in case of any casualty or loss which may result in a claim under this policy the assured shall give this Company prompt notice thereof and reasonable opportunity to be represented on a survey of the damage, each party to name a surveyor, which two surveyors shall proceed to draw specifications as to the extent of the damage and the work required to make the damage good. . . ."
(Emphasis supplied)
The policy also provides "sue and labor" coverage with respect to the insured's vessels as follows:
"In case of any loss or misfortune it shall be lawful and necessary for the assured, their factors, servants and assigns, to sue, labor and travel for, in and about the defense, safeguard and recovery of the vessel named herein, or any part thereof, without prejudice to this insurance to the charges whereof this Company will contribute as hereinafter provided. It is agreed that the acts of the assured or this Company, or their agents, in recovering, saving and preserving the property insured in case of disaster shall not be considered a waiver or an acceptance of an abandonment nor as affirming or denying any liability under this policy; but such acts shall be considered as done for the benefit of all concerned, and without prejudice to the rights of either party. . . .
"In the event of expenditure under the sue and labor clause, this Company will pay the proportion of such expenses that the amount insured hereunder bears to the agreed valuation of the vessel named herein, or that the amount insured hereunder, less loss and/or damage payable under this policy, bears to the actual value of the salved vessel, whichever proportion shall be less." (Emphasis supplied)
When these provisions are analyzed it can be seen that the word "claim" in the second quoted section of the policy applies to claims by either the insured with respect to its vessel or by a third party whose vessel has been damaged by collision. There is no way that the word "claim" in this section of the policy can be construed to mean attorney's fees which are incurred in subsequent litigation, negotiation or settlement.
In the provisions applicable to the sue and labor clause, it can be seen that the policy contemplates that the insured may after a casualty take action on its own with respect to defense as well as safeguard and recovery of the vessel without prejudice "to the charges" which the company will contribute. This word "charges" obviously includes such items as attorney's fees and expenses of preservation of the vessel and stands in contrast to the word "claims" used in the paragraph under consideration in this case and the word "claim" in the second quoted paragraph of the policy.
Also, the use of the words "expenditure" and "expenses" in connection with the sue and labor clause are again in sharp contrast to the word "claims."
I have concluded that the attorney's fees being sought by plaintiff in this suit were not understood by the insurer or the defendant insured to be among the "claims" comprising the $5,000 deductible, so that plaintiff must look to the insurer for payment of its bill for services rendered.
It is significant that the mandate given by defendant to the insurer providing the latter with the option of naming the attorneys confers on the insurer the direction of all litigation and negotiations being carried on by the attorneys. Under the theory advanced by plaintiff the insured could find himself in the unhappy position of being defended against a frivolous claim at his expense by attorneys named and directed by the insurer. Under this scheme the insured's deductible could be easily exhausted in the defense of such a frivolous claim with no practical recourse available to the insured. The only reasonable interpretation of the clause in question is that the parties intended to confer on the insurer the right to select the attorneys and direct them with the understanding that the attorney's fees would be payable by the insurer and not come out of the insured's deductible. The attorney's fees are in the same category as *1289 other expenses which the insurer may incur in the course of investigating and adjusting a claim before it is referred to an attorney. Nothing in the policy suggests that in-house expenses can be passed on to the insured. On the contrary, this must be a part of the service the insured paid for with his premium. It would follow that attorney's fees would likewise be a part of the benefits purchased by the insured and his deductible would include only his own contribution in payment of claims made by himself for damage to or loss of his own vessel or claims by third parties for damage to or loss of their vessels.
At the time the policy was written the parties thereto surely did not contemplate that attorney's fees which might be incurred in connection with a claim under the policy would themselves become "claims." In the normal course of events attorney's fees are paid routinely just as other bills for goods or services. When one purchases goods from a merchant on credit he does not regard the liability as a claim unless he resists payment and the bill becomes an adverse claim against him. When the policy was written the parties meant claims under that policy would be subject to the deductible, not that bills incurred in administering the coverage which later became adverse claims would be included.
NOTES
[1] Ordinarily, any claim for attorney's fees would be asserted by the attorney against the client who entered into the employment agreement and if the client (in this case, the insurer) claims entitlement for reimbursement for payment of these fees against a third party (in this case, the insured), reimbursement may be sought by a third party demand.
[2] However, the trial judge, in oral reasons, restricted the purpose of this testimony. He stated, during the course of the trial, when this expert's testimony was offered:
"I am going to permit this witness to testify purely as to what the custom of the trade is, and I think that is the only purpose of this witness' testimony. I think what is involved in the interpretation of the insurance policy is up to this Court, and I don't think that this witness should testify with regard to the interpretation of the policy. I will let this witness testify as to the custom of the trade, and I will give it such weight as I see fit."
[3] LSA-C.C. art. 1958 reads as follows:
Art. 1958. Interpretation against party responsible for doubt
"Art. 1958. But if the doubt or obscurity arise for the want of necessary explanation which one of the parties ought to have given, or from any other negligence or fault of his, the construction most favorable to the other party shall be adopted, whether he be obligor or obligee." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2898833/ | NO. 07-08-0289-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
AUGUST 26, 2009
______________________________
CASEY NELSON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 16TH DISTRICT COURT OF DENTON COUNTY;
NO. F-2006-1749-A; HONORABLE C. RIVERA-WORLEY, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
OPINION
Appellant, Casey Nelson, was convicted of murder
(footnote: 1) and sentenced to 25 years confinement in the Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ). It is from this judgment that appellant appeals. We affirm.
Factual and Procedural Background
In 1999, while clearing land in Lewisville, Texas, Don Pittman found what he thought was a human bone. After the local police department was notified and the bone was determined to be of human origin, a complete search of the work site resulted in the recovery of a partial human skeleton. Dr. Dana Austin, a forensic anthropologist for the Tarrant County Medical Examiner’s Office was asked to assist. Once Dr. Austin examined the remains, she determined that they belonged to a white or Hispanic male between 18 and 20 years of age. Later examination of the remains, by other members of the Tarrant County Medical Examiner’s office, revealed that the deceased had suffered a perimortem blunt force trauma to the head. The remains languished until 2006 when Detective Richard Anders of the Lewisville Police Department received a phone call from Diana Schraer about the skeletal remains. Mrs. Schraer advised Anders that her son, Santino Schraer, had been missing since 1997. After obtaining the dental records of Schraer and a DNA swab from Mrs. Schraer, the deceased was confirmed to be Santino Schraer.
Once the name of Schraer was confirmed, Det. Anders began trying to determine the facts surrounding the death of Schraer. By his investigation, Anders developed a picture of a group of young people who loitered around the home of Danny Smith in Lewisville. At this home, the young people were able to use drugs, drink alcohol, and socialize as they wished without any adult supervision. In 1997, several members of this group had a party at a motel in Lewisville. While attending the party, Schraer was accompanied by, or met up with, a young 12 year old female. It was later alleged that, while at the motel, Schraer had raped the 12 year old. When word of the alleged rape spread around the group, members became incensed and a number of suggestions were made regarding Schraer. No plan of action was decided on but several of the group thought that Schraer should be, at least, beat up.
On September 20, 1997, appellant, Marshall Mashburn, Schraer, Jeffrey Stealey, Randall Horton, and Alisha Fowler were all gathered at Danny Smith’s back yard. While Schraer was seated at a table, Mashburn approached from the rear with a three foot length of metal pipe in his hands. Mashburn struck Schraer on the back of the head and Schraer slumped forward. Immediately, appellant grabbed Schraer by the leg or legs and dragged him out the driveway to a pickup truck. The testimony at trial indicated that appellant loaded Schraer into the bed of the pickup truck. After Schraer was loaded in the truck, Mashburn and Stealey got in the back of the truck while appellant got behind the wheel and drove off. Appellant eventually drove to a field near Interstate 35 in Lewisville where the body of Schraer was left to be found two years later.
During the trial, testimony revealed that Schraer was not dead when he was placed in the truck. Both Mashburn and Stealey beat him after he was placed in the truck. Horton further testified that, when appellant, Mashburn, and Stealey left with the body, he and Fowler left in a car and attempted to find appellant and the pickup. Having failed to find the pickup, Horton and Fowler returned to the Smith house, where the initial assault took place, and awaited the return of the pickup. When the pickup truck came back, Horton went with the other three to wash out the bed of the pickup. A couple of days after the attack on Schraer, Stealey took Horton to the site where the body was left.
Prior to beginning the trial, appellant filed a motion for continuance alleging that there were three out-of-state witnesses that were material to appellant’s defense. A further motion alleged that there was an additional witness located out-of-state that was not available for trial on the scheduled days. The trial court held a pre-trial hearing on the motion and, after hearing the argument of counsel for both appellant and the State, denied the motion for continuance and began the trial as scheduled.
At the trial, Horton and Stealey both testified against appellant. At the conclusion of the testimony on guilt or innocence, appellant requested that the jury be charged that both were accomplices as a matter of law. The trial court granted the requested charge as to Stealey and denied the requested charge that Horton was an accomplice as a matter of law. Appellant then requested that the jury be given a charge allowing the jury to find Horton an accomplice as a matter of fact, which the court also denied. Appellant also objected to the court’s charge for failure to properly apply the law of parties and criminal responsibility to the facts of the case. The application paragraph of the court’s charge applied the abstract law of parties and criminal responsibility in a general sense but not in detail. The trial court overruled the objection.
The jury found appellant guilty of murder and assessed his punishment at confinement in the ID-TDCJ for 25 years. Appellant has appealed the judgment of the trial court via six issues that allege: 1) the trial court committed error in not charging the jury that Horton was an accomplice as a matter of law; 2) the trial court committed error in not submitting an issue to the jury inquiring as to whether Horton was an accomplice as a matter of fact; 3) the evidence was legally insufficient to support the jury verdict; 4) the evidence was factually insufficient to support the jury verdict; 5) the trial court committed error in denying appellant’s motion for continuance; and 6) the trial court committed error in refusing the requested application paragraph for the law of parties as applied to appellant. Disagreeing with appellant’s contentions, we will affirm the judgment of the trial court.
Accomplice Witness
By his first two issues, appellant contends that Horton was an accomplice as a matter of law or, in the alternative, there was a fact question about Horton’s status as an accomplice and the trial court should have submitted the issue to the jury. We review the decision of the trial court denying a request for accomplice witness instructions under an abuse of discretion standard.
See
Paredes v. State
, 129 S.W.3d 530, 538 (Tex.Crim.App. 2004). A trial court abuses its discretion when its ruling is not within the zone of reasonable disagreement.
Montgomery v. State
, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh’g). Horton’s status as an accomplice is critical because of how accomplice witness testimony is viewed by the courts. Before a conviction can be based on an accomplice’s testimony, the testimony must be corroborated by independent evidence tending to connect the accused to the crime.
Tex. Crim. Proc. Code Ann
. art. 38.14 (Vernon 2005). An accomplice is someone who participates with the defendant before, during, or after the commission of a crime and acts with the required culpable mental state.
See
Druerey v. State
, 225 S.W.3d 491, 498 (Tex.Crim.App. 2007). The accomplice witness participation with the defendant must involve some affirmative act that promotes the commission of the offense with which the defendant is charged.
Id
. Simply having knowledge of the offense and not disclosing that information, or even trying to conceal the information, does not render a witness an accomplice.
Id
. Finally, mere presence at the scene does not render a witness an accomplice.
Id
. In the final analysis, if the witness could not be prosecuted for the offense with which the defendant is charged, or a lesser included offense, the witness is not an accomplice witness as a matter of law.
Id
.
We will first review the record to determine whether or not Horton was an accomplice witness as a matter of law. The testimony at trial reveals that, prior to the date of the death of Schraer, Horton had learned of the alleged rape by Schraer of the 12 year old. Testimony indicated that the remainder of the group was informed of the alleged rape either directly or indirectly from Horton. The testimony revealed that there was no agreement about what to do to Schraer; at best there was an agreement that something should be done. On the day of Schraer’s death, there had been no agreement and, in fact, no one testified that killing him had been discussed. The trial testimony revealed that Horton did not know in advance of Mashburn’s plan to strike Schraer with the pipe. After Mashburn delivered the initial blow to Schraer’s head, appellant dragged Schraer down the driveway and placed him in the back of a pickup truck. Horton was not involved in this. From that point, the testimony showed that appellant drove the truck while Mashburn and Stealey were located in the bed of the pickup with Schraer. Horton was not there nor involved with the continued beating of Schraer. The testimony at trial showed that Horton and Fowler left the scene of the initial attack and attempted to follow appellant but, Horton and Fowler never found appellant or the pickup. After Horton and Fowler returned to the house, appellant, Mashburn, and Stealey came back without Schraer. After appellant and the others returned to the house, there was a conversation that all of those there that evening should keep quiet about what went on. The record reflects that following this conversation, Horton went with appellant, Mashburn, and Stealey to a car wash where the bed of the truck was thoroughly washed. Horton testified that, a couple of days after the incident, he got Stealey to take him to the site where the body was and that Horton left Schraer’s drivers license near the body. Horton testified that he remained quiet about the offense until questioned about it by law enforcement.
Appellant would have us conclude that Horton was an accomplice as a matter of law because he was involved in the planning, execution, and covering up of the murder. Appellant’s analysis fails because the record demonstrates that the planning was nonexistent. At best, Horton informed the group about the alleged rape and the group thought something ought to be done about it. However, there was no plan and no evidence of a plan. The evidence reflected that Horton did not participate in the execution of the murder of Schraer. At best, Horton was present. Finally, the cover up involved the possible destruction of evidence by washing the truck at a time when the murder was already completed.
Based upon the record, it appears that Horton was present at the scene when the first blow was struck, however, the testimony of other witnesses including the medical examiner reveal that Schraer was not killed by that first blow. No one testified to any action by Horton until the vehicle returned without Schraer. Horton’s actions in assisting in the washing out of the pickup truck bed might be described as tampering with physical evidence in violation of section 37.09 of the Texas Penal Code. However, such conduct does not make Horton an accomplice as a matter of law to Schraer’s murder. Horton’s conduct in assisting in the washing of the pickup truck bed was not done with requisite culpable mental state involved in the offense of Schraer’s murder as charged against appellant. That is, Horton’s actions in assisting with the washing of the pickup truck were not done with the intent to cause Schraer’s death nor with the knowledge that such action would cause the death of the Schraer. Under these facts, Horton was not an accomplice to murder as a matter of law.
Id
.
We next turn to the issue of whether the trial court erred when it failed to give the jury an issue to determine whether or not Horton was an accomplice as a matter of fact. In reviewing the testimony regarding the actions of Horton, we are convinced that there was not a fact issue raised as to his status as an accomplice.
Paredes
, 129 S.W.3d at 538-39. Therefore, the trial court did not abuse its discretion in denying appellant’s request to submit the question to the jury regarding Horton’s status as an accomplice.
Id
. at 538. However, we note that even were we to determine the trial court erred by not inquiring of the jury as to whether or not Horton was an accomplice, such error was harmless. This is so because there is sufficient non-accomplice evidence existing tending to connect appellant to the offense.
See
Biera v. State
, 280 S.W.3d 388, 394 (Tex.App.–Amarillo 2008, pet. ref’d) (
citing
Herron v. State
, 86 S.W.3d 621, 632 (Tex.Crim.App. 2002)). Specifically, appellant told his sister, Jolene Nelson Hershner, about his participation in the murder and she testified before the jury. Further, appellant told Robert Tedford about his participation in the offense. Alicia Fowler testified that, after Schraer was struck by Mashburn, she heard the truck leave and appellant was with Mashburn and Stealey when they returned in the pickup truck.
We have determined that Horton was not an accomplice witness as a matter of law or fact. Additionally, we have determined that, if the trial court should have given the jury an instruction on accomplice as a matter of fact, that the failure to so charge was harmless. Accordingly, appellant’s first and second issues are overruled.
Legal and Factual Sufficiency of the Evidence
In appellant’s third and fourth issues he claims the evidence was neither legally nor factually sufficient to sustain the jury’s verdict.
Since appellant challenges both legal and factual sufficiency, we are required to conduct an analysis of the legal sufficiency of the evidence first and then, only if we find the evidence to be legally sufficient, do we analyze the factual sufficiency of the evidence.
See
Clewis v. State
, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996).
In assessing the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.
Jackson v. Virginia
, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979);
Ross v. State
, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). In conducting a legal sufficiency review, an appellate court may not sit as a thirteenth juror, but rather must uphold the jury’s verdict unless it is irrational or unsupported by more than a mere modicum of evidence.
Moreno v. State
, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). We measure the legal sufficiency of the evidence against a hypothetically correct jury charge.
See
Malik v. State
, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997).
When an appellant challenges the factual sufficiency of the evidence supporting his conviction, the reviewing court must determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding the appellant guilty beyond a reasonable doubt.
See
Watson v. State
, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In performing a factual sufficiency review, we must give deference to the fact finder’s determinations if supported by evidence and may not order a new trial simply because we may disagree with the verdict.
See
id
. at 417. As an appellate court, we are not justified in ordering a new trial unless there is some objective basis in the record demonstrating that the great weight and preponderance of the evidence contradicts the jury’s verdict.
See
id
. Additionally, an appellate opinion addressing factual sufficiency must include a discussion of the most important evidence that appellant claims undermines the jury’s verdict.
Sims v. State
, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).
The Court of Criminal Appeals has recently declared that when reviewing the evidence for factual sufficiency, the reviewing court should measure the evidence in a neutral manner “against a hypothetically correct” jury charge.
Vega v. State
, 267 S.W.3d 912, 915 (Tex.Crim.App. 2008)
(citing
Wooley v. State
, 273 S.W.3d 260, 268 (Tex.Crim.App. 2008)).
Legal Sufficiency Analysis
Appellant contends that the evidence was legally insufficient to show that he had the intent to promote or assist in the commission of the offense of murder.
See
Tex. Penal Code Ann. §
7.02(a) (Vernon 2003). Therefore, according to appellant, the State failed to prove that he was criminally responsible for the murder of Schraer.
See
Tex. Penal Code Ann.
§ 7.01(a) (Vernon 2003).
When we review the evidence we find the following: 1) appellant was in the backyard at the time Mashburn first struck Schraer, 2) without any prompting from any other participant, immediately after the blow was struck, appellant got to his feet and grabbed Schraer by the leg or legs and dragged him to the pickup truck, 3) appellant placed Schraer in the bed of the pickup truck, 4) appellant already had the keys to the pickup truck, even though the truck belonged to Robert Tedford, 5) no one gave appellant any instructions about where to take the body of Schraer, 6) appellant apparently picked out the location where the body should be left, 7) appellant made inquiry about whether or not Stealey could be trusted to keep his mouth shut or should he be eliminated, 8) appellant admitted his participation in the crime to Robert Tedford, and 9) appellant admitted his participation in the crime to his sister, Jolene Nelson Hershner.
When we review all of the above evidence in the light most favorable to the jury’s verdict, we cannot say that the jury acted irrationally in finding that the appellant
was guilty of the offense of murder.
Jackson
, 443 U.S. at 319;
Ross
, 133 S.W.3d at 620.
Accordingly, appellant’s issue regarding the legal sufficiency of the evidence is overruled.
Factual Sufficiency Analysis
When we review the above referenced evidence in a neutral light, we still find that the evidence is such that a rational jury could have found appellant guilty of murder.
Watson
, 204 S.W.3d at 415.
Appellant points to no specific evidence that would undermine our confidence in the verdict returned by the jury.
See
Sims
, 99 S.W.3d at 603. Therefore, appellant’s issue regarding the factual sufficiency of the evidence is overruled.
Motion for Continuance
Appellant contends that the trial court committed reversible error when it denied appellant’s subsequent motion for continuance filed on April 8, 2008. The trial court conducted a hearing on the motion for continuance on April 9, 2008. Appellant’s motion for continuance was based upon the declared necessity to obtain the attendance of three out-of-state witnesses. In the motion, appellant asserted that the trial court had previously found the three out-of-state witnesses’ testimony to be material and ordered subpoenas for each to be issued by the court’s clerk. Appellant further alleges that the clerk of the court had failed to issue the subpoenas and, therefore, the witnesses had not been served and would not appear. Additionally, appellant alleged there was a fourth witness who was going to be out of the country at the time of trial. Based upon these allegations, appellant contended a continuance was required.
We review the trial court’s denial of a motion for continuance under an abuse of discretion standard.
Gallo v. State
, 239 S.W.3d 757, 764 (Tex.Crim.App. 2007). To establish abuse of discretion, there must be a showing that the appellant was actually prejudiced by the denial of the motion.
Id
. When the motion for continuance is based upon an absent witness, appellant must show 1) that the appellant has exercised diligence to procure the witness’s attendance, 2) that the witness is not absent by the procurement or consent of the appellant, 3) that the motion is not made for delay, and 4) the facts expected to be proved by the absent witness.
See
Tex. Code Crim. Proc. Ann
. art. 29.06 (Vernon 2006);
Harrison v. State
, 187 S.W.3d 429, 434 (Tex.Crim.App. 2005). Further, it must appear to the trial court that the facts which the absent witness would testify to are material.
Id
. Finally, mere conclusions and general averments are not sufficient for the trial court to determine their materiality.
Harrison
, 187 S.W.3d at 434.
Appellant’s motion for continuance, dated April 8, 2008, complains about the absence of three witnesses for whom out-of-state subpoenas had been ordered. However, the April 8 motion never lists the names of these witnesses nor the name of the alleged fourth witness. Appellant then filed a subsequent motion for continuance, dated April 10, 2008, complaining about the absence of three witnesses, Katherine Pyatt, Robbie Charles Cordes, and Kenneth D. Ancicco. No attempt to explain why there were four witnesses who were alleged to be material in the first motion and only three in the second motion filed only two days later. Now on appeal, appellant appears to be contending that the only action by the trial court that might be an abuse of discretion was the denial of the motion for continuance based on the absence of witness Ancicco. Accordingly, we will address only the motion for continuance as applied to the testimony of Ancicco.
The record reflects that appellant’s trial counsel did not seek to have Ancicco subpoenaed as an out-of-state witness, rather, as appellant’s trial counsel explained in the subsequent motion for continuance, he was relying on the assurances of appellant’s former attorney and the witness that Ancicco would come to Texas voluntarily. The failure to seek a subpoena for the out-of-state witness, Ancicco, or to even bring the matter to the trial court’s attention until April 10, 2008, does not demonstrate diligence on the part of appellant.
See
Dewberry v. State
, 4 S.W.3d 735, 756 (Tex.Crim.App. 1999). Further, as to the question of the materiality of the proposed testimony of Ancicco, the record reflects that, in Ancicco’s statement attached to the motion for continuance, the witness stated Horton made the statement which would have contradicted his testimony at trial in July or August 1996. The murder for which appellant was convicted occurred in September of 1997. Therefore, the trial court was correct in ruling that the testimony of Ancicco was not material. For the reasons stated, appellant’s fifth issue is overruled.
Parties Charge
Appellant’s final issue alleges that the trial court committed reversible error when it denied appellant’s request for a more specific application of the law of parties, as contained in the application paragraph of the court’s charge, to the facts of the case. The charge in question contained a definition of the law of parties in the abstract portion of the charge, to which appellant did not object. In the application paragraph, the charge of the court stated the following:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 20
th
day of September, 1997, in Denton County, Texas, the defendant, CASEY NELSON, did then and there, either as an individual or as a party, intentionally or knowingly cause the death of an individual, Santino Schraer, by striking Santino Schraer with a pipe; or did then and there, either as an individual or as a party, with intent to cause serious bodily injury to an individual . . . .
Appellant objected to this application paragraph requesting an instruction applying the facts of the case to the general party instruction. No suggested charge was given to the trial court, just an objection to the way the trial court had the paragraph worded.
The review of an alleged charge error is a two step process.
See
Abdnor v. State
, 871 S.W.2d 726, 731 (Tex.Crim.App. 1994). We must first determine whether error occurred; and if so, we then evaluate the error to determine the degree of harm.
Id
. at 731-32. When evaluating the harm, the degree of harm requiring reversal is dependent upon whether or not appellant objected to the charge.
Id
. A properly preserved error will call for reversal as long as any harm is shown, that is to say, as long as the error is not harmless.
Almanza v. State
, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh’g). If the error is calculated to injure the rights of the defendant, then some harm has been demonstrated.
Tex. Code Crim. Proc. Ann.
art. 36.19 (Vernon 2006).
The State contends that the objection of appellant to the charge was not specific enough to properly preserve any error, if there was any. To support this proposition they cite the court to
Villareal v. State
.
See
Villareal v. State
, 116 S.W.3d 74, 82-83 (Tex.App.–Houston [14
th
Dist] 2001, no pet.). While the court in
Villareal
did find that the objection in that case was not specific enough to preserve error, the court relied upon the Texas Court of Criminal Appeals decision in
Chatman v. State
, 846 S.W.2d 329, 332 (Tex.Crim.App. 1993).
Id
. The problem is that in
Chatman
there was no objection to the charge, in fact what the court said was, “If a defendant desires a more explicit application of a particular method of acting as a party, it is his burden to request such or
object to the charge
.” (emphasis added)
Chatman
, 846 S.W.2d at 332. Appellant did exactly what the court in
Chatman
required. Accordingly, we must find that the objection was specific enough to preserve error, if we assume, for the purposes of this opinion, that the failure to give a more specific application paragraph was, in fact, error.
Since error was preserved, we must now examine the record in order to determine if the error is “‘calculated to injure the rights of defendant,’ which means no more than that there must be some harm to the accused from the error.”
Almanza
, 686 S.W.2d at 171. In short, when error has been properly preserved there will be a reversal unless the error was harmless.
Id
. The degree of harm is examined in light of the entire jury charge, the totality of the evidence, to include the contested issues and weight of probative evidence, the argument of counsel and any other relevant factor revealed by the record.
Id
.
Our review of the record reflects that the trial court gave a correct abstract definition of the concepts of parties and criminal responsiblity. In fact, such was stated by counsel for appellant during the charge conference. Further, the application paragraph contains an application of the parties concept, albeit not as specifically as requested, to both of the State’s theories of how the murder was committed. Therefore, the charge did properly define party and how a person becomes criminally responsible for another’s conduct as a party. Next, we note that the application paragraph uses the term party in applying the conduct of appellant to the theories alleged by the State’s indictment. Thus, the jury was given some guidance in applying the law of parties to the facts. The evidence was consistent from the beginning that appellant’s conduct was integrally related to the ultimate death of Schraer. All of the witnesses described appellant as having grabbed Schraer by the leg or legs as soon as he slumped forward after being struck. The argument of the State’s attorneys was consistent about the acts of appellant and their impact upon the death of Schraer. Nothing in this record demonstrates how appellant was harmed in anyway by the trial court’s failure to give the more specific charge in the application paragraph. Therefore, we conclude the error was harmless.
Id
. Appellant’s sixth issue is overruled.
Conclusion
Having overruled appellant’s issues, the judgment of the trial court is affirmed.
Mackey K. Hancock
Justice
Publish.
FOOTNOTES
1:
Tex. Penal Code Ann.
§ 19.02 (Vernon 1994). | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2984176/ | Order filed, April 29, 2014.
In The
Fourteenth Court of Appeals
____________
NOS. 14-14-00258-CR
14-14-00259-CR
____________
MARIELA PONCE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause No. 1370823 & 1370824
ORDER
The reporter’s record in this case was due April 21, 2014. See Tex. R. App.
P. 35.1. The court has not received a request to extend time for filing the record.
The record has not been filed with the court. Because the reporter’s record has not
been filed timely, we issue the following order.
We order Patricia Palmer, the substitute court reporter, to file the record in
this appeal within 30 days of the date of this order.
PER CURIAM | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1477931/ | 108 F.2d 119 (1939)
DUDLEY
v.
COMMUNITY PUBLIC SERVICE CO. et al.
No. 9254.
Circuit Court of Appeals, Fifth Circuit.
December 6, 1939.
Rehearing Denied January 15, 1940.
*120 Russel H. Markwell, of Galveston, Tex., for appellant.
Brantly Harris and M. L. Cook, both of Galveston, Tex., for appellees.
Before FOSTER, SIBLEY, and McCORD, Circuit Judges.
SIBLEY, Circuit Judge.
The plaintiff-appellants, widow and dependent child of J. T. Dudley, sued Community Public Service Company and P. J. Short, its line construction superintendent and foreman, for the homicide of Dudley through gross negligence, claiming $50,000 exemplary damages under Art. 16, Sec. 26, of the Constitution of Texas. Vernon's Ann.St. The Company removed the suit to the federal court on allegations that plaintiffs and Short are citizens of Texas but itself is a corporation of Delaware, and that as plaintiffs well knew it was insured under the Texas Workmen's Compensation Law, Vernon's Ann.Civ.St.Tex. art. 8306 et seq., by the provisions of which there is *121 no right of action against a co-employe for injury or death; so there could be no right of action against Short, and he was joined fraudulently to prevent removal; and moreover the petition showed on its face that the negligence alleged against Short was mere non-feasance which would not render him liable to suit, but his master alone would be liable therefor. The plaintiffs moved to remand, denying fraudulent joinder and asserting a bona fide demand against Short, but not denying that the Company was under the Compensation Law. Evidence was offered tending to show that Short was foreman over Dudley, present and directing the work in hand when Dudley was electrocuted by some of the equipment coming into contact with a power wire of the Company beneath which they were working. Remand was denied. Plaintiffs refused to proceed, denying the jurisdiction of the court, and the court dismissed the action expressly pursuant to Rule of Civil Procedure 41 (b) 28 U.S.C.A. following section 723c. The appeal specifies as error the dismissal and the refusal to remand.
The dismissal for failure to prosecute was of course not error if the court had jurisdiction of the case. There was nothing else for the court to do. It is, however, a final judgment disposing of the action and is appealable, and serves to bring under review the refusal to remand which is the real matter of complaint. Gay v. Ruff, 292 U.S. 25, 54 S. Ct. 608, 78 L. Ed. 1099, 92 A.L.R. 970, affirming 5 Cir., 67 F.2d 684.
On its face the action was not removable. It was a joint suit against a master and an agent or servant in charge of the work for negligence alleged to be gross in the conduct of the work, causing the electrocution of Dudley. According to the petition Short was not only the vice-principal of the master, charged with the safety of the equipment and tools, with the instruction of workmen, with the hiring and discharge of the workmen, and supervision of the construction work in hand, but was also at work as foreman over Dudley. Short, Dudley, and four others, under Short's direction and control, were replacing a pole under a power wire, using a truck equipped with a crane to raise the pole. Short did not de-energize the power wire, or provide any safeguard against the pole touching it, or warn Dudley or instruct him about the danger. The pole touched the wire and the current killed Dudley, who was working about the truck. The formal charges of negligence include the failures to have proper equipment, to de-energize the power line, to warn Dudley, to ground the truck, to have rope guards to prevent the pole touching the wire, and negligence "in requiring the deceased to work in and around a power line energized with 11000 volts at a time when the ground was damp and other conditions were such as to render the work extremely hazardous, without taking any precaution for the safety of the deceased." We think it fairly appears that Short was active in the whole transaction, that he chose the time and place and manner of the work and directed Dudley what to do, himself assisting. This is not mere non-feasance, which is doing nothing; but it is misfeasance, the doing of things in a wrong and negligent manner, without the care and precaution that would have made safe what he ordered and did. Short might be held personally liable. Kenney v. Lane, 9 Tex. Civ. App. 150, 36 S.W. 1063; Ellis v. McNaughton, 76 Mich. 237, 42 N.W. 1113, 15 Am. St. Rep. 308; Lough v. Davis & Co., 30 Wash. 204, 70 P. 491, 59 L.R.A. 802, 94 Am. St. Rep. 848; Osborne v. Morgan, 130 Mass. 102, 39 Am.Rep. 437.
But we must take as true the fact, not stated in the petition but squarely asserted in the removal proceedings and not denied in the motion to remand or in the evidence introduced, that this work was proceeding under the Texas Workmen's Compensation Law. Texas Rev.Stats. Art. 8306. Section 3 as amended provides: "The employés of a subscriber * * * shall have no right of action against their employer or against any agent, servant or employé of said employer for damages for personal injuries, and the representatives and beneficiaries of deceased employés shall have no right of action against such subscribing employer or his agent, servant or employé for damages for injuries resulting in death." The general purpose is plain to confine an injured employe, or the representatives of one who is killed in the employment, to the compensation provided by the Act. If this were the whole applicable law, Dudley's representatives could sue neither Short nor the common employer. But the Constitution of 1875, Art. 16, Sect. 26, provides: "Every person, corporation or company, that may commit a homicide, through wilful act, or omission, or gross *122 neglect, shall be responsible, in exemplary damages, to the surviving husband, widow, heirs of his or her body, or such of them as there may be, without regard to any criminal proceeding that may or may not be had in relation to the homicide." In view of this constitutional provision the Compensation Law in Sect. 5 declared: "Nothing in this law shall be taken or held to prohibit the recovery of exemplary damages" in the cases set forth in the Constitution "from the employer of such employé at the time of the injury causing the death of the latter." In recent cases where exemplary damages were sought against the employer the Supreme Court of Texas has sustained the suits, holding that compensatory damages were substituted by the statutory compensation, but the exemplary damages which before the Compensation Law might have been recovered in addition were still recoverable when the conditions formerly requisite were met. In Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397, 408, it was said of the Compensation Law: "The Legislature realized it could not abolish the constitutional right to recover exemplary damages for a homicide due to `gross neglect,' and was particular to exempt that class of damages from the purview of the act. R.S. art. 8306, § 5. Its purpose was to leave the law as to exemplary damages the same as it was before the passage of the compensation act. Trinity County Lumber Co. v. Ocean A. & G. Co. (Tex.Com.App.) 228 S.W. 114." Enlarging on the idea that the old law of exemplary damages was unchanged the court said: "The rule in Texas is that exemplary damages cannot be recovered unless the plaintiff is shown to have sustained actual loss or injury. There can be no recovery of exemplary damages in the absence of a recovery of actual damages. A verdict of nominal actual damages is not sufficient. * * * In this case actual damages are not recoverable because the plaintiff in error carried workmen's compensation insurance. However, we do not believe that the compensation act changes the rule. We are of the opinion that in order to recover exemplary damages the plaintiff must show himself entitled to recover actual damages, and which he would recover but for the compensation act." In the companion case, Morton Salt Co. v. Wells, 123 Tex. 151, 70 S.W.2d 409, 410, the court said: "We agree * * * that the district court had original jurisdiction, without the presentation of the claim for exemplary damages to the Industrial Accident Board. The cause of action here asserted is one given by the Constitution, and the Legislature was without power to add to or take from the conditions under which, by virtue of the Constitution, it could be maintained, nor did it attempt to do so." In the cited cases it was the employer who was sued for exemplary damages. No case is found in the Texas courts where, as in the present case, a fellow employe was sued.
We are of opinion that the Legislature was without power, and did not attempt, to change the right under the Constitution to recover exemplary damages from a fellow employe, just as was held to be true of such a suit against the employer. As at first enacted the Compensation Law, Laws 1917, p. 269, Sect. 3, withdrew the right of action only against employers covered by it for injury or death of an employe, and in Sect. 5 expressly preserved the constitutional right to exemplary damages for death against the employer. In 1923 the Legislature amended Sec. 3 so as to withdraw also the right of action for injury or death against a fellow employe. It made no corresponding change in Sec. 5 to preserve the constitutional right to exemplary damages against the fellow employe. Whether this was due to oversight or intention may be debatable. An intent to override a constitutional right by indirection, towit, by abolishing the right to actual damages so as to destroy also the constitutional right to exemplary damages, ought not to be imputed to the Legislature. If Sect. 5 had never been included the construction of the Act under the Constitution should have been that which has been made in the case of the employer: that the constitutional right to recover exemplary damages stands as before, and that actual damages must be proved as before, though they are not recoverable because substituted by the compensation fixed by the Act. The statutory compensation substitutes the actual damages formerly recoverable from the fellow employe at fault exactly as it does those formerly recoverable from the employer. The result ought to be the same in both classes of suits for the constitutional exemplary damages. If it were held otherwise, the policy of the Constitution to punish homicides by exemplary damages would be defeated in the cases where the real culprit was a fellow employe, or where his malice or gross neglect cannot be imputed *123 to the master as respects exemplary damages because he was not a vice principal.
We therefore hold that on the allegations of the petition there appears to be a probable case in law against Short, as well as against the Community Public Service Company, notwithstanding the application to them of the Compensation Act. By consequence it does not appear that Short was fraudulently joined. See Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U.S. 146, 34 S. Ct. 278, 58 L. Ed. 544. That the defeat of removal might have been a motive in joining Short is not important, if in good faith he is sought to be held liable. Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183, 52 S. Ct. 84, 76 L. Ed. 233, 77 A.L.R. 904, and cases cited. Though for lack of an exact precedent there may be doubt whether Short is legally liable, that would not render his joinder fraudulent. Morris v. E. I. Dupont Co., 8 Cir., 68 F.2d 788; Wells v. Missouri Pac. R. Co., 8 Cir., 87 F.2d 579. The case ought to have been remanded for trial in the State courts.
The judgment of dismissal is reversed, with direction to remand the cause. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609992/ | 467 P.2d 635 (1970)
Devonna J. McLane, Administratrix of the Estate of Lorence McLane, Deceased, Appellant,
v.
NORTHWEST NATURAL GAS COMPANY, a Corporation, Respondent.
Supreme Court of Oregon.
Argued and Submitted May 12, 1969.
Decided April 8, 1970.
*636 William E. Hurley, Portland, argued the cause for appellant. With him on the brief were Bernard & Hurley, Portland.
C. Anderson Griffith, Portland, argued the cause for respondent. With him on the brief were McMenamin, Blyth, Jones & Joseph, Portland.
Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN,[*] and HOLMAN, JJ.
HOLMAN, J.
This is an action for damages for wrongful death brought by the administratrix of decedent's estate for the benefit of decedent's widow and minor children. Plaintiff appealed from a judgment in favor of defendant which was entered after a demurrer to plaintiff's complaint was sustained and plaintiff elected not to plead further.
The sole question upon this appeal is whether plaintiff's complaint states a cause of action based upon strict liability. *637 The relevant parts of plaintiff's complaint are as follows:
"* * * * * *
"III
"* * * [D]efendant was the owner of * * * property on N.W. St. Helen's Road, Portland, Oregon, whereon it maintained * * * storage units wherein it collected and controlled large amounts of natural gas.
"IV
"* * * said commodity was capable of great harm if it escaped from control.
"V
"* * * [P]laintiff's decedent was on a portion of the property of the defendant away from the aforementioned collection of gas, to-wit, the plaintiff's decedent was preparing to assist in insulating a part of a liquified [sic] gas storage tank then under construction * * *.
"VI
"A portion of the gas so collected escaped from the defendant's control and entered the aforesaid liquified [sic] gas storage tank, and then and there exploded, causing the death * * *.
"* * * * * *".
Plaintiff relies on the rule of Rylands v. Fletcher[1] and Restatement of Torts § 519. The modern version of the Rylands v. Fletcher type of strict liability is applicable in situations in which social policy requires the defendant to make good the harm which results to others from abnormal risks which are inherent in activities that are not considered blameworthy because they are reasonably incident to desirable industrial activity.[2] The basis of the liability is the intentional behavior in exposing the community to the abnormal risk.[3]
The first question which arises in this case is whether defendant was engaged in an activity in which abnormal risks were inherent. Such an activity is spoken of as ultrahazardous or abnormally dangerous.[4] Whether an activity is abnormally dangerous is a question for the court.[5] It is our opinion that natural gas in vaporous form is sufficiently volatile to be capable of great harm and that the danger of explosion and/or fire from its storage in large quantities cannot be completely eliminated by the use of reasonable care. It is usually held that the storage of explosives in a settled area is abnormally dangerous. See Prosser, Torts 525, § 77 (3d ed 1964), and cases cited under footnotes 37 and 38. We view natural gas as of the same nature as an explosive.
The following Oregon cases have held a particular activity to be abnormally dangerous: Loe et ux. v. Lenhardt et al., 227 Or. 242, 362 P.2d 312 (1961), crop spraying with chemicals; Bedell et ux. v. Goulter et al., 199 Or. 344, 261 P.2d 842 (1953), blasting; Brown, Adm'x v. Gessler et al., 191 Or. 503, 230 P.2d 541, 23 A.L.R. 2d 815 (1951), accumulation of water. We have come to the conclusion that when an activity is extraordinary, exceptional, or unusual, considering the locality in which it is carried on; when there is a risk of grave harm from such abnormality; and when the risk cannot be eliminated by the exercise of reasonable care, the activity should be classed as abnormally dangerous. We find the storage of large amounts of *638 natural gas in a populated area to be such an activity.
Bedell et ux. v. Goulter et al., supra, contains language[6] to the effect that in a blasting case the character of the locality in which the blasting was carried on is not material. This language apparently was based on Restatement § 520. We agree with the change proposed in Restatement (Second) § 520(e), which makes the locality in which the activity is carried on a relevant factor, and, therefore, we now disapprove of the language in Bedell. Also see a suggestion to this effect in Loe et ux. v. Lenhardt et al., supra, 227 Or. at 251, 362 P.2d 312.
The trial judge ruled that the storage of natural gas is not abnormally dangerous (ultrahazardous) because if care is used, the risk of an explosion or a fire is minimal. We agree that miscarriage is not frequent, probably because a high degree of care is usually used and, therefore, the risk of some harm cannot be said to be great. However, when miscarriage does occur, it can be lethal. We rather suspect that a blending process goes on and that the risk of some harm may be less if the gravity of the possible harm is great enough. Harper and James recognize this in discussing liability for blasting:
"Moreover, while harm to others is neither certain, nor, in many cases, probable, if a high degree of caution and diligence is employed, still there is an irreducible minimum of risk involved even when all precautions are taken, and the possible harm is of such a serious nature that sound social policy demands that the actor assume the risk." 2 Harper and James, The Law of Torts 814, § 14.6 (1956).
The incidence of harm must necessarily be relatively infrequent or it would be negligence to carry on the activity at all, despite its utility.
We believe the principal factor which brings the activity within the abnormally dangerous classification is not so much the frequency of miscarriage (although this may be important) as it is the creation of an additional risk to others which cannot be alleviated and which arises from the extraordinary, exceptional, or abnormal nature of the activity. There is no reason why defendant's activity should not pay the cost of the additional risk of harm to others which arises from the activity's unusual nature. It is a risk which does not result from customary industrial activity. It is not a normal risk which is mutually created and borne by all.
The establishment of exact criteria for determining whether an activity comes within the abnormally dangerous classification has its limits. A decision concerning who should bear the burden of the risks inherent in an activity involves a balancing of many conflicting interests. Such a weighing process does not easily lend itself to an exact formula. The following quotation from J. Faust, Jr., Strict Liability in Landowner Cases, 42 Or.L.Rev. 273, 288-289 (1963), is appropriate:
"It is submitted that the court's classification of an activity as extrahazardous is not determined solely by a measurement of the degree of the risk involved. Common sense indicates that this classification cannot depend entirely on the quantum of risk any more than a classification of an intrusion as trespassory can depend entirely on the physical character of the intrusion. The question is whether the plaintiff or the defendant should bear the burden of the risks inherent in the activity, and the answer to this question must necessarily involve a balancing of the conflicting interests of the litigants and the public."
Undoubtedly, another factor which enters the picture is the feeling that where one of two innocent persons must suffer, the loss should fall upon the one who created the risk causing the harm.
Defendant cites, for the proposition that natural gas is not abnormally dangerous, *639 cases which involve the escape of gas from mains, pipes, and meters used in its distribution to customers. These cases can be distinguished on the basis that the distribution of gas in mains and pipes in streets and houses is a matter of common usage. See Prosser, Torts 330, § 59 (2d ed 1955), and Comment i, Restatement (Second) § 520. Whether the cited cases were correctly decided or whether the distinction mentioned is valid is not of present concern because this is not a case of that kind. In any event, we believe the storage of large amounts of natural gas should be classed as an abnormally dangerous activity.
The concurring-dissenting opinion contends plaintiff should have to prove that defendant is engaged in an abnormally dangerous activity. We agree insofar as it holds that plaintiff must prove that defendant was in possession of a substantial quantity of natural gas in vaporous form upon its premises. We do not believe, however, the manner of its storage is relevant in determining whether it is abnormally dangerous. If there is a manner in which it can be stored with the safety of a usual industrial commodity in the locality in question, its storage is not an abnormally dangerous activity. The result of the ability to store it with such safety is that it would be negligence to store it in any other manner.
We also disagree that it is necessary for plaintiff to prove the propensities of natural gas in vaporous form. From available literature and general knowledge we became aware that natural gas in vaporous form is an explosive when mixed with air within certain proportional limits and subjected to heat or a spark. With this information in mind, we decided that its propensity to explode was sufficient to make its storage abnormally dangerous. This is not a case in which an activity is claimed to have been abnormally dangerous because of the manner in which a substance is used or handled. We agree that natural gas in other than vaporous form may present an entirely different problem.
Defendant next contends that the Rylands v. Fletcher type of absolute liability is not applicable because neither the stored gas nor the force of its explosion escaped from defendant's premises. This contention raises a problem on which there is very little law. All Oregon decisions applying Rylands v. Fletcher have been cases where there was a trespass on the premises of another. We have found only one case which discusses the subject in detail. It is the English case, Read v. J. Lyons & Co., Ld. [1947] A.C. 156 (1946). In this case, the plaintiff was a government munitions inspector who was conscripted for work upon the premises of the defendant, a munitions manufacturer. She was present on the premises when an explosion occurred, and was injured. The court held the doctrine of Rylands v. Fletcher did not apply because the effects of the blast which caused the injury did not escape from defendant's premises. Also see E.I. Du Pont De Nemours & Co. v. Cudd, 176 F.2d 855, 860 (10th Cir.1949).
We can see no meaningful reason, in terms of the policies behind imposing strict liability, why, in all cases, liability should be limited to damage which occurs off a defendant's premises. Read v. Lyons, supra, does not offer such a reason. The basis of the liability is the creation of an abnormal risk. This risk can be present both on and off defendant's premises. There may be reasons why a plaintiff should not recover which revolve around the circumstances under which plaintiff happened to be upon defendant's premises. Such reasons are usually grouped under the doctrine of assumption of risk. However, we cannot say that in all instances plaintiff's presence on defendant's premises should prevent recovery without more. It does not appear that in all instances the boundaries of a defendant's premises are relevant to any reasons for applying or not applying absolute liability.
Mere proximity to the area of danger may or may not be greater in the case of one who is on the premises as compared with one who is not. A person who is *640 off the premises may be only across the street from the explosion while a person on defendant's premises may be a half mile away from it. No relevant distinction which is applicable in all instances is discernible between a person who is one foot within the boundary of defendant's premises as compared with one who is one foot from defendant's premises.
Under certain circumstances, the existence of absolute liability to someone upon the premises for damage caused by the abnormally dangerous activity is recognized by Section 520C of the tentative draft of the Restatement (Second) of Torts. It provides as follows:
"A POSSESSOR OF LAND IS SUBJECT TO STRICT LIABILITY FOR HARM RESULTING FROM AN ABNORMALLY DANGEROUS ACTIVITY WHICH HE CARRIES ON UPON THE LAND, TO PERSONS COMING UPON THE LAND IN THE EXERCISE OF A PRIVILEGE, WHETHER DERIVED FROM HIS CONSENT OR OTHERWISE."
While the proposed draft recognizes that there are no cases which directly substantiate its position, it analogizes the situation to one in which a person is injured on defendant's premises as the result of an assault by a wild animal which is kept by defendant. While we do not purport to hold that plaintiff's decedent comes within the purview of Section 520C, the section does illustrate that the authors of the Restatement (Second) are of the opinion that the lack of an escape of something related to the abnormally dangerous activity from defendant's premises is not an absolute bar to strict liability. We do not believe there should be any such all-encompassing limitation upon the Rylands v. Fletcher type of absolute liability as is contended for by defendant. To us, the presence of the injured party on or off the defendant's premises, without more, seems irrelevant to any basis for the application of such liability.
Defendant next contends that it is a public utility and, as such, is authorized by the state to store and distribute natural gas and, therefore, it is immune from absolute liability. It relies upon the type of case described in the following excerpt from Prosser, Torts 540-541, § 79 (3d ed 1964):
"There are certain conditions under which conduct which would otherwise result in strict liability may be privileged. The most obvious one is that of a sanction given by statutory authority, or well defined local law. Within the limitations of the constitution, the legislature may authorize acts which involve a high degree of risk to others, and such authority amounts at least to a declaration that the acts are not anti-social, but desirable for the benefit of the community. In the absence of a provision expressly preserving the defendant's liability for any resulting damage, the courts have on occasion interpreted the statute as condoning the consequences in advance, and have refused to hold the defendant liable for doing what he was authorized to do * * *." (Footnotes omitted.)
Section 521 of the proposed draft of the Restatement (Second) of Torts covers this type of situation and provides as follows:
"THERE IS NO STRICT LIABILITY FOR AN ABNORMALLY DANGEROUS ACTIVITY IF IT IS CARRIED ON IN PURSUANCE OF A PUBLIC DUTY IMPOSED UPON THE ACTOR, OR A FRANCHISE OR AUTHORITY CONFERRING LEGISLATIVE APPROVAL OF THE ACTIVITY."
The comment under the proposed section (after pointing out that public officials who are required to engage in an abnormally dangerous activity and public carriers who are required to transport abnormally dangerous substances are not subject to absolute liability) is as follows:
"b. Even where there is no duty to engage in the abnormally dangerous activity, the defendant may be protected from strict liability by a sanction conferred by the legislature, under circumstances *641 such as to indicate approval of the activity sufficient to confer immunity. Normally this is the case when, under a franchise given to such a defendant as a common carrier, it is authorized but not required to accept dangerous commodities for transportation. It may likewise be the case where the legislature grants to a defendant authority to engage in an activity of the abnormally dangerous kind, as where, in wartime, a defendant is authorized to construct and operate a plant making explosives in an area of special danger.
"On the other hand, it is not every authorization or permission to engage in an activity which can be taken to confer immunity from strict liability, by giving such approval to the activity as to indicate an intent that the defendant shall not be liable. In the absence of special circumstances indicating such an intent, the normal interpretation of the act of the legislature in granting a franchise or authority to act in such a manner is that the defendant is authorized to proceed, but must be strictly responsible if the activity in fact results in harm to those in the vicinity."
The proposed section lends no aid to defendant's contention. We do not believe the fact that the state has authorized defendant to engage in the abnormally dangerous activity in question demonstrates any intention to predetermine where responsibility should lie in the case of a non-negligent miscarriage of the activity.
While it is not entirely clear, defendant also appears to contend that where regulations concerning the safe storage of gas are in effect, such regulations amount to an usurpation of the field by the state and demonstrate an intention that strict liability is not to be extended to the activity so regulated and that liability can be based only on the violation of a regulation.
If we assume there are such regulations (none, so far, have been pleaded), and, further, if we assume for argument's sake that their adoption demonstrates that the state intended to usurp a field of liability, it would seem to be only a usurpation of the field of liability which relates to the duty of care owed by the defendant to others. This is what the regulations are about. Such regulations merely tell us something about the duty that is owed, the violation of which would constitute fault. The liability we are concerned with here is not based upon the concept of the lack of care, i.e., fault. Therefore, we do not see how the delineation of what constitutes fault for the proprietors of abnormally dangerous activities in any way indicates an intention to dictate the legal relations of the parties in situations in which fault is irrelevant. Absolute liability presupposes there has been no violation of an acceptable standard of conduct.
Defendant also contends that plaintiff's complaint is insufficient to state a cause of action because it alleges that decedent was engaged in the construction of a gas tank upon defendant's premises when the explosion occurred. Defendant argues that under Restatement (Second) Torts § 523, decedent, as a matter of law, assumed the risk of explosion because he took part in the abnormally dangerous activity. The complaint does not disclose the circumstances under which decedent was working upon defendant's premises. Two possibilities exist: he could have been an employee of defendant or an employee of an independent contractor. Our treatment of the subject of assumption of risk presupposes that he could have been either.
Assumption of risk is presently the source of much controversy among courts and legal scholars. Harper and James contend that assumption of risk is duplicated in other more widely understood concepts, such as scope of defendant's duty or plaintiff's contributory negligence, and that the defense of assumption of risk should be abolished except in those instances where there is an actual express agreement by plaintiff to incur the risk and to relieve defendant of responsibility. 2 Harper and James, The Law of Torts 1191, § 21.8 (1956). In effect, their concept distributes *642 everything that was formerly known as assumption of risk between no-duty upon defendant and contributory negligence on the part of plaintiff, with the exception of an express agreement to assume the risk and to hold defendant harmless. Other legal scholars disagree that the concept should be limited to this extent.[7]
Disregarding terminology, whether the reason for not allowing plaintiff to recover is described as assumption of risk, no-duty on the part of defendant, or contributory negligence by decedent, all authorities would agree that before decedent's participation in the work will bar plaintiff's recovery, such participation must have been with the full realization by decedent of the risks which resulted in his death, and he must have voluntarily incurred them.[8] Plaintiff's complaint does not allege facts from which it must necessarily be concluded that decedent, with knowledge, voluntarily submitted himself to such risks. Such a conclusion does not have to be drawn just because decedent was working on defendant's premises in the furtherance of defendant's activity. Before knowledge and voluntariness will be inferred as a matter of law from decedent's actions in engaging in the work, the situation with which decedent was faced must have presented a more obvious and immediate danger than that which is disclosed by plaintiff's complaint. Even if we assume that this court will follow the Restatement (Second) rule which recognizes assumption of risk as a defense to strict liability, the questions of decedent's knowledge and voluntariness are still viable and outstanding in this case.
It can be argued that where what has been known as assumption of risk is actually a part of the question of whether a defendant owes a duty of care to a plaintiff, plaintiff must allege facts which negate any possibility that he consented to assuming the risk, because, otherwise, he has not shown that defendant owes him any duty of care. However, this argument would not appear to be appropriate in a strict liability case where liability is not based upon the breach of any duty of care owed by a defendant to a plaintiff. We believe that an orderly presentation of the issues would be brought about if a plaintiff is required to allege in his complaint the facts which show that he was injured as a result of coming within the ambit of the unusual risk created by the abnormally dangerous activity, and if a defendant, then, is given the burden to allege any facts which show that there is something about plaintiff's presence within the ambit of risk which makes it inappropriate for him to recover.
The judgment of the circuit court is reversed and the case is remanded for further proceedings.
McALLISTER, Justice (concurring in part; dissenting in part).
I agree with the majority that defendant's demurrer should have been overruled and that the judgment of the trial court must be reversed. I disagree, however, with the majority's holding that defendant, as a matter of law, was engaged in an abnormally dangerous activity.
In her complaint plaintiff has alleged that defendant was engaged in an ultra hazardous activity, which consisted of the maintenance of "certain facilities including pipes and storage units wherein it collected and controlled large amounts of natural gas." Since the only question before this court is the sufficiency of the complaint, we must hold for the plaintiff, if a case of strict liability could be made out within the scope of the allegations of the complaint.
*643 This holding, however, should not decide whether the doctrine of strict liability is applicable in this case. When the case is tried plaintiff should be required to prove that defendant was in fact engaged in an abnormally dangerous activity which caused the death of plaintiff's decedent. The decision is one for the court, but should be made on the basis of the evidence introduced by the plaintiff at the trial. As was said in Loe et ux. v. Lenhardt et al., 227 Or. 242, 249, 362 P.2d 312, 316 (1961):
"When a question of this character is presented, it is the duty of the court to decide as a matter of law whether a given activity, in a given factual setting, is or is not extra hazardous. * * *" (Emphasis added.)
Some of the characteristics of natural gas are within the realm of general knowledge or can be judicially noticed. Natural gas is lighter than air. It is composed principally of methane, which presents a fire and explosion hazard when exposed to heat or flame. Sax, Dangerous Properties of Industrial Materials, 976, 1025 (1963). Its explosive properties are described as follows in Bureau of Mines Information Circular No. 6009:
"* * * Any combustible gas or vapor, when mixed with air or oxygen within certain limiting proportions, will explode on ignition. The violence of the explosion varies with respective proportions of air and gas, and with the degree of confinement of the mixture. For example: Mixtures of natural gas and air containing between 4.5 and 12 per cent natural gas will explode, or propagate flame throughout the mixture without the continual presence of the source of ignition that started the inflammation. * * *"
What cannot be so readily ascertained are the hazards of storage of this material in different forms and quantities. Legislative judgment has given no clear guidance. Congress has concluded that the transmission of natural gas in pipelines presents hazards requiring uniform federal safety legislation. 49 U.S.C.A. §§ 1671-1684 (Natural Gas Pipeline Safety Act, August 12, 1968). The Oregon Public Utility Commissioner has adopted safety regulations governing the pipeline transmission and distribution of natural gas (Rule 24-005) and the storage of liquefied natural gas (Rule 24-006), but I have found none governing the storage of natural gas in its vapor form. If such rules exist they are, of course, a proper matter for judicial notice, and should be called to the trial court's attention if they would be of assistance in its determination of the legal issue.
Without information as to the exact nature of defendant's activity, and the circumstances under which it was carried on, the court cannot know that defendant was engaged as a matter of law in an abnormally dangerous activity. That should be a question for the trial court after hearing proof about defendant's activities and the characteristics of natural gas which might make its storage dangerous in the "given factual setting" established by the evidence.
NOTES
[*] Goodwin, J., resigned on December 19, 1969.
[1] Fletcher v. Rylands, 3 H & C 774, 159 Eng.Rep. 737 (Ex. 1865), reversed in Fletcher v. Rylands, LR 1 Ex. 265 (1866), affirmed in Rylands v. Fletcher, LR 3 HL 330 (1868).
[2] 2 Harper and James, The Law of Torts 815-816, § 14.6 (1956).
[3] Loe et ux. v. Lenhardt et al., 227 Or. 242, 251, 362 P.2d 312, 317 (1961); Prosser, Torts 508, § 74 (3d ed 1964).
[4] For a discussion of the reason for the change from the use of the term "ultrahazardous" in Restatement, Torts, to "abnormally dangerous" in Restatement (Second) Torts, see Note to Institute, Nos. 1, 3, 4, § 520.
[5] Loe et ux. v. Lenhardt et al., supra at 249, 362 P.2d 312.
[6] Bedell et ux. v. Goulter et al., 199 Or. 344, 363, 261 P.2d 842, 850 (1953).
[7] R. Keeton, Assumption of Risk in Products Liability Cases, 22 La.L.Rev. 122 (1961); Prosser, Torts 452-456 § 67 (3d ed. 1964).
[8] "The defense of assumption of risk is in fact quite narrowly confined and restricted by two requirements: first, that the plaintiff must know and understand the risk he is incurring, and second, that his choice to incur it must be entirely free and voluntary." Prosser, Torts 461, § 67 (3d ed 1964). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609984/ | 467 P.2d 173 (1970)
Irvin R. ESSARY, Plaintiff in Error,
v.
Leon E. FITTS, Jr., Defendant in Error.
No. 42211.
Supreme Court of Oklahoma.
March 31, 1970.
Fred M. Hammer, and Howard K. Berry, Oklahoma City, for plaintiff in error.
Covington, Gibbon & Poe, Richard D. Gibbon, James E. Poe, Tulsa, for defendant in error.
*174 JACKSON, Justice.
Irvin R. Essary, plaintiff, was a guestpassenger in an automobile in Tulsa, Oklahoma, when the vehicle in which he was riding was struck from the rear by a vehicle driven by the defendant, Leon E. Fitts, Jr. After the evidence was presented the trial court instructed the jury to return a verdict for plaintiff for such damages "if any" that plaintiff may be entitled. Plaintiff had sued for $70,000 actual damages and for $25,000 punitive damages. The jury returned a verdict for plaintiff as directed by the court and found that plaintiff had sustained no damages. Plaintiff has appealed and states his single proposition for reversal as follows:
"The test for the determination of validity in a jury verdict where it is charged that said verdict is inconsistent within itself and invalid, is not in the degree of the proof concerned but in the existence of any substantive evidence on the point concerned. And when, in a suit for damages for personal injuries there is competent proof of pain and suffering, there is no testimony by a qualified witness that no suffering or pain was undergone so as to raise a conflict, and a general verdict is returned for plaintiff which fails to award some damages for pain and suffering, the verdict is inconsistent within itself, and invalid."
Burkett v. Moran (1966), Okl., 410 P.2d 876, and Hallford, et al. v. Schumacher, (1958), Okl., 323 P.2d 989, are cited in support of that proposition.
We think the question for decision is whether defendant's evidence considered in its most favorable light, and the inferences legitimately to be drawn therefrom, support the verdict. Russell v. Davison, 184 Okl. 606, 89 P.2d 352. There is testimony in the case that plaintiff's arthritis was aggravated by reason of the accident and that he sustained pain. There is also testimony by defendant's doctor from which it may be inferred, that plaintiff's arthritis was not aggravated and that he did not sustain damages or pain.
The evidence shows that plaintiff was involved in an automobile accident on Friday afternoon, November 1, at 2:45 P.M. He was X-rayed that evening at the Tinker Field hospital and sent home. A week or two later he saw Dr. H at the Tinker Field Dispensary which was located in the building where he worked. He testified on cross examination that he was on the job at the time of the accident and that the examination at Tinker was for the purpose of recording an incident and accident while working for the Government. He further testified that the treatment which followed was in relation to the recording of the claim or position he was taking in having been in an accident on the job. He saw his Dr. M the first time on February 3, of the following year. Dr. M examined him at that time and recommended that he see Dr. O, an arthritis specialist. Two months later, on April 1, he saw Dr. O. His next visits to Dr. O were on April 14, May 6, July 8, and August 11. He testified he saw no doctor after August 11, 1964, in relation to his arthritic condition. Dr. O was happy that plaintiff's complaints had diminished when he saw him on April 8th.
After the accident plaintiff played golf and continued working in his yard. A movie film was exhibited to the jury which showed him moving dirt from across the street in a wheelbarrow and using it in levelling his front yard. Plaintiff lost no time from his employment and obtained his "grade raises" as they accrued.
Plaintiff's doctors, M and O, in testimony by depositions, were of the opinion that the accident aggravated the arthritic condition causing pain, and that there would be some degree of permanency resulting.
Dr. R, an orthopedic specialist, testified that his field of practice encompassed the problems of arthritis in the spine. He had studied the X-rays that had been made by Dr. M three months after the accident and testified that he could form an opinion as to whether plaintiff's arthritis had been aggravated. He examined plaintiff's "PX 4", a "front view showing the patient's *175 entire neck, both jaws and upper portions of the dorsal spine, which is the upper back, plus the collarbones", and testified "This X-ray in itself does not show any abnormality of any nature."
He examined plaintiff's "PX 5", "a side or lateral view with the patient's head turned toward your viewing right", and testified "This X-ray is normal in all details except for some arthritic changes on the vertebral bodies. There is no evidence of fracture, dislocation, ruptured intervertebral disc or even any disturbance in the normal curvature of the neck as would be occasioned by any pain producing condition in that area." He further testified that if plaintiff had pain that was causing any problems with his muscles it would be determinable from an examination of the X-ray. "Yes, it would be determinable if there were any acute discomfort that would be dependent upon a condition producing muscle spasm, which would have straightened out the normal cervical curve to a so-called poker spine appearance."
In speaking of the arthritic condition he found exhibited in the X-rays he testified: "If these (above identified X-rays) were taken three months after the date of the accident under consideration, it is a foregone conclusion that that accident was not causative of these. That takes a matter of years to develop."
He testified: "There is no evidence of any permanent aggravation."
He examined plaintiff's "PX 6", a front view showing the lower half of the dorsal spine and the upper portion of the lumbar spine, and stated it revealed no abnormality except arthritic changes, especially in the lumbar region. He testified that the accident had nothing to do with the causation or aggravation of the arthritis. He further testified that if there had been any temporary pain its onset would have occurred with the first 24 hours and reached its zenith within 72 hours following the accident.
This doctor examined plaintiff's exhibits "PX 7 and PX 8" and testified that plaintiff's right hip joint was within normal limits but there was some calcification compatible with chronic arthritis in the left hip joint. He examined plaintiff's "PX 9" (lower spine) and testified that the condition he found there had nothing to do with the accident.
Dr. R was shown a picture of the rear end of the automobile in which plaintiff was riding showing bumper damage and what appears to be about a six inch indentation extending the full width of the door which covers the motor in the rear end of the Volkswagen. He then testified that the impact could have produced an injury only in the neck area. In cross examination he testified that "We can look at an X-ray of a neck and, in a high degree of accuracy, determine the severity of pain." He also testified in cross examination that if the patient complained of pain he would accept what the X-ray showed rather than what the patient says.
The doctors at Tinker Field who examined the plaintiff on the evening of the accident, and subsequent thereto, were not called as witnesses. The X-rays taken by the Tinker doctor on the evening of the accident were not introduced by the plaintiff. In this connection Dr. R testified: "X-rays taken within three days after this accident would have revealed definitely whether or not there had been any acute injury which would have produced this temporary disability." And, if there had been any temporary disability of that nature the highest amount of discomfort would have been the third day after the accident. Plaintiff testified that he was injured on Friday afternoon and returned to work on the following Monday morning.
Plaintiff described his immediately observable injuries as a "little knot" on his head following the accident. On inquiry from his counsel as to whether he noticed the appearance of injury on the night of the accident, such as a bruise or a discoloration?, plaintiff testified: "On my right hip, I believe there was."
*176 From our examination of the record we reach the conclusion that the case was fairly and capably tried. After reviewing the entire record we do not believe a new trial is warranted. Defendant's doctor found no evidence of damage or pain from his examination of the X-rays. He testified that if there had been any pain it would have occurred during the first seventy-two hours following the accident. The evidence further shows plaintiff returned to work on Monday following the accident on Friday. He did not visit his Tinker Field Doctor until a week or two later, and testified that these visits were for the purpose of recording an accident while working for the Government. He continued working at the office and in his yard and continued to play golf. His delay in visiting his doctors from time to time diminished the weight of his testimony regarding pain. Considering the evidence in its entirety and the inferences which the jury could legitimately draw therefrom, we are unable to conclude that the jury's verdict of no injury and no pain is not supported by competent evidence.
The judgment of the trial court is affirmed.
IRWIN, C.J., BERRY, V.C.J. and DAVISON, WILLIAMS, HODGES, LAVENDER and McINERNEY, JJ., concur.
BLACKBIRD, J., concurs in result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876176/ | 247 S.W.3d 606 (2008)
STATE of Missouri, Respondent,
v.
Michael MILLER, Appellant.
No. ED 89292.
Missouri Court of Appeals, Eastern District, Division Three.
March 18, 2008.
Matthew Ward, Columbia, MO, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Roger W. Johnson, Assistant Attorney General, Jefferson City, MO, for respondent.
*607 Before ROY L. RICHTER, P.J., CLIFFORD H. AHRENS, J. and GLENN A. NORTON, J.
ORDER
PER CURIAM.
Michael Miller appeals the judgment entered upon a jury verdict convicting him of statutory rape in the second degree. We find that the trial court did not err in denying Miller's request for a mistrial.
An extended opinion would have no precedential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. The judgment of the trial court is affirmed under Rule 30.25(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1197890/ | 908 P.2d 268 (1995)
Lonnie Wright RICHIE, Appellant,
v.
STATE of Oklahoma, Appellee.
No. F-93-1095.
Court of Criminal Appeals of Oklahoma.
November 7, 1995.
Rehearing Denied January 17, 1996.
Tom Gillert, Assistant District Attorney, Tulsa, for State.
Melody Brannon, Ron Evans, Oklahoma Indigent Defense System, Capital Trial Division, Norman, for defendant.
Cindy G. Brown, Norman, for appellant.
Susan Brimer Loving, Attorney General of Oklahoma, William L. Humes, Assistant Attorney General, Oklahoma City, for appellee.
*272 OPINION
JOHNSON, Presiding Judge:
STATEMENT OF THE CASE
Appellant, Lonnie Wright Richie, was tried by jury for the crimes of: Kidnapping for Extortion (Count I) in violation of 21 Ohio St. 1991, § 745; Robbery with Firearm (Count II) in violation of 21 Ohio St. 1991, § 801; Murder in the First Degree (malice aforethought and, alternatively, felony murder) (Count III) in violation of 21 Ohio St. 1991, § 701.7; Unauthorized Use of a Debit Card (Count IV) in violation of 21 Ohio St. 1991, § 1550.29; and Larceny of an Automobile (Count V) in violation of 21 Ohio St. 1991, § 1720; after former conviction of two or more felonies, in Case No. CF-91-3676, in the District Court of Tulsa County before the Honorable B.R. Beasley, District Judge. Appellant was represented by counsel. The jury returned a verdict of guilty on all counts and set punishment at 99 years imprisonment for Count I, 60 years for Count II, death for Count III, 20 years for Count IV, and 30 years for Count V. The trial court sentenced appellant in accordance with the jury's verdict. From this Judgment and Sentence, appellant has perfected his appeal.
SUMMARY OF FACTS
On August 28, 1991, Mrs. Laura Launhardt was abducted from a K-Mart store in Tulsa, Oklahoma. In the afternoon hours of the same day, Clyde Huffines, an oilfield pumper, was checking leases near Mannford, Oklahoma, when he noticed a van on one of those leases and three people in the area near the van. Huffines also noticed one of the two men standing on the passenger side of the van. Huffines saw this man place something behind the car seat. Then one of the men walked to the driver's door of the van and reached for something behind the seat and placed it in his back pocket or the *273 waistband of his pants. That man then approached Huffines and stated that they had "come up here to relieve ourselves."
Huffines also noticed a woman standing in short weeds approximately 35 feet from him. The woman came up to Huffines and said that he had interrupted her from relieving herself and Huffines told her to "go ahead." The woman then said something to Huffines in a much softer voice which he was unable to understand. She then repeated the statement, but Huffines was again unable to understand her. The woman turned and walked away from Huffines. Huffines subsequently identified the man he had spoken to as the defendant and the woman as Mrs. Launhardt.
Appellant and his accomplice then took Mrs. Launhardt to an abandoned, storm-damaged house near Keystone Lake which was in close proximity to the above-mentioned oil lease. Once inside the abandoned house, appellant and his accomplice bound Mrs. Launhardt's wrists and ankles then tied a strap around her neck and attached it to a clothes rod in a walk-in closet. Appellant and his accomplice then strangled Mrs. Launhardt by partially suspending her by the ligature around her neck while she lay in a face-down position.
After killing Mrs. Launhardt, appellant then engaged in a series of transactions utilizing her ATM card and other credit cards he had stolen from her. Appellant also took her Chevy Astro van.
On September 1, 1991, Mrs. Launhardt's body was discovered in the abandoned house by police. The medical examiner ruled the cause of death as asphyxiation by ligature and placed the time of death as approximately 72 hours before the discovery of the body.
Appellant was later apprehended in New Orleans, Louisiana, where Launhardt's van was also found. Ammunition of the type compatible with the handgun belonging to appellant was found in the glove box of the van. Appellant's handgun was located at a pawn shop. During the course of the investigation, it was discovered that appellant had once lived in a trailer house very near to the abandoned house where Mrs. Launhardt's body was found.
Additional facts will be discussed as pertinent to the propositions outlined below.
JURY SELECTION ISSUES
In propositions nine and ten, appellant asserts that the trial court abused its discretion when it failed to excuse for cause three prospective jurors. Appellant goes on to complain that he was forced to use peremptory challenges to remove each of these veniremen.
The decision of whether or not to excuse a juror rests in the sound discretion of the trial court and, absent an abuse of that discretion, there is no error. Lewis v. State, 586 P.2d 81, 82 (Okl.Cr. 1978). In addition, where there is a question about a prospective juror's ability to follow the law, counsel or the trial court may rehabilitate a potential juror by asking questions and receiving answers from them which indicate that he or she is capable of following the law as instructed by the court. See Hale v. State, 750 P.2d 130, 139 (Okl.Cr.), cert. denied, 488 U.S. 878, 109 S. Ct. 195, 102 L. Ed. 2d 164 (1988).
Upon review of the record below, we find that each of the three jurors in question was properly rehabilitated. The trial court did not abuse its discretion in refusing to excuse prospective jurors Penix, Wooten and Hoefling for cause as their answers to questions posed by counsel and the court reflected their ability to be fair and impartial and to follow the law as instructed by the court. Accordingly, appellant's ninth and tenth propositions of error must fail.
FIRST STAGE ISSUES AND INSTRUCTIONS
In his first proposition of error, appellant contends that he cannot be forced, over his objections, to defend against charges brought in any county in Oklahoma except those counties where the State has properly established venue. Appellant further submits the State failed to prove venue for the first degree murder was proper in Tulsa County, when the evidence, the prosecutor and the trial court all agreed the homicide *274 occurred in Pawnee County. We find this proposition must be denied.
The Oklahoma Bill of Rights imposes a constitutional requirement that all crimes in Oklahoma must be prosecuted in the county where the crime was committed, unless there is some uncertainty about where the offense actually occurred. Okl. Const. art. II, § 20. Even when there is some uncertainty, the State must come forward with enough evidence to show the crime might have been committed in the county where the defendant is being tried. Id. Appellant argues that venue for murder cannot be bootstrapped by joining the murder charge with another charge for which venue is proper. Venue for each offense in a multi-count Information must be established under the venue statutes and state constitution to lie in the county where the case is tried.
Under the facts of the instant case, where the victim is kidnapped in one county and subsequently murdered in another county, we find that venue is proper in both of the counties. See Shelton v. State, 793 P.2d 866, 871 (Okl.Cr. 1990). In reaching a decision, the Shelton Court relied upon 22 Ohio St. 1981, § 124 as authority. Title 22 Ohio St. 1991, § 124 provides:
When a public offense is committed, partly in one county and partly in another county, or the acts or effects thereof, constituting or requisite to the offense, occur in two or more counties, the jurisdiction is in either county.
In the instant case, the murder offense was preceded by the offense of kidnapping. We find the murder can neither be considered in isolation, nor as factually distinct from the antecedent kidnapping. The prosecution of appellant in Tulsa County for kidnapping and murder was not barred merely because the murder may have occurred in Pawnee County. "When a crime is committed in more than one county, as it was here, venue is proper in either county at the State's discretion." Hawkins v. State, 891 P.2d 586, 593 (Okl.Cr. 1994). Finding no error, this proposition fails.
In his second proposition of error, appellant asserts the reversible error occurred as a result of the trial court's refusal to give his requested jury instructions regarding venue. It is well established in this jurisdiction that venue is a question of law. It is likewise well established that questions of law are for the court's consideration while questions of fact involving the guilt or innocence of the accused are the exclusive domain of the jury. See Kovash v. State, 519 P.2d 517, 522 (Okl.Cr.), cert. denied, 419 U.S. 830, 95 S. Ct. 52, 42 L. Ed. 2d 55 (1974). Furthermore, appellant has failed to provide citation to relevant authority of this jurisdiction in support of his proposition. Accordingly, this proposition of error fails.
In his third proposition of error, appellant contends that reversible error occurred when the jury was permitted to convict him of felony murder without ever being instructed concerning the elements of the crime charged, i.e., kidnapping. The State concedes the fact that the jury was not instructed on the correct underlying felony as to the felony murder charge. The State further submits that appellant was convicted of a crime other than that with which he was charged.
The Information failed to allege sufficient facts for kidnapping under the felony murder charge. "[A]n information charging a defendant with felony murder must recite facts to allege every element of the First Degree Murder statute, 21 Ohio St. 1991, § 701.7(B), including facts to allege every element of the underlying felony." Allen v. State, 874 P.2d 60, 65 (Okl.Cr. 1994). Therefore, the trial court lacked jurisdiction to try appellant for First Degree Felony Murder based on kidnapping because nothing in the Information explained either the elements of the crime of kidnapping under 21 Ohio St. 1991, § 741, or any particular facts relied on to establish the crime. Allen, 874 P.2d at 65.
The Information in this case alleged the crime of first degree murder in the following manner:
DANIEL PAUL WALLER, JR. and LONNIE WRIGHT RICHIE, ON OR ABOUT 08-28-91, in Tulsa County, State of Oklahoma and within the jurisdiction of the Court, did commit the crime of MURDER *275 FIRST DEGREE, a felony by unlawfully, feloniously and willfully, while acting in concert each with the other, with malice aforethought, without authority of law, and/or while engaged in the commission of the crime of KIDNAPPING, effect the death of LAURA ELAINE LAUNHARDT by strangling her with a rope, then and there and thereby inflicting certain mortal wounds in the body of said LAURA ELAINE LAUNHARDT, from which mortal wounds the same LAURA ELAINE LAUNHARDT did languish and die on the 28th day of August 1991.
The trial court instructed the jury on first degree felony murder based on "kidnapping by extortion" instead of "kidnapping" as charged in the Information. Kidnapping and kidnapping for extortion are separate and distinct crimes. Kidnapping is defined in 21 Ohio St. 1991, § 741 as:
Every person, who without lawful authority, forcibly seizes and confines another, or inveigles or kidnaps another, with intent, either:
First. To cause such other person to be secretly confined or imprisoned in this state against his will; or,
Second. To cause such other person to be sent out of this state against his will; or,
Third. To cause such person to be sold as a slave, or in any way held to service against his will, is punishable by imprisonment in the penitentiary not exceeding ten (10) years. Upon any trial for a violation of this section, the consent thereto of the person kidnapped or confined, shall not be a defense, unless it appears satisfactorily to the jury, that such a person was above the age of twelve (12) years, and that such consent was not extorted by threat, or by duress.
Kidnapping for extortion is defined in 21 Ohio St. 1991, § 745(A) as:
A. Every person who, without lawful authority, forcibly seizes and confines another, or inveigles or kidnaps another, for the purpose of extorting any money, property or thing of value or advantage from the person so seized, confined, inveigled or kidnapped, or from any other person, or in any manner threatens either by written instrument, word of mouth, message, telegraph, telephone, by placing an ad in a newspaper, or by messenger, demands money or other thing of value, shall be guilty of a felony, and upon conviction shall suffer death or imprisonment in the penitentiary, not less than ten (10) years.
The trial court failed to properly instruct the jury concerning the elements of the underlying felony. The court's instructions failed to define the elements of the charged crime of kidnapping. Instead, it instructed on kidnapping for extortion. Kidnapping for extortion is not one of the enumerated felonies for a felony murder conviction. 21 Ohio St. 1991, § 701.7(B). The State does not contend that the basis of the felony murder charge was other than kidnapping. Accordingly, we do find error with respect to appellant's felony murder conviction.
In the instant case, however, the jury was given two verdict forms which outlined the first degree murder charge. As such, the jury found appellant guilty of felony murder and murder with malice aforethought. In light of the foregoing, the jury's finding of felony murder is invalid. Nevertheless, appellant's conviction for first degree murder with malice aforethought is affirmed. The alternative murder charge of malice aforethought was supported by sufficient evidence and the jury instructions for this count were proper. Finally, we determine that the Information charging appellant with first degree murder (malice aforethought) sufficiently charged all essential elements of that crime. Miller v. State, 827 P.2d 875, 877-879 (Okl.Cr. 1992). We find this to be the case, despite the fact that Count III of the Information erroneously states that the murder took place in Tulsa County.
The test for sufficiency of the Information is "whether it contains every element of the offense to be charged and sufficiently apprises the defendant of what he must be prepared to meet." Id. at 877. It is clear upon review of Count III of the Information, and in light of our discussion of proposition one above, that the law under Miller was met.
*276 Appellant also argues that the Information failed to sufficiently describe the crimes of kidnapping for extortion and robbery by firearm. The State submits that the language of Count I in the Information mirrors the statutory language of 21 Ohio St. 1991, § 745 to a sufficient extent. Further, the State contends that appellant was adequately apprised of the facts constituting the offense and the Information was, therefore, sufficient to meet statutory and constitutional mandates. We agree.
Likewise, appellant complains about the sufficiency of the language in the Information regarding the robbery by firearm charge. The State proffers that the language used in Count II of the Information was sufficient. We find that the language used tracked the pertinent statutory language to an extent necessary to bring it within the authority of Allen, 874 P.2d at 65, and Miller, 827 P.2d at 877. Consequently, we find appellant's proposition with respect to Counts I and II of the Information lacks merit. Nonetheless, in the future, the State should be more careful as to the wording in the Information. See Miller, 827 P.2d at 879. Finally, we find merit in appellant's third proposition of error only with respect to the felony murder conviction.
In his fourth proposition of error, appellant claims that the evidence was insufficient to sustain his convictions for the charged crimes of kidnapping for extortion, robbery with a firearm, first degree murder, unauthorized use of a debit card, and larceny of an automobile. Appellant argues that because his convictions are based entirely upon circumstantial evidence they cannot be sustained based upon the evidence presented by the State.
"It is well established that a criminal case may be proved circumstantially and reasonable inferences drawn therefrom have the same probative effect as direct testimony." Fiorot v. State, 641 P.2d 551, 554 (Okl.Cr.), cert. denied, 456 U.S. 1011, 102 S. Ct. 2306, 73 L. Ed. 2d 1308 (1982). Furthermore, the standard of review in a criminal case based entirely on circumstantial evidence is whether the evidence presented at trial tends to exclude every reasonable hypothesis than guilt. Mayes v. State, 887 P.2d 1288, 1302-1303 (Okl.Cr. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1260, 131 L. Ed. 2d 140 (1995). However, the circumstantial evidence need not exclude every conceivable hypothesis or negate any possibility other than guilt. Berry v. State, 834 P.2d 1002, 1003 (Okl.Cr. 1992); Fiorot, 641 P.2d at 554; Cavazos v. State, 779 P.2d 987, 989 (Okl.Cr. 1989). We have determined that when implementing this standard, this Court "must consider the evidence and its inferences in a light most favorable to the State." Berry, 834 P.2d at 1003.
Consequently, we find that the evidence effectively precluded every reasonable hypothesis except that of guilt with respect to each of appellant's convictions. Therefore, this proposition of error lacks merit.
Appellant's fifth proposition of error asserts that the trial court's failure to issue a second degree "depraved mind" murder instruction resulted in reversible error. Jury instructions on lesser offenses are only appropriate when there is evidence which would reasonably support the finding of the offense. Crumley v. State, 815 P.2d 676, 678 (Okl.Cr. 1991). Furthermore, this Court has "long held that the giving of instructions on lesser included offenses is within the sound discretion of the trial court...." Id. Therefore, absent error, this Court will not intervene. Id.; Fowler v. State, 779 P.2d 580, 585 (Okl.Cr. 1989), cert. denied, 494 U.S. 1060, 110 S. Ct. 1537, 108 L. Ed. 2d 775 (1990). The trial court's failure to give an instruction on second degree murder did not constitute an abuse of discretion. Accordingly, this proposition of error fails.
For his sixth proposition of error, appellant contends that reversible error resulted from the giving of a jury instruction on flight as that instruction allowed the jury to determine his guilt based on improper considerations and lessened the State's burden of proof. Appellant relies on Mitchell v. State, 876 P.2d 682 (Okl.Cr. 1993). In Mitchell, this Court held it is plain, reversible error to give the flight instruction when the defendant does not controvert the State's evidence of alleged flight. Id. at 685. Appellant neither testified at trial, nor did he *277 present any evidence to controvert the State's evidence as to his alleged flight.
However, this Court has subsequently determined that the rule in Mitchell was an interpretation and application of state law and did not create any new constitutional right. Rivers v. State, 889 P.2d 288 (Okl.Cr. 1994). Therefore, Mitchell is prospective only and is not applicable to cases pending when Mitchell was decided. Rivers, 889 P.2d at 292. See also Cooper v. State, 889 P.2d 293, 310 (Okl.Cr. 1995). Accordingly, this proposition of error must fail.
In his seventh proposition of error, appellant claims that his Sixth Amendment right to confrontation was violated by certain testimony of the medical examiner at trial. Specifically, he alleges that the subject testimony made reference to statements made by his accomplice and improperly inculpated appellant. Relying on Bruton v. United States, 391 U.S. 123, 135, 88 S. Ct. 1620, 1627, 20 L. Ed. 2d 476 (1968), appellant claims the introduction of this evidence violated his constitutional right to confront and cross-examine the declarant of this highly prejudicial evidence.
We find the instant case distinguishable from Bruton. In Bruton, the United States Supreme Court held that a defendant's Sixth Amendment right of confrontation is violated when "his nontestifying codefendant's confession naming him as a participant in the crime is introduced at their joint trial . .." Fowler v. State 779 P.2d at 586. See Bruton, 391 U.S. at 126, 88 S.Ct. at 1622-23. The statement made by the medical examiner which is at issue is "I do have access and have had access since prior to the autopsy to information that someone who purported to have been there ...." In response to this comment, defense counsel objected and the trial court sustained the objection. Furthermore, the trial court admonished the jury to disregard the medical examiner's answer.
We find that this statement does not constitute a violation of the Confrontation Clause. This statement was not presented to the jury as any form of a confession by a codefendant. More importantly, this statement did not name or directly implicate appellant as being present at the scene or taking part in the murder of the victim. Therefore, the alleged improper statement made by the medical examiner does not fall within the realm of those statements contemplated by Bruton. Moreover, the trial court's admonishment to the jury cured any possible error because the statement in question cannot be said to have determined the outcome in this case. Price v. State, 546 P.2d 632, 636 (Okl.Cr. 1976); Wimberli v. State, 536 P.2d 945, 951-52 (Okl.Cr. 1975). This proposition of error also fails.
Appellant's eighth proposition of error asserts that reversible error occurred during the prosecutor's second closing argument, in the first stage of trial, where he used the word "jeopardy" and referred to the concept of double jeopardy if the jury should acquit appellant. The trial court sustained defense counsel's objection as to these comments and admonished the jury to disregard the statement concerning jeopardy. However, the prosecutor went on to say once more, "[I]f you acquit today, that's it." This Court has repeatedly held, in other contexts, that it is improper for the prosecutor to comment upon the consequences of the jury's verdict. For example, references to the pardon and parole policies of the State are forbidden because of the prejudice such arguments inject into the jury's decision-making process. Starr v. State, 602 P.2d 1046, 1049 (Okl.Cr. 1979).
The State posits that the statement of the prosecutor at issue did not rise to a level requiring reversal or vacation of the death sentence. It further states that considering the entire record and the fact that the complained of statement was the only comment objected to during closing, or raised on appeal, that appellant has failed to demonstrate prejudice. The State relies on Brown v. State, 751 P.2d 1078, 1080 (Okl.Cr. 1988), to make its argument. In Brown, the appellant alleged that prosecutorial misconduct occurred as a result of comments by the prosecutor "concerning double jeopardy, the possibility the jurors may have sympathy for the appellant, and the fact that the jury serves as *278 a community conscience." Id. The Brown Court concluded that there was ample evidence to support appellant's conviction and that the prosecutor's comments did not affect the outcome of the case. Id.
We find, upon review of the record, that ample evidence exists upon which to base appellant's conviction. Moreover, there was only one comment objected to which the trial court admonished the jury to disregard. As such, any error was cured. However, while the comment may not have been outcome determinative in the instant case, it should not be repeated again. It is suggested that the State refrain from the use of any reference to double jeopardy in the future.
SECOND STAGE ISSUES
For his eleventh proposition of error, appellant claims that it was error to admit the testimony of the medical examiner during the second stage of trial. Appellant argues that Dr. Hemphill was not endorsed as a witness in the Bill of Particulars and that, therefore, no prior adequate notice was given.
The State, relying on Boyd v. State, 839 P.2d 1363, 1368 (Okl.Cr. 1992), cert. denied, ___ U.S. ___, 113 S. Ct. 3005, 125 L. Ed. 2d 697 (1993), submits that it was not required to specifically endorse Dr. Hemphill as a second stage witness as his testimony regarding the manner of the victim's death was offered in the first stage. We agree. Furthermore, the State clearly declared in the State's Notice of Evidence in Support of Aggravating Circumstances and Witness List and Summary of Second Stage Witnesses that testimony of first stage witness would be re-offered to show the manner and circumstances of the death. Therefore, we find that appellant had sufficient notice that Dr. Hemphill would testify again in the second stage of trial. Accordingly, this proposition of error lacks merit.
In his twelfth allegation of error, appellant asserts that the "continuing threat" aggravating circumstance is constitutionally infirm in that it is vague and capable of arbitrary and capricious application. This aggravating circumstance has been analyzed and upheld by this Court as specific, not vague and readily understandable. Paxton v. State, 867 P.2d 1309, 1325 (Okl.Cr. 1993), cert. denied, ___ U.S. ___, 115 S. Ct. 227, 130 L. Ed. 2d 153 (1994). The constitutionality of this aggravating circumstance has been upheld by the United States Supreme Court in Barefoot v. Estelle, 463 U.S. 880, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983). This proposition of error is without merit.
In his thirteenth proposition of error, appellant asserts that reversible error resulted from the giving of Second Stage Instruction No. 9 which omitted the word "physical" from the phrase "conscious torture of the victim or serious abuse." Appellant's jury was told all they had to find was some sort of "serious abuse" rather than "serious physical abuse." Appellant contends that the failure of the instruction to read "serious physical abuse" resulted in a lowered standard of proof for the State and rendered the instruction fatally defective. In making this argument, appellant relies on the language in Stouffer v. State, 742 P.2d 562, 563 (Okl.Cr. 1987) (opinion on rehearing), cert. denied, 484 U.S. 1036, 108 S. Ct. 763, 98 L. Ed. 2d 779 (1988), holding that the application of this aggravator is restricted to "those murders in which torture or serious physical abuse is present." Id.
This Court must determine whether the failure to use the word "physical" in the instruction did, in fact, lessen the standard of proof required to find the aggravator of "heinous, atrocious or cruel." We find that Instruction No. 9, as given to the jury, properly channelled the sentencer's discretion in imposing the death penalty. Furthermore, we adjudge the phrase "serious abuse" to be commonly interpreted as referring to physical abuse in the present context. Finally, the specific facts of the instant case would have placed the jury's focus on the "conscious torture" element of the especially heinous, atrocious or cruel aggravator and not the abuse element. Therefore, we find that in this context, error, if any, was harmless. However, it is suggested that the phrase "serious physical abuse," which appears in the second paragraph of the uniform instruction *279 (OUJI-CR 436), be used without modification in the future.
In his fourteenth proposition of error, appellant alleges the evidence that he killed Mrs. Launhardt to avoid lawful arrest or prosecution is insufficient to support the jury's finding with respect to that aggravating circumstance.
"When the sufficiency of the evidence of an aggravating circumstance is challenged on appeal, the proper test is whether there was any competent evidence to support the State's charge that the aggravating circumstance existed." Romano v. State, 847 P.2d 368, 387 (Okl.Cr. 1993), affirmed, Romano v. State, 512 U.S. ___, 114 S. Ct. 2004, 129 L. Ed. 2d 1 (1994). "In making this determination, this Court should view the evidence in the light most favorable to the State." Id.
When reviewing the aggravating circumstance of murder for the purpose of avoiding or preventing lawful arrest or prosecution, the existence of this circumstance is determined by looking at the killer's intent. Romano, 847 P.2d at 387. In the absence of his own statements as to intent, such evidence may be inferred from circumstantial evidence. Id.
Evidence presented by the State showed that appellant murdered the victim to avoid arrest and prosecution for her kidnapping and the theft of her credit cards and van. Such was inferred by evidence that the victim was taken to an abandoned house in an isolated area where her hands and ankles were bound in order to confine her. Not content to simply leave her and make a getaway, the evidence presented supported the conclusion that appellant chose to kill the victim to prevent her from subsequently identifying him. We find this to be sufficient evidence from which a rational juror could have found beyond a reasonable doubt the existence of this aggravating circumstance. Id. Accordingly, this assignment of error is without merit.
In his fifteenth and final proposition of error, appellant complains of numerous errors in jury instructions given in the second stage of trial. First, he asserts that the instructions on the manner in which the jury was to weigh aggravating and mitigating circumstances set forth an improper burden of proof.
Specific standards for balancing aggravating and mitigating circumstances are not constitutionally required. Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983). Moreover, the jury was properly instructed that the State had to prove the existence of the aggravating circumstances beyond a reasonable doubt. It was then up to the jury to weigh aggravating circumstances against mitigating evidence.
The State must prove beyond a reasonable doubt the existence of at least one of the enumerated aggravating circumstances. Romano; 847 P.2d at 392. The determination of the weight to be accorded the aggravating and mitigating circumstances is not a fact which must be proved beyond a reasonable doubt. Id. Instead, it is a balancing process. Id. The balancing test utilized has consistently been upheld by this Court, and is not unconstitutional. Based on precedent, this proposition of error must fail.
Secondly, appellant complains that the instructions on the issue of mitigating evidence permitted jurors to ignore mitigating evidence altogether and seriously diminished the effect of the mitigating evidence present in this case. This issue was specifically addressed by this Court in Pickens v. State, 850 P.2d 328, 339 (Okl.Cr. 1993), cert. denied, ___ U.S. ___, 114 S. Ct. 942, 127 L. Ed. 2d 232 (1994), and found to be without merit. In the instant case, the jury was told that the finding of mitigating evidence need not be reduced to writing and the jury was the determiner of whether or not aggravating or mitigating evidence existed. Finally, the jury was instructed that the death penalty could not be imposed unless at least one aggravating circumstance was found and the aggravating evidence outweighed the mitigating evidence. We find this assignment of error to be without merit.
Next, appellant contends the court failed to instruct the jury that it had the option to return a life sentence regardless of *280 its finding on aggravating and mitigating circumstances. This argument has consistently been rejected by this Court. Johnson v. State, 731 P.2d 993, 1003 (Okl.Cr.), cert. denied, 484 U.S. 878, 108 S. Ct. 35, 98 L. Ed. 2d 167 (1987); Davis v. State, 665 P.2d 1186, 1203-04 (Okl.Cr.), cert. denied, 464 U.S. 865, 104 S. Ct. 203, 78 L. Ed. 2d 177 (1983); Irvin v. State, 617 P.2d 588, 597-98 (Okl.Cr. 1980). More recently, this Court determined that a trial court may give an instruction which would inform the jury of its right to return a sentence of life no matter how great the weight of evidence supporting the aggravating circumstances. See Fox v. State, 779 P.2d 562, 573 (Okl.Cr. 1989), cert. denied, 494 U.S. 1060, 110 S. Ct. 1538, 108 L. Ed. 2d 777 (1990), (quoting Walker v. State, 723 P.2d 273, 284 (Okl.Cr.), cert. denied, 479 U.S. 995, 107 S. Ct. 599, 93 L. Ed. 2d 600 (1986)). Although a trial court can give the instruction, it is not error for the court to refuse to do so. Romano, 847 P.2d at 392. Therefore, this assignment of error fails.
Finally, appellant complains that the language in the uniform instructions, taken together, implies that jury findings regarding mitigating circumstances must be unanimous, and the jury should be instructed that its findings do not have to be unanimous. This argument has been considered and rejected by this Court many times in the past. See Mayes, 887 P.2d at 1320; Pickens, 850 P.2d at 339-40; Stiles v. State, 829 P.2d 984, 997 (Okl.Cr. 1992). We find no error here in the omission of this instruction.
MANDATORY SENTENCE REVIEW
Pursuant to 21 Ohio St. 1991, § 701.13(C), we must determine (1) whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor, and (2) whether the evidence supports the jury's finding of aggravating circumstances as enumerated in 21 Ohio St. 1991, § 701.12. As discussed above, we found the State presented sufficient evidence to prove appellant murdered Laura Launhardt to avoid arrest or prosecution, that the murder was especially heinous, atrocious or cruel and that there existed the probability that the appellant would commit criminal acts of violence that would constitute a continuing threat to society. See supra, Propositions XII, XIII and XIV.
In mitigation, appellant presented the testimony of family members, who described difficulties and physical and emotional abuse encountered by appellant as he was growing up, as well as his positive influence on his nieces and nephews. Each of appellant's five brothers and sisters, two nieces, and his mother testified about their relationship with appellant, the problems he faced growing up, and the positive aspects of his life.
After carefully reviewing the aggravating circumstances and all mitigating evidence, we find the aggravating circumstances outweigh the mitigating evidence and that the sentence of death is factually substantiated and appropriate. Finding no error warranting reversal or modification, the Judgments and Sentences are AFFIRMED.
LANE and STRUBHAR, JJ., concur.
CHAPEL, V.P.J., and LUMPKIN, J., concur in result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609996/ | 105 Ariz. 504 (1970)
467 P.2d 749
The STATE of Arizona, Appellee,
v.
James L. CARPENTER, Appellant.
No. 1884.
Supreme Court of Arizona, In Banc.
April 8, 1970.
Gary K. Nelson, Atty. Gen., William J. Schafer, III, former Pima County Atty., Rose S. Silver, Pima County Atty., by Fred N. Belman, Deputy County Atty., for appellee.
Erik M. O'Dowd, Tucson, for appellant.
James L. Carpenter, pro se.
McFARLAND, Justice.
James L. Carpenter, hereinafter referred to as defendant, was charged in Count I with the crime of kidnapping; Count II with the crime of robbery of Malcolm Mills while armed with a deadly weapon in violation of § 13-641 and § 13-643, subsec. B, A.R.S., as amended; Count III with the crime of grand theft while armed with a deadly weapon. He entered his plea of guilty to Count II, and upon motion of the county attorney Count I and Count III were dismissed. He was sentenced to a term of not less than twenty years nor more than thirty years in the Arizona State Penitentiary. From the judgment and sentence he appeals.
Defendant was represented by counsel at the time of his arraignment, at the time he entered his plea, and also upon this appeal. *505 His present counsel certified that he has reviewed the entire transcript of record on appeal, and finds no substantial error in the proceedings below. He states that he sent a copy thereof, together with a copy of the entire transcript of record on appeal to defendant. Counsel also requests this Court to review the record for fundamental error, and permit the defendant an opportunity to submit briefs on appeal in his own behalf. Counsel, in conformity with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, set forth the matters which he stated might arguably support the appeal that the defendant was sentenced under the provision of § 13-643, subsec. B, A.R.S., as amended, for a first offense, and was not told that if he were convicted of a future offense the imposition of sentence would be a minimum of ten years in prison. Counsel also stated that defendant was not fully apprized of the consequences of his guilty plea, and that he should now have an opportunity to withdraw his plea and enter a plea of not guilty as charged. He further states that at the time of the entry of the plea of guilty defense counsel and the prosecuting attorney had an arrangement whereby if defendant would plead guilty to Count II the county attorney would dismiss Counts I and III.
The defendant, in a letter which he stated was at the request of his attorney, submitted as error the matters contained in the minute entries. First, in regard to the complaint presumably referring to the charge of a violation of § 13-641 and § 13-643, subsec. B. In support of his contention he called attention to the transcript of the proceedings setting forth the colloquy between the judge and the county attorney as to the section under which defendant should be sentenced. The last contention was that the sentence was excessive. As per his request, his letter was made part of the record.
Both matters referred to by counsel and by defendant in propria persona are involved in what is usually termed "plea bargaining" and whether the proper safeguards were followed in the acceptance of the plea. The record shows that the court followed the safeguards necessary for a determination as to the voluntariness of the plea and a determination of whether the defendant understood the nature and consequences of the plea. The court carefully questioned defendant in order to make these determinations.
The court, in determining for itself that the defendant understood the constitutional rights which he was waiving, advised defendant that he had the right to trial by jury, and asked defendant if he wished to waive such right, to which defendant replied in the affirmative. The court read the statutes § 13-641 and § 13-643, subsec. B and explained them. This answers the matter raised by defendant that he was not advised of the fact that a future offense carries a minimum ten-year sentence. The court also asked defendant if he admitted to the robbery, to which the reply was "yes, sir."
With regard to voluntariness the record shows the following:
"THE COURT: Has anybody coerced you or threatened you in any way in order to change your plea?
"MR. CARPENTER: No, sir.
"THE COURT: Has anybody promised you that the Court would be lenient to you?
"MR. CARPENTER: No, sir.
"THE COURT: Has anybody said to you that if you plead guilty to this, the Court will put you on probation and not send you to the state prison?
"MR. CARPENTER: No, sir.
"THE COURT: Has there been some arrangement, gentlemen? I'm asking you two, has there been some plea agreement of some kind?
"MR. WALKER: Yes.
"THE COURT: What was that agreement?
*506 "MR. WALKER: That agreement was if there was a plea of guilty to Count 2, that the other two counts would be dismissed as far as the County Attorney is concerned.
"THE COURT: This all involves the same person?
"MR. CRISMON: Yes, it does involve the same person.
"THE COURT: And the same acts?
"MR. CRISMON: The same acts. The kidnapping arose out of the robbery itself.
"THE COURT: That's what your agreement is, Mr. Crismon?
"MR. CRISMON: Yes, Your Honor, it was our understanding that if he did plead guilty to this, we would dismiss the other two charges.
"THE COURT: Let me ask Mr. Carpenter, are you satisfied with the services that your attorney has rendered you you in this case?
"MR. CARPENTER: Definitely."
In order to determine that the defendant understood the potential consequences of his plea the court advised defendant of the minimum and maximum sentence which it could impose, and repeated this explanation several times, stating that he could receive anywhere from five years to life, or anything in between. It was only after all of this that the court allowed the plea to be entered.
In regard to the colloquy, at the sentencing, after the request by the county attorney that defendant be sentenced under § 13-643, subsec. B, A.R.S., as though it were a first offense, the defendant's counsel stated that that was his motion. The court stated that the record would so reflect, in order that there would be no misunderstanding as to the consequences of the plea. The judge also repeated his advice that the minimum sentence which could be imposed is five years, and asked defendant if he wished to withdraw his guilty plea, to which defendant replied "No, I don't."
It has been recognized by the courts, including this Court, that the better rule is to permit plea bargaining under the proper safeguards that it is frequently to the best interests of both the State and the accused. State v. Jennings, 104 Ariz. 3, 448 P.2d 59; Commonwealth ex rel. Kerekes v. Maroney, 423 Pa. 337, 223 A.2d 699. The defendant in the instant case secured a dismissal of two counts, and at the insistence of his attorney was sentenced as though it were his first offense despite the fact that the court at the time of sentencing referred to the bad record of the defendant. The State benefitted by the elimination of the expense of a trial. The record shows that the safeguards in plea bargaining were carefully adhered to by the trial court. The judge personally inquired into defendant's understanding of the nature of the charge and the consequences of the plea, and satisfied himself that there was a factual basis for the plea. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418; Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.
In regard to defendant's contention that the sentence was excessive, this Court has held that the trial court has a wide discretion in the pronouncing of a sentence, and that it will uphold a sentence if it is within the statutory limits unless there is a clear abuse of discretion. State v. Bradley, 99 Ariz. 328, 409 P.2d 35. We find no abuse of discretion of the court in the instant case.
The "arguable" matters raised by defendant and his counsel are without merit. In accordance with the rule in Anders v. California, supra, we have carefully studied the record in the instant case, and find no fundamental error in any of the proceedings. Judgment affirmed.
LOCKWOOD, C.J., STRUCKMEYER, V.C.J., and UDALL and HAYS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1226029/ | 258 Ga. 236 (1988)
367 S.E.2d 786
INTERNATIONAL INDEMNITY COMPANY
v.
COLLINS.
45254.
Supreme Court of Georgia.
Decided April 27, 1988.
Reconsideration Denied May 25, 1988.
Michael L. Wetzel, for appellant.
Clarence L. Martin, for appellee.
James E. Butler, Jr., Thomas W. Bennett, James D. Hudson, amici curiae.
CLARKE, Presiding Justice.
This court detailed the facts of this case in Collins v. Intl. Indem. Co., 256 Ga. 493 (349 SE2d 697) (1986). On May 2, 1981 deceased and his companion were thrown from a motorcycle onto the roadway. A passerby blocked a lane of traffic with his car to protect the bodies. His car was hit by another car causing it to move; the bodies changed positions, and decedent was pronounced dead at the scene. Decedent's minor daughter, Shamone Collins, made a claim for survivor's benefits pursuant to OCGA § 33-34-4 (b) and OCGA § 33-34-5 (a) (2) under the passerby's automobile insurance policy issued by International Indemnity. When International Indemnity denied the claim, *237 Collins brought suit.
The trial court granted the insurer's motion for summary judgment. After the Court of Appeals affirmed the summary judgment, we granted Collins' petition for certiorari. In Collins v. Intl. Indem. Co., 256 Ga., supra, we reversed and remanded the case for trial. At trial the jury rendered a verdict for Collins which was affirmed by the Court of Appeals. The issues now on appeal are (1) whether Shamone Collins is a "dependent child" qualifying for survivor's benefits under the no-fault insurance statute, and (2) whether the insurer's refusal to pay the claim authorizes bad faith penalties, attorney fees and punitive damages under OCGA § 33-34-6 (b) and (c). We agree with the Court of Appeals that dependency of a minor child is assumed under the no-fault insurance statute, but we do not believe that the insurer's refusal to pay the claim was in bad faith.
1. The purpose of no-fault survivor's benefits is to provide financial protection for those most likely to suffer at the death of the insured. Cannon v. Ga. Farm Bureau Mut. Ins. Co., 240 Ga. 479 (241 SE2d 238) (1978). To this end, the no-fault statute gives survivor's benefits to the spouse and dependent children of the deceased. OCGA § 33-34-4 (b) and OCGA § 33-34-5 (a) (2). We hold the word "dependent" in this statute indicates the age and status of the child and distinguishes this child from one who is capable of being financially and otherwise independent of an adult.
Undisputed evidence produced at trial showed that Collins was the daughter of the decedent. The evidence also showed that her mother and father were divorced and that she lived with her mother in Georgia, while her father lived in Florida and did not contribute financially to her support.
The duty of parents to support their children is joint and several and does not terminate until the child reaches the age of majority, except to the extent that the duty of one parent is further defined by court order. OCGA § 19-7-2. A divorce decree cannot waive a minor child's right to support. Collins v. Collins, 172 Ga. App. 748 (324 SE2d 475) (1984). A child who is unable to support himself is dependent on his parent as a matter of law, regardless of that parent's marital status. Therefore, a minor child is a dependent child for whom survivor's benefits exist under the no-fault statute.
2. When this case was first addressed, the trial court and the Court of Appeals relied on Partridge v. Southeastern Fidelity Co., 172 Ga. App. 466 (323 SE2d 676) (1984) in holding as a matter of law that after the decedent was ejected from his motorcycle, he remained an occupant of the motorcycle, because he had not been removed to a neutral zone. Occupants of motorcycles cannot recover under the no-fault statute, so summary judgment was granted to the insurer. Had the decedent been removed to a neutral zone, his spouse and dependent *238 children could recover survivor's benefits. This court found there was a question of fact and remanded the case for trial to determine whether the attempted car blockade removed the deceased to a neutral zone.
Ordinarily, the question of good or bad faith is for the jury, but when there is no evidence of unfounded reason for the nonpayment, or if the issue of liability is close, the court should disallow imposition of bad faith penalties. Johnson v. Nat. Union Fire Ins. Co., 177 Ga. App. 204 (338 SE2d 687) (1985). Good faith is determined by the reasonableness of nonpayment of a claim. Lawson v. State Farm Mut. Auto. Ins. Co., 256 Ga. 285 (347 SE2d 565) (1986). International Indemnity's denial of the claim was reasonable, as is evidenced by the grant of summary judgment based on Partridge and its affirmance by the Court of Appeals.
When the Court of Appeals is divided on an issue, and certiorari is granted to resolve the issue, the insurer is legally justified in litigating the issue and cannot be held liable for a statutory bad faith penalty as a matter of law. State Farm Mut. Auto. Ins. Co. v. Bass, 231 Ga. 269 (201 SE2d 444) (1973). In light of the reasonableness of nonpayment and the procedural history of this case, we hold that these damages are not appropriate.
3. Georgia law allows prejudgment interest on liquidated demands. OCGA § 7-4-15. Reversal of the bad faith award does not affect the award of prejudgment interest, since prejudgment interest is based on the outstanding debt. Intl. Indem. Co. v. Terrell, 178 Ga. App. 570 (344 SE2d 239) (1986). However, the award of attorney fees must be reversed as such award is no longer authorized by OCGA § 33-34-6 (b).
Judgment affirmed in part, reversed in part. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/809066/ | NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
ROLLAND MARSHALL,
Claimant-Appellant,
V.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
2012-7071
Appeal from the United States Court of Appeals for
Veterans Claims in 09-4778, Judge Robert N. Davis.
ON MOTION
ORDER
Rolland Marshall moves to voluntarily withdraw his
appeal
Upon consideration thereof,
IT Is ORDERED THAT:
(1) The motion to withdraw the appeal is granted
The appeal is dismissed.
MARSHALL V. DVA 2
(2) Each side shall bear its own costs.
FoR THE CoURT
2 4 /s/ Jan Horbaly
Date J an Horbaly
Clerk
cc: Michael D.J. Eisenberg, Esq.
Shari A. Rose, Esq.
s21
Issued As A Mandate: SEP 2 4 2012
"»°»Ts.z"eziii.'iaarro“
SEP 24 2012
JAN HORBALY
CLERK | 01-03-2023 | 09-24-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/809063/ | Case: 12-10343 Date Filed: 09/24/2012 Page: 1 of 2
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10343
Non-Argument Calendar
________________________
D.C. Docket No. 4:11-cr-00031-RH-WCS-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
JIMMY D. HOWARD,
a.k.a. JD,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(September 24, 2012)
Before WILSON, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 12-10343 Date Filed: 09/24/2012 Page: 2 of 2
Gwendolyn Spivey, appointed counsel for Jimmy D. Howard in this direct
criminal appeal, has moved to withdraw from further representation of the
appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct.
1396, 18 L. Ed. 2d 493 (1967). Our independent review of the entire record reveals
that counsel’s assessment of the relative merit of the appeal is correct. Because
independent examination of the entire record reveals no arguable issues of merit,
counsel’s motion to withdraw is GRANTED, and Howard’s conviction and
sentence are AFFIRMED.
2 | 01-03-2023 | 09-24-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2609990/ | 467 P.2d 128 (1970)
In the matter of the Compensation of Bill R. LEMONS, Claimant.
Bill R. Lemons, Respondent,
v.
STATE COMPENSATION DEPARTMENT, Appellant.
Court of Appeals of Oregon, Department 2.
Argued and Submitted February 11, 1970.
Decided March 26, 1970.
*129 James P. Cronan, Jr., Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the briefs were Lee Johnson, Atty. Gen., Wallace Carpenter, Chief Counsel, and Quintin B. Estell, Asst. Atty. Gen., Salem.
Richard T. Kropp, Albany, argued the cause for respondent. With him on the brief were Emmons, Kyle & Kropp, Albany.
Before SCHWAB, C.J., and LANGTRY and FOLEY, JJ.
FOLEY, Judge.
This is a workmen's compensation case. It involves the question of whether there was causal connection between an accident-aggravated low back condition and a subsequent operation to repair an intervertebral disc in the low back where a fall intervened between the aggravation accident and the operation.
Claimant, a 37-year-old tire sales and service manager, had had low back troubles since about 1961. His testimony indicates pain and trouble with his back was fairly stable during the earlier period but during 1965 and 1966 he was under chiropractic treatment for compensable back problems accepted by State Compensation Department under five separate occurrences prior to September 23, 1966. On that date, while lifting a tire at work, he had an onset of pain in his back and left leg. It continued to get worse after this incident, so on October 4, 1966, he saw Dr. Tsai, a neurosurgeon. Dr. Tsai diagnosed an L-5 nerve root compression on the left due to disc herniation at the L-4-5 level of the back. Conservative therapy was suggested. The claim for the September 23, 1966, injury was accepted by the State Compensation Department, compensation was paid and the claim was closed on November 15, 1966, with a suspense order.
On May 23, 1967, claimant fell as he was descending some steps in front of a clinical laboratory. He claims his back was not injured in this fall, but that his principal injury from the fall was bruises, particularly to his right leg. Dr. Tsai's report about the fall states "* * * he fell resulting in aggravation of the low back and the left sciatica * * *," and that he was in pain and was taken immediately by ambulance to the hospital. On June 5, 1967, Dr. Tsai performed a laminotomy at L-4-5, the identical area in claimant's back where Dr. Tsai's examination of October 4, 1966, had disclosed the herniated disc.
The hearing officer denied the claim on the basis there was no showing of a causal connection between the September 23, 1966, injury and the fall of May 23, 1967, which occurred just before the laminotomy on June 5, 1967. The Workmen's Compensation Board affirmed the hearing officer and the claimant appealed to the circuit court.
The circuit court found a causal connection between the September 23, 1966, injury and the laminotomy operation of June 5, 1967. The court was of the opinion that there was nothing to show any additional or further injury in the accidental fall of May 23, 1967, and that "* * * the treatment *130 rendered to claimant commencing May 23, 1967 was necessitated by the injuries received by claimant * * * [on] September [23, 1966] and that said accident was a substantial contributing cause of said injuries and of the treatment rendered." Defendant State Compensation Department appeals, claiming as erroneous this finding of the circuit court.
To establish responsibility in the State Compensation Department (now known as State Accident Insurance Fund), it is necessary for claimant to show that the accident of September 1966 was a material contributing cause to the plaintiff's condition which necessitated surgery. It need not be the sole cause. Lorentzen v. State Compensation Dept., 251 Or. 92, 444 P.2d 946 (1968); Olson v. State Ind. Acc. Comm., 222 Or. 407, 414, 352 P.2d 1096 (1960).
In a complex case the causal connection must be shown by expert medical testimony. Uris v. State Compensation Department, 247 Or. 420, 427 P.2d 753, 430 P.2d 861 (1967).
The department offered no medical testimony in this case. A fair summary of the various reports of Dr. Tsai would be that claimant's herniated disc at L-4-5, as found on October 4, 1966, resulted from claimant's preexisting low back condition as aggravated by the accident of September 1966; that this condition was aggravated by the fall of May 23, 1967, which resulted in the operation in question.
It is difficult to follow the department's contention. It seems to be that the information from Dr. Tsai that the back injury dated "back to 1961," and the 1967 surgery was required by the condition being "aggravated on September 23, 1966, while changing truck tires" was insufficient to establish causal connection because Dr. Tsai did not use the particular words "within a reasonable degree of medical probability." Particular words are not necessary. As summarized above the conclusions of the doctor as to the causal relationship are sufficient to meet the requirements of Uris v. State Compensation Department, supra, and the decision of the circuit court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876488/ | 58 F. Supp. 150 (1943)
WALLING, Administrator of the Wage and Hour and Public Contracts Division, United States Department of Labor,
v.
VILLAUME BOX & LUMBER CO.
No. 353.
District Court, D. Minnesota, Third Division.
April 14, 1943.
*151 *152 *153 *154 James M. Miller, of Minneapolis, Minn., and Frank P. Ryan, of St. Paul, Minn., for plaintiff.
Harold L. Rutchick and Richard S. Felhaber, both of St. Paul, Minn., for defendant.
SULLIVAN, District Judge.
Truck Drivers
It is the contention of the plaintiff that the truck drivers are engaged in commerce, as the same is defined in the Fair Labor Standards Act, 29 U.S.C.A. § 203, and therefore are entitled to the benefits flowing from said Act.
On the other hand, the defendant contends that the truck drivers do not come within the coverage of the Fair Labor Standards Act relating to maximum hours, 29 U.S.C.A. § 207, because of Section 13 (b) (1) of the Act, 29 U.S.C.A. § 213(b) (1), which reads as follows: "(b) The provisions of section 207 of this title shall not apply with respect to (1) any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section 304 of Title 49."
The applicable section of the Motor Carrier Act of 1935, 49 U.S.C.A. § 304, provides, inter alia, that "It shall be the duty of the Commission [Interstate Commerce Commission] to regulate common carriers by motor vehicle * * * and to that end the Commission may establish reasonable requirements with respect to * * * qualifications and maximum hours of service of employees, and safety of operation and equipment. * * * [and] to establish for private carriers of property by motor vehicle, if need therefor is found, reasonable requirements to promote safety of operation * * *."
Other applicable provisions of the Motor Carrier Act of 1935, 49 U.S.C.A. are as follows:
"§ 302. Application of provisions
"(a) The provisions of this chapter apply to the transportation of passengers or property by motor carriers engaged in interstate or foreign commerce and to the procurement of and the provision of facilities for such transportation, and the regulation of such transportation, and of the procurement thereof, and the provision of facilities therefor, is hereby vested in the Interstate Commerce Commission."
"§ 303. Definitions and exceptions
"(a) Definitions. As used in this chapter
* * * * * *
"(10) The term `interstate commerce' means commerce between any place in a State and any place in another State or between places in the same State through another State, whether such commerce moves wholly by motor vehicle or partly by motor vehicle and partly by rail, express, or water.
* * * * *
"(17) The term `private carrier of property by motor vehicle' means any person not included in the terms `common carrier by motor vehicle' or `contract carrier by motor vehicle', who or which transports in interstate or foreign commerce by motor vehicle property of which such person is the owner, lessee, or bailee, when such transportation is for the purpose of sale, lease, rent, or bailment, or in furtherance of any commercial enterprise.
* * * * *
"(19) The `services' and `transportation' to which this chapter applies include all vehicles operated by, for, or in the interest of any motor carrier irrespective of ownership or of contract, express or implied, together with all facilities and property operated or controlled by any such carrier or carriers and used in the transportation of passengers or property in interstate or foreign commerce or in the performance of any service in connection therewith.
"(20) The term `interstate operation' means any operation in interstate commerce."
The defendant company was at all times engaged in the manufacture of boxes and wood products. The boxes which the *155 company manufactured were for patrons of the company in Minnesota. The truck drivers, in the performance of their duties, never crossed a state line. There is some evidence that on rate occasions the truck drivers delivered boxes to Hudson, Wisconsin, but such deliveries, according to the testimony of the defendant, constituted a very small percentage of the business of the defendant company. So we have here boxes being processed, in the first instance, by the defendant company, with some of the boxes being further processed by another company also within the State of Minnesota which, after being fully processed, were then delivered to defendant's customers in Minnesota. These customers packed and filled said boxes with their respective products, which were destined without the State of Minnesota. Can it be said that, under such circumstances, the truck drivers of the defendant company were engaged in the transportation of any of the merchandise of the defendant without the State? I think not.
We must bear in mind that the coverage of the Wage and Hour Law is all-enveloping as to labor having to do with the processing of merchandise intended to be moved in interstate commerce. The Motor Carrier Act relates only to the transportation to the actual carriageof goods from one state to another.
The participation of the truck drivers with respect to "producing goods intended for interstate commerce" was in the work and labor expended by said persons in the delivery of the boxes to the customers of the defendant company within the State. When that was accomplished, the labors of the truck drivers with respect to the boxes ceased and terminated. The deliveries of the boxes by the defendant were not to a public carrier. The interstate movement had not commenced. There was no intention on the part of the defendant, the truck drivers, or the customers of the defendant company, that the boxes should continue in interstate commerce in their then condition. In other words, these boxes which were delivered to the customers of the defendant company were not, at the time of their delivery to such customers, any part of a shipment or movement in interstate commerce. The packages were not then in condition or shape to be moved in interstate commerce. The interstate shipment which followed consisted of the boxes and their contents. It might be said that the boxes were merely containers of the shipment.
At an early date, in Coe v. Town of Errol, 116 U.S. 517, 6 S. Ct. 475, 477, 29 L. Ed. 715, the court stated that exportation is not begun "until they [logs] are committed to the common carrier for transportation out of the state to the state of their destination, or have started on their ultimate passage to that state."
That rule of law was affirmed in the case of The Daniel Ball, 10 Wall. 557, 19 L. Ed. 999. The doctrine as laid down in those cases has not been modified, but on the contrary has been affirmed by many subsequent decisions of the Supreme Court.
See: United States et al. v. Erie R. Co. et al., 280 U.S. 98, 50 S. Ct. 51, 74 L. Ed. 187; Hughes Bros. Timber Co. v. Minnesota, 272 U.S. 469, 47 S. Ct. 170, 71 L. Ed. 359; Philadelphia & Reading R. Co. v. Hancock, 253 U.S. 284, 40 S. Ct. 512, 64 L. Ed. 907; Baltimore & Ohio Southwestern R. Co. v. Settle et al., 260 U.S. 166, 43 S. Ct. 28, 67 L. Ed. 189; Buckingham Transportation Co. of Colo., Inc., v. Black Hills Transportation Co. et al., 66 S.D. 230, 281 N.W. 94; Railroad Commission of Ohio v. Worthington, 225 U.S. 101, 32 S. Ct. 653, 56 L. Ed. 1004.
Upon the delivery of the boxes by the defendant to its customers there was no intention on the part of the defendant that these boxes should go forward in interstate commerce. The ultimate destination of the boxes, insofar as the defendant was concerned, was either the Federal Cartridge Company or the Brown & Bigelow Company, in Minnesota. There the duty of the defendant company with respect to delivery of the boxes ceased. Further movement of any of these boxes was contingent upon their being packed with merchandise, and depended upon the demands of the customers of those two companies.
Read and compare: Atlantic Coast Line R. Co. v. Standard Oil Co. of Kentucky, 275 U.S. 257, 48 S. Ct. 107, 72 L. Ed. 270.
The coverage of the Wage and Hour Act is broad and covers any work or labor expended upon merchandise which eventually finds its way into interstate commerce, but when we come to the exceptions covered by section 13(b) (1) of the Fair Labor Standards Act, and the jurisdiction of the Interstate Commerce Commission to regulate with respect to maximum hours and safety regulations, we are met with another *156 question. We are then confronted with transportation problems, not with the preparation or processing of goods for interstate commerce, but in the actual carriage of the goods from one state to another.
It is my opinion that the truck drivers were not engaged in the transportation of goods in interstate commerce, and that they are clearly under the coverage of the Fair Labor Standards Act.
Office Employees
The status of the office employees mentioned in the complaint, save and except that of Ethel Dahlberg, is not in conflict with the provisions of the Fair Labor Standards Act. While the written contracts which have been received in evidence do not disclose that free and fair negotiation on the part of the employer with employee which is desirable, and while there is some ambiguity with respect to the rate of pay which the employee is entitled to, that is, the rate per hour, still when we consider the actual construction which the interested parties placed upon the contracts, and the books and records of the defendant company in evidence showing the manner and way in which payments of wages were made and the amounts thereof, the Court is required to find compliance with the Act. It seems fair and proper, in determining whether there was a bona fide contract between employer and employee, to take into consideration, not only the written instrument, but also the construction placed thereon by the parties and the payments of wages made by the employers. All of these things, it seems to me, in this case spell out a valid contract, and one which is in accord with the rule in Walling, Administrator of the Wage and Hour Division, etc., v. A. H. Belo Corporation, 316 U.S. 624, 62 S. Ct. 1223, 86 L. Ed. 1716.
It is to be regretted that any ambiguity in the written memorandum of hiring should exist. The times call for free and frank dealings between employer and employee. The days of keeping the employee in the dark as to the terms and conditions of his employment are past. I think it was probably the intention of the employer to make a frank and open written memorandum of the hiring arrangement, but because of misadvice, the form introduced in evidence was adopted. The records of the company were inspected by those entrusted with the enforcement of the Wage and Hour Law, about November, 1941. Since the date of such inspection all work records have been kept with meticulous care, and in accordance with the Act, save and except the few which are hereinafter mentioned.
I am unable to perceive any violation of the Act with respect to the office employees, save as to Miss Dahlberg, subsequent to October 25, 1940. Certain of the employees of the company were not paid correctly, but an attempt has been made by the company to correct these errors.
Miss Dahlberg was employed from August 15, 1941, at a monthly salary of $75 per month. She was not paid overtime compensation for hours in excess of forty per week, as required by the Act of 1938. She has, however, been employed at an hourly rate since the date of inspection, and has been paid for overtime work since that date.
Other Employees
The employment of Michael J. Polack as an engineer and Joseph Helget as a watchman is in conflict with the mandates of the Act in the particulars called attention to in the Findings of Fact herein.
Injunction
The Act provides for the issuance of the statutory injunction. The right of the Administrator as a public officer to seek an injunction stands upon different ground from that of a private party who seeks to invoke injunctive relief in a court of equity. In this case we are not concerned with the enforcement and protection of private rights, but with the enforcement of a public act which seeks by the injunction provided for under certain circumstances to deter future violations of the Act.
There are numerous decisions under the Fair Labor Standards Act in which, upon a showing of substantial past violations, it has been held that an injunction should issue, despite the discontinuance of the violations after their discovery by the Administrator, and despite good faith assurance of future compliance. Fleming v. Mason & Dixon Lines, D.C., 42 F. Supp. 230; Walling v. Builders' Veneer & Woodwork Co., D.C., 45 F. Supp. 808; Fleming v. Jacksonville Paper Co. et al., 5 Cir., 128 F.2d 395; Fleming v. Cincinnati Union Terminal Co., 6 Cir., 117 F.2d 1012. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610188/ | 485 P.2d 748 (1971)
Warren H. CARTER and Marie Carter, his wife et al., Plaintiffs in Error,
v.
UNITED STATES SMELTING, REFINING AND MINING COMPANY, a Foreign Corporation et al., Defendants in Error.
UNITED STATES SMELTING, REFINING AND MINING COMPANY, a Foreign Corporation et al., Plaintiffs in Error,
v.
Warren H. CARTER and Marie Carter, his wife et al., Defendants in Error.
No. 42534.
Supreme Court of Oklahoma.
May 25, 1971.
Erwin & Erwin, Chandler, for plaintiffs in error.
Milton C. Craig, Chandler, for defendants in error.
*749 McINERNEY, Justice.
This action was commenced by the owners of land under an oil and gas lease, executed on January 12, 1956, seeking a decree canceling the lease, herein called the Carter lease, covering the Northwest Quarter of Section, 24, Twp. 13 N, Range 5 E, Lincoln County, Oklahoma, except the producing well site which is in the North Half of the Northwest Quarter of the Northwest Quarter of Section 24, and seeking an award in damages. The prayer for lease cancellation was based upon the alleged failure of the lessee's assigns to comply with the covenant implied in the oil and gas lease to drill an additional well or wells. The prayer for damages was based upon the alleged failure of the lessee's assigns to comply with the covenant implied in the oil and gas lease to protect the leased premises against drainage. More than 30 days prior to the commencement of the action, Plaintiffs demanded in writing that United States Smelting, Refining and Mining Company (Defendant) execute a release of the Carter lease, except the producing well location or that Defendant, within 30 days commence operations for drilling another well on the leased premises and for drilling an offset well on the Northeast Quarter of the Northwest Quarter of Section 24. This demand was rejected.
The Plaintiffs' request for a jury trial on the issue of damages was denied.
The trial court after a full hearing rendered judgment canceling the oil and gas lease as prayed for by Plaintiffs but denied Plaintiffs' prayer for damages alleged by Plaintiffs to have resulted from Defendants' failure to protect the leased premises against drainage. Both Plaintiffs and Defendants appealed and will be referred to herein by their trial court designations.
We deem it necessary to first recite facts related to the exploration and development of the involved petroleum reservoirs concerning which there is no dispute. The first and only well drilled on the Carter lease herein referred to as the Carter well, located 750 feet east and 330 feet south of the northwest corner of Section 24, was a dual completion on October 13, 1959, 4196 feet to 4210 feet in the Hunton Lime and 4440 feet to 4447 feet in the Second Wilcox Sand. On August 31, 1966, less than a year prior to the trial date, the Carter well had produced 36,670 barrels of oil and 16225 mcf of gas from the Hunton and 21,886 barrels from the Second Wilcox. The cost of drilling, completing and equipping this well was $73,153.58 and the average monthly operating expense was $283.00. To August 31, 1966 the gross value of the 7/8 working interest oil and gas was $90,957.90 from the Hunton and $34,355.22 for oil only from the Second Wilcox.
At the time of trial the Carter well was producing 8 barrels of oil and 4 barrels of water per day from the Second Wilcox compared to 18 barrels of oil on the completion date and was producing water free oil from the Hunton upon completion, and 60 barrels of oil and 3 barrels of water per *750 day at the time of trial. Admittedly this well, as of the time of trial, when it was producing its top allowable from the Hunton, was a commercial producer.
The abutting quarter section to the north of the producing Carter well on the NW/4 of Section 24 is the SW/4 of Section 13. On the west 80 acres thereof is the producing Young lease and on east 80 acres is the producing Kalka lease. Both leases on the SW/4 of Section 13 are owned and operated by one or more of the defendants, including the United States Smelting, Refining and Mining Company. The Young No. 3 offsetting the Carter well and completed less than two months before the Carter well on August 22, 1959, is a dual completion, producing, like the Carter well, from the Hunton and the Wilcox. On August 31, 1966 the Young No. 3, now producing 70% water, had enjoyed about the same production from the Hunton as the Carter well and almost twice as much as the Carter from the Wilcox. Admittedly the Young No. 3 is a commercial producer. In fact, there are six wells on the SW/4 of Section 13 producing from the Second Wilcox, 3 on the Young lease and 3 on the Kalka lease. There are five wells on the same quarter section producing from the Hunton, two on the Young lease and three on the Kalka lease. In the Kalka No. 1 located in the Southwest Quarter of the Southeast Quarter of the Southwest Quarter of Section 13, which is to the north of the northeast quarter of the Carter lease, the Hunton Lime and the Second Wilcox Sand were encountered below the water table. The well was later re-worked and completed in the Prue Sand for a marginal but nevertheless a commercial well with initial daily production of 10 barrels of oil and 15 barrels of water. The Carter well was found unproductive in the Prue Sand due to lack of porosity.
There is a pronounced geological structure concerning whose location there is no dispute the Wilzetta Fault that extends in a northeast to southwest direction, bordering the Carter lease near its northwest corner and extending to the west of the Young wells Nos. 1, 2, and 3, paralleling the anti-clinal trend in this area. Both the geologist Holcomb, testifying for Plaintiffs, and the geologist Stratton, testifying for Defendants, agree upon its location in a general way and agree also there may be cross-faults extending eastward from the main fault. On cross examination Plaintiffs' geologist Holcomb was asked:
"Q Alright now, is it true, also in the general area, Mr. Holcomb, that there are other smaller faults which come off of the main fault?
"A This is probably true the geological perplexity in the area, although we try with the available subsurface information that we have to represent them as nearly as possible, it is doubtful that we are ever capable of showing them in their best place, the available information shows we are dealing with a highly faulty area."
Geologist Stratton, who sat on all the wells in Sections 13 and 24, in describing the general characteristics of the Wilzetta Fault which he had worked since 1945, said: "Yes, sir, as other geologists describe, is a fault that trends north-northeast south-southwest basically it has a throw of some 400 feet with the down-throw side on the west side of the fault * * * the fault has several cross-faults or pie-shapes or offshoots from the main fault itself. * * *" Geologist Stratton in referring to a cross fault extending to the Carter, Young and Kalka leases, testified: "Based on the interpretation of the logs, that fault exists and is an offshoot to this Wilzetta Main Fault and it exists more in a northeast-southwest direction lying basically between the Kalka #3 and the Kalka # 1 and between the Young #3 and the Kalka # 1 and between the Carter # 1 and the Kalka # 1."
Stratton's conclusion as to the nature of the cross-fault was based principally upon the presence of a very thin Sylvan Shale in Kalka No. 1 which indicated that the Kalka No. 1 had cut a fault.
*751 On the other hand Holcomb testified that encountering the Sylvan Shale at 45 feet in the Kalka No. 1 "is wholly insufficient to justify a fault trend through there although it becomes fairly complicated to demonstrate this." The witness Holcomb then conducted for the court on a blackboard a very extended demonstration by many oral references to the blackboard that do not appear graphically in the record.
Due to differences in the interpretation of well logs, indicating differences in the position of the water table and the elevation of the Hunton and the Wilcox, there are sharp differences as to the position of anticlinal structures between the Plaintiffs' and Defendants' witnesses Holcomb and Stratton. Stratton finds the Hunton and the Wilcox lower structurally in the south part of the Carter lease. Holcomb concluded there is a structural "high" near the center of Section 24 leading to his opinion that three more commercial wells can be drilled in the Northwest Quarter of Section 24. Stratton finding no structural "high" in the center of Section 24 but placing one near the center of Section 13, concludes that a commercial well to the Hunton and the Wilcox cannot be drilled anywhere on the Northwest Quarter of Section 24 south of the Carter well. Related to this conflict in opinion is a disagreement concerning the amount of saturated sand in the Wilcox on the Carter lease above the water table. Stratton concluded there was 10 feet less than Holcomb found.
Additionally, for geologist Stratton, the cross fault extending between the Carter well and the Young No. 3, placing the Carter lease on the downthrow side of the cross fault, further precludes the possibilities of commercial production on the Carter lease south of the Carter well. This presence of the crossfault for Stratton minimizes the risks of drainage between the Young No. 3 and the Carter well. An offset well to the Kalka No. 1, if drilled in the Northeast Quarter of Northwest Quarter of Section 24, according to geologist Stratton would be water bearing in the Prue, Hunton and Wilcox. This testimony was not effectively or directly disputed by geologist Holcomb. There was controversy over whether the Carter well was drilled off-pattern. The Corporation Commission order of November 27, 1963 indicates an exception was granted for the Carter well. Moreover, this aspect of the controversy did not play any part in the expressed opinions of the geological witnesses.
With this evidentiary background, we now give attention to Plaintiffs' assignment that the trial court erred in failing and refusing to grant the Plaintiffs a jury trial on the issue of damages.
Action for cancellation of an oil and gas lease is one of equitable cognizance, Tidal Oil Co. v. Roelfs, 77 Okl. 183, 187 P. 486 (1920); Sinclair Oil and Gas Company v. Bishop, Okl., 441 P.2d 436 (1968); and that once equity has assumed jurisdiction of the subject matter, it may do complete justice between the parties by retaining the cause and ordering recovery of compensatory damages, Smith v. Owens, Okl., 397 P.2d 673 (1965). As the Plaintiffs construed the trial court's function, they were content to have the trial court decide the issue of liability on both the lessee's obligation to drill an additional well or wells and the lessee's obligation to protect the leased premises against drainage. On the latter obligation Plaintiffs desired that the issue of liability and the issue of damages be separated with the issue of damages left to a jury. As grounds for their assignment of error Plaintiffs cite 12 O.S.Supp. 1965, § 323 which reads in part "* * * The court may order a separate trial of any claim or of any issue in the furtherance of a just and prompt determination of the controversy and to avoid delay and prejudice. * * *"
There is completely absent any indication of any legislative intention to modify or repeal 12 Ohio St. 1961, §§ 556 and 557 which have long been regarded as preserving the historic distinction between trials in the common law courts and in equity courts. To repeat, we have long recognized in this *752 jurisdiction that having jurisdiction of the parties to the controversy, a court of equity has power to decide all matters in dispute and decree complete relief and may accord what would otherwise be legal remedies. Tidal Oil Co. v. Roelfs, supra.
The primary purpose of Plaintiffs' petition is to seek cancellation of an oil and gas lease for alleged failure of Defendants to drill additional wells. Although its secondary purpose is to recover damages for Defendants' alleged failure to protect the leased premises against drainage, the proof relevant to each charge is identical: namely, whether lessee can, probably at a reasonable profit, drill an additional well on the Carter lease as a diagonal offset to the Young No. 3 which will protect the leased premises against drainage. Moreover, the proof on both issues is so inextricably related that Plaintiffs contend that the judgment of the trial court decreeing cancellation was tantamount to a liability judgment that Defendants had not protected the leased premises against drainage. In fact, every step taken by Plaintiffs in this action bespoke Plaintiffs' view that this action is primarily one of equitable cognizance in which the issues, in an evidential sense, are closely tied.
Accordingly we hold that the primary relief sought by Plaintiffs was the cancellation of an oil and gas lease and that the additional demand for damages for drainage from the leased premises was incidental and on the basis of the evidence, dependent upon and inextricably related to the action for cancellation. Assuming arguendo that § 323, supra, is applicable, the trial court therefore did not abuse its discretion in denying a jury trial and in retaining, for disposal in one action, all the issues, thus performing the traditional function of equity in affording complete relief. We adopted a similar holding with similar issues in Townsend v. Creekmore-Rooney Company, Okl., 332 P.2d 35 (1958).
Moreover our decisions applicable to the obligation to drill additional wells and the obligation to protect the leased premises against drainage tie the related issues rather closely. In Vickers v. Vining, Okl., 452 P.2d 798 (1969) we said, "Defendants, in effect, argue that there is no implied obligation on the part of a lessee to drill an offset well to a well on adjoining premises or to drill an additional one on the leased premises except where the drilling of such well would probably result in production of sufficient oil to repay the cost of drilling, equipping and operating such well. This is the applicable rule we announced in Spiller v. Massey & Moore, Okl., 406 P.2d 467." The rule is also applicable here.
Plaintiffs next contend that the trial court's judgment in canceling the Carter lease, except as to the site around the Carter well, was tantamount to a judgment that defendant did not protect the leased premises against drainage. The trial court's assigned reason for cancellation was Defendants "failure to develop said oil and gas lease." Plaintiffs assume that the basis for the trial court's judgment was the implied finding that Defendants could probably drill an additional well on the Carter lease resulting in production of sufficient oil to repay the cost of drilling, equipping and operating such well. The sustainable basis for the trial court's judgment was the implied finding that the sole reason for Defendants' desire to hold the undeveloped areas of the Carter lease is sheer speculation absent any contemplated ensuing benefits for lessors.
Since the completion of the Carter well on October 13, 1959 no additional well had been commenced at the time this action was instituted on November 29, 1965. The demand made by Plaintiffs for an additional well had been refused. During this six year period one or more of the same Defendants had drilled six producing wells to "The Wilcox" and 5 producing wells to "The Hunton" and one producing well to "The Prue" on the quarter section immediately to the north of the Carter lease. Relevant to this lease history, J.B. Red, Production Superintendent for Defendant *753 United States Smelting, Refining and Mining Company, said on cross examination,
"Q The purpose of the Company in trying to hold this lease for just the possibility of something developing in the future that might be worthwhile and somebody else might solve or there might be some particular means to recover for itself that's the purpose of the company, isn't it?
"A I can agree with most of that, Yes, sir.
"Q You have no plans to drill any part of the Carter lease, do you?
"A To date, No, sir.
"Q You don't think, geologically, and have so advised the Company, that it is not good business to drill any other wells on this Carter lease?
"A For Commercial production at this time, no."
This same witness indicated it might be necessary to drill a well at some future time on the northwest quarter of the Carter lease for secondary recovery purposes. Additionally, to indicate Defendants were still interested in efforts to evaluate the Carter lease, Defendants encouraged the drilling of a well in 1965 by the Christie-Stewart Drilling Company in the Southeast Quarter of the Northeast Quarter of Section 23 immediately west of the Carter lease. This well was drilled close to the Wilzetta Fault and was dry, six years after the Carter well was completed.
We conclude that the implied finding that Defendants are holding the Carter lease for sheer speculation and without any purpose for future development is not clearly against the weight of the evidence. Crocker v. Humble Oil and Refining Company, Okl., 419 P.2d 265 (1966), Syl. 4.
The Defendants contend that the judgment cancelling a part of the lease is not sustained by sufficient evidence. In the following cases where we upheld partial cancellation for lack of justification in delaying development, Defendants emphasize certain points. Defendants point out that fourteen years had elapsed since the last well was drilled in Doss Oil Royalty Co. v. Texas Co., 192 Okl. 359, 137 P.2d 934 (1943). In Doss six wells were drilled on a 40 acre lease and ten wells were drilled on a 100 acre lease. In McKenna v. Nichlos, 193 Okl. 526, 145 P.2d 957 (1944), twenty-two years had elapsed after two wells were drilled on 40 acres. Here, six years elapsed after one well had been drilled on 160 acres. After a review of our holdings in cases involving delays in development of oil and gas leases we concluded in Crocker v. Humble Oil and Refining Company, Okl., 419 P.2d 265, 270 (1966) that "The lessee cannot sit idly by, either he must develop the lease or he must excuse or explain his inactivity. The length of time is not the sole criteria. A reasonable delay in one case may be unconscionable in another."
In Coal Oil and Gas Company v. Styron, Okl., 303 P.2d 965 (1956) the oil and gas lease (Styron lease) executed May 6, 1948 covered 220 acres. On June 30, 1951 the lessee completed a commercial producer. Although lessee completed an oil producer that was an offset to the west and an oil producer that was an offset to the north, no more wells were drilled on the Styron lease. Eighteen producing wells had been drilled to the west, south and southwest of the Styron well. The action in this case was instituted only three years after the Styron well was completed. Failure to further develop and protect against drainage was alleged. The lessee desired to retain the lease because it was a good size and there was a possibility of a separate reservoir to the east of the Styron lease. In concluding that lessee's reason for wanting to hold the lease was not sufficient, we said, "Though there is production on a small portion of the Styron lease, such cannot justify the defendant's holding the balance indefinitely and thereby depriving the lessors not only of the expected royalty * * * but of the privilege of making some other arrangement * * *" Where, as here, a commercial producer is drilled *754 on the Carter lease to the Hunton and the Wilcox and thereafter six producing wells are drilled to the Wilcox and five producing wells to the Hunton are drilled by the same lessee on the quarter section immediately to the north, more explanation is needed than was given here to excuse the six years delayed development on the Carter lease.
Turning to the question of drainage, we hold that the trial court's implied finding that Plaintiffs did not suffer any drainage is not clearly against the weight of the evidence. If the cross-fault existed, passing near the north line of the Carter lease or the south line of the Young and Kalka leases, drainage would be greatly minimized if not prevented. We are mindful of the conflict in opinion set forth above between Plaintiffs' geologist Holcomb and Defendants' geologist Stratton, the former concluding that there is no basis for saying that the Kalka No. 1 had cut a fault, the latter saying to the contrary. The conflict in the evidence is resolved by the judgment of the trial court. Resolution of the issue by the trial court is not clearly against the weight of the evidence. Additionally, a sustainable basis for denying Plaintiffs any relief from Defendants' refusal to drill a protection well is the implied finding that drilling such a well would probably not result in production of sufficient oil to repay the cost of drilling, equipping and operating.
We hold that the trial court's judgment of lease cancellation, because the lessee is holding the Carter lease for sheer speculation and without contemplation of any future benefit to lessor Plaintiffs is not clearly against the weight of the evidence. We hold that the trial court's judgment that Plaintiffs did not suffer drainage, or in the alternative, that a protection well if drilled would probably not result in the production of sufficient oil to repay the cost of drilling, equipping and operating such well is not clearly against the weight of the evidence.
Affirmed.
All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610195/ | 485 P.2d 1044 (1971)
26 Utah 2d 113
Franklin D. RICHARDS and M. Ross Richards, dba Richards & Richards, Plaintiffs and Respondents,
v.
William M. HODSON and Rose B. Hodson, Defendants and Appellants.
No. 12338.
Supreme Court of Utah.
June 3, 1971.
*1045 Lon Rodney Kump, of Richards & Watkins, Salt Lake City, for defendants and appellants.
M. Richard Walker, of Hunt & Walker, Salt Lake City, for plaintiffs and respondents.
ELLETT, Justice:
The plaintiffs, real estate brokers, had a listing signed by Mr. Hodson whereby he promised to pay them a commission of 6% of the sale price of some real estate jointly owned by him and his wife if the plaintiffs found a purchaser who was ready, willing, and able to buy. This action is against both Mr. and Mrs. Hodson for a commission claimed to have been earned, together with an attorney's fee.
The defendants deny that any enforceable contract of sale was entered into and also claim misconduct and false representations on the part of plaintiffs' agent, who induced them to accept an earnest money contract of purchase.
These defendants refused to make conveyance of the real property and were sued by the purchasers, who recovered a monetary judgment against them for breach of contract.[1] That judgment had become final before this action was tried. The trial court in the instant matter ruled that the issue of whether there had been an enforceable contract was res judicata, and *1046 that ruling is now assailed by the defendants herein.
Strictly speaking, the term "res judicata" applies to a judgment between the same parties who in a prior action litigated the identical questions which are present in the later case. Not only are the parties bound by the ruling on matters actually litigated, but they are also prevented from raising issues which should have been raised in the former action. The rule of law is wise in that it gives finality to judgments and also conserves the time of courts, in that courts should not be required to relitigate matters which have once been fully and finally determined.
Since the plaintiffs herein were not parties to the former action between defendants herein and the purchasers, they would not be bound by any ruling made against the purchasers in the former case. The reason is that the plaintiffs herein did not there have an opportunity to prove their claim. The defendants here were parties to the prior action and litigated fully their claim that there was no contract of sale. They have had their day in court. They have tried that issue fully and now attempt to retry it.
A form of res judicata applies to situations like this wherein issues which are actually decided against a party in a prior action may be relied upon by an opponent in a later case as having been judicially established. This doctrine, known as collateral estoppel, differs from res judicata not only in the fact that all parties need not be the same in the two actions, but also in the fact that the estoppel applies only to issues actually litigated and not to those which could have been determined. The trend of recent cases is to approve this doctrine.[2]
We think the trial judge correctly held that the validity of the sale had already been established and that no proof needed to be given on that point in the trial of the instant matter.
The judgment herein was based upon findings of fact which were later amended, and in the final findings no reference is made as to the need for awarding attorney's fees or as to the amount thereof. That amendment properly reflected the true situation, for there was nothing in the record upon which the amount of such fees could be predicated. The plaintiffs claim that the matter was settled at a pretrial conference, but there is no pretrial order in the record before us. This court has on numerous occasions held that attorney's fees cannot be allowed unless there is evidence to support them.[3] Since there is no evidence of the reasonableness of attorney's fees in the record, the court erroneously awarded the amount of $1,819.83 as such.
The court further awarded judgment of $9,000.00 against both Mr. and Mrs. Hodson. The wife did not sign the listing agreement and did not make any prior oral promise to pay a commission. In fact, when the plaintiffs' agent talked to her, he had already done everything required to be done except secure her signature, and it is obvious that in securing her name to the contract he was representing the purchasers and her husband rather than her.
The plaintiffs rely on the document entitled "Earnest Money Receipt and Offer to Purchase," which is an agreement between sellers and purchasers. They are not parties to the contract. Their sole responsibility is to bring the parties together. Yet in the printed form of the contract they furnished to the parties they inserted a provision which reads as follows:
The seller agrees in consideration of the efforts of the agent in procuring a purchaser, to pay said agent a commission equal to the minimum recommended *1047 by the Salt Lake Board of Realtors. In the event seller has entered into a listing contract with any other agent and said contract is presently effective, this paragraph will be of no force or effect.
This court held in the case of Ney v. Harrison, 5 Utah 2d 217, 299 P.2d 1114 (1956), that such a provision did furnish the "note or memorandum" sufficient to permit proof of an oral contract theretofore made. However, in the instant case Mrs. Hodson had made no promise to the plaintiffs, oral or otherwise. In order for the plaintiffs to recover against her, they must prove an express agreement by her to pay them a commission for services to be rendered after the promise is made; otherwise there would be no consideration to support the agreement.[4]
The judgment in the amount of the commission cannot stand against Mrs. Hodson.
We have examined the other assignments of error and find them to be without merit. The trial court had competent evidence to sustain his findings and judgment except as above noted. The judgment is reversed as to Mrs. Hodson in toto and is affirmed as to Mr. Hodson except as to the award of attorney's fees, and the trial court is directed to delete from the judgment against him the sum of $1,819.83. Each party is to bear his own costs in connection with this appeal.
CALLISTER, C.J., and TUCKETT and HENRIOD, JJ., concur.
CROCKETT, Justice (concurring specially).
I concur in the decision under the facts of this case including application of the doctrine of collateral estoppel thereto. However, as to that doctrine, I prefer to reserve commitment in generality. While I agree to its application under the facts here, I also believe that there may be circumstances where justice would require that a party be permitted to litigate an issue in a new and different lawsuit with different parties, even though such an issue may have been once adjudicated between himself and others. Thus, the proper application of the doctrine should depend upon what the ends of justice require in the circumstances of the particular case.
HENRIOD, Justice (concurring).
I concur, but wish to make the observation that plaintiff's complaint is bottomed on a sales agency contract signed only by Mr. Hodson, not Mrs. Hodson. To attempt to bind Mrs. Hodson to such contract by referring to some other contract between the sellers and buyers, in my opinion, would be to compound an error that I believe we indulged in Ney v. Harrison, 5 Utah 2d 217, 299 P.2d 1114 (1956), where in a dissent, I unsuccessfully attempted to point out the distinction in the two different contracts as they related to the statute of frauds. Since that case was referred to and discussed here, I take the liberty of at least suggesting that it might be opportune in the instant case to take a second look at that case with an eye for its renunciation.
NOTES
[1] Holbrook v. Hodson, 24 Utah 2d 120, 466 P.2d 843 (1970).
[2] Teitelbaum Furs, Inc., v. Dominion Ins. Co., 58 Cal. 2d 601, 25 Cal. Rptr. 559, 375 P.2d 439 (1962); see cases collected in Words and Phrases, Vol. 7A, Pocket Part, under the heading of "Collateral Estoppel."
[3] Butler v. Butler, 23 Utah 2d 259, 261, 461 P.2d 727 (1969); F.M.A. Financial Corp. v. Build, Inc., 17 Utah 2d 80, 404 P.2d 670 (1965).
[4] Smith Realty Co. v. Dipietro et ux., 77 Utah 176, 292 P. 915 (1930). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609993/ | 2 Wn. App. 208 (1970)
467 P.2d 200
ARTHUR KNITTLE, Appellant,
v.
FORTUNA KNITTLE, Respondent.
No. 130-40966-1.
The Court of Appeals of Washington, Division One, Panel 2.
March 30, 1970.
*209 Samuel J. Steiner, for appellant.
John L. Vogel, for respondent.
UTTER, J.
Fortuna Knittle, respondent, the divorced wife of Arthur Knittle, appellant, filed a motion in 1968 for an order fixing the amount of the judgment remaining unpaid for past due child support payments. The trial court heard testimony and entered an order establishing the total amount due, allowing collection of those sums that were not barred by the statute of limitations. The court ordered the judgment to run against the appellant and the community of appellant and his current wife.
Appellant presented testimony which he contended established the defenses of laches and estoppel. An objection on grounds of lack of relevancy was sustained. The appellant challenges this ruling on appeal and also contends the court erred in holding the past due support judgments were obligations of appellant's present marital community.
Respondent and appellant were married in 1946. Their only child was born in 1947. They were divorced in 1949 and the decree awarded custody of the child to respondent and directed appellant to pay $50 per month child support. Respondent remarried in 1949 and adoption proceedings were commenced with appellant's knowledge and approval.
Shortly thereafter, respondent and her new husband moved to California. The adoption was never completed although appellant at that time assumed the adoption had been completed. Respondent's marriage ended in divorce in 1954 and in 1955 appellant was then advised, for the first time, the adoption had not been completed. Support was provided by California welfare agencies for the child. They, in turn, demanded in 1956 and 1958 that appellant contribute funds to them to defray their expenses. Appellant remarried in 1960.
[1] There was no testimony offered by appellant showing a change of position on his part in reliance on actions of the former wife. The trial court would have been justified *210 on these grounds alone in refusing to consider the defenses of laches and estoppel. Den Adel v. Blattman, 57 Wn.2d 337, 357 P.2d 159 (1960); Rutter v. Rutter, 59 Wn.2d 781, 370 P.2d 862 (1962). We do not comment on whether these defenses are available in an action to enforce judgments accruing by virtue of unpaid child support orders. See, however, Wheeler v. Wheeler, 37 Wn.2d 159, 222 P.2d 400 (1950) and Herzog v. Herzog, 23 Wn.2d 382, 161 P.2d 142 (1945).
Appellant urges the judgment is improper inasmuch as the child for whom the payments were ordered reached his majority prior to the time the proceedings were started and, further, that the judgment should not run against appellant's present marital community.
[2] After a child reaches majority, contempt proceedings to enforce payment of past due support orders are no longer available, but the custodian of the children does not lose her right to collect arrearage in support by garnishment, attachment or execution. Dawson v. Dawson, 71 Wn.2d 66, 426 P.2d 614 (1967).
The final contention of appellant is that the court erred in holding past-due-support judgments are responsibilities of the appellant's present marital community.
Rather than attempting to fit the application of the enforcement of claim for accrued alimony or child support against a new community within existing community property rules, our court has, on grounds of "justice and reason," established rules in this area based on public policy. Fisch v. Marler, 1 Wn.2d 698, 715, 97 P.2d 147 (1939).
When confronted with a similar question, the Arizona court in Gardner v. Gardner, 95 Ariz. 202, 388 P.2d 417 (1964), held the whole of community property of a new community was liable for unpaid alimony to a former wife. The court there stated as its rationale: "`Alimony is an allowance for support which is made upon considerations of equity and public policy.'", and further commented: "Essentially, our decision in this case rests upon public policy. *211 The obligations of marriage cannot be thrown aside like an old coat when a more attractive style comes along."
[3] In Fisch, the court ordered that in determining whether judgments for accrued alimony could be collected by garnishment from the present earnings of a former husband who had subsequently remarried, the following rules apply:
(1) The subsequent marriage of a divorced husband does not relieve him of his obligation to pay to his former wife permanent alimony as required by the decree of divorce, and the former wife has, and continues to have, a fixed and prior claim upon his earnings for the payment of such alimony. This rule finds particular support on grounds of justice and reason where there is a minor child or children of the former marriage.
(2) Garnishment is a proper proceeding to enforce such claims.
(3) The subsequent marriage of the divorced wife does not, of itself, terminate her fixed and prior claim upon the earnings of her former husband, whether he remarries or not, nor does her subsequent marriage ipso facto terminate her right to enforce her claim by garnishment. This rule is likewise particularly applicable in cases where there is a minor child or children of the former marriage.
(4) Although the claim of the divorced wife upon the earnings of her former husband is a fixed and prior one, it is not in all cases to be enforced to the point of exhaustion of such earnings, for the present wife also has a claim thereon which is entitled to consideration. Upon a showing by the present wife of necessitous circumstances particularly where there is a minor child or children of the husband's subsequent marriage, the court may make such adjustment and allocation of the husband's earnings as may appear to it to be just and equitable in the premises.
(5) For the purpose of securing or protecting such rights as she may have in the earnings of her husband, the present wife may intervene in any proceeding which affects such earnings.
The only decision subsequent to Fisch dealing with the problem of the liability of a community for a judgment of a *212 previous spouse for alimony is Stafford v. Stafford, 10 Wn.2d 649, 117 P.2d 753 (1941). The court there expressly narrowed its determination to the issue of whether an award of a lump sum for alimony in a divorce decree became a lien upon real property subsequently purchased by community funds. The holding was that it did not become a lien. The court reasoned that the inability of the husband to alienate or convey community real property without the consent of the wife made it unavailable to creditors, whereas the husband's broader control over the personal property of the community did make it available to creditors.[1]Fisch was distinguished on this basis.
We do not believe the holding in Stafford applies here. The language there used excluded the present situation when the court stated: "Cases holding that, where a decree of divorce is entered and there are children, ... have no application here."
An additional reason for limiting the holding in Stafford has been suggested. It is based on a distinction expressly rejected in Schramm v. Steele, 97 Wash. 309, 166 P. 634 (1917). In Schramm the court overruled an earlier line of cases that predicated the ability of a creditor of the husband to reach community personalty, as distinguished from *213 community realty, on the basis that the husband's control of the personalty gave the husband an absolute proprietary right in the property.
In commenting on Stafford, Professor Harry M. Cross stated in Cross, Community Property Law in Washington, 15 La. L. Rev. 640 (1955), that:
the court held real property owned as community property of the husband and his second wife cannot be reached to satisfy the divorce decree awards, even though it had previously held that garnishment of the husband's salary was permissible. [Fisch] This may be a limited throwback to an abandoned distinction [Schramm] between the real and personal property rights and powers of the husband, but perhaps the dissenting judge had a better idea when he suggested that the second wife just took an "encumbered" husband.
(Footnote omitted.)
The public policy considerations which made the earnings of a remarried husband available for accrued alimony owed to a former wife appear by the language of both Fisch and Stafford to be even stronger considerations to be taken into account in making the husband's earnings and accumulations, when he remarries, available for satisfaction of an accrued child support judgment.
[4] The wife of appellant was not joined in this case. Failure to join her does not render the judgment invalid. A judgment against a married man is presumed to be a judgment against his marital community and it is unnecessary to join the wife as she is represented by her husband. LaFramboise v. Schmidt, 42 Wn.2d 198, 254 P.2d 485 (1953); Merritt v. Newkirk, 155 Wash. 517, 285 P. 442 (1930).
A judgment creditor may rely upon this presumption in executing his judgment against community property. This does not mean, however, the wife is denied her day in court. If she was not a party to the original action, she may *214 attack the judgment and raise any defenses she could have raised in the original action. Merritt v. Newkirk, supra.[2]
The judgment as entered by the trial court ran against appellant and the community composed of appellant and his wife without qualification. This judgment is modified by two factors. It is limited to those community assets which are the result of appellant husband's earnings and accumulations. Inasmuch as the specific nature of the community assets are not before us on review, we do not decide at this time whether the judgment should be broader. See Gardner v. Gardner, 95 Ariz. 202, 388 P.2d 417 (1964). It is further subject, upon a showing of necessitous circumstances by his present wife, to such adjustment and allocation of the appellant's earnings and accumulations as may appear to the trial court to be just and equitable.
The judgment of the trial court, as herein modified, is affirmed.
HOROWITZ, A.C.J., and WILLIAMS, J., concur.
NOTES
[1] RCW 26.16.030 "Community property defined Control of personalty. Property not acquired or owned[,] as prescribed in RCW 26.16.010 and 26.16.020[,] acquired after marriage by either husband or wife or both, is community property. The husband shall have the management and control of community personal property, with a like power of disposition as he has of his separate personal property, except he shall not devise by will more than one-half thereof."
RCW 26.16.040 "Conveyance of community realty Liens. The husband has the management and control of the community real property, but he shall not sell, convey or encumber, the community real estate, unless the wife join with him in executing the deed or other instrument of conveyance by which the real estate is sold, conveyed or encumbered, and such deed or other instrument of conveyance must be acknowledged by him and his wife: Provided, however, That all such community real estate shall be subject to the liens of mechanics and others for labor and materials furnished in erecting structures and improvements thereon as provided by law in other cases, to liens of judgments recovered for community debts, and to sale on execution issued thereon."
[2] Several early cases suggest the wife is bound by a judgment against her husband although she was not a party to the action. Leggett v. Ross, 14 Wash. 41, 44 P. 111 (1896); Lichty v. Lewis, 77 F. 111 (9th Cir., 1896); Johnson v. Richmond Beach Improvement Co., 63 F. 493 (C.C.N.D. Wash. 1894). But see Gustin v. Crockett, 44 Wash. 536, 87 P. 839 (1906); Sloane v. Lucas, 37 Wash. 348, 79 P. 949 (1905); McNair v. Ingebrigtsen, 36 Wash. 186, 78 P. 789 (1904); and Turner v. Bellingham Bay Lumber & Mfg. Co., 9 Wash. 484, 37 P. 674 (1894). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609997/ | 105 Ariz. 473 (1970)
467 P.2d 61
The STATE of Arizona, ex rel. Moise BERGER, Maricopa County Attorney, Petitioner,
v.
SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA, the Honorable William H. Gooding, Judge thereof, and Ernest Arthur Miranda, Real Party in Interest, Respondents.
No. 9962.
Supreme Court of Arizona, In Banc.
April 1, 1970.
*474 Moise Berger, Maricopa County Atty., by H. Charles Eckerman, Andrew Silverman, Deputy County Attys., Phoenix, for petitioner.
Lewis, Roca, Beauchamp & Linton, by John J. Flynn, Peter Baird, Phoenix, for respondents.
STRUCKMEYER, Vice Chief Justice.
This is an original proceeding pursuant to Rule 1, Rules of the Supreme Court for Special Actions, 17 A.R.S. At the conclusion of the hearing provided by Rule 7, we ordered that an alternative writ of prohibition issue. The alternative writ is made peremptory.
In criminal cause No. 41947, State v. Ernest Arthur Miranda, in the Superior Court of Maricopa County, State of Arizona, the defendant moved for and the Superior Court judge, the Honorable William H. Gooding, granted a motion to produce for inspection all police reports pertaining to the investigation of the defendant for the offense with which he was charged. The State does not here object to the production of those portions of police reports which relate to the prosecuting witness' identification of the defendant or pertain to a lineup in which Miranda appeared. It does object to indiscriminate disclosure of the State's work product.
We held in State ex rel. Robert K. Corbin v. Superior Court, 99 Ariz. 382, 409 P.2d 547, that:
"Reports compiled by law enforcement authorities in the course of their investigations constitute the work product of the state and, as such, are privileged from pretrial discovery."
We enlarge upon the work product rule in the subsequent case of State ex rel. Corbin v. Superior Court, 103 Ariz. 465, 445 P.2d 441 (1968), in which we said:
"A superior court may not permit the defense to examine the work product of law enforcement authorities except upon a showing that either (a) * * *, or (b) compelling and exceptional circumstances indicate to the court that to deny discovery would materially prejudice the defendant in the preparation of his defense."
Compelling and exceptional circumstances are obviously present where pretrial identification becomes a material issue. State v. Dessureault, 104 Ariz. 380, 453 P.2d 951, Opinion Supplemented, 104 Ariz. 439, 454 P.2d 981. But this does not mean that if the State's identification procedures are challenged, discovery may compel the production of records otherwise privileged. It was incumbent upon the trial judge to examine in camera the police reports and order that only those portions of the reports relevant to identification be inspected and copied.
LOCKWOOD, C.J., and UDALL, McFARLAND and HAYS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1338122/ | 145 Ga. App. 45 (1978)
244 S.E.2d 573
BITUMINOUS CASUALTY CORPORATION
v.
MOWERY.
54649.
Court of Appeals of Georgia.
Submitted October 11, 1977.
Decided January 30, 1978.
Rehearing Denied February 28, 1978.
Hutcheson & Hull, Ward D. Hull, for appellant.
Henning, Chambers & Mabry, Lawrence J. Hogan, Jones, Wilson & Tomlinson, John J. Jones, for appellee.
QUILLIAN, Presiding Judge.
Plaintiff Mowery brought an action against his employer's insurer, the Bituminous Casualty Corporation, for "no fault" benefits under the provisions of the Georgia Motor Vehicle Accident Reparations Act (Code Ann. Ch. 56-34B (Ga. L. 1974, p. 113 et seq., as amended)).
Mowery was a driver-salesman for the Dixie Bottle & Beverage Company. His duties required him to manually load his truck with 80-110 kegs of beer. Each keg of beer weighed approximately 180 pounds. He also had to unload the kegs and truck them to the purchaser's storage area and again stack them. He estimated that during a normal day he would lift approximately 40,000 pounds.
On September 22, 1975, while engaged in his employment, he was involved in a motor vehicle accident and was injured. As a result of those injuries he was treated at the Howell Industrial Clinic by Dr. Howell. After three visits to the clinic, Dr. Howell referred plaintiff to Dr. Moore for further treatment. Mowery testifies that his neck had gone stiff, a large knot had *46 developed on the back of his neck, and he had unbearable pain throughout his head, arms and legs. Mowery stated that while undergoing treatment, the pain kept getting worse, he developed numbness in his legs, and was not satisfied with the treatment he was receiving.
Dr. Moore submitted his medical report on the plaintiff to the defendant insurer on November 5, 1975. His report stated: "I think he has had an acute cervical strain which needs nothing other than conservative treatment with the use of cervical halter traction, heat and analgesics ... I find nothing to suggest any significant nerve involvement ... I think he should continue to use his traction and heat, and I have asked him to gradually increase his activities, and I plan to see him in two weeks time ... I frankly see no reason why we should not expect him to return to whatever kind of work he was doing in the past." (Emphasis supplied.) After receiving this report on November 5, the insurer sent the last check for lost wages to the plaintiff on the following day. Plaintiff stated that he submitted a bill to the insurer for a "cervical traction unit" which had been recommended by the doctor and it was denied. Plaintiff testified that because "they wouldn't pay for the traction unit" he retained an attorney who notified the insurer he was representing the plaintiff. Plaintiff's attorney submitted bills to the insurer for medical expenses incurred by Mr. Mowery on November 10.
On November 14, an adjuster for defendant insurer notified plaintiff's attorney: "It has been brought to our attention that the workmen's compensation carrier ... has in fact previously submitted payment for these accrued medical expenses. As you know there is nothing in the Georgia Vehicle Accident Reparations Act clearly stating what insurance carrier is primarily responsible for medical expenses accrued by injured claimants. Since Mr. Mowery's claim is being handled under workmen's compensation and since we are allowed to pay directly anyone rendering medical treatment, we feel no obligation to pay these expenses. We feel that the workmen's compensation carrier should be the primary source as always, if such coverage does apply to an injured party. We merely want to prevent an injured party from *47 profiting as a result of the vagueness of these new laws."
Mr. Mowery testified that because he was "hurting so bad" after he discontinued treatment from Dr. Moore, he consulted Dr. Wood, an orthopedic surgeon, for treatment of his condition. Dr. Wood stated that X-rays revealed "narrowing of the C6-7 intravertebral disc space, with both anterior and posterior hypertrophic spur formations." Dr. Wood entered Mr. Mowery into the hospital and performed an electromyogram and nerve conduction study. These tests were positive. A myelogram was performed on the defendant's spinal column which revealed "a narrowing of the dye fluid at the C6-7 level, a large posterior spur projecting back and appearing to compromise the roots and perhaps even the spinal cord at this level. The nerve roots at the C6-7 level were very pronounced, they were swollen, ... and this was very obvious on the myelogram."
Dr. Grady, a neurosurgeon, assisted Dr. Wood in these tests and they operated on Mr. Mowery on July 27, 1976, performing an "anterior cervical spine fusion." Both doctors, the neurosurgeon and the orthopedic surgeon, were of the opinion that the accident of September 22, 1975 could have been the precipitating cause of the plaintiff's injury and at no time during the period following the accident until after the operation was the plaintiff able to perform the duties required of him in his occupation.
The accident occurred on September 22, 1975. The insurer took a written accident report from Mr. Mowery on September 24. Defendant forwarded a "no fault" claim form to plaintiff on October 2 and it was returned on October 9, authorizing a release of medical information to the insurer. Plaintiff received payment of lost wages for five weeks but no medical payments were ever made by the insurer. The defendant's assistant claims manager admitted that the medical claims were denied "because it had been paid." On December 18, 1975, the insurer received a report from Dr. Moore that concluded: "I think this man is troubled more with nervousness and apprehension than he is with any significant physical disorder. I think return to work is probably the best possible medical treatment he can have. I have discussed *48 this with Dr. Howell. He is going to check with Dr. Howell before returning to work." However, defendant had stopped payments to the plaintiff on November 6. On January 2, 1976, the insurer forwarded a copy of Dr. Moore's report to plaintiff's attorney with the statement that "Dr. Moore release Mr. Mowery to perform usual work duties as of 10-27-75. I cannot see that we owe further payment of weekly benefits or medical."
Plaintiff then saw Dr. Wood on January 28. His attorney filed this action on February 24, 1976. After receiving the transcribed deposition of Dr. Wood, the defendants tendered the total amount remaining due under the policy, which had a $5,000 limit. The jury returned a verdict for the plaintiff for $4,235 medical "charges as directed," $1,984 attorney fees, and $7,956 punitive damages. The court made the verdict of the jury the judgment of the court. Defendant appeals. Held:
1. Defendant contends that the trial court erred in overruling their objection to medical treatment received by the plaintiff "subsequent to filing of the complaint." We do not agree. Evidence which is relevant is admissible. Code § 38-201. It is relevant if it relates to the questions being tried by the jury, either directly or indirectly, tends to illustrate or explain the issue, or aids the jury in arriving at the truth. Kalish v. King Cabinet Co., 140 Ga. App. 345, 346 (232 SE2d 86). Evidence of medical treatment for the injury resulting from the accident, which was the basis of this action, is relevant where it tends to show that plaintiff's claim for reparations was valid and his medical treatment necessary. Defendant's expert was of the opinion the plaintiff's claimed injury was "more ... nervousness and apprehension than ... any significant physical disorder." The same medical expert released the plaintiff to return to his duties, according to the defendant on "10-27-75." We find no legal reason to prohibit the testimony of a rebuttal witness who examined the plaintiff after an action was filed where his opinion is relevant to the cause of the injury, its effect, and even its medical resolution which occurred after the action was filed. It is clearly relevant to the controlling issue the validity of plaintiff's claim for compensation. See Graves v. Campbell, 35 Ga. App. 418 (1) (133 SE 267). *49 We find no error as to the first two enumerations.
2. In its third enumeration of error defendant claims it was error for the court to deny their "motion for directed verdict as to Count One." On the pages cited by defendant's brief, we found what was termed "a motion addressed to count 1." The basis of that motion was apparently whether or not the refusal of the defendant to pay the medical claims of the plaintiff was "reasonable." Counsel for defendant admits "the question of payment of medical expenses had become moot because it was agreed by the parties and the Court that the appellant owed the entire balance of `no fault' benefits as weekly income benefits for the weeks the plaintiff was disabled. [Cits. omitted.] The Appellant's motion was therefore addressed to the issue of penalty, attorney's fees and punitive damages contained in Count One."
The Code provides: "(b) Benefits required to be paid without regard to fault shall be payable monthly as loss accrues. Such benefits are overdue if not paid within 30 days after the insurer receives reasonable proof of the fact and the amount of loss sustained...In the event the company fails to pay each benefit when due, the person entitled to such benefits may bring an action to recover them, and the company must show that its failure or refusal to pay was in good faith ..." Code Ann. § 56-3406b (b) (Ga. L. 1974, pp. 113, 119; 1975, pp. 1202, 1208). Thus, the issue presented is whether the defendant's action in refusing to pay plaintiff's claim amounted to "good faith."
The argument articulated to the trial court was that this is a matter of first impression as to whether the "no fault" insurance carrier is required to pay the injured party medical benefits that have already been paid to the doctor by workmen's compensation. At the trial, defendant cited Progressive Cas. Ins. Co. v. West, 135 Ga. App. 1, 2 (217 SE2d 310), which held: "If there is any reasonable ground for contesting the claim there is no bad faith and it is error to award penalty and attorney's fees."
On appeal, defendant directs our attention to State Farm Mut. Auto. Ins. Co. v. Bass, 231 Ga. 269 (201 SE2d 444), wherein it was stated: "We consider the issue raised in this case to be one of first impression. Since the Court of Appeals divided 6-3 on the issue, and since this Court *50 granted an application for a writ of certiorari to resolve the issue, we hold that the insurer was legally justified in litigating the issue and cannot, as a matter of law, be liable for the statutory penalty for bad faith under Code Ann. § 56-1206." This is a difficult test to apply inasmuch as we cannot predetermine how many members of this court, if any, would dissent from our holding on the present issue, or whether the Supreme Court would or would not grant certiorari to resolve the question. Using the remaining criterion, we find this is a case of first impression. But, does this criterion alone "as a matter of law," forbid the imposition of sanctions authorized by Code Ch. 56-34B? We find that it does not.
Our Supreme Court held in Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 765 (12 SE 18), that "[t]he faith of the company should not be judged by the preliminary proofs or other ex parte affidavits, but by the case made at the trial. The preliminary proofs go to the liability, not to the faith of the company. Its duty to pay, without delay or resistance, would arise out of the fact of [the basis of the claim] and the reception of sufficient preliminary proofs, and that duty could not be made more obligatory by any additional information volunteered by the plaintiff before or after suit. In refusing payment after due demand according to the statute, the company would act at its peril, a peril neither increased nor diminished by the amount of information it might have or obtain, but only by the weakness or strength of its defence as manifested at the trial...A defence going far enough to show reasonable and probable cause for making it, should vindicate the good faith of the company ... On the other hand, any defense not manifesting such reasonable and probable cause, would expose the company to the imputation of bad faith and to the assessment of damages therefor under ... the code." This rule has been followed by both appellate courts for the past 87 years. See Reserve Life Ins. Co. v. Ayers, 217 Ga. 206, 213 (121 SE2d 649); Interstate Life &c. Ins. Co. v. Williamson, 220 Ga. 323 (138 SE2d 668); New York Life Ins. Co. v. Ittner, 59 Ga. App. 89, 103 (200 SE 522); Reserve Life Ins. Co. v. Peavy, 98 Ga. App. 268, 270 (105 SE2d 465).
"Bad faith within the meaning of the statute is any *51 frivolous or unfounded refusal in law or in fact to pay a loss according to the insurance contract after legal demand." Reserve Life Ins. Co. v. Ayers, 217 Ga. 206, 212, supra. "Should the insurance company show a reasonable and probable cause for refusing to pay, the company's good faith would be a complete defense to the action." Independent Life &c. Ins. Co. v. Thornton, 102 Ga. App. 285, 292 (115 SE2d 835). "Probable cause for refusing payment will negative the imputation of bad faith, and without such probable cause refusal will be at the company's peril." Interstate Life &c. Ins. Co. v. Hopgood, 133 Ga. App. 6, 9 (209 SE2d 703).
Accordingly, there are a number of issues to be decided before arriving at a solution. First, although Bass, supra, related to a showing of "bad faith" of an insurer under Code Ann. § 56-1206, where the burden of proof is on the insured (Ga. Farm Bureau Mut. Ins. Co. v. Calhoun, 127 Ga. App. 213 (2) (193 SE2d 35)), the test under Code Ann. § 56-1406b which is applicable here, is one of "good faith" of the insurer, and the burden of proof is on the insurer. Secondly, defendant contends that he has carried his burden of showing "good faith" by showing the absence of "bad faith" because he is litigating a "first impression" issue. Although this is persuasive argument, we are not convinced the solution is found in defendant's syllogism; i.e.: This is a "first impression" issue. Litigating a "first impression" issue is not, as a matter of law, "bad faith" (Bass, supra). Ergo, if it is not "bad faith," it must be "good faith."
In the instant case, Code Ann. § 56-3409b (a) (Ga. L. 1974, pp. 113, 120) specifically advises insurers that "[t]he benefits payable under this Chapter shall not be reduced or eliminated by any workmen's compensation benefits ... that the injured person is entitled to receive." The record is just as explicit that defendant's stated reason for denying the claim was: "Since Mr. Mowery's claim is being handled under workmen's compensation and since we are allowed to pay directly anyone rendering medical treatment, we feel no obligation to pay these expenses." The other reason given by the defendant was that they wanted "to prevent an injured party from profiting as a result of the vagueness of these new laws."
*52 We have not found the statutes referred to by the defendant to be vague or conflicting. They clearly authorize the claim denied by the defendant. With reference to the desire of the insurer to prevent the injured party from "profiting," we refer them to the "Collateral Source" rule recognized in the law of damages. See 25 CJS 1011, Damages, § 99 (1); and 7 ALR3d 516. We find no illegality in a claim authorized by a statute which permits an injured party to receive compensation for injuries from more than one source. The intent of the legislature in this instance is clear that they intended the injured party to receive compensation from any of the listed sources, and such collateral compensation would neither "reduce or eliminate" the "no-fault" benefits payable under Ch. 56-34B.
Defendant argues that the statute gave the insurer the option to pay a "no-fault payment ... directly to persons and firms" supplying medical care. Therefore, they contend that "the injured person is not necessarily `entitled to receive' medical expenses," as permitted by the statute. If this reasoning is accurate, where a doctor requires a patient to pay at the time of receipt of medical care, an insured would not be entitled to reimbursement from an insurer. We can not approve such an illogical result. The statute is clear and unequivocal. The "no-fault" benefits "shall not be reduced or eliminated by any workmen's compensation benefits ... the injured person is entitled to receive." In the instant case, the option of the insurer to pay the doctor had been negated by prior payment of workmen's compensation and the only remaining claimant was the insured. His entitlement was statutorily authorized and protected.
The action of the insurer was in direct violation of the statute. Sheppard, supra, also holds that "[i]n refusing payment after due demand ... the company would act at its peril... [But]... [a] defense going far enough to show reasonable and probable cause for making it, would vindicate the good faith of the company ..." 85 Ga. p. 765. Does the defense presented by the insurer, although it litigates an issue of first impression, vindicate the good faith of the company? We find that it does not. An example will suffice. If a statute, without qualification, requires an *53 insurer to respond to a claimant's proof of loss within 30 days, and the insurer intentionally refused to respond for 120 days, without cause or justification, can the insurer avoid the penalty provisions of the statute by concluding it is cheaper to litigate a "first impression" issue than pay the penalty for deliberately flouting the statutory requirement? We say no. We do not question the holding of Bass, supra, but interpret its holding citing the 6-3 division of this court on the issue presented, and the Supreme Court's grant of certiorari, as holding in effect, that it is not a showing of "good faith" per se for an insurer just to show the issue is one of "first impression." But, there must be "reasonable and probable cause" for the insurer litigating the "first impression" issue. They found reasonable and probable cause to litigate the first impression issue because this court divided 6 to 3 on it, and their court also wanted to determine the issue.
Sheppard, supra, provides the proper guidelines. Was there "reasonable and probable cause" for the insurer taking the action he took? If so, whether the defense was one of "first impression" or a defense asserted many times before, the defendant's good faith in litigating the question would be a bar to imposition of the statutory penalty.
Because the reason stated by the defendant insurer was in direct contravention of a clearly stated provision of a statute, we find reasonable and probable cause lacking. Thus, "the refusal for this reason was not in law adequate, and therefore constituted the refusal and `unconditional' refusal to pay," invoking the penalty provisions of the statute. Union Central Life Ins. Co. v. Trundle, 65 Ga. App. 553, 558 (15 SE2d 909); cf. Great Am. Ins. Co. v. Exum, 123 Ga. App. 515, 518 (181 SE2d 704); Nationwide Mut. Ins. Co. v. Ware, 140 Ga. App. 660, 663 (231 SE2d 556).
A second reason exists for our holding. The question of good or bad faith of the insurer is for the jury. Government Employees Ins. Co. v. Hardin, 108 Ga. App. 230, 235 (132 SE2d 513). Accord, Pearl Assur. Co. v. Nichols, 73 Ga. App. 452, 455 (37 SE2d 227); Key Life Ins. Co. v. Mitchell, 129 Ga. App. 192, 195 (198 SE2d 919). The *54 court charged the jury that if they found "the defendant insurance company had any reasonable ground for contesting the claim of [the plaintiff], then there was no absence of good faith on the part of the insurance company and [the jury] would not be authorized to award penalty and attorney fees." This charge was expressly agreed to by counsel for the defendant. The jury found for the plaintiff and awarded attorney fees and punitive damages. After verdict is rendered and it has the approval of the trial judge, the evidence in support thereof must be construed most strongly in favor of supporting the verdict absent error of law. Cotton v. John W. Eshelman & Sons, 137 Ga. App. 360, 365 (223 SE2d 757). We find no basis in law for reversing the judgment of the court.
3. For the reasons stated above, the trial court did not err in denying defendant's motion for a directed verdict as to Count 2 of the complaint. Peachstone Development Ltd. v. Austin, 133 Ga. App. 684 (212 SE2d 18).
4. Defendant's last enumeration of error alleges that the trial court erred in denying his motion for new trial. We have answered the enumerations as to the admissibility of evidence of medical treatment of the plaintiff after this action was filed in Division 1 above. We upheld the jury's finding that the defendant failed to show good faith in denying the plaintiff's claims in Division 2. We now turn to the issue of the lack of proof of all of plaintiff's medical claims.
Plaintiff, through his lawyer, requested payment of part of his medical claims. Mr. Jennings, Assistant Claims Manager for defendant, testified that he had received plaintiff's application for benefits, and the bill submitted through the attorney. He "supervised the claim" and admitted that he received the "further claim for medical expenses" which they denied.
As stated earlier, the insurer acted at his peril in giving the insured an unconditional refusal to pay, and "[s]uch refusal amounted to a waiver of the requirement of furnishing due proofs of disability as required by the policy." Union Central Life Ins. Co. v. Trundle, 65 Ga. App. 553, 558, supra; Gilley v. Glens Falls Ins. Co., 81 Ga. App. 71, 79 (58 SE2d 218); Government Employees Ins. Co. *55 v. Hardin, 108 Ga. App. 230, 234, supra; First of Ga. Ins. Co. v. Josey, 129 Ga. App. 14 (1) (198 SE2d 381). The refusal to pay the valid claim here waived proof required by the policy. Thus, the court did not err in denying defendant's motion for new trial.
5. The general grounds are without merit.
Judgment affirmed. Shulman and Banke, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1628757/ | 217 So. 2d 385 (1968)
253 La. 243
ST. CHARLES LAND TRUST, ACHILLE GUIBET et al., (Trustees Applying for Instructions)
v.
J. O. ST. AMANT, Ex-Officio Inheritance Tax Collector.
No. 49132.
Supreme Court of Louisiana.
December 16, 1968.
Rehearing Denied January 20, 1969.
*387 Norman J. Pitre, Luling, for defendant-appellee.
Jack P. F. Gremillion, Atty. Gen., John L. Madden, Asst. Atty. Gen., for amicus curiae.
Deutsch, Kerrigan & Stiles, Rene H. Himel, Jr., New Orleans, for plaintiffs-respondents.
SANDERS, Justice.
The trustees of the St. Charles Land Trust, holders of mineral interests in St. Charles Parish, applied to the Court for instructions pursuant to LSA-R.S. 9:2233.[1] They seek authority to transfer a deceased beneficiary's interest in the trust under the order of a court of California, where the beneficiary was domiciled, without ancillary succession proceedings or the payment of inheritance taxes in Louisiana.
The district court instructed the trustees that the decedent's beneficial interest was incorporeal, immovable property, subject to Louisiana inheritance taxes and transferable only pursuant to ancillary succession proceedings in this state.
The Court of Appeal reversed and instructed the trustees that the decedent's beneficial interest was incorporeal, movable property, exempt from Louisiana inheritance taxes and transferable upon the order of the California Court. Judge Chasez dissented from these instructions. La.App., 206 So. 2d 128.
On application of the Inheritance Tax Collector, we granted certiorari to review the judgment of the Court of Appeal. 251 La. 1058, 208 So. 2d 327. In this Court, the State of Louisiana through the Attorney General appeared as amicus curiae to support the position of the Inheritance Tax Collector.
The St. Charles Land Company, a Maryland corporation, owned mineral leases and servitudes on lands located in St. Charles Parish, Louisiana. An amendment to its Articles of Incorporation adopted by its shareholders provided that in the event of liquidation the directors could transfer the corporate property to a trust for the benefit of the shareholders. Acting under this authority, the liquidator transferred the mineral leases and servitudes to the trustees of the St. Charles Land Trust for the benefit of the former shareholders. The transfer in trust was made by an authentic act entitled "Transfer and Trust Instrument" dated April 2, 1962. The instrument designated the shareholders as beneficiaries for both principal and income in the same proportion as their former stock ownership.
Under the terms of the trust instrument, the sole purpose of the trust is to conserve the trust estate and distribute the income to the beneficiaries after the payment *388 of expenses. The trustees are prohibited from engaging in the development of mineral property or other business activities. They are also prohibited from acquiring new properties. The trustees can sell or dispose of trust property with the approval of 75% in interest of the beneficiaries. They can cancel an existing lease and grant a new lease with the approval of 662/3% in interest of the beneficiaries. The term of the trust is fixed as "the maximum period permitted by present or future laws of Louisiana" subject to the right of the trustees to terminate the trust at an earlier time.
The instrument further provides:
"The interests of the beneficiaries are classified as movable property, notwithstanding that the trust estate consists in whole or in part of immovable property; provided that the trustees shall have the right, but shall not be bound, to require, as a condition precedent to recognition of the validity or effectiveness of any transfer of the interest of a beneficiary, compliance in respect thereof with the formalities attendant on like transfers of immovable property."
Mrs. Ella E. Watkins, a beneficiary, died in California where she was domiciled on October 28, 1965. She left no forced heirs. In due course, a California court granted an order as to the Louisiana trust interest.
Louisiana levies a tax on inheritances. As to the scope of the tax, LSA-R.S. 47:2404 provides:
"Except to the extent of the exemptions provided in R.S. 47:2402 the tax shall be imposed with respect to all property of every nature and kind included or embraced in any inheritance legacy or donation or gift made in contemplation of death, including all immovable property and all tangible movable property physically in the State of Louisiana, whether owned or inherited by, or bequeathed, given, or donated to a resident or nonresident, and whether inherited, bequeathed, given or donated under the laws of this state or of any other state or country. The tax shall also be imposed with respect to all movable property, tangible or intangible, owned by residents of the State of Louisiana, wherever situated; provided that the tax shall not be imposed upon any transfer of intangible movable property owned by a person not domiciled in this state at the time of his death."
Under the above provision, the inheritance of a non-resident's immovable property, tangible or intangible, situated in this state is taxable. The inheritance of intangible movable property owned by a nonresident is immune from the tax.
The trustees assert that the beneficiary's interest in the trust, like that of a corporate stockholder, is an incorporeal movable, both under the terms of the trust instrument and Louisiana law. Hence, they reason, the interest is free from Louisiana inheritance taxes.
The opponents first assert the instrument relied on created no trust, but rather a partnership or agency. Alternatively, they contend the beneficiary's interest in the trust is an immovable under Louisiana law. Hence, they submit, the Louisiana inheritance tax law applies.
A trust is a relationship resulting from the transfer of title to property to a person to be administered by him as a fiduciary for the benefit of another. Former LSA-R.S. 9:1792(16); 1 Bogert, Trusts and Trustees, § 1, p. 1 (1951); 1 Scott on Trusts, § 2.3, pp. 37-38 (1967); Oppenheim, A New Trust Code for Louisiana, 39 Tul.L.Rev. 187, 197-198.
At the time of the execution of the instrument in contest, the applicable statute was the Trust Estates Act of 1938, as amended (former LSA-R.S. 9:1791-2212). In LSA-R.S. 9:1811, the statute provided:
"A trust shall be created when a person * * * in compliance with the provisions of this Chapter transfers the legal title to property to a trustee in *389 trust for the benefit of himself or a third person."
No particular language is required to create a trust. Former LSA-R.S. 9:1815. It suffices if the instrument as a whole reflects the intent to establish a trust relationship. When it can reasonably do so, the Court will construe the trust instrument to sustain the validity of the trust. See Lelong v. Succession of Lelong, La. App., 164 So. 2d 671 and 90 C.J.S. Trusts § 161h, p. 24.
Our examination of the instrument in contest here discloses that it transfers legal title of the property to the trustees, defines their duties and powers as fiduciaries, designates the shareholders as income and principal beneficiaries, and fixes the term of the trust as the maximum period permitted by law. The trustees appeared in the instrument to accept the trust.
The trust opponents contend the limitations on the trustees' powers thwarted the creation of a trust and converted the relationship to a partnership or agency. They refer to the limitations on the sale of trust property, cancellation of leases, and other business transactions. The sale of trust property and cancellation of leases, as we have noted, requires the approval of a designated percentage of the beneficiaries. Although the power limitations are substantial, we find nothing in the Trust Estates Law of 1938 to prohibit them. Specifically, LSA-R.S. 9:1941 provided that the duties and powers of the trustees could be fixed by the terms of the trust. The settlor, under LSA-R.S. 9:1841, could stipulate any conditions not prohibited by law.
The relationship has all the features of a trust and lacks certain essential features of both partnership and agency. A partnership is created by contract among the partners. LSA-C.C. Art. 2801. The beneficiaries were not parties to the trust instrument. Clearly, therefore, there can be no contract of partnership among them.
The contention that the relationship is a mandate, or agency, rather than a trust, is equally weak. Without attempting to enumerate all the distinctions between a trust and agency, we note that the trust instrument vests title to the property in the trustees in a relationship that is neither terminable at the will of the beneficiaries nor upon the death of any of them. In an agency, on the other hand, title to the property normally remains in the principal and the mandatary has the power to bind the principal by contract. LSA-C.C. Art. 3021. An agency terminates upon the death or at the will of the principal. LSA-C.C. Art. 3027.
We conclude, as did the Court of Appeal, that the instrument creates a trust.
The classification of the beneficiary's interest in the trust in terms of recognized property concepts raises difficult questions. This classification has been the subject of much controversy in the common law. See 1A Bogert, Trusts and Trustees, § 183, pp. 174-179 (1951) and 2 Scott on Trusts, § 130, pp. 1050-1062 (1967). To remove uncertainty, a number of states have enacted statutory provisions classifying the interest. See 1A Bogert, supra, § 184, pp. 179-182.
Louisiana trust laws contain no provision classifying the principal beneficiary's interest as movable or immovable. It is quite clear, however, that the trustees hold title to the property for the benefit of the income and principal beneficiaries. Furthermore, upon the death of a principal beneficiary, his interest vests in his heirs, subject to the trust. Former LSA-R.S. 9:1921. Hence, it may be said that the principal beneficiary's interest is an incorporeal right enforceable at law. But fixing title in the trustees does not resolve the question of whether the beneficiary's incorporeal right is movable or immovable. Since the trust laws are silent, a resolution of the question depends upon basic property concepts of the Louisiana Civil Code and related statutes.
Article 470 of the Louisiana Civil Code provides:
"Incorporeal things, consisting only in a right, are not of themselves strictly susceptible *390 of the quality of movables or immovables; nevertheless they are placed in one or the other of these classes, according to the object to which they apply and the rules hereinafter established."
Under Louisiana law, the mineral leases and servitudes held by the trustees are immovable property. LSA-C.C. Art. 471; LSA-R.S. 9:1105; Succession of Simms, 250 La. 177, 195 So. 2d 114. Since the trust is upon such property, the object to which the beneficial interest applies is immovable property. Hence, under the above code article, the right itself is immovable, unless the right is excepted from this classification by other code articles. LSA-C.C. Art. 470; Yiannopoulos, Civil Law of Property, §§ 60, 61, pp. 178-182 (1966); 2 Aubry & Rau, Property, § 165 (20), p. 35 (English translation by the Louisiana State Law Institute).
Louisiana Civil Code Article 471 provides that a usufruct of immovable things, a servitude on an immovable estate, and an action for the recovery of an immovable estate or an entire succession "are considered as immovable from the object to which they apply." The language of this article and its history leave no doubt that the immovable rights mentioned are illustrative and not exclusive. See Yiannopoulos, supra, § 61, pp. 180-181 and the authorities cited. For this reason, other rights may be classified as immovable when they apply to an object that is immovable.
The trustees contend, however, that the trust interest is classified as a movable by Article 474 of the Louisiana Civil Code. That article declares movable "shares or interests in banks or companies of commerce, or industry or other speculations, although such companies be possessed of immovables."
The provision creates a special exception to the general rule of Article 470. The exception originated in Article 529 of the Code Napoleon. The codal language refers to shares or interests in business organizations, such as corporations or partnerships. Yiannopoulos, supra, § 66, pp. 194-195; 2 Aubry & Rau, supra, § 165(31), pp. 39-40; 1 Planiol, Traite Elementaire De Droit Civil No. 2260, pp. 335-336 (English Translation by the Louisiana State Law Institute). The trust is a unique institution of Anglo-American origin. It has a wide variety of uses in making dispositions of property, especially in estate planning. It may contain any conditions not forbidden by law or public policy. See, generally, Rubin and Rubin, Louisiana Trust Handbook (1968) and 1 Scott, supra, § 1, pp. 3-5. Based upon any type of property susceptible of private ownership, a trust can be created either by testament or inter vivos transfer. Although we respect analogy in codal application, we are of the opinion the beneficial interest in the trust does not fall within the exception of Article 474.
Finally, the trustees rely on the clause of the trust instrument itself which classifies the beneficiary's interest as movable. It is true, as contended by the trustees, that such clauses are recognized and enforced in some common law jurisdictions. In essence, these clauses are applications of the doctrine of equitable conversion. See 1A Bogert, supra, § 185, pp. 182-184. We find no sound basis in Louisiana law for enforcing such a clause against the State of Louisiana. To give it effect here, moreover, would permit the parties to a trust instrument to upset long-established, legislative property classifications to the prejudice of state tax agencies, though the State is a stranger to the instrument.
We hold that the principal beneficiary's interest in the trust is an incorporeal immovable for Louisiana inheritance tax purposes.
Recognizing its interest in protecting the rights of local creditors and in assuring proper administration of its tax laws, Louisiana has for many years required ancillary probate proceedings when a non-resident dies leaving property situated in the state. See LSA-C.C.P. Book VI, Title IV: *391 Ancillary Probate Procedure (Introduction); Bender v. Bailey, 130 La. 341, 57 So. 998; Succession of De Roffignac, 21 La.Ann. 364; and Heirs of Henderson v. Rost, 15 La.Ann. 405.
Since we have determined that the decedent owns immovable property situated in Louisiana, it follows that the codal provisions relating to ancillary probate procedure apply. LSA-C.C.P. Arts. 2811, 3401.
For the reasons assigned, the judgment of the Court of Appeal is reversed, and the judgment of the district court is reinstated and made the judgment of this Court.
FOURNET, C.J., concurs in the result.
BARHAM, Justice (dissenting).
The majority properly concludes that the instrument under consideration created a valid trust. The question for resolution is the nature of the principal beneficiary's interest in that trust. For more precise resolution is the query: Is the quality of the beneficiary's interest in the trust governed by the nature of the property owned by the trust?
Civil Code Articles 470, 471, 474, and 475 determine the quality of the beneficiary's interest. Article 470 provides that incorporeal things take on the quality of movables or immovables "* * * according to the object to which they apply and the rules hereinafter established". The majority correctly finds that Article 471 is merely illustrative and not exclusive in enumerating certain incorporeable immovables. However, the majority contends that Article 474, which says that "Things movable by the disposition of the law, are such as * * *", is a special exception to Article 470. This is error, for Article 474 by its very language is merely illustrative of incorporeal movables and not exclusive, just as Article 471 is illustrative but not exclusive of incorporeal immovables. Yiannopoulos, 1 Louisiana Practice (Civil Law of Property), § 66, p. 193.
The majority has failed to apply what I believe to be a most important codal provision in determining the qualities of movables and immovablesi.e., Article 475, which states: "All things corporeal or incorporeal, which have not the character of immovables by their nature or by the disposition of the law, according to the rules laid down in this title, are considered as movables." It is to be seen, then, that under Article 475 all incorporeal things are movables which are not specifically identifiable as immovables from the nature of the object to which they apply or not designated by law as immovables. In short, under our law movables form the residual category. Yiannopoulos, op. cit. supra, § 64, p. 189.
The incorporeal interest of the beneficiary is not one of those immovables enumerated in Article 471 (usufruct and use of an immovable, servitude on an immovable, action to recover an immovable or the entirety of a succession), nor is it analogous to those others not named but included by implication (ownership, habitation, etc., of an immovable). If the beneficiary's interest is not an immovable according to the object to which it applies, as indicated by Article 471, and if special disposition or fiction of law has not classified it immovable, this court is obligated to conclude under Article 475 that it is an incorporeal movable.
The majority has erred by disregarding the legal personality of the trust and by treating the mineral leases owned by the trust as the "object" of the beneficiary's interest. The majority has destroyed the entity of the trust, which is the only and real "object" of the beneficiary's interest, and has incorrectly treated the mineral leases owned by the trust as the "object" of the beneficiary's interest. It is true that the ownership of the mineral leases which is the right vested in the trust is an incorporeal immovable right, but this is not the right vested in the beneficiary. The majority has found her right to be "* * an incorporeal right enforceable at law".
*392 The beneficiary does not own the mineral leases, nor does she possess any other immovable right in them while the trust exists.
I believe this reasoning alone adequately fixes her interest as an incorporeal movable, but this conclusion is buttressed by the use of analogy in the application of Article 474. That article, being merely illustrative of incorporeal movables, necessarily includes the beneficiary's interest in a trust, which is analogous to "* * * shares or interests in banks or companies of commerce, or industry or other speculations, although such companies be possessed of immovables depending upon such enterprises".[*]
Yiannopoulos says: "* * * Although shares or interests in various associations could be regarded as either movable or immovable property depending on the type of property owned by the association, Article 474 indicates that these shares or interests are movable `although such companies be possessed of immovables.' * * *" Yiannopoulos, op. cit. supra, § 66, p. 194. He further points out that in Louisiana all associations are to be considered as included within Article 474. In the absence of recognition of trusts in our civil law sources as well as in our own law at the time of the adoption of this article, obviously trusts could not have been included by name, but just as obviously trusts are meant to be included by analogy.
I conclude that the interest of the beneficiary in the trust is an incorporeal movable right, and that the character of the property owned by the trust does not affect the nature of that interest. I respectfully dissent.
Rehearing denied.
BARHAM, J., dissents from the refusal of a rehearing.
NOTES
[1] LSA-R.S. 9:2233 is a procedural provision of the Louisiana Trust Code (1964) applicable to preexisting trusts. See LSA-R.S. 9:2252, as amended.
[*] Article 474 continues: "* * * Such shares or interests are considered as movables with respect to every associate as long only as the society is in existence; but as soon as the society is dissolved, the right, which each member has to the division of the immovables belonging to it, produces an immovable action." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1343966/ | 168 Ga. App. 639 (1983)
309 S.E.2d 911
ABRUZZINO et al.
v.
FARMERS' & MERCHANTS' BANK.
67266.
Court of Appeals of Georgia.
Decided October 26, 1983.
John C. Grabbe IV, for appellants.
Herbert D. Shellhouse, for appellee.
DEEN, Presiding Judge.
Appellee Farmers' and Merchants' Bank of Morgantown, West Virginia (F&M), brought an action against appellants William and Rebecca Abruzzino for principal and interest due on a promissory note for $162,973.75 executed by husband and wife in August 1977 and representing renewal of a loan made by F&M in 1975. As collateral on the original note the Abruzzinos pledged a $100,000 F&M savings account in Mr. Abruzzino's name, and subsequently pledged some land as additional collateral. The loan proceeds allegedly were used to pay an indebtedness of Marion Square Corp., a shopping center development firm of which Mr. Abruzzino was president and chief stockholder.
The Abruzzinos moved to the Atlanta area in late 1979 and were *640 sued in the State Court of Fulton County. After denial of the Abruzzinos' motion for a continuance to obtain the deposition of a bank official, the case proceeded to trial and both parties moved for directed verdicts. The court granted F&M's motion and denied that of appellants. The Abruzzinos argued at trial and on appeal that the bank officer who had made the loan had done so for the purpose of ensuring that the building contractor, a bank stockholder, was paid off; and had assured the Abruzzinos that the bank would make no effort to collect on the loan. They further contended both at trial and on appeal that, since the loan was obtained for the purpose of paying a West Virginia contractor for work done on a West Virginia shopping center being developed by Abruzzino through one of his multiple corporate entities, the Georgia court should have applied West Virginia law. Enumerated as error are (1) plaintiff's alleged failure to comply with Rule 43 of the Georgia Civil Practice Act, OCGA § 9-11-43 (c) (Code Ann. § 81A-143), regarding notice of foreign law; (2) the court's denial of Mrs. Abruzzino's motion for a directed verdict because she allegedly had received no consideration for her signature on the note and had been fraudulently induced to sign it; and (3) the trial court's sustention of plaintiff's objection to the defendants' seeking to enter into evidence documents pertaining to transactions of defendants' various West Virginia enterprises. Held:
1. The appellants contend that because the contract between the parties was executed in West Virginia, the law of that state governs the rights and liabilities of the parties; that the appellee failed to give notice of its reliance on the foreign law (and indeed did not rely on such); and that the appellee thus had no legal basis for relief in this case. We cannot accept the appellants' logic.
OCGA § 9-11-43 (Code Ann. § 81A-143) provides that "[a] party who intends to raise an issue concerning the law of another state or of a foreign country shall give notice in his pleadings or other reasonable written notice." Absent proper introduction and proof of the law of a sister state, however, it is presumed that such foreign law is the same as that of Georgia. Glover v. Sink, 230 Ga. 81 (195 SE2d 443) (1973); Benefield v. Harris, 143 Ga. App. 709 (240 SE2d 119) (1977). The appellee's failure to plead and prove West Virginia law did not nullify its cause of action; it merely resulted in the application of Georgia law, due to the above-mentioned presumption. If appellants wished the trial court to apply West Virginia law, the burden of pleading the foreign law was theirs, not appellee's. Souchak v. Close, 132 Ga. App. 248 (207 SE2d 708) (1974). Compare Plant v. Trust Co. of Columbus, 164 Ga. App. 387 (297 SE2d 37) (1982); Superior Fertilizer &c. v. Warren, 162 Ga. App. 595 (292 SE2d 430) (1982). The appellants' attempt to identify a conflict of laws problem is without merit.
*641 2. Likewise without merit is the second enumeration. It makes no difference whether Mrs. Abruzzino was actively involved in her husband's business, or whether she knew the exact nature of the document to which she had affixed her signature at her husband's request. See Citizens Bank v. Wix, 154 Ga. App. 249 (267 SE2d 856) (1980); Berry v. Atlas Metals, 154 Ga. App. 437 (263 SE2d 179) (1979); Ameagle Contractors v. Va. Supply &c. Co., 144 Ga. App. 477 (241 SE2d 594) (1978). The law is clear that she was chargeable with such knowledge, whether or not she actually knew the terms or import of the promissory note. Venable v. Payne, 138 Ga. App. 237 (225 SE2d 716) (1976).
Moreover, there is evidence of record (preeminently, appellants' own testimony) that the bank officer who allegedly fraudulently induced her to sign the note never had any dealings with her at all. Furthermore, contrary to appellants' allegations, there is absolutely no competent evidence that the bank officer made the loan only for the purpose of ensuring that a bank stockholder would be paid, or that he made false and misleading representations to the effect that the bank would never attempt to collect. A showing of more than a scintilla of circumstances is necessary to get a case before a jury. McDaniel v. Green, 156 Ga. App. 549 (275 SE2d 124) (1980).
3. The trial court correctly ruled that the documents appellants sought to have admitted were irrelevant to a determination of the issues in the instant case.
4. Appellee has moved for damages in the amount of ten percent (10%) of the trial court's judgment on remittitur, contending that the appeal is totally frivolous and was taken solely for delay. We cannot agree with appellee's contentions, however. The mere fact that the theoretical bases of appellants' arguments are erroneous as a matter of law does not mean ipso facto that appellants were not convinced of the validity of those theories. We therefore deny appellee's motion for additional damages.
Judgment affirmed. Banke and Carley, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1000904/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-1778
ANGELA G. MCKENZIE,
Plaintiff - Appellant,
versus
SETA CORPORATION; MICHAEL C. MONTAVON, P.C.,
Defendants - Appellees.
No. 99-1933
ANGELA G. MCKENZIE,
Plaintiff - Appellee,
versus
MICHAEL C. MONTAVON, P.C.,
Defendant - Appellant,
and
SETA CORPORATION,
Defendant.
No. 99-1934
ANGELA G. MCKENZIE,
Plaintiff - Appellee,
versus
SETA CORPORATION,
Defendant - Appellant,
and
MICHAEL C. MONTAVON, P.C.,
Defendant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Chief
District Judge. (CA-99-381-A)
Submitted: February 16, 2000 Decided: February 24, 2000
Before MICHAEL, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Wendu Mekbib, LAW OFFICES OF WENDU MEKBIB, Vienna, Virginia, for
Appellant. R. Mark Dare, HAZEL & THOMAS, P.C., Falls Church,
Virginia; J. Jonathan Schraub, T. Scott McGraw, SCHRAUB & COMPANY,
CHTD., McLean, Virginia, for Appellees.
2
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
3
PER CURIAM:
In No. 99-1778, Angela G. McKenzie appeals from the district
court’s order dismissing her civil action pursuant to Fed. R. Civ.
P. 12(b)(6). In Nos. 99-1933 and 99-1934, the Defendants in the
underlying action appeal from the district court’s order denying
relief on their motions for sanctions, Fed. R. Civ. P. 11. Our
review of the record and the district court’s opinions discloses no
reversible error and no abuse of discretion. Accordingly, we af-
firm on the reasoning of the district court. See McKenzie v. SETA
Corp. No. CA-99-381-A (E.D. Va. May 18, 1999; June 15, 1999).* 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
*
Although the district court’s orders are marked as “filed”
on May 17, 1999, for No. 99-1778, and June 11, 1999 for Nos. 99-
1933/1934, the district court’s records show that these orders were
entered on the docket sheet on May 18, 1999, for No. 99-1778 and
June 15, 1999, for Nos. 99-1933/1934. Pursuant to Rules 58 and
79(a) of the Federal Rules of Civil Procedure, it is the date that
the judgment or order was entered on the docket sheet that we take
as the effective date of the district court’s decision. See Wilson
v. Murray, 806 F.2d 1232, 1234-35 (4th Cir. 1986).
4 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1913387/ | 705 So.2d 301 (1998)
John Edward ANDERSON, Plaintiff-Respondent,
v.
Cynthia C. OLIVER, Liberty Mutual Insurance Company and Assicurazioni Generali S.P.A., Defendant-Relator.
Nos. W97-721, 97-1102.
Court of Appeal of Louisiana, Third Circuit.
January 7, 1998.
Rehearing Denied February 25, 1998.
John Allen Jeansonne, Jr., Lafayette, for John Edward Anderson.
Marvin Huber Olinde, Baton Rouge, for Cynthia C. Oliver, et al.
Thomas Reginald Hightower, Jr., Lafayette, for Assicurazioni Generali, S.P.A.
Steven M. Lozes, New Orleans, for Vesta Insurance Co. in No. W97-721.
Thomas Reginald Hightower, Jr., Lafayette, Steven M. Lozes, New Orleans, for Vesta Insurance Co. in No. 97-1102
Before DECUIR, PETERS and GREMILLION, JJ.
PETERS, Judge.
The plaintiff, John Anderson, brought this suit to recover damages for physical injuries he sustained on October 6, 1994, in Acadia Parish, Louisiana, when he was struck by an automobile being driven by Cynthia Oliver. In his suit, Mr. Anderson named Ms. Oliver, Liberty Mutual Insurance Company (Liberty Mutual), Assicurazioni Generali S.P.A. (Generali), and Vesta Fire Insurance Company (Vesta) as defendants. Liberty Mutual is Ms. Oliver's liability insurance carrier, and the other two companies provide uninsured/underinsured (UM) insurance coverage for the vehicle Mr. Anderson was driving at the time of the accident. In the proceedings before this court, Generali seeks reversal of a partial summary judgment rendered by the *302 trial court to the effect that Louisiana law governs interpretation of its insurance policy.
There is no dispute as to the facts which relate to this motion as presented to the trial court. Mr. Anderson sustained his injuries in an accident which occurred on Interstate Highway 10 (I-10) in Acadia Parish on October 6, 1994. On that day, Anderson, who was then a Texas resident,[1] was driving a 1987 Peterbilt tractor-trailer rig owned by Eddie Waldrup of Houston, Texas, and leased by Mr. Waldrup to Morgan Southern, Inc. (Morgan Southern), a Georgia common carrier. Mr. Anderson was traveling west on I-10 when he pulled his rig onto the shoulder of the highway to check his load. As he exited his vehicle, Ms. Oliver's vehicle, which was also traveling west on I-10, struck him.
Generali had issued a policy of insurance covering the tractor-trailer rig, which provided for liability limits of $1,000,000.00 and UM limits of $40,000.00. Morgan Southern had purchased the Generali policy through an insurance agency with offices in North Carolina and Georgia. The policy complied with all requirements of Georgia law, including Georgia's requirements concerning selection of UM benefits. Additionally, the negotiation, selection of benefits, issuance, and delivery of the policy occurred entirely outside the State of Louisiana. Neither Morgan Southern nor the insurance agency that issued the policy maintained any offices, terminals, or employees in Louisiana. All vehicles owned by Morgan Southern were registered or garaged in states other than Louisiana, and other than the fortuitous event of the accident occurring in Louisiana, Morgan Southern had no Louisiana connection whatsoever.
Sometime after the suit was filed, Liberty Mutual paid its policy limits, and it was dismissed from the suit. Mr. Anderson filed a motion for partial summary judgment, requesting that the trial court apply Louisiana law, and not Georgia law, in determining the UM coverage afforded Mr. Anderson under the Generali insurance policy. Relying on this court's decision in Trautman v. Poor, 96-627 (La.App. 3 Cir. 12/11/96), 685 So.2d 516, the trial court granted the motion. In granting the motion, the trial court further concluded that the Generali policy did not comply with the written waiver requirements of La.R.S. 22:1406(D)(1)(a)(i) and (ii). Because the policy did not comply with those provisions, the trial court rendered judgment increasing the UM limits available to Mr. Anderson to $1,000,000.00. Generali seeks reversal of this judgment.
Generali both filed for supervisory writs to this court and appealed, requesting review of the decision of the trial court on the partial summary judgment. Generali presents two issues for our review. First, Generali asserts that the trial court erred in applying this court's decision in Trautman to conclude that Louisiana law should apply to the interpretation of Generali's liability for UM benefits and in failing to apply the Louisiana conflict-of-laws provisions to the interpretation of the Generali policy. Generali's second assertion is that La.R.S. 22:1406(D)(1)(a)(iii) is unconstitutional because it violates the prohibitions against the impairment of contracts, the Commerce Clause of the United States Constitution, substantive and procedural due process, and the Full Faith and Credit Clause of the United States and Louisiana Constitutions.
La.R.S. 22:1406(D)(a)(i) provides in part that "[n]o automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle designed for use on public highways and required to be registered in this state" unless the policy makes available to the named insured under the policy UM coverage in an amount equal to the liability limits. Further, "[s]uch coverage need not be provided ... where the named insured has rejected the coverage or selected lower limits...." The rejection of UM coverage or selection of lower UM limits must be made in writing on a form provided by the insurer. La.R.S. 22:1406(D)(1)(a)(ii). By Acts 1987, No. 444, § 1, the Louisiana Legislature attempted to expand the Louisiana UM requirements to policies other than those in-state situations *303 contemplated in La.R.S. 22:1406(D)(1)(a)(i). That Act added the following language to the Louisiana Insurance Code: "This Subparagraph and its requirement for uninsured motorist coverage shall apply to any liability insurance covering any accident which occurs in this state and involves a resident of this state." La.R.S. 22:1406(D)(1)(a)(iii) (emphasis added). The Generali policy contains no written rejection/selection form as required by these provisions of Louisiana law.
Acts 1987, No. 444, § 1, was added in response to the supreme court's decision in Snider v. Murray, 461 So.2d 1051 (La.1985). In Snider, the supreme court concluded that La.R.S. 22:1406(D)(1) did not purport to affect policies written and delivered in other states covering vehicles garaged or registered elsewhere, even if such vehicles were involved in Louisiana accidents with Louisiana residents. In reaching that conclusion, the supreme court commented that "[p]erhaps the Legislature could have enacted a law which under modern conflict of laws theories would affect insurance policies written in other states when the accident occurs in Louisiana, but the Legislature did not include such a provision in La.R.S. 22:1406(D)(1)." Id. at 1053-54. Acts 1987, No. 444, § 1, was the legislature's attempt to enact such a law.
Since the addition of La.R.S. 22:1406(D)(1)(a)(iii), this court has issued three opinions concerning its effect on an out-of-state UM policy, including the decision in Trautman. We first addressed the issue in Willett v. National Fire & Marine Insurance Co., 594 So.2d 966 (La.App. 3 Cir.), writ denied, 598 So.2d 355 (La.1992). In Willett, two New Hampshire residents were injured in an accident which occurred after the effective date of Acts 1987, No. 444, § 1. Their automobile, a borrowed Louisiana vehicle, was rear-ended in Lake Charles, Louisiana, by a vehicle driven and owned by Louisiana residents. The New Hampshire residents sought to recover UM benefits under an Allstate insurance policy insuring a vehicle which belonged to one of the plaintiffs and which was principally garaged and registered in New Hampshire. The policy had been written, issued, and delivered in New Hampshire, and contained a clause, authorized by New Hampshire law, which provided Allstate a credit for its UM coverage if the liability coverage was equal to or exceeded the UM limits. The liability coverage of the Louisiana residents exceeded the Allstate UM limits, and, based on this clause, Allstate sought a release from any responsibility in the accident. The trial court granted a summary judgment to the effect that New Hampshire law governed this policy and dismissed the plaintiffs' claims against Allstate.
This court concluded that Acts 1987, No. 444, § 1, had the effect of overruling the supreme court's decision in Snider. However, we did not automatically apply Louisiana law simply because Louisiana residents were involved in the accident and the accident occurred in the state. We first performed a choice-of-law analysis based on the jurisprudence available at that time.[2] After analyzing the existing jurisprudence, this court reached the following conclusions:
We find in this case that Louisiana's interests outweigh those of New Hampshire. The accident happened in Louisiana and involved the owner of the eighteen wheeler and its driver, both of whom were residents of Louisiana. As defendants, their interests could be adversely affected by a New Hampshire construction of the underinsured motorist provision by limiting the fund from which the plaintiffs' claims are to be satisfied. Moreover, other economic interests are involved. For example, the cost of medical care provided in Louisiana for the injured parties is generally more likely to be paid if there is sufficient insurance.
These interests are consistent with Louisiana's long-time policy of requiring uninsured and underinsured motorist protection. *304 By Act 444 of 1987, the legislature reaffirmed Louisiana's public policy for the financial protection of victims of injuries in Louisiana accidents caused by the uninsured and underinsured motorist. Louisiana law does not make Louisiana residence a prerequisite to the application of its uninsured motorist laws for the benefit of a party injured in this state. It requires only that Louisiana residents be involved. We conclude that, as between Louisiana and New Hampshire in this case, the interests and the policies of Louisiana would be most seriously impaired if its law is not applied to the issue of whether Allstate's underinsured motorist coverage is available. Louisiana is the choice of law.
Id. at 970 (emphasis added).
In Holcomb v. Universal Insurance Co., 93-1424 (La.App. 3 Cir. 6/1/94), 640 So.2d 718, writ denied, 94-1740 (La.10/7/94), 644 So.2d 643, this court had its second opportunity to address the application of La.R.S. 22:1406(D)(1)(a)(iii) to an out-of-state UM policy. In Holcomb, three Arkansas residents were injured when their vehicle was struck in Rapides Parish, Louisiana, by a Louisiana licensed and registered vehicle which was owned by a Louisiana resident and being driven by another Louisiana resident. The vehicle occupied by the Arkansas residents was licensed, registered, and garaged in Arkansas. The Arkansas residents settled their claims against the Louisiana residents and their liability insurer and reserved their rights to recover UM benefits from Universal Insurance Company (Universal), the insurer of the Arkansas vehicle. The Universal policy had been issued and delivered in Arkansas. However, unlike Louisiana, Arkansas's insurance law separated UM coverage into two different components: uninsured motorist coverage and underinsured motorist coverage. The Universal policy contained only uninsured motorist coverage as the underinsured motorist coverage had been rejected. The trial court, based solely on La.R.S. 22:1406(D)(1)(a)(iii), concluded that Louisiana law, and not Arkansas law, governed the interpretation of the substance of the policy, thereby making available underinsured motorist benefits to the plaintiffs.
This court reversed the trial court and found that Arkansas law applied to the interpretation of the policy. Our decision was based on a conflict-of-laws analysis pursuant to the then new conflict-of-laws provisions, La.Civ.Code art. 3515, et seq., which became effective January 1, 1992, and which we concluded were applicable to this accident. This court concluded that La.R.S. 22:1406(D)(1)(a)(iii) was not applicable because "although the accident occurred [in Louisiana] and involved a Louisiana resident, the latter is totally unaffected by our decision." Id. at 722. We further concluded: "Were the circumstances otherwise, i.e., if a Louisiana resident were directly affected, this fact would not necessarily dictate the application of Louisiana law but would be pertinent to a determination of the choice of law to be applied." Id. (emphasis added). This decision was followed by our most recent pronouncement on the issue in Trautman, 685 So.2d 516.
In Trautman, a Tennessee resident driving her own vehicle which was licensed, garaged, and registered in Tennessee, was involved in a St. Martin Parish, Louisiana accident with a vehicle owned by a Louisiana resident and operated by another Louisiana resident. The Tennessee resident's vehicle was insured through a policy issued by Victoria Fire and Casualty Company (Victoria). The policy, which was issued in Tennessee, provided for UM coverage but also contained a clause excluding UM coverage "if the insured failed to obtain prior consent from it before settling with the primary parties." Id. at 517. She settled her suit against the Louisiana tortfeasor without obtaining Victoria's prior consent, and Victoria denied coverage based upon her failure to obtain that consent. The trial court granted the plaintiff's motion for partial summary judgment, concluding that Louisiana law, and not Tennessee law, applied to the interpretation of the policy and that the consent-to-settle clause was unenforceable in this accident. This court affirmed the trial court but, unlike Willett and Holcomb, concluded that La.R.S. 22:1406(D)(1)(a)(iii) was applicable without first considering conflict-of-laws principals. We did so because of *305 the language of La.Civ.Code art. 14, the introductory Article concerning conflict of laws, which states: "Unless otherwise expressly provided by the law of this state, cases having contacts with other states are governed by the law selected in accordance with the provisions of Book IV of this Code." (Emphasis added). This court concluded that La.R.S. 22:1406(D)(1)(a)(iii) expressly provided that it was to be applicable regardless of the conflict-of-laws provisions of the Louisiana Civil Code. In the court's opinion, if the accident occurred in the state and involved a resident of the state, Louisiana law applied to the interpretation of UM benefits.
While we do not disagree with the result in Trautman, we do disagree with the method of analysis. The very first sentence in the Willett opinion correctly states that the issues presented make these cases conflict-of-laws cases. Willett, 594 So.2d 966. Thus, the first thing to be determined is which state's law is applicable. That is what was done in Willett and Holcomb and is the method of analysis which should have been applied herein. See also Shell Oil Co. v. Hollywood Marine, Inc., 97-106, 97-611 (La.App. 5 Cir. 10/15/97), 701 So.2d 1038; Sentilles Optical Servs., Div. of Senasco, Inc. v. Phillips, 26,594 (La.App. 2 Cir. 3/1/95), 651 So.2d 395.
The general rule concerning determination of which state's law is applicable to a conflicts situation is found in La.Civ.Code art. 3515, which reads:
Except as otherwise provided in this Book, an issue in a case having contacts with other states is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in the light of: (1) the relationship of each state to the parties and the dispute; and (2) the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state.
More specifically, in relation to conventional obligations, La.Civ.Code art. 3537 provides:
Except as otherwise provided in this Title, an issue of conventional obligations is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in light of: (1) the pertinent contacts of each state to the parties and the transaction, including the place of negotiation, formation, and performance of the contract, the location of the object of the contract, and the place of domicile, habitual residence, or business of the parties; (2) the nature, type, and purpose of the contract; and (3) the policies referred to in Article 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multistate commercial intercourse, and of protecting one party from undue imposition by the other.
The motion for partial summary judgment before us was filed and disposed of by the trial court before the effective date of the 1997 legislative changes to La.Code Civ.P. art. 966,[3] and the decision of the trial court should be considered in light of the provisions of that Article in effect at the time of that decision. While La.Code Civ.P. art. 966[4] had also been amended in 1996, this court had previously concluded that only the persuasive nature of the motion was changed by that amendment and that it did not change the requirement that a summary judgment should only be rendered absent genuine issues as to material fact, and where the mover is entitled to the judgment as a matter of law. Stephenson v. Van Vleit, 96-1407 (La.App. 3 Cir. 4/30/97), 693 So.2d 858, writ denied, 97-1431 (La.9/19/97), 701 So.2d *306 174. While we find that there are no genuine issues as to material fact, we also conclude that the trial court erred as a matter of law in applying the Trautman analysis. In applying the Holcomb analysis to the facts before us, we conclude that as a matter of law, Georgia law applies to the interpretation of the Generali policy.
As previously stated, the UM provisions of the Generali policy complied with Georgia law, and the negotiation, selection of benefits, issuance, and delivery of the policy occurred entirely outside the State of Louisiana. Additionally, neither the insured nor the insurance agency which issued the policy maintained any offices, terminals, or employees in Louisiana, and, other than the location of the accident, Louisiana had no connection whatsoever to the contractual relationship existing between Generali and Morgan Southern. Although Ms. Oliver remains a party defendant, that fact is not enough to warrant application of Louisiana law. "The object of the UM legislation is to promote full recovery for innocent automobile accident victims by making uninsured motorist coverage available for their benefit." Tugwell v. State Farm Ins. Co., 609 So.2d 195, 197 (La.1992). This object does not extend to protecting a tortfeasor from liability, even if the tortfeasor is a Louisiana resident.
The application of Louisiana law in this particular case would impinge on Georgia's right to regulate its insurance industry. Georgia has a compelling interest in regulating insurance policies issued to its residents and in seeing that the expectations of the parties to the policies issued are upheld. The policies and needs of interstate insurance systems involving policies issued under terms satisfactory under one state's laws must be considered as a principal factor in evaluating conflict-of-laws situations. Generali contemplated that its total liability for UM benefits under its contract with Morgan Southern was $40,000.00, and Morgan Southern paid a premium for that amount of coverage. There is no compelling Louisiana interest that would override application of Georgia law to its contracts in this case.
We reverse the trial court's granting of the motion for partial summary judgment in this case and remand this matter for further proceedings. In doing so, we adhere to the approach used in Willett and Holcomb of engaging in a conflict-of-laws analysis before applying UM law, and we reject the approach used in Trautman. Because we find that Georgia law is applicable to the Generali policy, we need not reach the remaining issues raised by Generali.
DISPOSITION
For the foregoing reasons, the judgment of the trial court is reversed and this matter is remanded for further proceedings. All costs of these proceedings are taxed against the plaintiff, John Anderson.
REVERSED AND REMANDED.
NOTES
[1] At the time of trial, Anderson was a resident of California.
[2] Acts 1991, No. 923, § 1, which revised, amended, and reenacted Chapter 3 of the Preliminary Title of the Civil Code (Conflict of Laws), became effective January 1, 1992. The conflict-of-laws section of the Louisiana Civil Code had previously consisted of Articles 14 and 15 and was expanded by this Act to include Articles 14 through 49. The new conflict-of-laws legislation was redesignated as Articles 3515 through 3549 under the authority of the Louisiana Civil Code. The accident involved in Willett occurred in 1988.
[3] La.Code Civ.P. art. 966 was amended by Acts 1997, No. 483, effective July 1, 1997, and the hearing on motion before this court occurred on April 21, 1997.
[4] Acts 1966, First Ex.Sess., No. 9, effective May 1, 1996. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/698270/ | 57 F.3d 1083NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
Allen P. BLACKWELL, Petitioner,v.UNITED STATES POSTAL SERVICE, Respondent.
No. 95-3403.
United States Court of Appeals, Federal Circuit.
May 25, 1995.
1
66 M.S.P.R. 640.
2
REINSTATED.
ORDER
3
The petitioner having filed the required Statement Concerning Discrimination, it is
4
ORDERED that the order of dismissal and the mandate be, and the same hereby are, VACATED and RECALLED, and the petition for review is REINSTATED.
5
Petitioner's brief is due on or before July 24, 1995. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/840251/ | 744 N.W.2d 137 (2008)
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
John F. COOPER, Defendant-Appellant.
Docket No. 134789. COA No. 276602.
Supreme Court of Michigan.
February 19, 2008.
On order of the Court, the motion for reconsideration of this Court's November 29, 2007 order is considered, and it is *138 DENIED, because it does not appear that the order was entered erroneously. | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876218/ | 247 S.W.3d 589 (2008)
APPLIANCE SOLUTIONS, Employer/Appellant,
v.
Rose CRAWFORD, Claimant/Respondent,
and
Division of Employment Security, Respondent.
No. ED 90389.
Missouri Court of Appeals, Eastern District, Division Four.
March 18, 2008.
*590 Robert Thomeczek, Thomeozek Law Firm, LLC, St. Louis, MO, for Appellant.
Marilyn Green, Jefferson City, MO, for Respondent.
Before MARY K. HOFF, P.J., ROBERT G. DOWD, JR., J., and GEORGE W. DRAPER III, J.
ORDER
PER CURIAM.
Appliance Solutions appeals from the Labor arid Industrial Relations Commission's (Commission) decision finding Rose Crawford was not disqualified for unemployment benefits. We have reviewed the briefs of the parties and the record on appeal and conclude the Commission's decision is supported by competent and substantial evidence. Section 288.210 RSMo 2006. 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/2984339/ | Abatement Order filed April 9, 2014.
In The
Fourteenth Court of Appeals
NO. 14-14-00093-CV
IN RE TRACEY BISHOP, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
311th District Court
Harris County, Texas
Trial Court Cause No. 2003-55818
ABATEMENT ORDER
On February 5, 2014, relator Tracey Bishop filed an amended petition for
writ of mandamus in this Court. See Tex. Gov’t Code § 22.221; see also Tex. R.
App. P. 52. In the petition, relator asks this Court to compel the judge of 311th
District Court of Harris County to vacate multiple orders in a suit affecting the
parent-child relationship. Relator also filed a motion for temporary relief, asking
this Court to stay all proceedings in the underlying litigation pending this Court’s
disposition of her petition for writ of mandamus. See Tex. R. App. P. 52.10. This
Court denied relator’s motion for temporary relief on March 12, 2014. Relator’s
petition for writ of mandamus, however, remains pending with this Court, and this
Court requested a response to relator’s petition from the real party in interest and
amicus attorney.
At the time relator filed her amended petition for writ of mandamus, the
Honorable Denise Pratt was serving in the capacity as presiding judge of the 311th
District Court. Judge Pratt resigned her office effective March 28, 2014. By rule,
we must abate this original proceeding to permit respondent’s successor to
reconsider the orders challenged in relator’s petition. See Tex. R. App. P. 7.2(b);
see also In re Baylor Med. Ctr. at Garland, 280 S.W.3d 227, 228 (Tex. 2008)
(orig. proceeding) (“Mandamus will not issue against a new judge for what a
former one did.”).
Therefore, without expressing any opinion on the merits of relator’s petition,
we abate this proceeding, treat it as a closed case, and remove it from the Court’s
active docket. This original proceeding will be reinstated on this Court’s active
docket at such time when respondent’s successor advises this Court of the action
taken upon reconsideration of the orders challenged by relator. This Court also will
consider an appropriate motion filed by either party to reinstate or dismiss this
original proceeding, as appropriate.
We further direct relator to advise this Court of the status of the underlying
litigation every thirty (30) days from the date of this order until the trial court has
informed this Court of the action taken upon reconsideration of the orders
challenged by relator.
2
It is so ORDERED.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Jamison and Wise.
3 | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1000665/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-2523
JOHN J. “SWARTZ” TRENT,
Plaintiff - Appellant,
and
WHEELER PARTY,
Plaintiff,
versus
WSET; WDBJ; WSLS; THE NEWS AND ADVANCE,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg. Norman K. Moon, District
Judge. (CA-99-80-6)
Submitted: January 13, 2000 Decided: January 19, 2000
Before WIDENER, WILKINS, and LUTTIG, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John J. Trent, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
John J. “Swartz” Trent appeals the district court’s order
granting in forma pauperis status and dismissing the complaint for
failing to state a claim. We have reviewed the record and the dis-
trict court’s order and find no reversible error. Accordingly, we
affirm on the reasoning of the district court. See Trent v. WSET,
No. CA-99-80-6 (W.D. Va. Nov. 16, 1999). 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/2223436/ | 905 N.E.2d 1101 (2009)
TAYLOR
v.
STATE.
No. 49A02-0809-CR-824.
Court of Appeals of Indiana.
April 28, 2009.
BROWN, J.
Disposition of case by unpublished memorandum decision. Affirmed.
CRONE, J. Concurs.
BRADFORD, J. Concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609981/ | 467 P.2d 963 (1970)
Maureen KENNEDY, by and through Her Guardian, Kathryn M. Kennedy, Appellant,
v.
AMERICAN HARDWARE MUTUAL INSURANCE COMPANY, Respondent.
Supreme Court of Oregon, In Banc.
Argued and Submitted January 7, 1970.
Decided April 15, 1970.
Thomas C. Beck, Salem, argued the cause for appellant. With him on the briefs were Williams, Skopil, Miller & Beck, Salem.
Walter J. Cosgrave, Portland, argued the cause for respondent. With him on the brief were Maguire, Kester & Cosgrave and James H. Gidley, Portland.
SLOAN, Justice.
The plaintiff was an insured of an automobile insurance policy issued by the defendant. Two automobiles were covered under this policy and two premiums were paid for uninsured motorist coverage in the amount of $5,000. While walking across the street, the plaintiff was struck by an uninsured motorist and seriously injured. The issue is whether the plaintiff can recover $5,000 or $10,000. The trial court held she was entitled to $5,000.
These were the same facts as in Castle v. United Pacific Ins. Group, 1968, 252 Or. 44, 448 P.2d 357, except that the plaintiff Castle was driving one of the two automobiles covered in the policy. We held that the plaintiff was only entitled to collect $5,000 and not $5,000 for each vehicle covered. The instant case is more difficult because the plaintiff was not riding in or driving either of the vehicles covered; however, we conclude that the logic of the Castle case is that the insured is only entitled to collect $5,000 regardless of how many vehicles are covered in the policy and, therefore, the trial court in this case was correct.
Morrison Assurance Company, Inc. v. Polak, Florida, 1970, 230 So. 2d 6, resolved a conflict in the decisions of the District Court of Appeal and held in accord with our present holding. That decision was similar to our Castle decision in that the plaintiff was riding in one of the insured vehicles; however, the decision relies upon *964 Ringenberger v. General Accident F. & L. Assur. Corp., Fla.App., 1968, 214 So. 2d 376, which is similar to the instant case in that the plaintiff was injured while in a non-owned vehicle.[1]
Smith v. Pacific Auto. Ins. Co., 1965, 240 Or. 167, 400 P.2d 512, is not contrary to our present holding. The plaintiff there was a named insured under his own policy and an omnibus insured under the owner's policy. The question was whether the "other insurance" clauses in both policies applied so as to make one policy primarily liable. This court held they were repugnant under Lamb-Weston v. Ore. Auto. Ins. Co., 1959, 219 Or. 110, 341 P.2d 110, 346 P.2d 643, 76 A.L.R. 2d 485, and the coverages of both policies applied.
Affirmed.
NOTES
[1] Sturdy v. Allied Mutual Insurance Company, 1960, 203 Kan. 783, 457 P.2d 34, 42, found the Ringenberger reasoning unpersuasive and held contrary to our present holding. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609983/ | 467 P.2d 1013 (1970)
R. Gordon BELL, d/b/a Gordon Bell Realty, Appellant,
v.
Vera KRUPP Von Bphlen Und Halbach and Bank of California N.A. and Bank of Nevada, Co-Executors of the Estate of Vera Krupp von Bohlen und Halback, Respondents.
No. 5918.
Supreme Court of Nevada.
April 15, 1970.
*1014 Wiener, Goldwater & Galatz and J. Charles Thompson, Las Vegas, for appellant.
Lionel & Sawyer, Las Vegas, for respondents.
OPINION
MOWBRAY, Justice.
Appellant R. Gordon Bell commenced this action in the district court to recover $110,000, representing a broker's real estate commission allegedly due him from Vera Krupp von Bohlen and Halbach.[1] The respondents moved before trial for a summary judgment. NRCP 56, paragraphs (b) and (c).[2] The district judge granted the motion and dismissed Bell's complaint with costs. Hence, this appeal. We affirm the court's order granting summary judgment in favor of Mrs. Krupp.
1. The Facts.
Sometime prior to 1966, R. Gordon Bell, a licensed real estate broker in Las Vegas, discussed with Mrs. Krupp the possibility of selling the Krupp ranch located in Clark County. Bell claimed in his deposition, which was submitted to the court, that Mrs. Krupp had orally listed the property with him and that she had agreed to pay him a commission for sale of the property equal to 10 percent of the sales price.
In early 1967, Bell discussed with representatives of Clark County the possibility of selling the ranch to the County for the total purchase price of $1,110,000. In March 1967, at a "recessed regular session", the County Commissioners passed a resolution to purchase the ranch for $1,110,000, "* * * including all appurtenances, furniture, fixtures, appliances and personal property for park, recreation and other purposes." Mr. David Henry, the County Manager, drew and delivered to Bell a $10,000 check as a deposit on the purchase price. Bell accepted the check and went immediately to Chicago Title Insurance *1015 Company in Las Vegas and directed the preparation of escrow instructions for the purpose of consummating the sale. Bell took the prepared escrow instructions to the Clark County District Attorney, secured his approval and signature, and left by plane for Los Angeles to obtain Mrs. Krupp's approval.
Mrs. Krupp signed the instructions. Before she did so, however, she shortened, by interlineation, the escrow period from 90 to 60 days. Bell returned to Las Vegas and presented the escrow instructions to the Commissioners. They apparently were concerned about the change from 90 to 60 days, made by Mrs. Krupp, and at their regular meeting on April 20 they voted that, in view of Mrs. Krupp's modification of the escrow terms, they would hold the matter in abeyance.[3]
In June 1967 the ranch was sold to Richard Gray, Trustee for the Hughes Tool Company. Bell was not involved in that sale.
2. The Order for Payment of Broker's Fees
When Bell directed the preparation of the escrow instructions, which he signed, he provided for the payment of his commission from the proceeds of the sale. At that time Bell also caused to be prepared an "ORDER TO PAY COMMISSION TO BROKER," which he and Mrs. Krupp signed.[4] The Order provided that Bell's commission would be paid from the receipts of the sale of the property to the *1016 County. Bell, however, in his deposition now contends that Mrs. Krupp had orally agreed with him sometime prior to 1967 to pay a sales commission upon Bell's finding a purchaser who was acceptable to Mrs. Krupp; that when, as in this case, Mrs. Krupp signed the escrow instructions, she accepted the County as the purchaser of the ranch; and that at that moment Bell had earned and was entitled to his commission.
In his argument, Bell insists that whether the sale was consummated or whether Mrs. Krupp could have sued the County successfully to enforce the sale is, in this case, entirely irrelevant. We do not agree. Whether a seller could successfully sue a buyer might be irrelevant in certain situations, but in the instant case the relationship between the buyer and the seller, insofar as it had to do with the consummation of the sale, is relevant to the issue of the broker's commission. It is true that the general rule, which has been stated many times, is that, in the absence of some other agreement, a broker has earned his commission when he has produced a buyer ready, willing, and able to purchase the property upon the terms prescribed by the seller. Evans v. Dorman, 81 Nev. 319, 402 P.2d 652 (1965); Lukey v. Smith, 77 Nev. 402, 365 P.2d 487 (1961); Engel v. Wilcox, 75 Nev. 323, 340 P.2d 93 (1959).
The payment of a broker's commission, however, may be predicated on a specified condition. As summarized in 10 S. Williston, Contracts, § 1287A at 978 (3d ed. W. Jaeger 1967):
"Whatever may be the customs and usages respecting the broker's right to a commission, when he presents a purchaser ready, willing and able to perform, the parties by their agreement may make this right dependent on an express condition such as actual sale. Or, other qualifications may be incorporated such as `out of purchase money,' `cash payment,' `upon effecting a sale,' `upon consummation of sale,' `on the closing of title,' `when title passed,' `if deal went through,' or, `on the date formal transfer is made.'
"Payment of the broker's commission may also be predicated on specified conditions precedent, or other factors affecting the coming into being of a valid contract." (Footnotes omitted.) See also Fitch v. LaTourrette, 75 Nev. 484, 346 P.2d 704 (1959); Cochran v. Ellsworth, 126 Cal. App. 2d 429, 272 P.2d 904 (1954); Wilson v. Security-First Nat'l Bank, 84 Cal. App. 2d 427, 190 P.2d 975 (1948).
We conclude that a broker who is seeking a commission (1) on different terms from those provided in escrow instructions and (2) on an order of payment for his fees, both of which he signed, may not now be permitted to deny his representations on the basis of a different and prior oral agreement. Cf. Aldabe v. Adams, 81 Nev. 280, 402 P.2d 34 (1965).
The order granting summary judgment is affirmed.
COLLINS, C.J., and ZENOFF, BATJER, and THOMPSON, JJ., concur.
NOTES
[1] Mrs. Krupp died after the commencement of the action. The other respondents, Bank of California N.A. and Bank of Nevada, her appointed executors, were named defendants in a supplemental complaint.
[2] NRCP 56 reads in relevant part:
"RULE 56. SUMMARY JUDGMENT
"* * *
"(b) For Defending Party. A party against whom a claim, counter-claim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.
"(c) Motion and Proceedings Thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages."
[3] Commissioner Ryan had earlier initialed the Krupp change.
[4] "ORDER TO PAY COMMISSION TO BROKER
"Date March 23, 1967
"Escrow No. LV-23521 KS
"CHICAGO TITLE INSURANCE CO.
"Nevada Title Office
"You are hereby instructed and directed to Pay Real Estate Brokers
Commission from the funds due me at the close of your above numbered
escrow as follows:
"BROKER AMOUNT
)
"1 GORDON BELL REALTY ) $110,000.00
"382-9060 BERT BAUER REALTY )
"2 xxxxxxxxxxxx [sic] ) ______________
)
"3 Ackerman Realty ) ______________
"Other Instructions: It is understood and agreed that the commission shall
be paid in the following manner $50,000.00 out of the close of escrow
and $30,000.00 each out of the two succeeding payments, balance shall
bear 7% int. In the event payment is made in full prior to the
maturity date entire commission to be paid in full at that time.
"Vera Krupp Von Bohlen und Halbach
"Vera Krupp Von Bohlen und Halbach
"The foregoing order is hereby approved
GORDON BELL REALTY
BY: R. Gordon Bell
Broker
xxxxxxxxx [sic]
Sellers escrow and title fees to be paid by broker R Gordon Bell" | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610012/ | 467 P.2d 429 (1970)
Marian E. SPENCER, As Administratrix of the Estate of Virgil LeRoy Spencer, Deceased, Appellant,
v.
B.P. JOHN FURNITURE CORPORATION, a Corporation, Respondent.
Supreme Court of Oregon, In Banc.
Argued and Submitted October 7, 1969.
Decided April 8, 1970.
*430 Gerald R. Pullen, Portland, argued the cause and submitted a brief for appellant.
Edward H. Warren, Portland, argued the cause for respondent. With him on the brief were Hershiser & Mitchell, Portland.
Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN,[*] DENECKE and HOLMAN, JJ.
HOLMAN, Justice.
This is an action for damages for wrongful death brought by the administratrix of an estate for the benefit of the widow and minor children of the decedent. Plaintiff appealed from a judgment in favor of defendant entered after a demurrer was sustained to her amended complaint and her second and third amended complaints were stricken as not alleging any new matter.
Plaintiff claims the court erred in sustaining defendant's demurrer to plaintiff's amended complaint and in striking plaintiff's third amended complaint. Decedent was a paid fireman for the city of Portland. He was killed while fighting a fire in defendant's furniture factory. Both complaints substantially state by various allegations that defendant negligently caused the fire and that it negligently allowed an accumulation of dust, which, upon contact with the fire, resulted in an explosion, killing decedent.
Much time has been wasted in many cases in attempting to fit firemen into a status which relates to the consent or lack of consent of an owner or possessor of the land to a fireman's presence. Clearly a fireman's presence on the premises has nothing to do with a possessor's or owner's consent, because a fireman enters as a matter of right pursuant to his public employment. Therefore, such classifications as trespasser, licensee, or invitee are irrelevant to owners' or possessors' duty to firemen. Buren v. Midwest Industries, Inc., 380 S.W.2d 96, 98 (Ky.App. 1964); Krauth v. Geller, 31 N.J. 270, 157 A.2d 129, 130 (1960); 2 Harper and James, The Law of Torts 1501-05, § 27.14 (1956); Prosser, Torts 405-06, § 61 (3d ed. 1964).
Plaintiff has alleged facts sufficient to charge defendant with negligently starting the fire. The authorities are almost unanimous to the effect that an owner or occupier is not liable to a paid fireman for negligence with respect to creating a fire. See 19 Vand.L.Rev. 407, 418 (1966). The theory of this rule, as explained by Weintraub, C.J., in Krauth v. Geller, supra, is as follows:
"* * * The rationale of the prevailing rule is sometimes stated in terms of `assumption of risk,' used doubtless in the so-called `primary' sense of the term and meaning that the defendant did not breach a duty owed, rather than that the fireman was guilty of contributory fault in responding to his public duty. See Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 155 A.2d 90 (1959). Stated affirmatively, what is meant is that it is the fireman's business to deal with that very hazard and hence, perhaps by analogy to the contractor engaged as an expert to remedy dangerous situations, he cannot complain of negligence in the creation of the very occasion for his engagement. In terms of duty, it may *431 be said there is none owed the fireman to exercise care so as not to require the special services for which he is trained and paid. Probably most fires are attributable to negligence, and in the final analysis the policy decision is that it would be too burdensome to charge all who carelessly cause or fail to prevent fires with the injuries suffered by the expert retained with public funds to deal with those inevitable, although negligently created, occurrences. Hence, for that risk, the fireman should receive appropriate compensation from the public he serves, both in pay which reflects the hazard and in workmen's compensation benefits for the consequences of the inherent risks of the calling [citing cases]." 157 A.2d at 130-131.
The most notable authority cited as holding contrary to the above rule of non-liability is Dini v. Naiditch, 20 Ill. 2d 406, 170 N.E.2d 881, 86 A.L.R. 2d 1184 (1960). The exact basis of the decision is not clear, but it has been widely cited as holding that an owner or possessor of property is liable to firemen for injuries suffered while fighting a negligently caused fire. However, the Illinois Court of Appeals has not construed it so broadly. Horcher v. Guerin, 94 Ill. App. 2d 244, 236 N.E.2d 576 (1968) contains the following langauge:
"We do not read Dini, however, to stand for the proposition that the landowner may be held liable to a fireman for negligence in causing the fire which brought the fireman to the premises. It is held almost without exception, that a landowner or occupier is not liable in such case [citing cases]. As to the fire itself, it is the fireman's business to deal with this particular hazard. He is trained and paid for this. Undoubtedly, most fires can be attributed to negligence of some nature. Therefore, public policy dictates that a landowner does not owe a duty to firemen, upon which liability may be predicated, to exercise care that a fire does not occur on his premises. The exposure to liability which would result from such rule would impose an unreasonable burden upon a person who owned or occupied improved land." 236 N.E.2d at 578-579.
The following cases have refused to follow Dini: Buren v. Midwest Industries, Inc., 380 S.W.2d 96, 98 (Ky.App. 1964); Aravanis v. Eisenberg, 237 Md. 242, 206 A.2d 148 (1965); Jackson v. Velveray Corp., 82 N.J. Super. 469, 198 A.2d 115 (1964); Rogers v. Cato Oil & Grease Co., 396 P.2d 1000 (Okl. 1964). We agree for the reasons set forth in the quotation from Krauth that there should be no liability on the part of a possessor or owner of the premises to paid firemen for injuries from negligently caused fires.
The courts are not so unanimous in denying the liability of an owner or possessor of the premises where the risks have been greatly enhanced by the owner or possessor and are not those normally or usually incurred in fighting fire. Responsibility has been attached for "creating undue risks of injury beyond those inevitably involved in fire fighting." Krauth v. Geller, supra. "Undue risks" can cover a multitude of sins.
Whatever choice a fireman makes about those dangers to which he will submit himself, such choice is necessarily made at the time he becomes a fireman. When he appears upon the scene of a fire and realizes that the owner or possessor has created or permitted a situation which has enhanced the normal risks to be expected in fighting a fire of the kind involved, he does not have the privilege of refusing to fight the fire. He has to fight it anyway. When he becomes a fireman, he does not undertake to fight only ordinarily dangerous fires which have not been started nor been made more dangerous by someone's lack of care. He undertakes to fight all fires. As a result, for the purpose of deciding if any duty is owed to him by a property owner or possessor, it is impossible to distinguish situations solely on the basis of their being more than normally dangerous or their being made that way by someone's lack of care.
*432 However, a fireman does not assume all risks encountered in fighting fires. He should have a right to expect that the owner or possessor of a premises will not imprudently permit an unusual, serious hidden danger of a totally unexpected kind and, therefore, we hold that he does not assume such risks. Buren v. Midwest Industries, Inc., 380 S.W.2d 96, 99 (Ky.App. 1964); Aravanis v. Eisenberg, 237 Md. 242, 206 A.2d 148 (1965); Bartels v. Continental Oil Co., 384 S.W.2d 667, 670 (Mo. 1964); Maloney v. Hearst Hotels Corporation, 274 N.Y. 106, 8 N.E.2d 296, 297 (1937). A measure of protection resulting from training and experience can be taken against apparent, known, or to-be-anticipated risks. However, a fireman is completely vulnerable to such a hidden danger as described above, and we see nothing in the lack-of-duty concept of assumption of risk or in public policy which precludes him from having a cause of action in such circumstances.
Cluttered conditions of the premises and buildings constructed other than in accordance with fire ordinances which enhance the danger from fire are so usual as to be anticipated. Buren v. Midwest Industries, Inc., supra. Gasoline and oil in service stations and explosives in a munitions plant are also to be expected, because these substances, which are dangerous to fire fighters, are commonly identified with such places. Even some lack of care in the manner in which these substances are handled is to be expected. On the other hand, the unlawful storage of a 50-gallon drum of gasoline in the basement of a residence would be an example of a highly dangerous, hidden, and totally unexpected situation. If a fireman neither discovered nor learned of it, he would not assume the risk of injury from a resultant explosion.
Plaintiff has alleged defendant's conduct was wanton. We see no basis for a claim of wanton misconduct in the charges of negligence. See Krauth v. Geller, supra.
The complaints in question allege an injury resulting from an explosion. They do not allege that the explosion was the result of an unusual, serious, hidden danger which could not have been anticipated and, consequently, the complaints are deficient. It is the general rule that when a plaintiff elects to stand on his pleading and appeals from the sustaining of a demurrer, the affirmance of the judgment below will end the case. Plummer v. Donald M. Drake Co., 212 Or. 430, 441, 320 P.2d 245 (1958). On the other hand, this court in the past has seen fit to adopt a special procedure tailored to avoid possible injustice to a plaintiff who has elected to appeal from the sustaining of a demurrer but who, in fairness, should be given another chance to apply to the trial court for permission to amend. This court may, instead of only affirming the entry of the judgment in the trail court, remand the case to that court and allow the trial judge, in his discretion, to permit the plaintiff to plead further. Coblentz v. State Ind. Acc. Comm., 203 Or. 258, 265-267, 279 P.2d 503 (1955).
We believe that the present case is an example of a situation where the rule of Coblentz should apply in order to avoid possible injustice. First, the law applicable to a property owner's or possessor's duty to a paid fireman had not been delineated previously in this state, and it was in a state of flux elsewhere. It was difficult for plaintiff to be sure what facts were relevant. Second, plaintiff, in her second amended complaint, did make allegations which indicate that she believes facts exist which meet the standard we have now established. A motion to strike was sustained to this complaint and it dropped from the case when plaintiff filed her third amended complaint. She alleged in her second amended complaint that the defendant failed to heed warnings of fire inspectors of "fire conditions which could not have been foreseen or reasonably anticipated by a fireman acting in the course of his duty as a firefighter." If such conditions did exist, as the result of defendant's negligence, plaintiff should be permitted to request the trial court for another *433 opportunity to allege them. Because she chose to file a third amended complaint, she could not appeal the propriety of the trial court's ruling striking her second amended complaint.
The judgment of the trial court is affirmed and the case is remanded for the purpose of permitting plaintiff to apply to the trial court for permission to file another amended complaint if the facts, as she believes them to be, justify such a course.
NOTES
[*] GOODWIN, J., resigned December 19, 1969. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2236051/ | 929 N.E.2d 180 (2006)
367 Ill. App.3d 1119
AMERICAN CIPS
v.
LIVELY ELEC., INC.
No. 5-05-0610.
Appellate Court of Illinois, Fifth District.
October 30, 2006.
Dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876243/ | 247 S.W.3d 104 (2008)
Carol Sue McPHERSON and Ronald McPherson, Appellants,
v.
McMAHON FORD COMPANY, Respondent.
No. ED 90210.
Missouri Court of Appeals, Eastern District, Division One.
March 11, 2008.
Susan Marie, Caseyville, IL, for appellant.
David C. Berwin, St. Louis, MO, for respondent.
Before KATHIANNE KNAUP CRANE, P.J. and ROBERT G. DOWD, JR. and KENNETH M. ROMINES, JJ.
ORDER
PER CURIAM.
Carol Sue McPherson and Ronald McPherson (collectively referred to as "Plaintiffs") appeal from the trial court's grant of summary judgment in favor of McMahon Ford Company on the grounds that Plaintiffs cause of action for personal injuries was barred by the statute of limitations.
We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 84.16(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/695928/ | 54 F.3d 777NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
UNITED STATES, Of America, Department of Housing and UrbanDevelopment, on behalf of Laura R. Pantoja, VictorR. Pantoja and Laura L. Pantoja, Petitioner,v.Dwight M. SIMPSON, Jr.; Caroline Simpson, Respondents.
No. 95-3360.
United States Court of Appeals, Sixth Circuit.
May 10, 1995.
1
Before: SUHRHEINRICH and DAUGHTREY, Circuit Judges; and HEYBURN, District Judge.*
ORDER
2
The Secretary, United States Department of Housing and Urban Development petitions for enforcement pursuant to 42 U.S.C. Sec. 3612(j) of the September 9, 1994, decision under the Fair Housing Act (the "Act"). Respondents have filed an opposition to the petition for enforcement and request oral argument. However, because respondents did not file a petition for review of the decision within forty-five days, the Act provides that "the administrative law judge's findings of fact and order shall be conclusive" in connection with the petition for enforcement. 42 U.S.C. Sec. 3612(l). In addition, the Act provides that where a petition for enforcement is filed in the absence of a petition for review, the clerk of the court of appeals "shall forthwith enter a decree enforcing the order." 42 U.S.C. Sec. 3612(n). We conclude, therefore, that the Secretary is entitled to enforcement of the decision.
3
It is ORDERED that the petition for enforcement is granted and the decision of the Secretary in HUD v. Simpson, 04-92-0708-8, is hereby enforced.
*
The Honorable John G. Heyburn, II, United States District Judge for the Western District of Kentucky, sitting by designation | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2610002/ | 467 P.2d 589 (1970)
93 Idaho 546
Jack A. EARL, Sr., Claimant-Respondent,
v.
SWIFT & COMPANY, Self-Insured Defendant-Appellant.
Jack A. EARL, Sr., Claimant-Respondent,
v.
BOISE VALLEY PACKING COMPANY, Inc., and Argonaut-Northwest Insurance Company, Defendants-Appellants.
Nos. 10513, 10507.
Supreme Court of Idaho.
March 31, 1970.
Rehearings Denied April 24, 1970.
Coughlan, Imhoff, Christensen & Lynch, Boise, for appellant, Swift & Co.
Moffatt, Thomas, Barrett & Blanton, Boise, for defendants-appellants, Boise Valley Packing Co. and Argonaut-Northwest Ins. Co.
Cosho & Humphrey, Boise, for respondent.
SHEPARD, Justice.
This case is an appeal from an award by the Industrial Accident Board. Claimant, *590 Jack A. Earl, Sr. (respondent herein), is a butcher and maintenance man who suffered a series of back injuries. Earl worked for Swift & Company, one of the appellants herein, from 1955 to February 14, 1968. He first injured his back during employment on February 25, 1959, while he was carrying an armature. The attending physician diagnosed that injury as a herniated disc at the L5-S1 level and recommended that a laminectomy be performed. Earl refused that recommended treatment and Swift paid all medical bills. Earl was additionally injured in 1959 when kicked by a cow and in 1963 when he lifted a heavy steel cover. Both instances resulted in back difficulty and the medical expenses therefrom were again paid by Swift.
Earl again injured his back on February 14, 1968, while he was pulling an electric motor from a truck. He received medical treatment and the diagnosis by the attending physician was that he had suffered an acute herniated disc at the L4-L5 level. The physician recommended a laminectomy, but Earl again refused to submit to the surgery. He was given conservative medical treatment and his condition was declared stable in June, 1968. The attending physician rated his physical impairment at 15% as compared to the loss of one leg at the hip. Earl and Swift entered into a compensation agreement, which was approved by the Industrial Accident Board and which provided that Swift would pay partial permanent disability based on the 15% impairment. Earl was then released from employment by Swift & Company.
Earl accepted employment with Boise Valley Packing Company and after only a day or two on the job injured his back on December 4, 1968, while lifting intestines into a barrel. He received medical attention and the attending physician diagnosed the injury as an acute herniated disc at the L4-L5 level. The physician recommended the performance of a myelogram and laminectomy. This time the advice was accepted by Earl, and the surgery was performed. Following the completion of the surgery, the attending physician estimated Earl's impairment to be 50%, as compared to a loss of the leg at the hip. Another orthopedic surgeon, who testified on behalf of the appellants, estimated the impairment to be only 30%. There is no dispute that Earl was clearly disabled from doing the type of work that he had performed prior to December 4, 1968.
Earl petitioned the Industrial Accident Board for a hearing against both Swift and Boise Valley Packing seeking an amendment in the compensation agreement he had previously signed with Swift on the grounds that his condition had changed and seeking to have Boise Valley Packing held responsible for compensation and benefits arising out of the December 4, 1968 accident. The claims were consolidated for hearing.
The Industrial Accident Board found Earl unable to work, but felt that his condition might improve and, therefore, made no determination of permanent partial or total disability, but instead retained jurisdiction over that question. Boise Valley Packing and its surety, Argonaut-Northwest Insurance Company, were held liable for all medical expenses incurred by Earl from December 4, 1968 until the date of the hearing, April 22, 1969, and also for total temporary disability compensation between December 4, 1968 and April 22, 1969. The Board initially dismissed Swift & Company and then reversed itself on the basis that Earl had suffered a change of condition within the meaning of I.C. § 72-607, and held Swift & Company liable for a portion of the total temporary disability compensation and medical or rehabilitative treatment expense from April 22, 1969 until Earl reached a stable condition or was surgically healed. Liability for such temporary compensation and other expenses following April 22, 1969 was assigned 50% each to Swift and Boise Valley Packing.
Both Swift and Boise Valley Packing have appealed the decision of the Industrial Accident Board. Swift contends, in essence, that it had finalized its relationship *591 with Earl and was released of all liability to him as a result of the compensation agreement entered into between it and Earl and approved by the Industrial Accident Board. It also claims that the injury was the result of a new accident of December 4, 1968, which bore no relationship to Swift. Boise Valley Packing, on the other hand, contends that the injury suffered by Earl on December 4, 1968 was merely the continuation of a pre-existing condition resulting from injuries for which it was not liable. If we were to accept the arguments of both Swift and Boise Valley Packing, the claimant herein, Earl, would be denied any compensation or benefits for what was admittedly an accident or series of accidents that were suffered while working at covered employment and from which he sustained at least temporary total disability and at least partial permanent disability, together with substantial medical and other expenses.
Error is assigned by Swift in the action of the Board in dismissing Swift as a defendant at the conclusion of the hearing and then at a later time reversing its decision and reinstating Swift as a defendant. Error is also assigned in the failure of the Board to fix the claimant's permanent partial disability, but retaining jurisdiction to do so at a later time. Neither of the appellants point out where they have been prejudiced in either action of the Board, nor are we cited authority to substantiate their theory.
As hereinabove indicated, the Board held that the claimant Earl had undergone a change of condition which justified modifying the agreement previously entered into by Earl and Swift. Swift complains of this finding of the Board and the conclusion that Swift was, therefore, liable for additional compensation and other expenses beyond those contained in the agreement between Earl and Swift.
Among other contentions, both Swift and Boise Valley Packing argue that the refusal of Earl to submit to surgery as recommended by the attending physician following the February, 1968 injury militates against the Board's finding of change of condition. Swift suggests that a portion of I.C. § 72-401 supports its argument:
"If an injured workman persists in insanitary, injurious or unreasonable practices which tend to imperil or retard his recovery, the board may, in its discretion, order the compensation of such workman to be suspended or reduced." (Emphasis supplied.)
Earl was first injured on February 25, 1959, and thereafter the attending physician recommended surgery in the form of a laminectomy. Claimant Earl refused and exercised his option to undergo conservative treatment rather than surgery. Thereafter for almost ten years, claimant Earl was able to and did work, although reinjuring his back three times up to and including the accident of February 14, 1968. We are unwilling, therefore, to conclude that Earl was persisting in insanitary, injurious or unreasonable practices, but rather believe that he was exercising reasonably good judgment under all those circumstances. The case cited by Swift is, therefore, not in point with the case at bar when it states:
"* * * saying that an injured employee has the right to wilfully, arbitrarily and without reason or excuse, prolong his disability, destroy his usefulness to the state and society, deprive his dependents of support, and make himself a charge upon the community,"
or
"* * * would be violative of the dictates of reason, common sense and good conscience, and would set the stamp of approval upon the conduct of the malingerer." French v. Employers Mutual Liability Insurance Co. of Wisconsin, 70 So.2d 179 (La. App. 1954).
To focus merely on the Accident of February 14, 1968, and the recommendation for surgery following that accident is to ignore the fact that the claimant had gone through the experience before, had been offered surgery, had refused it, had indulged *592 in conservative treatment of the injury, and had largely recovered as a result thereof. To say that when faced with the same type of accident and obtaining the same recommendation he should suddenly have capitulated is to ask too much of this claimant. The court in Profitt v. DeAtley-Overman, Inc., 86 Idaho 207, 384 P.2d 473 (1963), had before it the question of a claimant's refusal to submit to treatment for a back injury. The claimant had refused to submit to a myelogram and surgery if the myelogram disclosed the existence of a herniated intervertebral disc. The court therein found competent and substantial evidence in support of the Board's finding that claimant had unreasonably refused to submit to offered treatment, and the court stated:
"The question of the unreasonableness of claimant's refusal to submit to diagnostic and conservative treatment is a question of fact to be determined by the Industrial Accident Board."
In the case at bar the Industrial Accident Board did find as a fact that the claimant herein was not unreasonable in refusing to submit to the recommended surgery. One of the expert witnesses testified as follows:
"Q As to disc injuries and where there is conservative treatment without a laminectomy, what type of recovery what percentage do you ordinarily have. Of course, I'm relating back to this 1959 situation.
"A I'd say 80, probably 85 to 90 per cent improve without surgery. The other 10 to 15 per cent are unimproved or gradually get worse so that they require surgery."
On the other hand, the same witness testified that following a laminectomy approximately 75 to 80 per cent of the patients get a good recovery with a minimal disability, while in 10 to 15 per cent of the cases there is some noted improvement and in approximately 5 per cent of the cases there is no improvement or a worsening or degenerating condition following the surgery.
The same witness testified:
"A Well, there are obvious dangers with any type of operation. This [a laminectomy], of course, is a very major procedure both associated with the anesthetic that is given to begin with and the risk involved in operative intervention in an area associated with important nerves and the blood vessels in that area. The problems attending on that and the problems of infection. There is always a definite but small per cent of risk, plus the other problems, postoperative risk and complications that are attending to any surgery which is thrombophlebitis and blood clots and that sort of thing.
"Q Is this considered major surgery?
"A Yes.
"Q Is it always successful as far as improving a man's condition?
"A It's not always successful, no."
It is our opinion that the finding of the Board that the claimant herein was not unreasonable in refusing to submit to recommended surgery was based on substantial, although somewhat conflicting, evidence.
Swift assigns error, "The Board erred in its finding No. 5 when they held that the accident of December 4, 1968, was an aggravation of the injury which occurred February 14, 1968." Swift cites portions of the medical testimony to indicate that the Board erred and that the claimant had completely recovered from the accident of February, 1968, and the injuries of which claimant now complains were related solely and only to the accident of December 4, 1968. The Board in its finding No. 16 pointed out that the compensation agreement entered into between Swift and the claimant as a result of the injury of February *593 14, 1968 contained the following specific provision:
"It is understood that the agreement of the parties and this proceeding is subject to the provisions of Section 72-607, Idaho Code, pertaining to Modification of Awards and Agreements."
This current proceeding was brought by the claimant insofar as Swift is concerned under the provisions of said statutory provision. The Board further found:
"The possibility or probability of an ultimate operation was known to Swift & Company when the compensation agreement was executed and that possibility or probability was not only discussed between the claimant and the employer's adjuster, but was embodied in the retention of the claimant's right to modification. The contemplated necessity for the operation actually arrived."
An expert witness further testified that a progressive muscle weakness, particularly on the right side of the spine, also resulted probably from the accident of February, 1968, and that the claimant continued to suffer from this up to the accident of December 4, 1968.
This same expert witness, questioned as to the etiology of the disc injury, stated:
"I believe that he had a combination of injuries. I believe his initial significant injury was in February producing a disc injury to the lower lumbar spine with involvement of the right leg; he had no involvement of the left leg at that time. He recovered moderately well, did not wish any further treatment, returned to work and was working; sustained a second injury which I believe is a significant aggravation or additional injury to the low back because he now has involvement and discomfort with weakness of his left leg from the December injury, December 4, 1968, which was new and different from what he had had before."
The same expert witness, testifying as to the necessity for the ultimate surgery, stated:
"Again, it was due to the injury to his back, both in February, 1968 and in December 4, 1968. I believe that both injuries played a role in the fact that he had a significant disc injury and lesions with compression of nerve roots."
The remaining assignments of error specified by Boise Valley Packing all go to the point that the Board erred in finding that the accident of December 4, 1968 had anything to do with claimant Earl's resultant injuries and, therefore, Boise Valley Packing should not have been assigned any portion of the liability and expenses as was done by the Board.
It is sufficient to say in regard to both Swift's and Boise Valley Packing's assertions that the evidence regarding the causative factor of claimant Earl's injuries was highly conflicting. Various portions of the testimony could be taken to justify Boise Valley Packing's contentions, or in the alternative Swift's contentions.
It is within the province of the Industrial Accident Board to determine the credibility of witnesses, the weight to be assigned their testimony, and the reasonable inferences to be drawn from the record as a whole. Diffendaffer v. Clifton, 91 Idaho 751, 430 P.2d 497 (1967). The Industrial Accident Board is an arbiter of disputed and conflicting facts and opinions of experts, as determination thereon, when substantially supported, may not be disturbed. Oliver v. Potlatch Forests, 73 Idaho 45, 245 P.2d 775 (1952). Apportionment of workmen's compensation is to be made as between successive industrial injuries and the ratio of apportionment is for the determination of the Industrial Accident Board, Wilson v. Gardner Associated, Inc., 91 Idaho 496, 426 P.2d 567 (1967), and when supported by substantial and competent, although conflicting, evidence will not be overturned since an appellate court must allow the Board certain latitude in making such apportionment.
The findings of the Board in the instant case and its allocation and apportionment *594 of liability for compensation and other expenses between Boise Valley Packing and Swift are based on substantial, although conflicting, evidence, and therefore the actions of the Board in this regard must be affirmed. As was said in Dawson v. Hartwick, 91 Idaho 561, 428 P.2d 480 (1967):
"The Board is authorized to find causes of disability if attributable to more than one factor and to apportion disability between an industrial injury and pre-existing infirmity, or between successive industrial injuries. Such authority has been judicially interpreted to include apportionment of hospital, medical and kindred expenses. * * *
"Because the Board is presumed by its experience to be able to judge causative factors of disability in a particular case, the rule has been established the Board must be allowed some degree of latitude in making an apportionment. Additionally, in accord with the standard procedure of appellate review, an apportionment will not be overturned when sustained by substantial and competent, although conflicting, evidence."
We find no error in the actions of the Industrial Accident Board, and the cause is thereby affirmed. Costs to respondent.
McFADDEN, C.J., and McQUADE, DONALDSON and SPEAR, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2899511/ | NO. 07-09-0075-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 3, 2009
______________________________
IN RE DAVID MATTHEW LAYTON, RELATOR,
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Relator, David Matthew Layton, has filed a Petition for Writ of Mandamus seeking this court to order the Honorable Ana Estevez to act on a petition for writ of audita querela that relator filed in the 251
st
Judicial District Court of Potter County, Texas. We deny the petition.
Texas Rule of Appellate Procedure 52.3
(footnote: 1) identifies the requirements for a petition for writ of mandamus filed in this Court. Layton has failed to comply with these requirements. Rule 52.3(b) requires that the petition include a table of contents with references to the pages of the petition and an indication of the subject matter of each issue or point raised in the petition. Layton’s petition includes no table of contents. Rule 52.3(c) requires that a petition include an index of authorities in which all authorities cited in the petition are arranged alphabetically and the page(s) upon which the authorities are cited is indicated. Layton’s petition includes no index of authorities. Rule 52.3(f) requires the petition include a concise statement of all issues or points presented for relief. Layton’s petition includes no such statement. Rule 52.3(g) requires that a petition include a statement of facts. Layton’s petition does not include a statement of facts. Rule 52.3(h) requires that a petition include a clear and concise argument for the contentions made. Layton’s petition includes an argument, but the argument is nearly indecipherable. Rule 52.3(i) requires a petition include a prayer that clearly states the nature of the relief sought. Layton’s petition prays that this Court “intervene and prevent the respondent’s non-compliance to the Petition for Writ of Audita Querela . . . by granting this Petition.” This prayer does not clearly state the nature of the relief sought.
(footnote: 2) Finally, Rule 52.3(j)(1) identifies items that must be included in the appendix to the petition. Rule 52.3(j)(1)(A) requires that a certified or sworn copy of any order complained of or any other document showing the matter complained of be included in the appendix. The index to Layton’s petition does not include a copy of the petition he filed with the district court nor does it include any order entered by that court. As each of these items are required in a petition for writ of mandamus and as Layton has failed to include them in his petition, we will not grant the relief that he requests. However, in the interest of judicial economy, we will address the merits of Layton’s petition.
As best we can discern from Layton’s argument, his petition for writ of audita querela is an attempt to collaterally attack his convictions for aggravated kidnapping and aggravated sexual assault of a child, which this Court affirmed in 1997.
See
Layton v. State
, No. 07-96-0234-CR, 1997 Tex.App. LEXIS 5257 (Tex.App.–Amarillo Oct. 3, 1997, pet. ref’d);
Layton v. State
, No. 07-96-0235-CR, 1997 Tex.App. LEXIS 5258 (Tex.App.–Amarillo Oct. 3, 1997, pet. ref’d);
Layton v. State
, No. 07-96-0236-CR, 1997 Tex.App. LEXIS 5259 (Tex.App.–Amarillo Oct. 3, 1997, pet. ref’d). Layton appears to contend that a “lighting” technique utilized by an expert witness for the State rendered his expert opinion unreliable. Further, it appears that Layton is contending that the expert made non-judicial statements that were contradictory of his trial testimony. Thus, by his petition for writ of audita querela, Layton is attempting to challenge the merits of his final felony conviction in the above-identified cases.
Audita querela is, or was, a writ available to a judgment debtor who seeks a rehearing of a matter on grounds of newly discovered evidence or newly existing defenses.
McBride v. State
, 114 S.W.3d 556, 557 (Tex.App.–Austin 2002, no pet.) (
citing
Black’s Law Dictionary
126 (7
th
ed. 1999)). Such relief is only available if the petition for the writ raises a new defense based in law.
Id
. at 557 n.2 (
citing
State v. Vasquez
, 889 S.W.2d 588, 591 (Tex.App.–Houston [14
th
Dist.] 1994, no pet.)). According to Layton’s petition for writ of mandamus, objections to the State’s expert witnesses were raised at trial. Layton does not identify how any of the contentions urged in his petition for writ of audita querela are based on newly discovered evidence or on newly existing defenses based in law.
However, of greater significance, a writ of audita querela is not an available means of collaterally attacking a final felony conviction in Texas.
See
Ex parte Mendenhall
, 209 S.W.3d 260, 261 (Tex.App.–Waco 2006, no pet.);
Lyons v. State
, No. 06-05-00142-CR, 2006 Tex.App. LEXIS 1394, at *2-*3 (Tex.App.–Texarkana 2006) (memo. op.);
Thomas v. State
, No. 12-03-00426-CV, 2004 Tex.App. LEXIS 4621, at *2-*3 (Tex.App.–Tyler 2004, pet. ref’d);
McBride
, 114 S.W.3d at 557. As each of these cases explain, the exclusive means to set aside a prior felony conviction in a collateral proceeding is by way of a petition for writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure.
Id
.
Accordingly, we deny relator’s petition for writ of mandamus.
Mackey K. Hancock
Justice
FOOTNOTES
1:Further citation to Texas Rules of Appellate Procedure will be by reference to “Rule __.”
2: We presume that Layton is claiming that Judge Estevez has failed to rule on his motion in a timely manner. However, Layton has provided no evidence of when he filed the motion, whether the motion was brought to the attention of the trial court, or the current state of the court’s docket.
See
Stoner v. Massey
, 586 S.W.2d 843, 846 (Tex. 1979);
Ex parte Bates
, 65 S.W.3d 133, 134-135 (Tex.App.–Amarillo 2001, no pet.) (orig. proceeding). | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1876236/ | 247 S.W.3d 886 (2007)
Geneva CLARK, Appellant,
v.
Rodney O. TOBIAS, Appellee.
No. 07-16.
Supreme Court of Arkansas.
January 25, 2007.
Warren Law Firm, by: Althea E. Hadden, Pine Bluff, for appellant.
No response.
MOTION FOR RULE ON CLERK
PER CURIAM.
Appellant Geneva Clark, by and through her attorney Althea Hadden, has filed a motion for rule on clerk. The record reflects that Appellant timely filed her notice of appeal on August 22, 2006, making her record on appeal due on or before November 20, 2006. On November 8, 2006, the Grant County Circuit Court entered an order extending the time for filing the transcript to January 8, 2007. When Appellant attempted to tender the record on December 28, 2006, the clerk of this court refused to accept it because the motion for extension of time for filing did not comply with the requirements of Ark. R.App. P.-Civ. 5(b). Appellant subsequently filed the present motion.
Rule 5(b)(1)(C) states in part:
(b) Extension of time.
(1) If any party has designated stenographically reported material for inclusion in the record on appeal, the circuit court, by order entered before expiration of the period . . . may extend the time for filing the record only if it makes the following findings:
(A) The appellant has filed a motion explaining the reasons for the requested extension and served the motion on all counsel of record;
(B) The time to file the record on appeal has not yet expired;
(C) All parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writing[.]
This court has made it very clear that we expect "strict compliance with the requirements of Rule 5(b), and that we do not view the granting of an extension as a mere formality." See, e.g., Davis v. State, 368 Ark. 380, 246 S.W.3d 439 (2007) (per curiam); Woods v. Tapper, 367 Ark. 239, 238 S.W.3d 929 (2006) (per curiam). The order of extension in this case makes no reference to the findings of the circuit court required under Rule 5(b)(1)(C). Accordingly, we remand this matter to the trial court for compliance with Rule 5(b)(1)(C).
Remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2898920/ | NO. 07-08-0114-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
AUGUST 6, 2009
______________________________
In the Matter of the Marriage of JANE Y. MEIWES
and STEPHEN E. MEIWES
_________________________________
FROM THE 64TH DISTRICT COURT OF CASTRO COUNTY;
NO. A8424-0507; HON. ROBERT W. KINKAID, JR., PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Stephen E. Meiwes appeals from the entry of a protective order. He claims the entry
of that order was in error because 1) the trial court should have granted his special
appearance, quashed service, and delayed hearing the motion for such order, and 2) no
notice was given that Cody Meiwes sought protection under the order though he was
granted protection. We reform the order and affirm it.
Issue 1 - Motion to Strike Service
Through his first point, Meiwes effectively contends that the protective order is void
since he was denied due process. He purportedly was denied due process because he
was served with several citations which informed him of different hearing dates. We
overrule the issue.
The record illustrates that the trial court initially scheduled December 13, 2007, as
the date on which the motion would be heard. Later, that hearing was rescheduled for
December 28, 2007, and, according to the sheriff’s return, Meiwes received notice of that
change via citation served on December 13, 2007. Thereafter, the hearing date was
postponed to January 10, 2008. Citation containing notice of that change and the new date
was served on him on December 27, 2007, according to the sheriff’s return.
More importantly, Meiwes, through his counsel, sent the trial court’s coordinator a
letter dated December 26, 2007. Through it, he disclosed that on December 12, 2007 (the
day before the first hearing date), he received a phone call from counsel for the movant
who told him that 1) the December 13 hearing date would be passed, 2) though the hearing
was rescheduled for December 28, the trial court would be unavailable, and 3) the ultimate
hearing date would be January 10. He closed his missive to the coordinator by stating, “[i]f
there [sic] a hearing on December 28, 2007 in the above case that Mr. Meiwes needs to
attend, then please contact me immediately.” He does not cite us to anything of record
illustrating that after December 26, he believed the hearing was going to be held on some
day other than January 10. Finally, Meiwes, through his attorney, appeared at the January
10 proceeding.
Per statute, a respondent to an application for a protective order is entitled to receive
“service of notice of an application for protective order.” TEX . FAM . CODE ANN . §82.043(a)
(Vernon 2008). The notice of the application must “show the date, time, and place of
hearing . . . .” Id. §82.041(a)(6). Given these statutes, the evidence that they were
complied with, the truism that due process simply requires that notice be reasonably
calculated to apprise interested parties of the pendency of the action and afford them the
2
opportunity to present their objections, Ibrahim v. Young, 253 S.W.3d 790, 805 (Tex.
App.–Eastland 2008, pet. denied); $24,156 in U.S. Currency v. State, 247 S.W.3d 739, 744
(Tex. App.–Texarkana 2008, no pet.), the undisputed evidence that appellant knew of the
January 10 hearing date by December 12, the undisputed evidence that Meiwes appeared
at and participated in the January 10 hearing via his attorney, and his current failure to
assert, much less illustrate, harm, we cannot but reject the complaint before us.
Issue 2 - Inclusion of Cody Meiwes as a Protected Party
As for his second complaint, Meiwes argues that the protective order improperly
included his son (Cody Meiwes) as a protected party though Cody did not apply for
protection.1 In response, appellee informed this court that “. . . although not void, [the
order] should be modified to remove protection in favor of Cody Meiwes, a non-applicant
and non-party to the proceedings.” Given the latter concession, we will reform the trial
court’s order to delete any reference to Cody Meiwes as a protected party.
The trial court’s protective order is modified to remove allusion to Cody Meiwes from
the scope of protection accorded by that order and is affirmed as modified.
Brian Quinn
Chief Justice
1
Nothing indicates that Cody is a minor.
3 | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2610187/ | 485 P.2d 247 (1971)
David Lee HOUSEHOLDER, Petitioner,
v.
Fenton R. RAMEY, District Judge of Canadian County, Oklahoma, Respondent.
No. A-16313.
Court of Criminal Appeals of Oklahoma.
May 12, 1971.
Richard D. Strubhar, Yukon, for petitioner. Virgil R. Ball, Dist. Atty., Canadian County, for respondent.
NIX, Judge:
This is an original proceeding for a Writ of Prohibition to prohibit the respondent *248 from bringing petitioner to trial in the District Court of Canadian County, Case No. CRF-69-389, on a charge of First Degree Rape. Petitioner contends that his conviction for kidnapping for purpose of extorting thing of value, arising out of the same incident as the rape, is a bar to prosecution on the rape charge.
The charges arise from the events on August 29, 1969, when the prosecutrix, acting in her capacity as a real estate broker, was showing the petitioner a "for sale" house in Oklahoma County. While in an empty house petitioner struck prosecutrix, bound her feet and hands, blindfolded her, and placed her in the trunk of his car. He then drove away and after awhile she was removed from the trunk and raped. She remained blindfolded until shortly after her attacker left when she received assistance from persons passing by. Prosecutrix was located in Canadian County, just across the county line from Oklahoma County. Since the rape act occurred where she was found, petitioner was charged with first degree rape in Canadian County. He was tried on this charge, but the jury was unable to reach a verdict.
Petitioner was then tried and convicted in Oklahoma County, Case No. CRF-69-2149, for "kidnapping for purpose of extorting thing of value or advantage" in violation of 21 Ohio St. 1961, § 745. Under § 745, a "thing of value or advantage" includes a woman's chastity and thus kidnapping for the purpose of rape is punishable under this statute. Phillips v. State, Okl. Cr., 267 P.2d 167 (1954). The evidence in the kidnapping trial established the kidnap and the rape as the purpose of the kidnapping.
Title 21, O.S.Supp. 1970, § 11, provides in relevant part:
"An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, except that in cases specified in §§ 51 and 54, the punishments therein prescribed are substituted for those prescribed for a first offense, but in no case can he be punished under more than one * * *."
Thus, a single criminals act which incidentally violates more than one statutory provision may be punished only once. Shackel ford v. State, Okl.Cr., 481 P.2d 163 (February 10, 1971). Whether a criminal incident or act is divisible and consequently gives rise to more than one act is determined by the intent and objective of the actor.
In People v. Failla, 64 Cal. 2d 560, 51 Cal. Rptr. 103, 414 P.2d 39 (1966), the California Supreme Court under an identical statute to 21 O.S.Supp., § 11, held:
"Here, as in those cases, defendant's course of conduct after he first accosted his victim comprised an `indivisible transaction; i.e., the technical kidnapping of his victim was intended merely to take her out of the presence of her roommate so that he could pursue his sexual purposes in the adjoining room without fear of interruption. Accordingly, both the kidnapping and the sexual misconduct were `incident to one objective,' and double punishment therefor would be prohibited." 51 Cal. Rptr. at 110, 414 P.2d at 46.
Where kidnapping is merely the means to a criminal objective only one conviction is permissible. In the case of In re Pratt, 66 Cal. 2d 154, 56 Cal. Rptr. 895, 424 P.2d 335 (1967), it was held:
"Under the facts in the present case, it is clear that petitioner had the single objective of robbery when he engaged in the criminal conduct with which he was charged. As a result, he cannot be punished for both robbery and kidnapping for the purpose of robbery." 56 Cal. Rptr. at 897, 424 P.2d at 337.
Likewise, In re Malloy, 66 Cal. 2d 252, 57 Cal. Rptr. 345, 424 P.2d 929 (1967), held:
"[T]he kidnapping was part of an indivisible course of conduct directed to the objective of robbing the victim. Thus, petitioner should not be punished for both robbery and kidnapping." 57 Cal. Rptr. at 347-348, 424 P.2d at 931.
*249 In the instant case, petitioner was convicted for kidnapping for the purpose of rape. The objective was rape, and the kidnapping incident to that objective. Thus, it was an indivisible act which forms the basis for only one conviction.
Aside from preclusion of multiple punishment under 21 O.S.Supp. 1970, § 11, the Oklahoma Constitution, Article II, § 21, prohibits twice putting a defendant in jeopardy for the same offense. This does not mean the same offense eo nomine, but the same criminal act, transaction, or omission. Estep v. State, 11 Okla. Crim. 103, 143 P. 64 (1914).
The familiar rule of this jurisdiction was re-stated in Heldenbrand v. Mills, Okl.Cr., 476 P.2d 375 (1970):
"A series of criminal charges cannot, under our system of jurisprudence, be based upon the same criminal act or transaction; a single criminal act cannot be split up or subdivided into two or more distinct offenses and prosecuted as such."
In the Heldenbrand decision, we noted the holding of the United States Supreme Court in Ex parte Nielsen, 131 U.S. 176, 9 S. Ct. 672, 33 L. Ed. 118:
"[W]here, as in this case, a person has been tried and convicted for a crime which has various incidents included in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offense."
In Walton v. State, 448 S.W.2d 690 (Tenn.Cr. 1969), the defendant was convicted of assault and battery with intent to rape, and burglary in the first degree with intent to have unlawful carnal knowledge. The Tennessee Court of Criminal Appeals reversed and dismissed the burglary conviction, holding:
"* * * we feel that the conviction of one is a bar to the conviction of the other. We find that these offenses were committed at the same time and are parts of a single continuing criminal act, inspired by the same criminal intent which is essential to each offense, and that they are susceptible to but one punishment." 448 S.W.2d at 696.
Again in the instant case the state has proven defendant kidnapped prosecutrix for the purpose of rape. If defendant had kidnapped the prosecutrix for some other purpose where the rape was not an incident essential to the crime proven it would be a different situation and decision. Thus, where, as in this case, the defendant is convicted of kidnapping for the purpose of rape, he cannot be tried for rape which is an incident included in his conviction without being twice put in jeopardy for the same offense.
Respondent is therefore directed to dismiss Canadian County Case No. CRF-69-389 charging petitioner with first degree rape.
Writ granted.
BRETT, J., specially concurs.
BUSSEY, P.J., dissented and filed opinion.
BRETT, Judge (specially concurring).
I concur in this decision, that the writ of prohibition should issue, essentially for the reason that the proper administration of justice requires that it issue. This Court may take judicial notice of other records before it; and in doing so, the record of trial for the kidnapping conviction in Oklahoma County has been reviewed. The informations in both charges, i.e., Rape in Canadian County, and Kidnapping for Purpose of Extorting a Thing of Value in Oklahoma County, list the same witnesses. Consequently, it seems logical that the same identical evidence and testimony was used in both trials.
The statement of Judge Bussey in his dissent is also correct. Kidnapping and Rape are separate offenses; but I disagree with him to the extent that under the facts of these cases this petitioner cannot be tried for these two separate offenses.
The object of petitioner's misconduct was the commission of rape; hence, the *250 kidnapping was carried forward to accomplish that purpose. Under these facts, numerous other crimes could be carved out of the circumstances, if it were legal, but the Oklahoma Constitution and Statutes prohibit such carving.
As early as 1914, in Estep v. State, 11 Okla. Crim. 103, 143 P. 4, Judge Doyle wrote:
"To make the offenses the same, the information need not be identical in language. The name of the offense in the two informations may differ, and within our constitutional guaranty the offenses be the same."
In Estep, supra, the charge pertained to maintaining a place where liquors were dispensed in violation of the statutes; and the defendant had been earlier acquitted on an information for the same offense covering a different period of time; however, some of the same dates were shown on the second information; and therefore, a plea of former jeopardy had been entered. This Court stated, quoting from Wharton on Criminal Procedure:
"A continuing offense is a transaction or a series of acts set on foot by a single impulse, and operated by an unintermittent force, no matter how long a time it may occupy."
Later the court provided:
"A series of criminal charges cannot, under our system of jurisprudence, be based upon the same criminal act or transaction; a single criminal act cannot be split up or subdivided into two or more distinct offenses and prosecuted as such. If the state elects, through its authorized officers, to prosecute an offense in one of its phases or aspects, and upon his trial the defendant is acquitted by a jury, it cannot afterwards prosecute the same criminal act or series of acts under color of another name. The state will not be permitted to split or divide up an offense into divers parts, and punish each moiety."
* * * * * *
"To give our constitutional provision the force evidently intended by the language used, and to render it effectual, the decisive test is whether the same testimony will support both charges." (Emphasis added)
There appears to be little doubt but that the testimony in both of petitioner's trials was the same. Admittedly petitioner did not obtain an acquittal on the rape charge, but he was granted a mistrial because of a hung jury. The State is attempting to proceed again on that charge. It is interesting to note concerning the claim of "rape", in the record of the kidnapping trial, the doctor who examined the prosecuting witness testified that there was no medical evidence to show that the woman had been subjected to sexual intercourse. Notwithstanding the other reasons stated, in face of that type of evidence, the proper administration of justice seems to demand that the taxpayers be spared the expense of a second trial for rape, if for no other reason.
I concur in the issuance of the writ of prohibition as to District Court of Canadian County, Case No. CRF-69-389.
BUSSEY, Presiding Judge (dissenting):
I respectfully dissent for the reason that I am of the opinion that the crime of Kidnapping and Rape are separate, distinct offenses, and that the defendant can properly be convicted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610182/ | 485 P.2d 12 (1971)
Charles F. JOHNSON et al., Respondents and Cross-Appellants,
v.
NORTHWEST ACCEPTANCE CORPORATION, a Corporation, Appellant and Cross-Respondent.
Supreme Court of Oregon.
Argued and Submitted April 6, 1971.
Decided May 19, 1971.
*13 Dennis F. Todd, Portland, argued the cause for appellant and cross-respondent. With him on the briefs were Richard M. Sandvik, and Smith, Todd & Ball, P.C., Portland.
Denton G. Burdick, Jr., Portland, argued the cause for respondents and cross-appellants. With him on the brief were Frank H. Hilton, Jr., and Hutchinson, Schwab & Burdick, Portland.
Before McALLISTER, P.J., and DENECKE, HOLMAN, TONGUE, HOWELL and BRYSON, JJ.
DENECKE, Justice.
This appeal is from a judgment for plaintiffs after a trial to the court on an action for damages arising from the breach of a lease agreement.
In 1965 plaintiffs owned the land and building on the corner of S.W. Main and Broadway Streets in Portland, Oregon. Ed Lee, Inc., leased the property and operated a night club on the premises. Defendant made a substantial loan to the lessee and as security held an interest in certain fixtures and equipment in the building. As additional security defendant obtained from Ed Lee, Inc., an assignment of its lease. It also secured from plaintiffs a consent to the assignment of the lease and a release and waiver of any interest in the fixtures and equipment used as collateral.
By December 1965 Ed Lee, Inc., was in default on both the lease and its loan obligation with defendant. Defendant closed the premises on December 7, 1965, and gave notice of its intent to conduct a sale under ORS Chapter 79 to foreclose its security interest. Plaintiffs wrote to defendant on December 14, 1965, and stated that under the terms of the consent to assignment defendant was liable for the fair rental value of the premises as long as it controlled the building. Defendant then held the sale and purchased the collateral for $10,000.
Subsequently plaintiffs offered to waive any rent obligation so long as defendant would leave the equipment and fixtures in the building. Plaintiffs made this request in order to facilitate reletting the premises as a "complete package" to a new tenant. Defendant agreed. There followed a number of serious but unsuccessful attempts to *14 relet. Finally on April 12, 1966, defendant notified plaintiffs that it could no longer cooperate in attempts to relet and that it intended to conduct an auction on the premises to dispose of its property. Plaintiffs then made a second demand for rent commencing April 13, 1966, "at the rent specified in the lease."
As the date of the auction approached plaintiffs sought and received assurances that defendant would only sell its property and not any of that belonging to plaintiffs. Defendant held the auction in late May. The keys to the premises, however, were not returned to plaintiffs until July 12, 1966.
Plaintiffs commenced this action in early 1967. The final complaint stated a count for rent and a count for waste. The trial court awarded $3,000 in back rent, $29,448 in damages for waste and $8,000 in attorneys' fees based on a prevailing party provision in the lease.
The first assignment of error we will consider concerns the award of attorneys' fees. The trial court in its oral decision stated that plaintiffs were entitled to attorneys' fees because a landlord-tenant relationship existed between April 13 and July 12, 1966. In its Conclusions of Law the court based the award on paragraph 31 of the lease which allowed the prevailing party to recover attorneys' fees in actions arising under the lease. The trial court apparently concluded that because defendant was a tenant all the provisions of the lease applied.
We do not agree with this conclusion in light of the clear meaning of the consent to assignment executed by plaintiffs. It stated in part:
"The undersigned hereby consent to the attached assignment from Ed Lee, Incorporated to Northwest Acceptance Corporation as Assignee, and agree that so long as said Assignee has not exercised dominion over the premises covered by said lease of July 16, 1965, for the purpose of operating the business of Ed Lee, Incorporated, or other business, Assignee shall not be liable for rent or for any other obligation of the original tenants or of Ed Lee, Incorporated, on account of said lease, provided, however, that Assignee shall in all events be liable for the fair rental value of such premises, as established by said lease, during any period during which Assignee shall exercise dominion over such premises for any purpose whatever."
We interpret this language to mean that defendant was to be subject to the covenant for rent and the other provisions of the lease if it used the premises for the same business as Ed Lee, Inc., or for some other business, but if defendant used the premises for any other purpose it would only be liable "for the fair rental value of such premises, as established by said lease." In this case it is established that defendant did not use the premises for a night club or any other business but rather only to store and auction personal property. It follows, therefore, that under the terms of the consent paragraph 31 of the lease should not apply.
Plaintiffs' principal argument in support of the attorneys' fees is that defendant stipulated that the court could award them as provided in paragraph 31 of the lease. It is true that in the opening moments of trial defendant made the following statement:
"MR. SMITH: Your Honor, we have a two-away [sic] attorney fee provision in the lease, which I would suggest at this time, if it is agreeable to Mr. Campbell, we stipulate that the Court set reasonable attorneys' fees as it sees fit, and that would eliminate the need to amend either of the pleadings."
Defendant made this statement as plaintiffs were attempting to amend the second amended complaint to provide for attorneys' fees. It is apparent from the final phrase that defendant made the stipulation in an attempt to facilitate the proposed amendment. The problem is to determine the precise extent of the stipulation.
*15 It is well recognized that the language of a stipulation, whether it be an agreed statement of facts or related to other matters, will not be so construed as to give it the effect of a waiver of a right not plainly intended to be relinquished. State Highway Com. v. Feves, 228 Or. 273, 284-285, 365 P.2d 97 (1961). Under this rule of construction plaintiffs must establish that defendant plainly intended to waive its defense that paragraph 31 of the lease did not apply in this case.
As noted defendant's immediate reason for making the stipulation was to facilitate the proposed amendment. This purpose suggests that defendant was not intending to settle any legal questions concerning the application of the documents involved in the case, but rather was only attempting to help dispose of preliminary matters. Moreover, a few minutes later during opening statement defendant argued specifically that it was not subject to any obligations under the lease because of the consent to assignment. It is difficult to reconcile this argument with the suggested interpretation of the stipulation. Finally the trial judge on the day he gave his verdict characterized the stipulation as allowing the judge to decide the amount to be awarded without expert testimony provided attorneys' fees were to be awarded. Plaintiffs agreed with the judge's characterization. The fact that there was some question as to whether attorneys' fees were to be given indicates that the judge did not interpret defendant's statement as a concession that paragraph 31 applied. For these reasons we conclude that defendant's oral, in-court statement should be construed to stipulate only that if the full lease applied then the court could award the prevailing party attorneys' fees pursuant to paragraph 31. Since we have determined that under the consent agreement paragraph 31 did not apply in this case it was error to award attorneys' fees.
The next specification concerns the adequacy of the complaint. Part of the damages awarded for waste included the cost of replacement of plaintiffs' fixtures removed by defendant. Defendant concedes the recovery is proper in an action for waste but contends that plaintiffs did not allege this injury and it was, therefore, improper to award damages.
In the original complaint plaintiffs had a count alleging the wrongful sale of their property and another count for damage to the premises. The amended complaint dropped the count for wrongful sale. Paragraphs V and VI of the second cause of action in the amended complaint stated:
"V.
"During its occupancy of the said premises from April 13 to July 16, 1966, defendant prepared for sale and sold personal property and fixtures from the said premises.
"VI.
"In the course of preparing for and selling the said personal property and fixtures, defendant ripped, tore and cut away many of said fixtures from the partitions, floors, ceilings and walls of said building, and extensively damaged the partitions, floors, ceilings and walls and failed to repair said damage as they were required to do by the terms of said lease, to plaintiffs' damage in the amount of $14,500.00. The reasonable cost of repairing said damages is $14,500.00."
While these allegations did mention ripping, cutting away and selling fixtures, they did not specify that the fixtures sold belonged to plaintiffs.
The morning of trial plaintiffs moved to amend the complaint by increasing the damages for waste to $30,000 and adding a claim for attorneys' fees. At this time plaintiffs specified that they intended to seek recovery both for damage to the building and for the cost of replacement of certain fixtures. Defendant maintained that it had not prepared on the question of replacement costs. The court, noting the case was not before a jury, allowed the *16 prayer to be increased and stated that if defendant needed more time at the conclusion of the testimony it would be given. The defendant objected to the introduction of evidence for these damages repeatedly during trial. However, the evidence was received. In defendant's case it called Mr. Robert Smith as its witness. Mr. Smith made an item-by-item evaluation of the missing fixtures and his figures were much less than plaintiffs' witness. At the end of the trial defendant did not formally seek more time to develop further evidence although it did introduce additional exhibits concerning the value of the fixtures at a special hearing two months after trial. In reaching his decision the trial judge stated specifically that Mr. Smith's testimony was important to him.
In light of all these developments we conclude that even if the complaint was insufficient to notify defendant properly before trial there was no prejudice. Defendant was told precisely what the issues were. It was able to present strong evidence in support of its contentions and, most important, it was offered the chance to develop further evidence after the plaintiffs had put on their complete case. What we recently said in Schroeder v. Schaefer, 91 Or.Adv.Sh. 945, 477 P.2d 720 (1970), 92 Or.Adv.Sh. 729, 483 P.2d 818 (1971), concerning pleadings is equally applicable here:
"* * * The purpose of pleadings is to give notice of the issues to be litigated so that appropriate defenses can be prepared. Therefore, in a situation in which no surprise or prejudice has been suffered by the opposing party, the unqualified and strict application of the rule in question would seem to be inappropriate. * * *" 92 Adv.Sh. at 730, 483 P.2d at 819.
This case is different from Murray v. Smucker, 252 Or. 469, 450 P.2d 545 (1969), in which the jury returned a verdict for defendant in an action to recover for a breach of an earnest money agreement. The basis for the judge's decision was a provision in the agreement authorizing the defendant to cancel if the title holder would not grant a partial release. The defendant made only a general denial and did not plead this defense. We reversed on the grounds it was defendant's duty to notify plaintiff through the pleadings that he intended to rely upon his inability to secure the partial release. In Murray however, the issue was not made known at the beginning of trial and the trial court did not offer plaintiff extra time to develop evidence to avoid the defense once it became apparent the proceeding was going to include matter somewhat beyond the precise scope of the pleadings. For this reason there was a real possibility of prejudice in Murray that was not present in this case. Likewise in the other cases cited by defendant there was a greater risk of prejudice by a variance from the pleadings. Each of those cases was tried to a jury and there was no chance to introduce further evidence after the trial.
In addition to seeking damages for the cost of replacing the fixtures, plaintiffs also sought in their claim for waste to recover for damage to the building. The plaintiffs introduced into evidence an estimate of the cost of repairs. Some of these repairs were made and others were not.
On this issue the trial court concluded:
"In the present case the Court having concluded that the land and buildings have value very considerably in excess of the cost of repair, the cost of repair is a proper measure of damages to be applied to measure defendant's liability for waste."
The defendant contends such a conclusion was in error because the proper measure of damages for injury to a building is the diminution of value of the building resulting from the alleged waste.
This court has approved instructions stating that the measure of damages for waste is diminution of value. Winans v. Valentine, 152 Or. 462, 468, 54 P.2d 106 (1936). We also have held, however, that the proof of such diminution of value can *17 be made by introducing the cost of repairs. In re Stout's Estate, 151 Or. 411, 423-424, 50 P.2d 768, 101 A.L.R. 672 (1935).
We subsequently held in Ore. Mutual Fire Ins. Co. v. Mathis, 215 Or. 218, 226, 334 P.2d 186 (1959):
"Under the circumstances of this case, where the cost of repair is far less than the reasonable value of the building we are of the opinion that justice would be served by permitting plaintiffs to show the monetary cost of putting the building back in the same state of repair as it was prior to injury." 215 Or. at 226, 334 P.2d at 190.
This is the rule stated in 4 Sutherland, Damages (4th ed), 3767, and McCormick, Damages, 483, n 10 (1935).
Either diminution in value or cost of repair can be the appropriate measure. The basis for deciding what rule should apply was stated in Ore. Mutual Fire Ins. Co. v. Mathis, supra, 215 Or. at 224-225, 334 P.2d at 189:
"It appears that, since the allowance of damages is to award just compensation without enrichment, there is no universal test for determining the value of property injured or destroyed and that the mode and amount of proof must be adapted to the facts of each case. * * *"
Defendant contends cost of repairs was not the appropriate measure in this case for the reason that the repairs were to restore the building to a condition in which it could be used as a night club and experience had proved that it was no longer feasible for night club use; further, that the plaintiffs did not intend to make all the repairs which were estimated to be necessary as they intended, as they subsequently did, to tear down the building. Plaintiffs' evidence, however, was that the repairs estimated were the minimum necessary to restore the building to a condition suitable for bare occupancy. Their evidence also was that the decision to demolish the building was made subsequent to the estimating of the repairs. Apparently, the trial court was persuaded by the plaintiffs' evidence.
If repairing is feasible, that the repairs were not ultimately made does not prevent the owner from securing the estimated cost of repairs as damages. Bates v. Warrick, 77 N.J.L. 387, 71 A. 1116 (1909).
Under these circumstances the trial court was correct in using the cost of repair of the premises, $15,000, as the proper measure of damages.
The final specification of error involves the amount of rent owed by defendant for its use of the premises from April 13 until July 12. The trial court found that a fair rental was $1,000 per month. The defendant contends there was no evidence to support this finding. There was evidence that a fair rental for use of the premises as a night club was $1,700 per month. We conclude that from such evidence the trial court could reason that a fair rental for use of the premises to store defendant's security for three months is $1,000 per month.
Plaintiffs' cross-appeal upon this issue contended that the rental should have been the lease rental of $1,700 per month. The consent to assignment provides that if defendant did not operate a night club, "Assignee shall not be liable for rent or for any other obligation of the original tenants or of Ed Lee, Incorporated, on account of said lease, provided, however, that Assignee shall in all events be liable for the fair rental value of such premises, as established by said lease, during any period during which Assignee shall exercise dominion over such premises for any purpose whatever." The consent distinguishes between "rent" and "fair rental value" in the lease; however, the lease does not make such a distinction and provides only for a rental of $1,700 per month.
We find the agreement ambiguous. Under these circumstances evidence showing the meaning or interpretation of the contract may be admitted and the finder of fact determines the intention of the parties. *18 Libby Creek Logging, Inc. v. Johnson, 225 Or. 336, 339, 358 P.2d 491 (1960). We affirm the trial court's finding that the parties intended a fair rental value to be some amount other than the lease rental of $1,700.
Modified. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876619/ | 283 So. 2d 366 (1973)
NATIONWIDE INSURANCE COMPANY et al., Petitioners,
v.
Leroy C. MONROE, Respondent.
No. 43842.
Supreme Court of Florida.
September 20, 1973.
Certiorari denied. 276 So. 2d 547.
CARLTON, C.J., and ROBERTS, ADKINS and McCAIN, JJ., concur.
BOYD, J., dissents. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610221/ | 207 Kan. 614 (1971)
485 P.2d 1347
THOMAS GILBERT WEIGEL, Appellant,
v.
THE STATE OF KANSAS, Appellee.
No. 46,267
Supreme Court of Kansas.
Opinion filed June 12, 1971.
F.F. Wasinger, of Hays, argued the cause and was on the brief for the appellant.
Don C. Staab, Assistant County Attorney, argued the cause, and Vern Miller, Attorney General, and Simon Roth, Jr., County Attorney, were with him on the brief for the appellee.
The opinion of the court was delivered by
FONTRON, J.:
On March 1, 1967, the plaintiff, Thomas Gilbert Weigel, accompanied by appointed counsel, entered his plea of guilty to second-degree burglary after the state had first dismissed a charge of grand larceny. On his plea of guilty the trial court sentenced Weigel to the Kansas State Penitentiary for a term of not less than five nor more than ten years, and at the same time revoked his probation on a previous burglary conviction. The sentences were ordered to run concurrently.
The present action is brought under K.S.A. 60-1507. It attacks the sentence pronounced on March 1, 1967, on the premise that Weigel's plea was not voluntarily entered. The trial court found it unnecessary to appoint counsel or to hold an evidentiary hearing, and overruled Weigel's motion on the ground that the records conclusively showed he was entitled to no relief. The present appeal followed.
For reasons hereinafter stated we conclude the trial court was correct in its judgment.
The primary issue for us to decide is whether an evidentiary hearing should have been held, with Weigel being present in person and represented by counsel. The answer to this question depends on the basis of Weigel's asserted claim that his plea was involuntary.
A careful examination of Mr. Weigel's motion leads to the conclusion *615 that his plea was motivated not by coercion but by a desire, which we presume was not unnatural, to avoid being sentenced under the Habitual Criminal Act. (K.S.A. 21-107a.) The sum and substance of the allegations set out in his motion is that he was informed the county attorney would seek to invoke the provisions of the Act in the event he was tried and found guilty.
The proceedings which transpired when Weigel was arraigned and entered his plea of guilty clearly show, through the medium of his own statements, that he had conferred fully with his lawyer; that he was aware of the nature of the offense, the laws which pertained thereto, and the possible penalties which could be imposed under Kansas statutes; and that he desired to plead guilty to the charge of second-degree burglary then pending against him.
It appears obvious that discussions concerning the entry of a guilty plea by Mr. Weigel had occurred between his own counsel and counsel for the state. It is equally obvious that those discussions culminated in these results: (1) The plaintiff's plea of guilty to burglary as charged in the information; (2) the state's dismissal of the larceny charge; and (3) the state's forbearance from invoking the Habitual Criminal Act.
There is nothing pernicious per se in what has sometimes been termed "plea bargaining." A person accused of crime should be made aware of the alternatives with which he is faced so far as sentences are concerned. Among the obligations which defense counsel owes his client is that of advising him as to the range of permissible penalties to which he may be subject in the event of a conviction, and to discuss with him very frankly the possible choices which lie before him. (Fields v. State, 195 Kan. 718, 720, 408 P.2d 674; Addington v. State, 198 Kan. 228, 236, 424 P.2d 871.)
In State v. Byrd, 203 Kan. 45, 453 P.2d 22, this court, speaking through Mr. Justice Fromme, explored the subject of plea discussions in some depth and accorded recognition to its proper place in the sensitive area of criminal justice. Nothing would be gained at this time by repeating what was said in the Byrd opinion.
In the present case counsel was appointed to represent Weigel at his preliminary examination. At his arraignment Mr. Weigel requested reappointment of the same individual, a practicing attorney to whom the trial court referred as experienced and competent. It is clear from the dialogue which occurred throughout the arraignment proceedings that counsel had fully explained to *616 his client the provisions of the statute under which the charge was drawn, and the possible penalties for its violation. Weigel himself acknowledged there was nothing further about which he wanted to confer with his attorney.
The plaintiff does not deny the fact that at the time of entering his guilty plea he received important and substantial concessions redounding to his benefit. That those benefits resulted from the plea discussions concerning which the plaintiff had full knowledge, cannot well be doubted.
We view the record as disclosing no more than that Mr. Weigel, after consulting his counsel and being aware of the possible penalties, chose to plead guilty rather than proceed to trial. His exercise of that choice brought him advantages of consequence. We find nothing to indicate that his right to plead not guilty and stand trial before a jury was in any way infringed. (Whaley v. State, 202 Kan. 175, 446 P.2d 397.)
Other grounds alleged as vitiating Weigel's plea of guilty are frivolous and merit no discussion.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610003/ | 2 Wn. App. 223 (1970)
467 P.2d 209
KENNETH BRYDGES, Respondent,
v.
COAST WIDE LAND, INC., Appellant.
No. 133-40996-1.
The Court of Appeals of Washington, Division One, Panel 2.
March 30, 1970.
Kumm, Maxwell, Petersen & Lee, Raymond J. Petersen, and Lawrence B. Bailey, for appellant.
Edward C. Beeksma, for respondent.
HOROWITZ, A.C.J.
Plaintiff, a real estate salesman and office manager of the defendant, was awarded judgment below for $2,359.76 without interest as a balance due on certain real estate sales made by him in the latter part of December, 1966. Defendant (Coast) appeals, its assignments of error raising the common question whether the findings are supported by substantial evidence.
Plaintiff was employed by Coast as a real estate salesman and with another employee, C.A. Wagner, a stockholder and vice-president of Coast, operated Coast's Whidbey Island branch office at Clinton from June, 1963, to February 6, 1967. Plaintiff was paid 70 per cent of the gross real estate commissions he personally produced, together with a certain *224 amount of the gross commissions produced by each of the Coast salesmen working under his supervision. However, plaintiff was required to pay his share of expenses of the Whidbey Island branch office. In 1966, plaintiff's gross earnings amounted to $50,176.56.
On December 9, 1966, Coast held a sales meeting at which the plaintiff and other salesmen were present. At that meeting, Coast presented and produced a written policy statement setting forth revised compensation arrangements to take effect January 1, 1967. The policy statement provided that all salesmen, including the plaintiff, were to receive only 55 per cent of the gross real estate commissions produced but that in addition, a sum designated "bonus" would be paid to each salesman payable at the end of 1967 based on "their regular total earnings over $10,000 paid in 1967." So far as plaintiff and C.A. Wagner were concerned, certain expenses theretofore paid by plaintiff and Wagner would be paid by Coast. Under the policy statement, plaintiff and Wagner would receive less compensation than they had received in prior years although the other salesmen could earn more. The policy statement contemplated that only real estate commissions both earned and paid in 1967 would be the base on which the bonus would be computed. However, plaintiff faced with the prospect of reduced earnings objected and threatened to quit. After discussion, and on the basis of conflicting testimony, the court found that the policy statement for 1967 was amended so that all cash and deferred commissions on business closed in prior years that were actually paid in 1967 would be included in the base and under the formula on which the 1967 bonus of each affected employee would be computed.
Plaintiff continued in employment without apparent change of duties subsequent to the December 9, 1966, sales meeting. On December 26, 28 and 29, 1966, he closed three real estate transactions produced by him. Coast gave him his choice as to whether the commissions should be computed on the 1966 70 per cent commission basis or the 1967 55 per cent commission basis. He elected to take the 70 per *225 cent commission basis. However, the commissions on the plaintiff's three December transactions were not paid to the plaintiff until 1967. Other deferred commissions on transactions closed in previous years were also paid to him in 1967, but, if considered alone, being less than $10,000, no bonus would have become payable. If, however, all the commissions in excess of $10,000 on transactions closed prior to 1967, but paid in 1967, were includable in the 1967 bonus base, then a bonus in the amount adjudged below was correctly computed.
Plaintiff continued in Coast's employment until February 6, 1967, when the employment relation was terminated because of "personality conflicts." Whether the plaintiff or the defendant was responsible for the conflicts does not appear and the court made no finding thereon. Neither the December 9, 1966, policy statement nor the oral discussions at the December 9 meeting dealt with the question of whether in order to collect a bonus a salesman or the plaintiff was required to remain in employment throughout the year 1967. There was evidence that Coast paid a bonus to one of the salesmen whose employment terminated near the end of 1967. The evidence does not show what duties the plaintiff performed in 1967, prior to the termination of his employment.
[1] Defendant contends that the evidence does not support the court's finding that all commissions in excess of $10,000, including commissions on sales written prior to January 1, 1967, were to be included in the 1967 bonus base. There was substantial evidence to support the court's finding on this point and we are bound by the court's finding. In re Estate of McNeal, 75 Wn.2d 103, 449 P.2d 100 (1969).
[2] Defendant also contends that the court erred in refusing to find that the termination of plaintiff's employment was voluntary. If the purpose intended to be served by the proposed finding was to enable reliance upon the defense of voluntary termination of employment (See Annot., 81 A.L.R.2d 1066, 1082 (1962)), then the burden of proving such a defense to the plaintiff's action to recover *226 the bonus claimed was upon the defendant relying on such a defense. Cf., Hansen v. Columbia Breweries, Inc., 12 Wn.2d 554, 122 P.2d 489 (1942). The evidence is not clear as to who was responsible for the plaintiff quitting. Coast's witness, Mr. Wagner, testified, when asked as to why the plaintiff left the employ of Coast, "I would say probably because of some personality conflicts." The rejection of defendant's proposed finding is either because the evidence presented would not support it (Nicolai v. Transcontinental Ins. Co., 61 Wn.2d 295, 298, 378 P.2d 287 (1963)) or it is, in effect, a finding that the defendant has not sustained its burden of proof of voluntary termination of employment. Ingle v. Ingle, 183 Wash. 234, 48 P.2d 576 (1935). We cannot find that the court erred.
Defendant's principal contention is that there is no substantial evidence or reasonable inference therefrom to support the court finding that the bonus agreement
was not an incentive bonus for continued employment for a specific period, but was a revampment of the system of payment by defendant to its salesmen and did not provide for nor contemplate that bonuses would be sacrificed if the employee, salesmen, terminated his employment with defendant prior to December 31, 1967.
Defendant contends the agreement of December 9 was a true bonus agreement impliedly requiring plaintiff's continued employment throughout the year 1967 in order to receive his bonus. There was no evidence that the word "bonus" was used at the December 9, 1966, meeting in any special or technical sense. Apparently no one raised or discussed the question of the technical requirements of "bonus" and the defendant did not qualify its promise to pay the bonus by an express statement that the bonus would be lost if plaintiff or a salesman quit or was discharged before the end of 1967. Had such a provision been inserted, it would have been enforceable. Spooner v. Reserve Life Ins. Co., 47 Wn.2d 454, 287 P.2d 735 (1955). The court could find as a reasonable inference from the evidence that if the employer intended to terminate the bonus *227 as to any employee whose employment was terminated prior to the end of 1967, it could easily have said so and that not having said so, plaintiff was entitled to believe that there was no such requirement. Furthermore, the employment here is not employment on a salary for a fixed period basis, but employment on a commission basis upon sales made by the employee. One may draw an inference as to intention with respect to an employee working on a commission basis different from an inference that may be drawn with respect to an employee working on a salary basis. Indeed, as pointed out above, there was evidence that in the case of one salesman who terminated his employment near the end of 1967, his bonus was paid nevertheless. Furthermore, plaintiff would be especially entitled to recover his bonus if the plaintiff quit for cause.
[3] Nor can it be said, as contended by defendant, that there was no consideration for plaintiff's bonus. The consideration was plaintiff's continued employment or implied promise to continue employment at will after December 9, 1966, followed by three sales produced by him on December 26, 28 and 29, 1966. See Scott v. J.F. Duthie & Co., 125 Wash. 470, 216 P. 853 (1923); Annot., 28 A.L.R. 328, 346 (1924). In our opinion, there is substantial evidence to support the court's finding.
Defendant contends that when plaintiff, with defendant's consent, elected to take the 1966 commission percentage for the December 26, 28 and 29, 1966 real estate transactions, he thereby necessarily agreed that the commissions would not be includable in the base on which to compute the 1967 bonus even though the commissions were paid in 1967. This contention assumes (contrary to the court's finding below) that cash commissions earned in 1966, though payable in 1967, were not to be included in the 1967 bonus base. There is nothing necessarily inconsistent in the defendant electing to receive a commission on the 1966 basis and yet to do so in reliance upon the December 9, 1966, agreement that all commissions paid in 1967, in excess of $10,000, whether earned prior or subsequent to December 9, 1966, would be *228 includable in the base on which the 1967 bonus would be computed. This is all the more true in the absence of evidence of an agreement between the parties that when plaintiff elected to take the 1966 commission percentage, he also agreed to forego his bonus which would otherwise have been payable as a result of the December 9, 1966, agreement.
Plaintiff contends that the trial court should have allowed him interest on the amount of the judgment from January 1, 1968. However, he has not cross-appealed. CAROA 33. Without such a cross-appeal this court has no jurisdiction to consider his claim of error. DeBlasio v. Kittitas, 57 Wn.2d 208, 356 P.2d 606 (1960).
The judgment is affirmed.
UTTER and WILLIAMS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610009/ | 467 P.2d 125 (1970)
STATE of Oregon, Respondent,
v.
Eugene Audie GARDNER, Appellant.
Court of Appeals of Oregon, Department 2.
Argued and Submitted January 21, 1970.
Decided March 26, 1970.
Rehearing Denied April 22, 1970.
Review Denied June 9, 1970.
*126 Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.
Michael E. Murphy, Deputy Dist. Atty., Eugene, argued the cause for respondent. With him on the brief was John B. Leahy, Dist. Atty., Eugene.
Before SCHWAB, C.J., and LANGTRY and FOLEY, JJ.
FOLEY, Judge.
Defendant was convicted by jury of grand larceny and sentenced to 10 years' imprisonment. He appeals assigning improper admission of impeaching testimony and the failure of the court to require a unanimous verdict.
The unanimous verdict assignment has been determined adversely to the defendant in State v. Gann, 89 Or.Adv.Sh. 853, 463 P.2d 570 (1969).
Mr. Richardson, co-owner of a tavern, surprised the defendant, whom he knew, hiding in the tavern office. Richardson recognized defendant, and noticed that a cabinet which held money had been pried open. He frisked defendant, found a quantity of currency in his pocket, and called the police. He later permitted them to record his report of the incident which included a statement that defendant had "eighty some dollars in his pocket" at the time of the frisk.
When called as a state's witness at the trial, Mr. Richardson testified that he did not know how much money he found in the defendant's pocket. The state then offered that portion of the tape recording containing the statement quoted above as a prior inconsistent statement tending to impeach Mr. Richardson. Defendant objected to its admission as a prior inconsistent statement claiming that the state would first have to establish surprise, that Mr. Richardson was an adverse witness, and that the statement given was prejudicial to the state, citing State v. Merlo, 92 Or. 678, 173 P. 317, 182 P. 153 (1919). The court admitted the portion of the tape-recorded statement for the sole purpose of impeachment, and so instructed the jury.
ORS 45.590 is the applicable statute. The relevant portion reads as follows:
"The party producing a witness * * may * * * show that he has made at other times statements inconsistent with his present testimony * * *."
There is no requirement of surprise or that the witness be adverse. State v. Merlo, supra, in discussing the statute, holds that the witness must give testimony prejudicial to the party calling him to allow introduction of the impeaching statement.
In this case, if the jury believed Richardson's testimony that he did not count the money found by frisking defendant, whom he caught red-handed in his office, they could conclude that Richardson either did not consider this to be the money stolen from him, or had so little concern about it as to raise a question in the minds of the jury whether it was, in fact, his money. In this sense, we think Richardson's testimony was prejudicial to the state. No objection was made by the defendant on the basis of materiality.
*127 "* * * The state could impeach its own witness by showing prior inconsistent statements. ORS 45.590. See also State v. Rosser, 162 Or. 293, 348, 86 P.2d 441, 87 P.2d 783, 91 P.2d 295; State v. Merlo, 92 Or. 678, 173 P. 317, 182 P. 153 * * *." State v. Holleman, 225 Or. 1, 6, 357 P.2d 262, 264 (1960).
Finding the assignments of error without merit, the judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876247/ | 247 S.W.3d 160 (2008)
EMPIRE BANK, Plaintiff-Respondent,
v.
Bruce McROBERT, Defendant-Appellant, and
McRobert and Miller Accounting Consultants, Inc., Defendant.
No. 28642.
Missouri Court of Appeals, Southern District.
March 18, 2008.
Robert Dean McGee, for Appellant.
Jeffrey Carl Goodnight, for Respondent.
Before BARNEY, P.J., RAHMEYER, J., LYNCH, C.J., BURRELL, J.
PER CURIAM.
Appellant, Bruce McRobert, appeals from a judgment of the Associate Division of the Circuit Court of Greene County, in which the court entered judgment in favor of Plaintiff, Empire Bank, and against the Defendants, Bruce McRobert and McRobert and Miller Accounting Consultants, Inc., jointly and severally, on Empire Bank's claims for unpaid rent, common area maintenance charges, and attorney fees. We reverse and remand for a new trial.
After filing the notice of appeal in this case, Appellant's counsel requested the preparation of a transcript of the trial for the record on appeal. In response, the trial court advised Appellant's counsel that, "due to mechanical failure" of the *161 sound recording equipment, no trial transcript could be prepared. Appellant has filed a motion in this Court asking that the case be remanded to the trial court for a new trial due to the fact that a transcript cannot be produced. Appellant has also presented this Court with several documents, including the trial court's docket sheet and a statement from the Central Transcribing Supervisor for the Office of State Courts Administrator, all reflecting that a transcript cannot be prepared in this case. Empire Bank has not responded to Appellant's motion to remand.
As applicable here, Rule 81.12(a), Missouri Court Rules (2007), provides that "[t]he record on appeal shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented . . . to the appellate court for decision." However, "[t]he appropriate remedy when `the record on appeal is inadequate through no fault of the parties' is to reverse and remand the case to the trial court." Goodman v. Goodman, 165 S.W.3d 499, 501-02 (Mo.App.2005) (quoting Oyler v. Director of Revenue, 10 S.W.3d 226, 228 (Mo.App.2000)); see also C.H.M. v. Greene County Juvenile Office, 158 S.W.3d 878, 879 (Mo.App.2005); Jackson v. Director of Revenue, 60 S.W.3d 707, 708 (Mo.App.2001). Here, it is through no fault or negligence of Appellant that a transcript cannot be prepared. Therefore, we reverse the judgment of the trial court and remand for a new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2899634/ | NO. 07-09-0012-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MARCH 12, 2009
______________________________
KAREEM ABDUL JABBAR WHITE, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 242ND DISTRICT COURT OF SWISHER COUNTY;
NO. B 4157-0711; HON. ED SELF, PRESIDING
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
ABATEMENT AND REMAND
Following a plea of not guilty, appellant Kareem Abdul-Jabar White was convicted
by jury of possession and delivery of a controlled substance within 1000 feet of a
playground.
Punishment was assessed at four years confinement in the Institutional
Division of the Texas Department of Criminal Justice.
Appellant timely filed his notice of
appeal. The clerk’s record has been filed.
On March 6, 2009, appellant’s appointed counsel filed a motion in which he
indicates an inability to prosecute this appeal on appellant’s behalf.
Accordingly, we now
abate this appeal and remand the cause to the trial court. On remand, the trial court shall
utilize whatever means necessary to determine the following:
1. whether appellant desires to prosecute this appeal; and
2. whether appellant is indigent and entitled to new appointed counsel.
Should it be determined that appellant does want to continue the appeal and is
indigent, and that new counsel should be appointed, the trial court shall appoint new
counsel to represent appellant in this appeal. If new counsel is appointed, the name,
address, telephone number, and state bar number of newly appointed counsel shall be
included in an order appointing counsel. If necessary, the trial court shall execute findings
of fact, conclusions of law, and any necessary orders it may enter regarding the
aforementioned issues and cause its findings, conclusions, and orders, if any, to be
included in a supplemental clerk’s record. A supplemental reporter’s record of the hearing,
if any, shall also be included in the appellate record. Finally, the trial court shall file the
supplemental clerk’s record and the supplemental reporter’s record, if any, with the Clerk
of this Court by April 13, 2009.
It is so ordered.
Per Curiam
Do not publish.
160; Joachim filed suit on August 4, 1999, in cause number 99-507,018, against
Travelers
asserting an underinsured motorist claim arising from an August 5, 1997, motor
vehicle accident. On August 28, 2001, Joachim filed a notice of nonsuit on his entire case
but did not obtain a signed order of dismissal by the trial court. At the time of nonsuit,
Travelers had no claim for affirmative relief, motion for sanctions, or claim for attorney’s
fees pending. By notice dated November 1, 2001, the trial court expressed its intention to
dismiss the case for want of prosecution in the absence of a final order.
On November
26, 2001, the court signed an order dismissing the case with prejudice for want of
prosecution.
Joachim claims he received no notice of the court’s intent to dismiss or its
order of dismissal. He did not challenge the order of dismissal in the trial court or on
appeal.
Joachim filed the underlying case, cause number 2002-520,246, on December 5,
2002, asserting the same claims against Travelers as alleged in cause number 99-507,018. In cause number 2002-520,246, Travelers affirmatively plead res judicata and
on this defense moved for summary judgment. Travelers argued in its motion that the
order dismissing cause number 99-507,018 for want of prosecution was an adjudication
on the merits giving rise to the bar of claim preclusion. The trial court initially denied the
motion as well as a motion for reconsideration. Following a second motion for
reconsideration, the court granted the requested summary judgment on May 18, 2006.
Joachim filed a motion for new trial which was apparently overruled by operation of law.
He timely appealed.
Issue
Through one issue, Joachim challenges the trial court’s grant of summary judgment,
arguing that on filing his notice of nonsuit, the trial court in cause number 99-507,018 lost
jurisdiction of the merits of his case; therefore, its order dismissing the case with prejudice
for want of prosecution was void and incapable of providing the ground for a res judicata
defense in cause number 2002-520,246.
Travelers counters that the order of dismissal with prejudice in cause number 99-507,018 was proper because following the nonsuit the trial court retained plenary power
of the case to render dismissal with prejudice. And, continues Travelers, even were the
order erroneous as to its dismissal with prejudice it was not void but voidable. Joachim
thus should have directly attacked the order and because he did not, it became a final
judgment supporting the res judicata plea in cause number 2002-520,246.
Discussion
An appellate court reviews the trial court’s summary judgment de novo. Provident
Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The scope of review
for a traditional motion for summary judgment is well settled and does not need reiteration
here. See Nixon v. Prop. Mgmt., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985); Tex. R. Civ.
P. 166a(c). A defendant is entitled to summary judgment on an affirmative defense if it
conclusively proves each element of the defense asserted. See Ryland Group, Inc. v.
Hood, 924 S.W.2d 120, 121 (Tex. 1996). When the material facts are undisputed, the
nonmovant may defeat a motion for summary judgment by establishing that the movant's
legal position is unsound. Hanssen v. Our Redeemer Lutheran Church, 938 S.W.2d 85,
90 (Tex.App.–Dallas 1996, writ denied).
Res judicata is an affirmative defense and should be treated as a plea in bar which
reaches the merits of the case. Tex. R. Civ. P. 94; see Walker v. Sharpe, 807 S.W.2d 442,
446 (Tex.App.–Corpus Christi 1991, no writ) (citing Texas Hwy. Dep’t v. Jarrell, 418
S.W.2d 486, 488 (Tex. 1967)). The party relying on the defense must prove: (1) a prior
final judgment on the merits by a court of competent jurisdiction; (2) identity of parties or
those in privity with them; and (3) a second action based on the same claims as were or
could have been raised in the first action. In re K.S., 76 S.W.3d 36, 43 (Tex. App.–Amarillo
2002, no pet.) (citing Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996)).
Ordinarily res judicata bars a subsequent suit if the matters asserted in the subsequent suit
arise out of the same subject matter as a previous suit and which matters, through the
exercise of reasonable diligence, could have been litigated in the prior suit. See Barr v.
Resolution Trust Corp. ex rel. Sunbelt Federal Sav., 837 S.W.2d 627, 631 (Tex. 1992).
No one disputes that the matters Joachim asserted in cause number 2002-520,246 were
the same as those in his previous suit.
Was the trial court empowered to render a merits decision following nonsuit?
After Joachim filed a notice of nonsuit, the court dismissed his case with prejudice
for want of prosecution. A dismissal with prejudice functions as a final determination on
the merits. Labrie v. Kennedy, 95 S.W.3d 722, 729 (Tex.App.–Amarillo 2003, no pet.)
(citing Mossler v. Shields, 818 S.W.2d 752, 754 (Tex.1991)). Thus, we turn first to the
propriety of the trial court’s dismissal with prejudice following a nonsuit.
Rule 162 provides:
At any time before the plaintiff has introduced all of his evidence other than
rebuttal evidence, the plaintiff may dismiss a case, or take a non-suit, which
shall be entered in the minutes. Notice of the dismissal or non-suit shall be
served in accordance with Rule 21a on any party who has answered or has
been served with process without necessity of court order.
Any dismissal pursuant to this rule shall not prejudice the right of an adverse
party to be heard on a pending claim for affirmative relief or excuse the
payment of all costs taxed by the clerk. A dismissal under this rule shall have
no effect on any motion for sanctions, attorney's fees or other costs, pending
at the time of dismissal, as determined by the court. Any dismissal pursuant
to this rule which terminates the case shall authorize the clerk to tax court
costs against dismissing party unless otherwise ordered by the court.
Tex. R. Civ. P. 162.
A nonsuit extinguishes a case or controversy the moment it is filed with the court
clerk or requested in open court. Shadowbrook Apts. v. Abu-Ahmad, 783 S.W.2d 210, 211
(Tex. 1990). While the date a trial court signs an order dismissing the suit is the “starting
point for determining when a trial court’s plenary power expires,” a nonsuit is effective when
filed. In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997). Under Rule 162, a trial court retains
authority after a nonsuit is filed and during the period of its plenary power to consider costs,
attorney’s fees and sanctions, matters “collateral” to the merits. Univ. of Tex. Med. Branch
at Galveston v. Estate of Blackmon, 195 S.W.3d 98, 101 (Tex. 2006); In re Bennett, 960
S.W.2d at 38. But it is without discretion to deny a nonsuit. See In re Bennett, 960 S.W.2d
at 38; Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 59 (Tex. 1991) (party requesting
a nonsuit has absolute right to nonsuit at moment notice is timely filed); Greenberg v.
Brookshire, 640 S.W.2d 870, 872 (Tex. 1982) (granting nonsuit is merely a ministerial act).
Here, at the time Joachim filed a nonsuit in cause number 99-507,018, Travelers
did not have on file a claim for affirmative relief, attorney’s fees, or sanctions. The trial
court was not empowered to adjudicate the merits of Joachim’s claim after he filed a
nonsuit.
Was the trial court’s order void or voidable?
An order is void if it is apparent that the court “‘had no jurisdiction of the parties or
property, no jurisdiction of the subject matter, no jurisdiction to enter the particular
judgment, or no capacity to act.’” Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005)
(quoting Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985) (orig. proceeding) (per
curiam)). Other defects that do not reach the level of a jurisdictional defect render a
judgment voidable and must be corrected on direct attack. Placke, 698 S.W.2d at 363.
For the parties at bar, determining the character of the November 26 order is critical,
as a voidable judgment will support a plea of res judicata, Trahan v. Trahan, 894 S.W.2d
113, 117 (Tex.App.–Austin 1995, writ denied), while a void judgment will not, Lawrence
Sys., Inc. v. Superior Feeders, Inc., 880 S.W.2d 203, 211-12 (Tex.App.–Amarillo 1994, writ
denied).
It is thus necessary to determine the jurisdictional effect of the nonsuit. In this
respect, we do not write on a blank slate. A nonsuit returns the litigants to the positions
they occupied before the plaintiff invoked the court’s jurisdiction. Rexrode v. Bazar, 937
S.W.2d 614, 619 (Tex.App.–Amarillo 1997, no writ). It renders the merits of the case moot.
Estate of Blackmon, 195 S.W.3d at 101 (cited in Villafani v. Trejo, 251 S.W.3d 466, 469
(Tex. 2008)). A moot case lacks justiciability. Patterson v. Planned Parenthood of
Houston, 971 S.W.2d 439, 442 (Tex. 1998). Jurisdiction over the underlying lawsuit
depends on justiciability, and for a controversy to be justiciable, there must be a real
controversy between the parties that will actually be resolved by the judicial relief sought.
State Bar of Texas v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994). In the absence of a
controversy that is legally presented for determination, a trial court lacks jurisdiction to
render a personal judgment. Matz v. Bennion, 961 S.W.2d 445, 449 (Tex.App.–Houston
[1st Dist.] 1997, pet. denied). If a court lacks jurisdiction over the parties and the subject
matter before it, any judgment it renders is void. Mapco, Inc. v. Forrest, 795 S.W.2d 700,
703 (Tex. 1990); see State ex rel. Dishman v. Gary, 359 S.W2d. 456, 461 (Tex. 1962)
(orig. proceeding) (right of nonsuit is absolute, accordingly, an order of reinstatement and
ancillary injunctive orders entered after nonsuit were “nugatory and void.”)
In In re Martinez, 77 S.W.3d 462 (Tex.App.–Corpus Christi 2002, orig. proceeding)
the relator nonsuited his entire case and the following day the court signed an order of
dismissal. Within thirty days of the order of dismissal defendant Donna ISD filed a motion
for new trial and a counterclaim. The trial court timely granted the motion for new trial
without hearing and set the case for jury trial. Id. Relator sought relief by mandamus
requesting the appellate court to order the trial court to vacate its order granting a new trial.
Finding the trial court abused its discretion in granting a new trial, the court of appeals
explained:
‘when a plaintiff nonsuits his entire case, leaving no remaining claims for
affirmative relief in the lawsuit, there is no longer any real controversy
between the parties, and the trial court has no jurisdiction to grant affirmative
relief or continue the lawsuit in such a way as to suggest that any justiciable
claims remain for determination. The lawsuit remains on the docket merely
as an empty shell awaiting the final ministerial act of dismissal. Although
plenary power remains to sanction or set appellate deadlines, plenary power
in this context includes only those powers that are necessary to the court’s
disciplinary authority over the parties before it or for the demarcation of
deadlines for purposes of appeal.’
In re Martinez, 77 S.W.3d at 464-65, (quoting Zimmerman v. Ottis, 941 S.W.2d 259, 261
(Tex.App.–Corpus Christi 1996, orig. proceeding)).
The court then found that because the lawsuit no longer contained a justiciable
claim, nothing remained on which it could grant a new trial. Therefore, the trial court’s
attempted grant of a new trial following nonsuit was an act beyond its jurisdiction resulting
in a void order. In re Martinez, 77 S.W.3d at 465; see Zimmerman, 941 S.W.2d at 261
(citing Newman Oil Co. v. Alkek, 657 S.W.2d 915, 920 (Tex.App.–Corpus Christi 1983, no
writ) (case decided under rule 164, predecessor of current rule 162; held the trial court
could not ignore a nonsuit and lacked jurisdiction to grant a summary judgment).
Federal Rule 41(a)(1) is the analogue to Texas Rule 162. In re Bennett, 960
S.W.2d at 37 n.4. Although not controlling, cases decided under the federal rule are
therefore beneficial to our discussion of the jurisdictional effect of the nonsuit. In pertinent
part, Rule 41(a)(1)(A)(i) provides that an action may be dismissed by the plaintiff without
order of court by filing a notice of dismissal at any time before service by the adverse party
of an answer or a motion for summary judgment, whichever first occurs. Fed. R. Civ. P.
41(a)(1)(A)(i). A notice of dismissal filed under Rule 41(a)(1)(A)(i) “terminates the case all
by itself. There is nothing left to adjudicate.” Szabo Food Serv., Inc. v. Canteen Corp., 823
F.2d 1073, 1078 (7th Cir. 1987). After filing a proper notice under the rule, the parties are
left as though no action had been brought. Janssen v. Harris, 321 F.3d 998, 1000 (10th
Cir. 2003). And the proceedings are rendered a nullity. Williams v. Clarke, 82 F.3d 270,
273 (8th Cir. 1996). Thus a judgment on the merits rendered after the plaintiff files a
dismissal notice according to Rule 41(a)(1)(A)(i) is void. Marques v. Federal Reserve Bank
of Chicago, 286 F.3d 1014, 1018 (7th Cir. 2002) (collecting cases); 8 Moore’s Federal
Practice § 41.33[6][e] (Matthew Bender & Co. 2008) (“[o]nce a notice of dismissal without
prejudice is filed, the court loses jurisdiction over the case, and may not address the merits
of the action or issue further orders.”); Williams v. Ezell, 531 F.2d 1261,1264 (5th Cir.
1976) (following filing of notice of dismissal, district court’s “attempt to deny relief on the
merits and dismiss with prejudice was void.”); Smith v. Dowden, 47 .3d 940, 943 (8th Cir.
1995) (“[t]he jurisdictional effect of such a voluntary dismissal deprives the court of any
power to adjudicate the withdrawn claim.”).
We are mindful of the consequences of our characterization of a trial court judgment
as void. Cf. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000) (noting
consequences of holding trial court lacked subject matter jurisdiction). But caselaw makes
clear that when Joachim filed a notice of nonsuit with the district clerk, the merits of his
case were withdrawn. A justiciable controversy no longer remained for adjudication by the
trial court. Accordingly, although it retained the power to address the “collateral” matters
listed in Rule 162, it lacked jurisdiction to enter a judgment adjudicating the merits of
Joachim’s case. Estate of Blackmon, 195 S.W.3d at 101; Prostok, 165 S.W.3d at 346.
The attempted adjudication of the merits was without effect and produced a void order on
the merits. Because a final judgment on the merits of a case is fundamental to the defense
of res judicata, we find that Travelers did not conclusively meet its summary judgment
burden of proof. The trial court, accordingly, erred in granting summary judgment.
Joachim’s sole issue is sustained.
Conclusion
Having sustained Joachim’s issue, we reverse and remand the case for further
proceedings consistent with this opinion.
James T. Campbell
Justice | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2610209/ | 15 Ariz. App. 54 (1971)
485 P.2d 1171
Jose A. BENITEZ, Petitioner,
v.
The INDUSTRIAL COMMISSION of Arizona, Respondent, Prescott Downs Funk Greyhound Racing Circuit, Respondent Employer, State Compensation Fund, Respondent Carrier.
No. 1 CA-IC 581.
Court of Appeals of Arizona, Division 1, Department A.
June 24, 1971.
*55 Jose A. Benitez, petitioner in pro. per.
William C. Wahl, Jr., Chief Counsel, Industrial Commission of Arizona, Phoenix, for respondent.
Robert K. Park, Chief Counsel, State Compensation Fund, by Dee-Dee Samet, Phoenix, for respondent carrier.
DONOFRIO, Judge.
This case is before the Court by writ of certiorari to review the lawfulness of an award and findings of The Industrial Commission of Arizona which found that petitioner has no permanent disability causally related to his industrial injury.
Petitioner, a jockey in his late forties, had an accident arising out of and in the course of his employment when he fell from a horse he was riding in a race at Prescott Downs. The horse, at the time, stepped on petitioner's back. Suffice to say, he suffered several injuries from this accident and was treated for these injuries. The file shows compensation payments and a rather long medical history from the date of the accident, July 23, 1966, to the date of the present award, October 8, 1970. We shall not burden this opinion with any detailed recitation of the facts. However, because petitioner is now representing himself, and because he is claiming error in the award based upon alleged misunderstandings of the referee, and because he attributes some of this misunderstanding to his previous counsel and doctors in the case, we have not spared going into every aspect of the record before us.
At the outset we should say the record would indicate petitioner was always ably represented by counsel and that in our opinion his case was never misjudged nor discrimination shown because of his age as he urges the medical testimony indicates.
First to be considered is the Fund's objection to documents filed by the petitioner on May 19, 1971, the date of oral argument. We hold the objection is well taken and should be sustained. A reading of the instruments involved readily shows that some of the allegations and statement of facts therein were not supported by evidence made of record in this case and were therefore outside the record.
It is to be noted, however, that much of the material stated by petitioner in these documents is a repetition of the points raised by him, argued in his brief, and presented by him at oral argument, and in the respect that the documents are in aid of his arguments we have thus considered them.
The issue for our consideration is whether the Commission's decision of October 8, 1970, is reasonably supported by the evidence.
Briefly, petitioner's position is that he is still disabled and suffering from many ailments and pains caused by the accident, and that he is not able to again engage in his job as a jockey. The record reveals that the main evidence which is submitted as to his condition, and which evidence *56 forms a basis of the decision, was a medical consultation of December 15, 1967, subscribed by Doctors Aidem, Palmer, Ettelson and Gans which contains this comment:
"The consultants today are unable to explain the patient's continuing symptomatology on the basis of his completely normal physical examination. In particular, they do not understand his inability to return to work on the basis of the injury of 7-23-66, and relate this to his normal age process or too prolonged an absence from his regular work."
Then at the hearing on April 3, 1970, Dr. Palmer, who was one of the consultants, testified that petitioner had no impairment of function related to the industrial accident and that it was his opinion that petitioner had recovered from the effects of the injury and that whatever symptoms he might presently have are due to normal aging processes. Truly this evidence is in conflict with petitioner's contention and with his treating physician's testimony that although the pain petitioner suffers from could result from osteoarthritis without any accident, it was the treating physician's opinion that petitioner's pain resulted from an aggravation of the degenerative arthritis, an aggravation caused by the accident.
Although there is this conflict, the medical evidence supports the Commission's conclusion that petitioner suffers no permanent disability related to the industrial accident.
We have repeatedly held that where there is a conflict in the medical testimony, we do not substitute our opinion for that of the Commission where the Commission has reasonably resolved that conflict. Russell v. Industrial Commission, 98 Ariz. 138, 402 P.2d 561 (1965); Wones v. Industrial Commission, 7 Ariz. App. 236, 437 P.2d 988 (1968).
The award is reasonably supported by the evidence.
Affirmed.
STEVENS, P.J., and CASE, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/326751/ | 513 F.2d 816
UNITED STATES of America, Appellee,v.Enrique LLACA ORBIZ, Defendant-Appellant.
No. 74-1032.
United States Court of Appeals,First Circuit.
Argued Feb. 7, 1975.Decided April 17, 1975.
Enrique Llaca Orbiz, pro se.
Juan M. Perez-Gimenez, Asst. U. S. Atty., with whom Julio Morales Sanchez, U. S. Atty., San Juan, P. R., was on brief, for appellee.
Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
COFFIN, Chief Judge.
1
The appellant was brought to trial on a charge of embezzlement under 18 U.S.C. § 656 four years after his original arrest. After trial commenced, appellant charged that two of the jurors were having difficulty comprehending English. A motion for mistrial was granted on this ground and because the judge held some shares in the bank which had employed appellant and from which he was alleged to have embezzled. A new trial was conducted by a different judge and appellant was convicted.
2
On appeal a catalogue of errors is claimed.1 Appellant argues persistently that the evidence did not negate the possibility that there was a legitimate interpretation of his actions, that the trust, which the major prosecution witness said he came to the bank to establish, was privately set up through appellant as an individual and not acting as a bank employee. But such evidence as he points to was at best equivocal.2 More important, there was sufficient evidence and legitimate inferences to be drawn therefrom to support the jury's verdict. The allegedly erroneous evidentiary rulings did not constitute misapplication of the law or abuse of discretion.3 We therefore pass on to the more substantial legal questions presented.
3
The appellant begins with the claim that the delay from the date of arrest in 1969 to trial in 1973 deprived him of his constitutional right to speedy trial. The picture of trial delay does not reflect happily upon either the government or the district court. We reiterate the admonition that the right to speedy trial is not dependent on repeated defense assertions. Barker v. Wingo, 407 U.S. 514, 529, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); United States v. Fay, 505 F.2d 1037 (1st Cir. 1974). However, the facts of this case do not demonstrate that delay was solely the product of either court docketing problems or government requests. The appellant requested delay or filed motions necessitating continuances on over a dozen occasions, see Fay, supra, at 1039, and a good deal of the need for delay was produced by his inability to deal with local counsel. Although he did not claim to be indigent, the court finally appointed counsel, permitted appellant to go forward on his own behalf with appointed counsel's advice and allowed a final delay for necessary preparation.
4
In addition, appellant fails to persuade us that he was prejudiced by the delay. He blames the loss of local counsel4 on delay and claims exposure of jurors to unfavorable pre-trial publicity. But counsel indicated to the court that his withdrawal was caused by personal and professional difficulties with his client. Voir dire produced a negative response when jurors were asked as a group if they had heard about or read of appellant's case. There was no showing that pre-trial publicity infected the verdict. In light of all these circumstances, there was no denial of speedy trial. Barker v. Wingo, supra.
5
Appellant's next challenge is to the indictment, on the grounds that it failed to adequately state the means by which the embezzlement was achieved or to state the essential elements of the offense. The district court ruled, 358 F. Supp. 200, 202-203, that the complaint adequately set forward a plain, concise, and definite statement of the offense as required by Rule 7(c) Fed.R.Crim.Proc. We find no error. The indictment read as follows:
6
"On or about September 5, 1967, in the District of Puerto Rico and within the jurisdiction of this Court, Enrique Llaca Orbiz, the defendant herein, being an officer, that is, a trust officer of Banco Popular de Puerto Rico, at the Popular Center, which is a bank insured by the Federal Deposit Insurance Corporation, wilfully and knowingly, and with intent to injure and defraud the Banco Popular de Puerto Rico, did embezzle the sum of $25,000.00 of the funds and credits of said Banco Popular which had come into his possession and under his care by virtue of his position as such officer. (Title 18, United States Code, Section 656)."
7
The indictment sets out the date, the amount involved and the name of the bank as well as the accused's position of trust. It is sufficient to apprise the defendant of the charge. United States v. Bearden, 423 F.2d 805 (5th Cir. 1970), cert. denied, 400 U.S. 836, 91 S. Ct. 73, 27 L. Ed. 2d 68 (1971); United States v. Fortunato, 402 F.2d 79 (2d Cir.), cert. denied,394 U.S. 933, 89 S. Ct. 1205, 22 L. Ed. 2d 463 (1968).
8
The appellant's third challenge is to the district court's failure to make available grand jury minutes under the Jencks Act, 18 U.S.C. § 3500 and Rule 6(c) Fed.R.Crim.Proc. Assuming that this issue, raised only days prior to the much delayed first trial, was properly preserved, we find appellant's argument unpersuasive. His right, under Rule 6(c) to disclosure of minutes depended on showing that some possible grounds for dismissal would be produced. 8 Moore's Federal Practice P 6.05. The district court found the motion to be untimely and without sufficient promise of affording grounds for dismissal of the indictment. We agree.5 The appellant alleged that the indictment was based on hearsay, a claim foreclosed by Costello v. United States, 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397 (1956), unless abusive prosecutorial tactics are alleged. United States v. Leibowitz, 420 F.2d 39, 41-42 (2d Cir. 1969). Another allegation was that there was a breach of grand jury secrecy, but here again no showing was proffered and the presumption of regularity obtained. Finally, the motion, insofar as it sought fodder for witness impeachment was not renewed at the second trial and contained no showing of "particularized need". United States v. Anderson, 481 F.2d 685, 692 (4th Cir. 1973), and appellant attempts no showing of need or prejudice here. The district court did not abuse its discretion in denying the motion to provide access to grand jury minutes.
9
The appellant's catalogue comes to an end with the claim that the first district judge abused his discretion in declaring a mistrial, and that the appellant was therefore twice put in jeopardy. This claim too must fail. The appellant moved for a mistrial. The motion was based on the alleged failure of two of the jurors to fully comprehend English. It was granted on this basis and also because of the judge's shareholding in the employer-bank.
10
The dismissal of the jury is within the sound discretion of the court if there is "manifest necessity", United States v. Jorn, 400 U.S. 470, 481, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971), citing United States v. Perez, 9 Wheat. 579, 6 L. Ed. 165 (1824). This is so because jeopardy attaches when the jury is empanelled, Serfass v. United States, --- U.S. ---, 95 S. Ct. 1055, 43 L. Ed. 2d 265 (1975). While jeopardy attaches at that time, the purpose of the rule is to protect the defendant against "repeated attempts to convict an individual for an alleged offense." Id. at ---, 95 S.Ct. at 1062. Where the government plays no role in necessitating a mistrial, see Downum v. United States, 372 U.S. 734, 83 S. Ct. 1033, 10 L. Ed. 2d 100 (1963), and where the accused has himself made the request, based on circumstances "not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or judicial error." United States v. Jorn, supra, at 485, 91 S.Ct. at 557.
11
Affirmed.
1
Some errors raised are not properly preserved, such as appellant's claim that the district court improperly denied him compulsory process to gain access to bank records. This district court ruling granting subpoena took place in the first trial and appellant did not pursue the matter in the second trial, or apprise that court of his difficulties in obtaining compliance
2
For the same reason, the district court did not err in refusing to give the following proposed jury instruction: "funds do not become bank funds because one who is an officer of a bank receives them, irrespective of the capacity in which he does so, and when a bank officer holds funds in a fiduciary capacity for others, they do not become funds of the bank." A somewhat similar direction was required in a case cited by the appellant, Golden v. United States, 318 F.2d 357 (1st Cir. 1963), based on the specific facts introduced in evidence. The failure to grant the instruction in Golden reflected the district court's erroneous legal conclusion that the bank did have title to the funds. The court below here did instruct the jury that it had to find that the funds were bank funds and the defendant intentionally embezzled them. See Golden, supra, at 362. This was sufficient
3
Some of the errors charged are alleged to have been partially the result of the prosecution having "trespassed minimum standards of fair play". The record requires that we reject the contention that the prosecution made any material misrepresentations to the defendant or conducted this case in such a way as to deny defendant a fair trial. The major charge levelled against the prosecution, that it purposely withheld the name of an FBI agent who had interviewed the prosecution's prime witness was not properly preserved. Once the information was provided the defense did not inform the court or prosecution of further difficulties in obtaining the appearance of the witness. And furthermore, a reading of the record reveals that the absence of the witness was non-prejudicial
4
Appellant also claims that he was denied access to his Florida counsel because of the court's refusal to grant a change of venue. We find no prejudice and no abuse of discretion in the court's refusal to grant the venue change. The motion was denied without prejudice to a showing that a fair and impartial trial could not be held, which showing was not made
5
The appellant also challenged the composition of the grand jury. Whether or not the minutes were relevant to this claim, his challenge did not contain any sworn statement of facts which, if true, would constitute a substantial failure to comply with the Jury Selection and Service Act as required by 28 U.S.C. § 1867 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/4561317/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
LANCE GREENAWALT, : No. 119 MM 2020
:
Petitioner :
:
:
v. :
:
:
COURT OF COMMON PLEAS ADAMS :
COUNTY, :
:
Respondent :
ORDER
PER CURIAM
AND NOW, this 28th day of August, 2020, the Application for Leave to File Original
Process is GRANTED, and the Petition for Writ of Mandamus is DENIED. | 01-03-2023 | 08-28-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3106927/ | Order entered June 21, 2013
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01037-CR
FERNANDO ENRIQUEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F11-70238
ORDER
In this case, appellant raises an issue related to the costs assessed against him. The
record, however, does not contain a cost bill or other document with an itemized list of costs
assessed in this case.
Accordingly, we ORDER the Dallas County District Clerk to file, within FIFTEEN
DAYS of the date of this order, a supplemental clerk’s record containing a detailed itemization
of the costs assessed in this case, including but not limited to, specific court costs, fees, and court
appointed attorney fees. We further ORDER that the supplemental clerk’s record include a
document explaining any and all abbreviations used to designate a particular fee, cost, or court
appointed attorney fee.
We DIRECT the Clerk to send copies of this order, by electronic transmission, to the
Gary Fitzsimmons, Dallas County District Clerk; Dallas County District Clerk’s Office, Criminal
Records Division; and to counsel for all parties.
/s/ DAVID EVANS
JUSTICE | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2610231/ | 207 Kan. 545 (1971)
485 P.2d 1293
MRS. MERRITT M. BARNES, et al., Appellees,
v.
IRA CARROLL, ROYAL P. KENNEDY, and MR. and MRS. WALTER SCOTT, Appellants.
No. 46,026
Supreme Court of Kansas.
Opinion filed June 12, 1971.
Philip L. Bowman, of Adams, Jones, Robinson and Manka, Wichita, argued the cause, and Floyd E. Jensen, of Wichita, was with him on the brief for the appellant.
Kenneth F. Beck, of Wichita, argued the cause, and Lloyd M. Kagey, of Wichita, was with him on the brief for the appellees.
The opinion of the court was delivered by
O'CONNOR, J.:
This is an injunction action directed against violations of certain restrictive covenants pertaining to Highland Acres Addition in Sedgwick county.
Although the petition named fourteen defendant property owners in the subdivision, service was obtained on only ten of them. After a trial on the issues, the district court granted injunctive relief effective November 21, 1969, and this appeal by defendants Kennedy, Carroll and Scotts followed.
The primary question submitted to and determined by the lower court was whether appellants' use of mobile homes as residences on their properties violated the restrictive covenants applicable to the subdivision. The court found such use was prohibited. With respect to appellant Kennedy, the court ordered that the unoccupied trailer house, car body, and junk located on his property be *546 removed within thirty days, and within such time he should comply with all other restrictions. Appellants Carroll and Scotts were ordered to remove the "temporary structures" (erected with mobile homes as the basic unit) located on their properties on or before April 1, 1970. The court also directed that other conditions on properties owned by Carroll and Scotts which were not in compliance with the restrictions were to be rectified on or before the April 1 date.
After filing the notice of appeal, appellants requested a stay of any proceedings to enforce the judgment. On April 2, 1970, a stay order was granted by this court and appellants filed their supersedeas bond in the amount of $1,000.
At the outset, we are confronted with appellees' motion to dismiss the appeal, which, if sustained, will render discussion of the merits of the case unnecessary. The motion, with supporting affidavits, filed February 18, 1971, states the house trailers which had been located on appellants' lots have been removed and replaced with houses that conform with the restrictions, and appellants are no longer in violation of the district court's injunction. At oral argument, appellees' counsel reaffirmed the allegations of the motion and further stated that appellants have fully complied with the judgment of the district court; that appellees are satisfied with conditions as they now exist; and that the appeal should be dismissed. Appellants do not deny they have removed the house trailers as ordered by the lower court.
We have concluded that appellees' point is well taken and the appeal must be dismissed. It has long been the rule in this jurisdiction that anything which savors of acquiescence in a judgment cuts off the right of appeal. (See, e.g., Curry v. Perney, 194 Kan. 722, 402 P.2d 316; Rose v. Helstrom, 177 Kan. 209, 277 P.2d 633; Hawkins v. Wilson, 174 Kan. 602, 257 P.2d 1110; Newsome v. Anderson, 164 Kan. 132, 187 P.2d 495; Sisk v. Edmonston, 163 Kan. 394, 182 P.2d 891; Paulsen v. McCormack, 133 Kan. 523, 1 P.2d 259.) Stated another way, a judgment which is acquiesced in, in whole or in part, is not open to appellate review. (Warner v. City of Independence, 121 Kan. 551, 247 P. 871; Bank v. Bracey, 112 Kan. 677, 212 P. 675.) The question of acquiescence in an injunction action was considered by this court in Warner, where the district court had enjoined the defendant city from proceeding under a contract to pave a street. A succinct statement of the holding is found in Syllabus 1 of the opinion:
*547 "In an action brought under authority of section 265 of the civil code (R.S. 60-1121) by taxpayers claiming to be peculiarly affected by an alleged unlawful letting of a contract to pave a street and public road, where the work was enjoined, and the defendant public officials concerned therewith so far acquiesced in the judgment as to rescind and set aside so much of their proceedings as were held to be invalid and proceeded to let another contract for the improvement of the street and road, all questions touching the correctness of the judgment thus acquiesced in are moot and the appeal must be dismissed" (p. 551.)
In the instant case, appellants sought and obtained a stay of proceedings pending appeal. (K.S.A. 60-262 [c], [d], [f], and 60-2103 [d].) Pursuant to this court's order, they filed a supersedeas bond conditioned upon their abiding the judgment, if affirmed, and paying the costs. The stay order gave them full protection from enforcement of the judgment until the matter could be determined on appeal. Notwithstanding that their ostensible purpose was to maintain the status quo, appellants took affirmative action whereby they recognized the validity of the injunction order against them and substantially complied with its terms. Under the authorities cited they have effectively waived their right to have the propriety of the district court's judgment reviewed by an appellant court.
The appeal is dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/782376/ | 332 F.3d 1205
Virginia Dumlao TANIGUCHI, Petitioner-Appellant,v.John Paul SCHULTZ; Kathleen Hawy Sawyer; Doris Meissner; John Ashcroft, Attorney General, Respondents-Appellees.Virginia Agustin Taniguchi, Petitioner,v.John Ashcroft, Attorney General, Respondent.
No. 00-16928.
No. 00-71053.
United States Court of Appeals, Ninth Circuit.
Filed June 18, 2003.
Virginia Dumlao Taniguchi, Marysville, CA, pro se.
Jocelyn Burton, Robert Yeargin, USSF — Office of the U.S. Attorney, San Francisco, CA, Linda S. Wernery, DOJ — U.S. Department of Justice, Civil Div./Office of Immigration Lit., for Respondent-Appellee.
Before RONEY,* HUG, THOMAS, Circuit Judges.
Order; Dissent by Judge PREGERSON.
ORDER
PER CURIAM.
1
The panel has voted to deny the petition for panel rehearing. Judge Thomas has voted to reject the suggestion for rehearing en banc and Judges Roney and Hug have so recommended.
2
The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35.
3
The petition for panel rehearing and the petition for rehearing en banc are denied.
Notes:
*
Honorable Paul H. Roney, Senior United States Circuit Judge for the Eleventh Circuit, sitting by designation
PREGERSON, Circuit Judge with whom Judge REINHARDT joins, dissenting from our court's denial of rehearing en banc.
I respectfully dissent from the order denying rehearing en banc. It is a bedrock principle of our law "that all individuals in the United States — citizens and aliens alike — are protected by the Due Process Clause of the Constitution." Garberding v. INS, 30 F.3d 1187, 1190 (9th Cir.1994) (citing Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976)). Furthermore, "[i]t is equally well established that the Due Process Clause incorporates the guarantees of equal protection." Id. (citing Johnson v. Robison, 415 U.S. 361, 364 n. 4, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974)). In my view, INA § 212(h), 8 U.S.C. § 1182(h), which denies discretionary relief from removal to Legal Permanent Residents (LPRs) convicted of an aggravated felony, but makes such relief available to illegal aliens (non-LPRs) who are convicted of an aggravated felony, violates the equal protection guarantees afforded all aliens under the Fifth Amendment. Not only does § 212(h) irrationally discriminate against LPRs, but the rationale the panel attributes to Congress to defend § 212(h) against an equal protection challenge is illogical and inconsistent with the statute's purpose.
I believe there is no rational justification for providing the benefit of discretionary relief from removal to non-LPRs who have committed aggravated felonies, while denying the same relief to LPRs who have also committed aggravated felonies. I also believe that § 212(h) is fundamentally unfair because unlike its beneficial treatment of non-LPRs, § 212(h) punishes LPRs who are immigrants that have taken a positive step to become lawful members of American society. Section 212(h) in effect rewards aliens who have committed two crimes — an unlawful entry and an aggravated felony — while punishing aliens who have committed only one crime — an aggravated felony.
The Supreme Court has emphasized that LPRs "like citizens, pay taxes, support the economy, serve in the Armed Forces, and contribute in myriad other ways to our society." In re Griffiths, 413 U.S. 717, 722, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973). For this reason, both Congress and the Supreme Court have historically treated LPRs more favorably than non-LPRs. In Landon v. Plasencia, 459 U.S. 21, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982), for example, the Supreme Court stated: "once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly." Landon, 459 U.S. at 32, 103 S.Ct. 321 (holding that an LPR who left the country for a brief period and was placed in exclusion proceedings upon return was entitled to claim greater procedural protections under the Due Process Clause than non-LPRs seeking initial entry). Congress has also consistently favored LPRs over non-LPRs. See, e.g., 8 U.S.C. § 1153 (considering LPRs the most favored category in allocation of immigrant visas); 8 U.S.C. § 1229(b) (requiring seven year continuous physical presence requirement for LPRs but ten year requirement for non-LPRs); 8 U.S.C. §§ 1601-1666 (eliminating all welfare benefits for non-LPRs but preserving some benefits for LPRs).
I am at a loss to understand how the rationale the panel attributed to Congress to uphold § 212(h) saves it from rational basis scrutiny. The majority concludes that the statute makes a rational distinction between LPRs and non-LPRs because Congress could have believed that LPRs who committed an aggravated felony were more likely to be recidivists than non-LPRs who committed the same crime. The majority reasons that Congress favored non-LPRs over LPRs because it believed that LPRs who commit an aggravated felony are more likely to be recidivist because their substantial employment and family ties in the United States were insufficient to deter them from the criminal conduct that rendered them deportable.
The panel's premise that LPRs have more substantial family relations and employment ties to the United States is contrary to the text and purpose of § 212(h). I emphasize that the INS only grants relief to non-LPRs under § 212(h) if the applicant has strong family ties in the United States. To qualify for § 212(h) relief, a non-LPR must be a "spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence." INA § 212(h)(1)(B), 8 U.S.C. § 1182(h)(1)(B). Furthermore, the Attorney General is authorized to grant § 212(h) relief to non-LPRs "if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien."1 Id. In addition, the BIA may grant relief under § 212(h) where a non-LPR can establish other close connections to the United States, including:
family ties within the United States, residence of long duration in this country (particularly when the inception of residence occurred while the respondent was of young age), evidence of hardship to the respondent and family if deportation occurs, service in this country's Armed Forces, a history of employment, the existence of property or business ties, evidence of value and service to the community....
Matter of Marin, 16 I. & N. Dec. 581, 584-85, 1978 WL 36472 (1978). Accordingly, the Attorney General may grant a non-LPR discretionary relief under § 212(h) only if the non-LPR has strong family, property, employment, and community ties to the United States. So here's the rub, non-LPRs eligible to receive § 212(h) discretionary relief, under the panel's rationale, would be influenced by the "deterrents" to committing an aggravated felony that the panel assumed LPRs exclusively possess: United States-based families and employment to support their families.2
Furthermore, the notion that "aggravated felon LPRs could be viewed as less deserving of a second chance than non-LPRs,"3 because they have jeopardized their status by committing a crime, is illogical. If anything, non-LPRs have more to risk by committing a crime. When a non-LPR commits a crime, he or she risks his or her presence in the United States because both the state and federal government routinely check the immigration status of individuals following an arrest. See, e.g., Cal. Health & Safety Code § 11369 (requiring agency arresting individual for drug crimes to notify the "appropriate agency of the United States having charge of deportation matters" if there is reason to believe the individual may not be a citizen of the United States); 8 U.S.C. § 1357(d) (describing process for federal, state or local law enforcement officials to report an individual arrested for controlled substance crimes when the officer has reason to believe that he or she is not lawfully present in the United States); Am. G.I. Forum v. Miller, 218 Cal.App.3d 859, 267 Cal.Rptr. 371 (Cal.App.1990) (upholding against various constitutional challenges California's Automated Regional Justice Information System arrest form which requires arresting officer to ask and record whether the arrestee is an undocumented person in part because officers may have to "notify federal authorities when an arrestee is an illegal alien"). A non-LPR risks removal based on his or her undocumented status alone when he or she commits a crime because federal or state officials routinely check arrestees' immigration status. By contrast, when an LPR commits a crime, his or her status as an LPR will not subject him or her to immigration proceedings. Thus, non-LPRs arguably have a more compelling incentive to obey the law than LPRs.
The majority's characterization of § 212(h) relief as a rational "first step" towards the legitimate goal of removing criminal aliens from the United States is also untenable. A piecemeal reform effort does not authorize Congress to draw arbitrary distinctions. Even when Congress takes an incremental step toward a broader reform that creates discrimination against a certain group, the resulting "disparity of treatment" must be rationally related to some legitimate government purpose; Congress' decision to start with LPRs must be rational. See Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). If Congress' intent was to remove criminal aliens, § 212(h) is not a rational step toward this goal because it makes relief available to people who have committed two crimes while barring relief to those who have committed only one. There is no rational basis for Congress to effectuate its "first step" in streamlining the removal process for dangerous aliens by treating LPRs and non-LPRs differently; a more rational distinction would be based on the nature of the crime rather than on an alien's immigration status.
Because I believe that § 212(h) violates the bedrock concept of equal protection under the law, I respectfully dissent from our court's denial of rehearing en banc.
Notes:
1
The majority assumes in its holding, and I agree, that § 212(h) applies to aliens both within the United States and aliens seeking admission into the United States
2
By upholding § 212(h) on the basis that Congress could have believed that LPRs were more likely to be recidivists than non-LPRs because LPRs have more substantial family ties to the United States, the panel contravenes our rule that courts examining equal protection challenges must be "careful not to attribute to the government purposes which it cannot reasonably be understood to have entertained."Wauchope v. United States Dept. of State, 985 F.2d 1407, 1415 (9th Cir.1993) (internal citations and brackets omitted). The plain language of § 212(h) illustrates that it is inconceivable that Congress barred LPRs from § 212(h) discretionary relief because Congress believed that LPRs were less deserving of relief because of their family ties to the United States; family ties are a statutory prerequisite for non-LPRs to obtain relief under § 212(h). Thus, Congress could not have believed that family connections rendered LPRs less worthy of relief because Congress explicitly conditioned eligibility under § 212(h) to non-LPRs who have substantial family ties to a United States citizen or LPR parent, spouse, or child.
3
Taniguchi v. Schultz, 303 F.3d 950, 958 (9th Cir.2002) (internal cite omitted). | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2984259/ | April 17, 2014
JUDGMENT
The Fourteenth Court of Appeals
MAX PROTETCH, INC., Appellant
NO. 14-13-00125-CV V.
JOHN A. HERRIN, Appellee
________________________________
This cause, an appeal from the judgment in favor of appellee, John A.
Herrin, signed November 19, 2012, was heard on the transcript of the record. We
have inspected the record and find no error in the judgment. We order the
judgment of the court below AFFIRMED.
We order appellant, Max Protetch, Inc. to pay all costs incurred in this
appeal.
We further order this decision certified below for observance. | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2898981/ | NO. 07-08-0277-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JULY 28, 2009
______________________________
JIMMY JARRETT, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 222
ND
DISTRICT COURT OF DEAF SMITH COUNTY;
NO. CR-08A-003; HONORABLE ROLAND SAUL, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Jimmy Jarrett,
was convicted by a jury of felony driving while intoxicated, enhanced,
(footnote: 1) and sentenced to confinement for eighty years. Appellant contends the trial court erred when it: 1) denied him the right to assistance of counsel by precluding counsel from questioning the jury panel concerning certain matters or issues
;
and 2) denied him the right to confront his accusers by permitting a witness for the State to testify to the contents of documents admitted into evidence.
We affirm.
I.
Voir Dire
The constitutionally guaranteed right to assistance of counsel encompasses the right to question prospective jurors, during the jury selection process, as to any issue relevant to the intelligent and effective exercise of peremptory challenges and challenges for cause.
McCarter v. State,
837 S.W.2d 117, 119 (Tex.Crim.App. 1992)
; Ratliff v. State,
690 S.W.2d 597, 599 (Tex.Crim.App. 1985)
. This right, however, must coexist and be harmonized with the trial court’s interest in the efficient administration of justice through the imposition of reasonable restrictions on the
voir dire
process.
Id.
Appellant contends he was denied the right to assistance of counsel because the trial court precluded him from questioning prospective jurors on the issues of a defendant’s right to remain silent, the presumption of innocence, and the State’s burden of proof. Although Appellant attempts to frame this issue as a constitutional one based upon a deprivation of an accused’s right to counsel, the gravamen of his complaint is that the trial court precluded counsel from fully questioning prospective jurors concerning
how their verdict would be influenced if the defense “did nothing.”
After exchanging a convoluted dialog with several prospective jurors
(footnote: 2) concerning whether they could afford Appellant his full constitutional rights, Appellant’s counsel moved to strike one juror, moved for a mistrial due to a “contaminated jury pool,” and objected to the State’s additional
voir dire
of one juror. Each request was denied by the trial court. At that point, the trial court stated, “All right. [Defense counsel] let’s move on to something else.” The trial court never precluded Appellant’s counsel from asking any specific question or exploring any area of the law and counsel never made an objection based upon the trial court’s preclusion of questioning as to any specific issue.
To preserve error on appeal, a party must make a timely, specific objection or motion to the trial court that states the grounds for the ruling sought with sufficient specificity and complies with the rules of evidence and procedure.
See
Tex. R. App. P. 33.1(a). If an argument is presented for the first time on appeal, it is waived
. Id. See Nelson v. State,
661S.W.2d 122 (Tex.Crim.App. 1983) (trial court s failure to give clarifying instruction during
voir dire
).
Appellant’s counsel neither made an objection premised on issue preclusion, submitted specific question(s) he was precluded from asking, nor filed a bill of exception. Accordingly, we overrule Appellant’s first issue.
See
Barrett v. State
, 516 S.W.2d 181, 182 (Tex.Crim.App. 1974).
See also Dhillon v. State
, 138 S.W.3d 583, 587-88 (Tex.App.–Houston [14
th
Dist.] 2004, no pet.).
II. Evidentiary Objection
Appellant contends the trial court abused its discretion by permitting Deputy Pat Hagemeier to testify on the State’s behalf by reading from a document admitted into evidence during the punishment phase of Appellant’s trial.
(footnote: 3) Having reviewed the record,
(footnote: 4) we have determined Appellant’s objections were made to Deputy Hagemeier’s testimony related to the contents of State’s Exhibit Number 11.
(footnote: 5)
The manner and means of the presentation of documentary evidence to a jury is best left to the sound discretion of a trial court.
Wheatfall v. State
, 882 S.W.2d 829, 838 (Tex.Crim.App. 1994) (en banc),
cert. denied
, 513 U.S. 1086, 115 S. Ct. 742, 130 L. Ed. 2d 644 (1995). Upon careful review of the record, we do not believe the trial court abused its discretion in permitting Deputy Hagemeier to read portions of the admitted exhibit into evidence
. Id
. at 837-38. Appellant’s second issue is overruled.
Conclusion
The trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
FOOTNOTES
1:The indictment alleged two prior DWI convictions, making the primary offense a felony of the third degree.
See
Tex. Penal Code Ann. § 49.09(b)(2) (Vernon Supp. 2008). The indictment also alleged five prior felony convictions, making the offense punishable by imprisonment for any term of not more than 99 years or less than 25 years.
See
§ 12.42(d).
2:In his brief, Appellant indicates none of the prospective jurors ultimately sat on the jury.
3:Again, although Appellant’s counsel attempts to frame this issue as a constitutional one based upon a deprivation of an accused’s right of confrontation under the Texas Constitution, there is no evidence that Appellant was not permitted to cross examine Deputy Hagemeier. In fact, the only evidence in the record indicates Appellant was permitted to
voir dire
the witness and conduct cross examination.
4:Appellant’s citations to the record are to the testimony of Officer Adan Aleman, Deaf Smith County Sheriff’s Office. Officer Aleman participated in Appellant’s arrest for driving while intoxicated. The testimony cited by Appellant contained no objections to any testimony by Officer Aleman.
5:State’s Exhibit Number 11 was admitted as a public document including the following: (1) a complaint sworn by County Attorney Charles F. Aycock against Jimmy Jarrett alleging that, on February, 17, 1996, he was driving while intoxicated; (2) a bench warrant for Jimmy Jarrett’s arrest issued by Bonnie J. Clayton, County Judge, Parmer County, signed February 20, 1996; (3) a warrant of arrest issued by Judge Clayton on February 20, 1996; (4) a waiver of rights executed by Jimmy Jarrett in
The State of Texas v. Jimmy Jarrett
, Cause No. 7487; and (5) a Judgment issued in Cause No. 7487 executed by Judge Clayton indicating Appellant pled guilty to his second offense for driving while intoxicated. Each document was certified as a true and correct copy of an original on file in the Parmer County Clerk’s office. | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2984198/ | Motion Granted; Dismissed and Memorandum Opinion filed April 24, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-01064-CV
ROBERT L. BURKE, M.D., AND FONDREN ORTHOPEDIC GROUP,
L.L.P., Appellants
V.
RICK AND JANA GARDNER, Appellees
On Appeal from the 239th District Court
Brazoria County, Texas
Trial Court Cause No. 67170-A
MEMORANDUM OPINION
This is an interlocutory appeal from an order denying appellants’ motion to
dismiss signed November 5, 2013. On April 16, 2014, appellants filed a motion to
dismiss the appeal because the underlying dispute has been settled. See Tex. R.
App. P. 42.1. The motion is granted.
Accordingly, the appeal is ordered dismissed.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Donovan and Brown. | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1536017/ | 737 A.2d 1 (1999)
161 N.J. 416
STATE of New Jersey, Plaintiff-Respondent and Cross-Appellant,
v.
Robert R. SIMON, Defendant-Appellant and Cross-Respondent.
Supreme Court of New Jersey.
Argued September 29, 1998.
Decided August 11, 1999.
*7 Marcia H. Blum, Assistant Deputy Public Defender and Paul M. Klein, Deputy Public Defender II, for defendant-appellant and cross-respondent (Ivelisse Torres, Public Defender, attorney).
Linda A. Rinaldi, Deputy Attorney General, for plaintiff-respondent and cross-appellant (Peter Verniero, Attorney General of New Jersey, attorney). *2 *3 *4 *5
*6 The opinion of the Court was delivered by COLEMAN, J.
On October 8, 1996, defendant, Robert Simon, pled guilty to burglary, theft, unlawful possession of a firearm, possession of a weapon for an unlawful purpose, felony murder, and purposeful and knowing murder by his own conduct of Sergeant Ippolito Gonzalez, a Franklin Township police officer. A jury sentenced defendant to *8 death. This is defendant's direct appeal from his conviction for capital murder and sentence of death. See R. 2:2-1(a)(3). We affirm all of the convictions as well as the sentence of death.
I
On May 6, 1995, defendant and Charles Staples were members of the Warlocks motorcycle gang. On that day, they burglarized the Environmental Heating building in Franklin Township, located only a few buildings away from the Franklin Township Police Headquarters. As Officer Kenneth Siderio was driving to the police station to work the 11:00 p.m. shift that night, he observed a vehicle parked in front of the Environmental Heating building. Officer Siderio noticed a man dressed in black, later identified as defendant, emerge from the loading dock area and lean into the passenger side window of the parked vehicle as if he was talking to someone. When Officer Siderio passed the parked vehicle, he observed another man, later identified as Staples, sitting in the front seat. Suspecting that a burglary was in progress, Officer Siderio informed Officer Kenneth Crescitelli of his suspicions when he arrived at the police station. Officer Crescitelli left to investigate.
Meanwhile, Sergeant Gonzalez, who was on patrol at the time, pulled up behind the vehicle and turned on his patrol car's flashing lights. Apparently because his patrol vehicle was not equipped with a mobile data terminal, Sergeant Gonzalez called into headquarters at 10:29 p.m. to report the stop and to request a look-up of the vehicle's plate number. He was informed that the car was registered to Charles Staples. When Officer Crescitelli pulled out of the police headquarters' parking lot, he observed Sergeant Gonzalez standing on the driver's side of the vehicle with some papers in his hand talking to the driver. Deciding that nothing looked unusual, he returned to the police station. However, about four minutes after Officer Crescitelli returned to the police station, Sergeant Gonzalez requested backup.
Both Officer William Clay, who had also observed Sergeant Gonzalez at the window of the parked vehicle, and Officer Crescitelli responded to Sergeant Gonzalez's request. Before they could reach the scene, however, each of them heard a gunshot. Other witnesses heard a total of two gunshots about ten seconds apart. Officer Clay, being the first to arrive at the scene, observed Staples drive his vehicle from the scene. When Officer Crescitelli drove up, Officer Clay instructed him to pursue Staples and radioed for other units to join the pursuit. Soon thereafter, Staples lost control of his vehicle and slammed into a guardrail. Defendant exited the vehicle from the passenger side, pointed his gun toward Officer Crescitelli, and ran. Officer Crescitelli yelled at defendant to stop; when defendant failed to heed the warning, Officer Crescitelli fired three shots at him. One of the shots struck defendant in the leg. Defendant flipped over the guardrail and yelled, "I give up. I'm shot." Both defendant and Staples were arrested at that point.
Automobile insurance and registration cards were found in the vehicle with a bullet hole through them. Defendant's Social Security Card and Staples' driver's license were found underneath Sergeant Gonzalez's leg with a bullet hole through them. An expert testified that the hole in the insurance card was made by a gun fired from a distance of 20 to 40 inches. The police found coins, several watches and rings, a Japanese $5 bill, and several rifles in the vehicle, all of which belonged to occupants of the Environmental Heating building.
Sergeant Gonzalez was shot twice. The medical examiner opined that the first shot passed through the right side of his neck, knocking him down, but was not fatal. The second and fatal shot entered his skull behind his right ear; the bullet lodged in his brain. A firearms expert testified that the gun found near the guardrail where *9 defendant was apprehended was the murder weapon.
On August 3, 1995, a Gloucester County Grand Jury indicted defendant and co-defendant Charles Staples on the following charges: purposeful and knowing murder, each by his own conduct, contrary to N.J.S.A. 2C:11-3a(1) and (2) (counts one and two); felony murder, contrary to N.J.S.A. 2C:11-3a(3) (count three); second-degree burglary, contrary to N.J.S.A. 2C:18-2 (count four); third-degree theft, contrary to N.J.S.A. 2C:20-3 (count five); third-degree unlawful possession of a firearm, contrary to N.J.S.A. 2C:58-4 and 39-5b (count six); and second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (count seven). Defendant was also charged with an additional count of second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (count nine). Count eight was only against co-defendant Staples; it charged him with second-degree eluding a law enforcement officer, contrary to N.J.S.A. 2C.29-2. Because the State did not know whether defendant or Staples was the trigger-person who killed Sergeant Gonzalez, it decided to charge both of them with purposeful and knowing murder by his own conduct and require the jury to determine which one actually was the killer.
A
Guilty Pleas
On Monday, October 7, 1996, before the commencement of the guilt-phase trial, defendant announced to the trial court his intention to plead guilty to all of the charges against him, including the murder. Prior to giving his guilty plea, defendant stated:
About a week ago I think it was I came into the court and said I wanted to fire these guys, my attorneys, for reasons that they were incompetent and deceitful and I would not feel safe going into court with them and then the next day you told me, I think it was the next day, you told me, well, you have to take them, that's it, you're going to use these guys, even after there was a conflict of interest.
Now, to avoid all this conflict of interest and everything, I'm going to enter a plea of guilty right now and maybe it will help out my co-defendant. I don't see a reason for both of us going down the tubes.
The trial court explained to defendant that if he pled guilty, he would be giving up the presumption of innocence, the right to a trial by jury, the right to testify on his own behalf before a jury, the right to present any defenses, the right to confront and call witnesses, and the right to file any additional motions that may assist him in his defense. Defendant stated that he understood that he would be giving up each of those rights, and that he still wanted to plead guilty.
In response to defendant's preliminary statement, defense counsel informed the trial court that they were taken by surprise by defendant's desire to enter a guilty plea because each time they had discussed a potential guilty plea with him, defendant had said he intended to plead not guilty. Defense counsel believed that defendant was pressured into pleading guilty. To support that claim, defense counsel showed the trial court a newspaper article that stated that members of the Warlocks motorcycle gang were urging defendant to change his plea to guilty. Additionally, one of the members of the Warlocks gang, who was present in the courtroom the week before defendant pled guilty, was seen punching his fist into his palm. On that same day, defendant was handed a note containing the phone number of the president of the local Warlocks chapter. When defense counsel asked defendant if he had been threatened, defendant responded that he could not tell them, but that he did not have a choice and it was not his decision. Defendant also advised counsel that he would be able *10 to try to save his own life at the penalty trial once Staples' guilt-phase trial had been concluded.
As a follow-up to defense counsel's assertion of potential threats, the trial court conducted an in-camera meeting with defendant and his counsel and asked defendant if he had been threatened. Defendant responded that no one had threatened him, and that he was entering a guilty plea of his own free will. Later, he told the trial court that part of the reason for his choice to plead guilty was that he did not want to go to trial with his attorneys. Yet when the trial judge asked if new lawyers would make a difference, defendant responded no and reasserted that he wanted to plead guilty in order to help Staples. When asked whether he saw the man punching his fist into his palm, defendant explained: "I think I may have caught a glimpse of it, yeah. He was like come on, man, do the right thing, like that. Yeah, all right. It wasn't like, you know, hey, man, you better get it right or something." The trial court also asked defendant if he would cooperate with his attorneys at the penalty phase of the trial and whether he wanted to die. Defendant responded that he was not going to commit suicide, but that he did not care if he died.
Based on defendant's statements, the court decided to proceed with the guilty plea proceedings. After defendant was administered the oath, he informed the trial court that he understood the "plea agreement" he had signed and that he was feeling well and not intoxicated. The trial court repeated many of the prior questions that had been asked of defendant during the in-camera meeting regarding why defendant was pleading guilty and whether he understood the consequences of pleading guilty. Defendant repeated his responses from the in-camera meeting.
In an attempt to obtain the factual basis for the proposed guilty pleas, the trial court asked defendant about the events on the night of the murder. Defendant testified that he exited Staples' vehicle to talk to Sergeant Gonzalez. He explained: "When I got out of the car Officer Gonzalez was going for his gun and I just wanted him away from me, your Honor. I went for mine and I shot him." Defendant estimated that he was six feet from Sergeant Gonzalez when he fired the gun. The trial court then questioned defendant concerning his purpose in shooting Sergeant Gonzalez and whether he intended to kill him. Defendant explained: "I intended to cause to get him away from me.... I intended to get him away from me, your Honor. I guess if that took killing him, you know." He also testified that, although he did not aim the gun at the victim, shooting Gonzalez in the upper body or head is what it took to get Gonzalez away from him. He said that he intended to shoot Gonzalez, and that he intended the bullet to hit Gonzalez, rather than warn or scare him. He explained that his purpose in shooting Sergeant Gonzalez was to cause him serious bodily harm or to kill him, if that is what it took to get him away from him.
Defendant admitted that after Gonzalez had been shot, he and Staples attempted to flee the scene. They stopped only when their car crashed. After the crash, defendant exited the vehicle, pointed his gun toward Officer Crescitelli, and tried to run before the officer shot him in his leg, causing him to fall down and surrender. Defendant said he obtained the gun from underneath Staples' mattress while Staples was in the bathroom.
To contradict defendant's assertion that Sergeant Gonzalez drew his gun first, the prosecutor informed the court that the physical evidence at the scene and eyewitness accounts, indicated that the officer's gun remained in its holster, and that he had not removed either of the two snaps essential to removing the gun from its holster. The prosecutor also stated that based on ballistic evidence, the shooter was two to three feet away from Sergeant Gonzalez when the fatal shot was fired.
*11 The trial court accepted defendant's guilty plea on October 8, 1996. On the same day, the State dismissed the capital murder charge against Staples. On February 7, 1997, a jury convicted Staples of felony murder.
Six days after the jury returned the felony-murder conviction of Staples, defendant made a motion to withdraw his guilty pleas on February 13, 1997. A hearing on the motion was conducted on February 27, 1997. Although defendant alleged that his guilty pleas should be vacated because he was coerced into pleading guilty, defendant refused to identify any individuals who had threatened him, except to mention that he had spoken to a person who had threatened him over the phone. Defendant also stated that he was required to plead guilty to "take most of the weight" for Staples and to protect himself and his family. Ultimately, the trial court denied defendant's motion to withdraw his guilty pleas, concluding that defendant's testimony at the plea hearing was more credible, and that he testified falsely during the motion hearing.
B
Penalty Trial
Jury selection for the penalty phase trial was conducted between March 3 and March 24, 1997. The State relied on four aggravating factors: (1) that defendant murdered Sergeant Gonzalez, a public servant, while Gonzalez was in the performance of his official duties, N.J.S.A. 2C:11-3c(4)(h); (2) that Sergeant Gonzalez was murdered while defendant was engaged in flight after committing burglary, N.J.S.A. 2C:11-3c(4)(g); (3) that the murder of Sergeant Gonzalez was committed for the purpose of escaping detection, apprehension, trial, punishment or confinement for another offense or offenses committed by defendant, namely burglary and theft, N.J.S.A. 2C:11-3c(4)(f); and (4) that defendant previously had been convicted of another murder, N.J.S.A. 2C:11-3c(4)(a). The State presented evidence regarding the events of May 6, 1995. The State also established that in 1982, defendant was convicted of second-degree murder for killing a nineteen year-old woman in Pennsylvania for which he was sentenced to ten to twenty years in prison.
The defense, under the "catch-all" mitigating factor, N.J.S.A. 2C:3c(5)(h), proffered 126 mitigating circumstances related to defendant's life. The enormous amount of mitigating evidence included evidence of defendant's tragic childhood, which was replete with physical and verbal abuse from his parents, drug abuse, and petty thefttype offenses such as breaking and entering and writing bad checks. Between the ages of seventeen and twenty-three, defendant lived as an outlaw motorcycle gang member, committing multiple thefts and regularly using drugs. Shortly after his twenty-fourth birthday, defendant was sentenced to five to ten years in prison for offenses ranging from aggravated assault to burglary. While serving those sentences, defendant was convicted in 1982 for the Pennsylvania murder that was used as an aggravating factor in this case. In 1984, defendant killed an inmate and was placed in isolation for six and one-half years. He was acquitted of the 1984 inmate killing because it was committed in self-defense. The defense also presented expert testimony that defendant suffered from an antisocial personality disorder, and that by the time he reached adulthood he had no moral compass.
On April 2, 1997, the jury unanimously found all four aggravating factors proffered by the State. The jury also found thirty-seven of the mitigating factors unanimously and forty-eight of the mitigating factors non-unanimously. Despite the large number of mitigating factors found in defendant's favor, the jury unanimously found that the four aggravating factors together outweighed the mitigating factors beyond a reasonable doubt. Defendant was accordingly sentenced to death.
*12 II
Grand Jury Indictment
Defendant contends that the capital murder indictment was invalid and should have been dismissed for two reasons: (1) there was no prima facie showing that defendant killed Sergeant Gonzalez by his own conduct; and (2) the prosecutor violated defendant's due process rights by suggesting, in response to a grand juror's question, that a capital murder charge may be based on accomplice liability.
The trial court denied defendant's motion to dismiss the indictment, ruling that the grand jury was not required to consider the "own conduct" requirement. The trial court also found that the prosecutor's response to the grand juror's question was not misleading, and that there was evidence before the grand jury that reasonably could have lead to an ultimate finding that either defendant or co-defendant killed the victim by his own conduct, even though the evidence pointed "more strongly to one than the other."
A
Sufficiency of "Own Conduct" Evidence
Defendant argues that it was improper for the State to charge both him and Staples with capital murder when it was clear that only one of them killed Sergeant Gonzalez. Because the State was not clear on which one of them was the killer, defendant contends that there was insufficient evidence to prove that he committed Sergeant Gonzalez's murder by his own conduct. Defendant also points out that guideline two of the Prosecutor's Guideline for Designation of Homicide Cases for Capital Prosecutions, which was adopted by the New Jersey County Prosecutors Association and the Attorney General in 1989, provides that a prosecutor "must be satisfied that there is proof beyond a reasonable doubt that the defendant, by his own conduct, actively and directly participated in causing the death of the victim."
Rule 3:7-3b requires that an indictment for murder specify whether the act is murder as defined by N.J.S.A. 2C:11-3a(1), (2) or (3), and whether or not it is alleged that the defendant committed the murder by his or her own conduct, paid another to commit the murder, or is the leader of a drug-trafficking network who secured the murder in furtherance of a conspiracy.
A grand jury may return an indictment if there is a prima facie showing that the accused has committed a crime. State v. New Jersey Trade Waste Ass'n, 96 N.J. 8, 27, 472 A.2d 1050 (1984). For the crime of purposeful or knowing murder, the prosecutor was not required to state in the indictment whether the murder was committed by defendant's own conduct. The "own conduct" requirement is not an element of purposeful or knowing murder; it is "merely a triggering device for the death penalty phase of the trial." State v. Gerald, 113 N.J. 40, 99, 549 A.2d 792 (1988) (quoting State v. Moore, 207 N.J.Super. 561, 576, 504 A.2d 804 (Law Div.1985)).
The "own conduct" requirement is analogous to the filing of a notice of aggravating factors that a prosecutor must file before subjecting a defendant to a capital trial. We have stated:
Like the indictment, the notice of aggravating factors is the turn-key to a capital prosecution. Implicit in both is the notion that the allegations derive from some verifiable source. The need to ensure that such a source exists compels some preliminary review to satisfy the interest of the public and the defendant that such charges not proceed to trial without a factual mooring.
[State v. McCrary, 97 N.J. 132, 143, 478 A.2d 339 (1984).]
Under McCrary, the prosecutor must show that there was sufficient evidence to allege the aggravating factors. Id. at 140-41, 478 A.2d 339. That means that when a prosecutor indicts a person for capital murder, he or she must, among *13 other requirements, (1) make a prima facie showing to the grand jury that the person committed the murder, and (2) present some evidence that one of the triggering devices applies to the facts of the case.
Defendant's reference to the Prosecutor's Guideline for Designation of Homicide Cases for Capital Prosecution does not weigh into our decision. The standard stating that a prosecutor "must be satisfied that there is proof beyond a reasonable doubt that the defendant, by his own conduct, actively and directly participated in causing the death of the victim" is only a guideline establishing uniformity for prosecutors to follow when determining whether to seek the death penalty. It holds no legal significance.
Our examination of the record convinces us that there was a sufficient amount of evidence before the grand jury against both defendants which, if believed, reasonably could lead to a finding that either defendant or Staples murdered Sergeant Gonzalez by his own conduct. Because Simon is the defendant in this appeal, we will focus only on the evidence against him. The grand jury was presented with evidence that Simon was the passenger and that the shot was fired from the passenger side of the vehicle. In addition, Simon exited the passenger side of the vehicle with the murder weapon in his hand after the crash. That evidence satisfies the State's burden of making a prima facie showing that defendant murdered Sergeant Gonzalez by his own conduct. Hence, the indictment was proper.
We also reject defendant's contention that the State could not charge him and Staples with capital murder because it was clear that only one of them murdered Sergeant Gonzalez. In State v. Clausell, 121 N.J. 298, 580 A.2d 221 (1990), two defendants were indicted for capital murder. The Court noted that the petit jury found both Clausell and his co-defendant guilty of purposeful and knowing murder, and found that Clausell, but not his codefendant, had committed the homicidal act by his own conduct. Id. at 312, 580 A.2d 221. This Court neither questioned nor criticized the fact that two defendants, in a single-shooter murder, were charged with capital murder for killing the same victim, and that the petit jury was left to decide, if it could, who was the actual shooter. Similarly, in State v. Brown, Brown and a co-defendant were both indicted for capital murder, although a jury did not have to decide who actually killed the victim by his own conduct because Brown's co-defendant pled guilty. 138 N.J. 481, 651 A.2d 19 (1994), overruled on other grounds by State v. Cooper, 151 N.J. 326, 700 A.2d 306 (1997).
In addition, the Legislature specifically discussed situations in which there were more than one participant in a murder when drafting the death penalty statute. The Legislature noted that an accomplice to a murder would not be subjected to the death penalty, but that when the line between principal and accomplice was blurred, it is "up to the jury" to "decide who pulled the trigger." Public Hearing Before Senate Judiciary Committee on Senate Bill No. 112 (Death Penalty) at 18 (Feb. 26, 1982). We conclude that as long as there is sufficient evidence for the State to make a prima facie showing that each defendant committed the murder by his or her own conduct, the State is permitted to charge more than one defendant with capital murder, even where it is clear that only one person actually killed the victim by his own conduct.
B
Prosecutor's Instructions to the Grand Jury
Defendant also contends that the prosecutor misled the grand jury into thinking that a person may be liable for capital murder despite not being the shooter. The issue is posed in the context of the following colloquy between a grand juror and the prosecutor: *14 JUROR: With the first two charges, they're both being charged with murder.
MR. LYNCH: Yes, sir.
JUROR: I want to make sure that I got it right. That there's felony murder; okay. The way that it's worded is they worked together and they caused somebody's death. But, murder, is it requiredthe fact that they were there and didn't pull the trigger, does that constitute murder under the law?
MR. LYNCH: There is accomplice liability under the law which I will review with you. By the wording of these two charges, accomplice liability is not being alleged, direct participation is being alleged against the two individuals. Accomplice liability could be considered by the panel. It could be made a separate charge against both or either defendant that he acted as an accomplice, but the allegation that's set forth in the charges that you're being asked to consider that I've reviewed with you is direct participation and causation rather than accomplice liability. Is that responsive to your question, sir? Does that help you?
JUROR: I think so; yeah.
Defendant contends that the prosecutor's answer was misleading because it did not inform the grand jury that accomplice liability does not apply to capital murder. Defendant argues that if the grand jury had understood that only the shooter could be convicted of capital murder, they might not have been willing to indict both him and Staples, but rather would have required more evidence regarding who was the shooter.
The foregoing colloquy does not reveal that the prosecutor's responses improperly infringed upon the grand jury's decisionmaking function. The prosecutor's response made it clear that an indictment was sought charging both Simon and Staples with direct participation in Sergeant Gonzalez's murder. The prosecutor explained that accomplice liability was not alleged in the two murder counts, but that accomplice liability could be considered by the panel in other connections. The grand juror who asked the question said the answer was clear. Therefore, we reject defendant's speculation that the grand jury was misled.
III
Voluntariness of Guilty Plea to Capital Murder
Defendant contends that his right to due process of law was violated when the trial judge accepted his guilty plea. He claims that his guilty plea was not made voluntarily and that he was motivated by threats against his family and himself. He argues that despite his insistence that his plea was voluntary at the plea hearing, the totality of the information before the court at the time of the plea required a finding of coercion. Defendant points to the following evidence that should have persuaded the court to find that he had been coerced:
1. Simon announced his decision to plead guilty immediately after the intervention of the Warlocks' officers;
2. Simon believed he might well defeat the capital aspect of the case and could offer no good reason for purposefully risking his life by pleading to capital murder;
3. Simon received no legal benefit in exchange for the plea; and
4. Counsel believed Simon was entering the plea under duress and urged the court not to accept the plea.
The importance of the constitutional rights being waived when a defendant enters a guilty plea necessitates that the knowing and voluntary nature of the plea be demonstrated in the record so that it may be reviewed on appeal. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969). "In New Jersey, it is well-settled that a plea must be entered into voluntarily and intelligently. Indeed, we have codified that requirement *15 in Rule 3:9-2." State v. Crawley, 149 N.J. 310, 318, 693 A.2d 859 (1997) (internal citations omitted). See also State v. Barboza, 115 N.J. 415, 421 n. 1, 558 A.2d 1303 (1989) (stating "[a] guilty plea violates due process and is, thus, constitutionally defective if it is not voluntary and knowing"). Rule 3:9-2 provides, in part:
The court, in its discretion, may refuse to accept a plea of guilty and shall not accept such a plea without first addressing the defendant personally and determining by inquiry of the defendant and others, in the court's discretion, that there is a factual basis for the plea and that the plea is made voluntarily, not as the result of any threats or of any promises or inducements not disclosed on the record, and with an understanding of the nature of the charge and the consequences of the plea.
[Emphasis added.]
When a guilty plea is challenged as the product of coercion, the relevant question is not whether defendant was "sensitive to external consideration many defendants arebut instead whether the decision to plead was voluntary, i.e., a product of free will." United States v. Pellerito, 878 F.2d 1535, 1541 (1st Cir. 1989), cert. denied, 502 U.S. 862, 112 S.Ct. 184, 116 L.Ed.2d 145 (1991). The withdrawal of a guilty plea is not an "absolute right"; it is a matter within the broad discretion of the trial court. United States v. Spencer, 836 F.2d 236, 238 (6th Cir. 1987); United States v. Ramos, 810 F.2d 308, 311 (1st Cir.1987).
Generally, representations made by a defendant at plea hearings concerning the voluntariness of the decision to plead, as well as any findings made by the trial court when accepting the plea, constitute a "formidable barrier" which defendant must overcome before he will be allowed to withdraw his plea. Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977). That is so because "[s]olemn declarations in open court carry a strong presumption of verity." Ibid.; State v. DiFrisco, 137 N.J. 434, 452, 645 A.2d 734 (1994) (DiFrisco II), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed.2d 873 (1996). When the trial court determines that a guilty plea has been voluntarily entered, "the measure of what constitutes fair and just reason for withdrawal must be reposed in the sound confidence of the [trial] court." State v. Smullen, 118 N.J. 408, 417, 571 A.2d 1305 (1990); see also R. 3:21-1. "A guilty plea voluntarily entered should not generally be vacated in the absence of some plausible showing of a valid defense against the charges." State v. Gonzalez, 254 N.J.Super. 300, 303, 603 A.2d 516 (App.Div.1992). Thus, the trial court's denial of defendant's request to withdraw his guilty plea will be reversed on appeal only if there was an abuse of discretion which renders the lower court's decision clearly erroneous. Smullen, supra, 118 N.J. at 416, 571 A.2d 1305.
We find no such abuse of discretion in this case. The trial court considered all of the evidence presented to support defendant's motion to withdraw his guilty plea. After reviewing the evidence and hearing the arguments, the court stated that the essential issue it had to decide was whether defendant lied to the court during the two-day plea process, or whether he had lied at the withdrawal hearing. The court concluded that based on observations of defendant's demeanor over "many hours" during the plea process, defendant's motion testimony on a "vague, nonspecific asserted threat" made to members of his family was "totally incredible and unpersuasive." The trial court flatly rejected defendant's testimony, and concluded that "he lied on the witness stand this morning." The trial court concluded that defendant's withdrawal application was nothing more than an "attempted manipulation" of the criminal justice system.
The trial court's finding that defendant was lying on the witness stand during the hearing on his withdrawal motion was supported by the statements defendant *16 made during his plea hearing. At that hearing, both in camera and in open court, defendant stated under oath numerous times, in numerous ways, that he had not been coerced or threatened at any time, in any manner, by anyone. Defendant told the court that he wanted to plead guilty in order to help Staples. That was a plausible explanation since there was strong evidence that defendant was the trigger person. When asked about each of the statements made by defendant, and scenarios involving defendant in which a court could find coercion, defendant effectively explained each situation to the satisfaction of the trial court.
As an appellate court, we are required to give great "`deference to those findings of the trial [court] [that] are substantially influenced by [its] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Locurto, 157 N.J. 463, 471, 724 A.2d 234 (1999) (quoting State v. Johnson, 42 N.J. 146, 161, 199 A.2d 809 (1964)). Indeed, one of the reasons the trial court denied defendant's motion was based on its comparative observations of defendant's demeanor during the plea hearing and the plea withdrawal hearing. The trial court gave defendant ample opportunity in camera and in open court to reveal that he was pleading guilty involuntarily. However, defendant did everything within his power to successfully convince the trial court that he was pleading guilty of his own free will. Significantly, defendant provided no convincing evidence at the plea withdrawal hearing that he or his family had in fact been threatened.
Thus, we conclude that the trial judge's findings of facts were not clearly erroneous. As a result, defendant's plea was made voluntarily and the trial court properly denied the motion to vacate the plea.
IV
Simon's Plea Establishing Capital Murder
Defendant contends that even if this Court were to find that his plea was voluntary, his plea failed to establish that he was the gunman or that he committed the murder purposefully or knowingly. Specifically, defendant argues that his statements during the plea hearing only admitted to recklessness, which is the mens rea for aggravated manslaughter, not purposeful or knowing murder. In addition, defendant asserts that his statements implicating himself as the gunman were not supported by the evidence from the scene. Therefore, he urges the Court to vacate his conviction and death sentence.
When taking the plea, the trial court asked defendant to explain the factual basis for his plea of guilty to capital murder. Defendant responded that when he got out of the car, Sergeant Gonzalez was going for his gun and defendant wanted Sergeant Gonzalez away from him, so defendant pulled his gun and shot the victim. He stated that he shot Sergeant Gonzalez to get Sergeant Gonzalez away from him, because he did not want to go back to prison. When asked if he intended to kill the officer, defendant responded "I intended to get him away from me, your Honor. I guess if that took killing him, you know." Defendant said he shot Sergeant Gonzalez two times while standing within six feet of him, and he thought the victim was struck in the head or neck and in the chest. Defendant was asked "are you guilty of killing Officer Gonzalez knowing that what you were doing was practically certain to result in his death or serious bodily injury?" Defendant responded: "I knew I was going to cause [a lot] of injury to him, yes, sir. Like I said, I didn't care about his death. I didn't think of that. So, yeah, okay, guilty, yes, sir."
The trial court was satisfied that defendant's guilty plea, when considered in conjunction with other information made available to the court pursuant to Rule 3:9-2, established capital murder. In accepting the plea, the trial court stated that defendant did, without justification, "knowingly *17 and purposely fire two shots into the body [of Sergeant Gonzalez] at close range... and that he did so ... by his own conduct." The trial court further stated that defendant "pulled the trigger and fired the shot and that he did so under circumstances in which it was practically certain and that he knew that it was practically certain that doing that would result in serious bodily injury, if not death, and that the circumstances under which he did this, at close range, two shots, not one, to the upper body ... area, manifested a reckless indifference as to whether or not death would result."
A
Mens Rea
Defendant contends that his factual statements to the trial court regarding his mental state at the time of the shooting only satisfied a recklessness state of mind and not purposeful or knowing murder. The State argues that because the New Jersey Constitution was amended in 1992, three years before the present murder, to permit capital punishment of a defendant who purposely or knowingly caused serious bodily injury resulting in death as opposed to an intent to cause death, the law did not at the time of the present murder require defendant to admit in his guilty plea that he intended to kill Sergeant Gonzalez. See Cooper, supra, 151 N.J. at 361, 700 A.2d 306; State v. Harris, 141 N.J. 525, 548, 662 A.2d 333 (1995). The State maintains that when defendant fired the second shot at the officer's head, which resulted in the bullet entering his brain, common sense would mandate the conclusion that defendant's conduct was almost certain to cause death or serious bodily injury resulting in death.
N.J.S.A. 2C:2-2b defines the three mental states involved here. "A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result." N.J.S.A. 2C:2-2b(2). "A person acts purposefully with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result." N.J.S.A. 2C:2-2b(1). N.J.S.A. 2C:2-2b(3) states that "[a] person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation."
Because the Legislature has made serious bodily injury murder subject to the death penalty at least since May 5, 1993, L. 1993, c. 111, following a 1992 constitutional amendment, the State does not have to prove that a defendant purposefully or knowingly killed a victim to establish a capital murder as long as the State proves that the defendant purposefully or knowingly caused serious bodily injury resulting in death. Cooper, supra, 151 N.J. at 361, 376-77, 700 A.2d 306.
The 1992 constitutional amendment made SBI murder death eligible when the actor "purposely or knowingly caus[es] serious bodily injury resulting in death." N.J. Const. art. I, ¶ 12. That amendment, however, did not define "serious bodily injury." The 1993 amendments to the Death Penalty Act implementing the 1992 constitutional amendment did not alter the Code's existing definition of serious bodily injury: "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." N.J.S.A. 2C:11-1b. When the Code's definitions of "serious bodily injury" are considered in conjunction with the 1992 constitutional amendment, it becomes apparent that only purposely or knowingly causing serious bodily injury "which creates a substantial *18 risk of death" can satisfy the SBI capital murder requirement. Objectively speaking, an injury that creates a substantial risk of death means one from which death is practically certain to ensue. Thus, in order to convict a defendant of SBI capital murder, a prosecutor must prove that a defendant purposely or knowingly caused an injury from which death is practically certain to ensue.
This Court addressed the difference between purposeful and knowing murder and aggravated manslaughter in State v. Rose, 112 N.J. 454, 479-85, 548 A.2d 1058 (1988). The facts of Rose were strikingly similar to this case except that there was no guilty plea. The defendant in Rose shot a police officer out of "panic" because he "did not want to get caught." Id. at 480-81, 548 A.2d 1058. The trial court denied defendant's request for a jury instruction on aggravated manslaughter. Id. at 479, 548 A.2d 1058. This Court affirmed the defendant's conviction for knowing or purposeful murder because there was no rational basis for the jury to conclude that the defendant was not aware of the consequences of his actions. Id. at 485, 548 A.2d 1058. The Court stated, "[d]efendant's statement that he `panicked, did not want to get caught,' does not constitute a rational basis for a jury to conclude that defendant was merely reckless [as opposed to acting purposely or knowingly] and thus unaware that firing the shotgun into [the victim's] abdomen was `practically certain' to cause his death." Ibid.
Similarly, in this case defendant informed the trial court that he was practically certain that shooting Sergeant Gonzalez would cause his death. Defendant's argument that his intention was to get the officer away from him because he did not wish to return to prison does not constitute a rational basis for a judge or jury to conclude that defendant acted recklessly, as opposed to acting purposely or knowingly, and thus, unaware that firing two shots within six feet at Sergeant Gonzalez's upper body region was "practically certain" to cause death or serious bodily injury that results in death.
In addition to defendant's own words, common sense informs us that when someone shoots at another person in the upper body region, such as the neck and head, the shooter's purpose is either to cause serious bodily injury that results in death or to actually cause death, especially where no other plausible explanation is given. Although defendant claims he did not specifically aim his gun at Sergeant Gonzalez's upper body region, he admits that he intended the bullet to hit the victim and that his purpose in shooting Sergeant Gonzalez was to cause serious bodily injury if not to kill him. Moreover, the circumstances under which defendant shot the victimat close range, two shots, not one, to the upper body regionmanifested an indifference to whether the victim was killed instantly or eventually died from the infliction of serious bodily injury. Therefore, defendant's plea established that he had the requisite mens rea for purposeful or knowing murder pursuant to N.J.S.A. 2C:11-3a(1) and (2), and the trial court did not err in finding that defendant acknowledged a mental state required for capital murder.
The State's assertion based on the trial court's statement that defendant's conduct was, at the very least, a reckless disregard for whether Sergeant Gonzalez's death would result from the shots fired into his body, is simply another way of saying that when defendant purposely shot the victim he was practically certain that death would ensue. The source of that language used by the trial court comes from the Model Jury Charge in Capital Cases referred to as the "Gerald `Trigger' Issue Charge." That charge in part provides:
To find defendant guilty of murder all jurors must unanimously agree that defendant purposely or knowingly caused death or that he purposely or knowingly caused serious bodily injury resulting in death with reckless indifference as to whether his conduct would cause death, *19 or that he purposely or knowingly caused serious bodily injury resulting in death, but all jurors do not have to agree unanimously as to which form of murder is present so long as all believe it was one form of murder or the other. However, for a defendant to be subject to capital punishment, all jurors must agree that the defendant either purposely or knowingly caused death or serious bodily injury resulting in death while demonstrating reckless indifference as to whether his conduct would cause death.
[Emphasis added.]
That language undoubtedly was inserted into the charge in an attempt to inform the jury that under the Code's definition of serious bodily injury, not every purposeful or knowing stabbing or shooting or conduct of an actor that results in death will satisfy the SBI capital murder requirements as opposed to intentional murder under N.J.S.A. 2C:11-3a(1) and (2). In other words, since the post-Gerald constitutional amendment, does a SBI capital murder require proof that the actor acted with purpose or knowledge that death would result from his or her conduct? The simple answer is no. The above charge was formulated based on this Court's statement that after the post-Gerald constitutional amendment, the jury charge "should clarify that the mental state required for a capital conviction based on SBI murder should be consonant with the federal constitutional mandate in Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), that the actor be recklessly indifferent to whether the result of the conduct would be death." Harris, supra, 141 N.J. at 548, 662 A.2d 333.
Tison and Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), the cases that persuaded the Court in Harris to use the phrase "recklessly indifferent to whether the result of the conduct would be death," both dealt with statutes permitting a sentence of death for felony murder based on accomplice liability. Those strict liability crimes occurred without the capitally convicted defendants sharing the required intent to kill or the intent to inflict serious bodily injury upon the victims. However, the rationale for the reckless indifference standard articulated in Tison and Enmund is unnecessary to ensure death worthiness in SBI capital murders given the structure of our Code. A death-eligible offense in New Jersey under the Code has built into it other sufficient protections.
First, felony murderers are not eligible for the death penalty under the Code. N.J.S.A. 2C:11-3c. Second, the requirement that a defendant "committed the homicidal act by his own conduct" generally precludes accomplice and co-conspirator liability from triggering death eligibility. Ibid. The only exceptions are limited to those persons "who as an accomplice procured the commission of the [murder] by payment or promise of payment of anything of pecuniary value," N.J. Const. art. I, ¶ 12; N.J.S.A. 2C:11-3c; and leaders of a narcotics trafficking network who in furtherance of a conspiracy to traffic in narcotics command or by threat or promise solicited the commission of murder. N.J.S.A. 2C:11-3c. The limited accomplice and co-conspirator liability provisions have built-in-protections that render unnecessary the protections required by Tison and Enmund.
Although the reckless indifference phrase was used in the present case to refer to the circumstances under which defendant acted and did not refer to defendant's state of mind, in a SBI capital murder case in which aggravated manslaughter pursuant to N.J.S.A. 2C:11-4 is also charged to the jury, the use of the reckless indifference language to describe both the defendant's state of mind in the aggravated manslaughter charge and the circumstances under which he or she acted in the SBI capital murder charge conceivably could lead to some confusion. Because this case involved a guilty plea to capital murder, there was no confusion in the trial *20 court's finding that defendant had the requisite mental state for capital murder. Nonetheless, the "Gerald `Trigger' Issue [Jury] Charge" should be re-examined by the Trial Judges Committee on Capital Causes.
B
Factual Basis for Guilty Plea
Next, defendant argues that the factual basis for his guilty plea was inadequate. First, defendant contends that there was no factual basis to support his statement that he was the gunman because the State lacked sufficient evidence to identify the trigger person. Second, defendant argues that the court erred when it failed to make a factual finding that the evidence corroborated defendant's claim that he was the trigger person. We reject both claims.
Rule 3:9-2 provides, in pertinent part, that "[t]he court, in its discretion,... shall not accept [a] plea without first ... determining by inquiry of the defendant and others ... that there is a factual basis for the plea." See, e.g., State v. Eisenman, 153 N.J. 462, 471, 710 A.2d 441 (1998) (observing that defendant may provide factual basis for guilty plea during plea colloquy). When a defendant is charged with capital murder, however, "no factual basis shall be required from the defendant" as long as the court is satisfied that a factual basis for the plea has been established from the proofs presented. State v. Jackson, 118 N.J. 484, 488, 572 A.2d 607 (1990); see also State v. Davis, 116 N.J. 341, 372, 561 A.2d 1082 (1989) (stating "a capital defendant should not be disadvantaged by a plea requirement that he or she furnish the factual basis for the plea"). The purpose of the Rule is to avoid forcing "defendant[s] exposed to the death penalty ... to state anything that can support an aggravating factor." Jackson, supra, 118 N.J. at 489, 572 A.2d 607; see Davis, supra, 116 N.J. at 371, 561 A.2d 1082.
In the present case, there was not only a factual basis to support defendant's guilty plea, but also the trial court expressly made a factual finding that the evidence supported defendant's claim that he was the gunman. During the plea hearing, defendant specifically stated that he exited the passenger side of the vehicle to talk to the officer, that Staples was driving, and that he had been out of the car "less than 10 [seconds]""4, 5 seconds, 6 maybe ... [s]omewhere in that [range]," before he shot the officer twice. He informed the court that Sergeant Gonzalez "was going for his gun and I just wanted him away from me ... I went for mine and shot him." Defendant even admitted firing his gun within six feet or so of the victim.
Further, the evidence from the scenes of the murder and the arrest support defendant's statement that he was the passenger because he exited the vehicle from the passenger's side at the scene of the arrest. Defendant was in possession of the murder weapon when he ran from the vehicle. Forensic evidence supports defendant's statement that Sergeant Gonzalez was shot twice and that he was shot from a distance of six feet or less.
The trial court recognized all of the similarities between defendant's statements at the plea hearing and the extrinsic evidence. After listening to defendant's plea statements, reviewing a transcript of a taped statement recorded by Sergeant Clay just a few hours after the shooting, Clay's investigative report, and the autopsy report, the trial court observed:
I'm satisfied that [Simon] has provided a sufficient factual basis to establish, along with the exhibits that have been submitted in evidence, that he is guilty.
I'm satisfied that with respect to the capital murder count that he did, without any justification, whatsoever, knowingly and purposefully fire 2 shots into the body at close range, within several feet, standing within 6 feet and with his armshis arm that was holding the gun partially extended, fired these 2 shots *21 into the body of Sergeant Gonzalez and that he did so, therefore, by his own conduct.
We, therefore, agree with the trial court that there was a sufficient factual basis for defendant's guilty plea and that the corroborating evidence establishes that defendant's admission that he was the trigger person was trustworthy. See State v. Roach, 146 N.J. 208, 229, 680 A.2d 634, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed.2d 424 (1996) (holding "evidence and inferences to be drawn from the evidence were sufficient for the jury to determine that the confession was trustworthy").
V
"Prior Murder" Aggravating Factor
The c(4)(a) prior murder aggravating factor involved a January 13, 1974, murder in Pennsylvania for which defendant was convicted of second-degree murder. He argues that because the Pennsylvania conviction was congruent with both manslaughter and some forms of murder under N.J.S.A. 2C:11-3a, and because it cannot be determined whether, under the jury charge in Pennsylvania, he was convicted of murder or aggravated manslaughter under New Jersey law, the Pennsylvania conviction should not have been used as an aggravating factor.
The pertinent provision in our Death Penalty Act, N.J.S.A. 2C:11-3c(4)(a), provides that one of the aggravating factors justifying the imposition of the death penalty is that "[t]he defendant has been convicted, at any time, of another murder." Whether the Legislature intended that a foreign second-degree murder conviction that occurred prior to the enactment of our Death Penalty Act in 1982 could be used as an aggravating factor has to be determined from the statutory language, the legislative history, and our decisional law. Because no clear answer emerges from the statutory language itself, "[w]e must, therefore, resort to intrinsic and extrinsic aids of statutory interpretation to glean the legislative intent." State v. Biegenwald, 96 N.J. 630, 635, 477 A.2d 318 (1984). First, we will consider the historical antecedents to the c(4)(a) statutory language that will be somewhat enlightening. State v. Brown, 22 N.J. 405, 415, 126 A.2d 161 (1956).
A
The Criminal Law Revision Commission (Commission) in 1971 proposed the New Jersey Penal Code (Proposed Code). When the Commission began its study, the murder statutes in New Jersey and Pennsylvania were virtually identical. In fact, New Jersey had followed the Pennsylvania model when it divided murder into first and second degrees. II Final Report of the New Jersey Criminal Law Revision Commission 168 (1971) (Final Report). The Code as proposed by the Commission redefined murder to consist of criminal homicides that were committed purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life, and felony murder. N.J.S.A. 2C:11-3a (Proposed Draft 1971).
The Proposed Code also established the death penalty and provided death eligibility for a purposely committed murder and for felony murder. N.J.S.A. 2C:11-3b, -3a(1), -3a(4) (Proposed Draft 1971). One of the proposed "aggravating circumstances" that would subject a defendant to the death penalty was the fact that he or she previously had been convicted of "murder, manslaughter, robbery, aggravated rape, aggravated sodomy, kidnapping or other crime involving the use of violence to the person." N.J.S.A. 2C:11-7c(2) (Proposed Draft 1971).
Some of the provisions of the Proposed Code were enacted in 1978 as the New Jersey Code of Criminal Justice (Code). L. 1978, c. 95, effective September 1, 1979. However, the Proposed Code's death penalty and aggravating circumstances provisions *22 were not adopted as part of the Code. In addition, the Code reduced the scope of murder from that contained in the Proposed Code by defining murder as follows:
a. Except as provided in N.J.S. 2C:11-4 [manslaughter] criminal homicide constitutes murder when:
(1) The actor purposely causes death or serious bodily injury resulting in death; or
(2) The actor knowingly causes death or serious bodily injury resulting in death; or
(3) It is committed when the actor [commits felony murder.]
[N.J.S.A. 2C:11-3a.]
Thus, the Code as enacted defines three types of murder: "purposeful murder (with intent to kill or to inflict serious bodily injury), knowing murder (with knowledge/awareness that death or serious bodily injury will occur), and felony murder." Cooper, supra, 151 N.J. at 359, 700 A.2d 306.
Approximately two and one-half years after the Code became effective, a Death Penalty Act was introduced in the Senate as Senate Bill No. 112. That Bill also included a prior murder as an aggravating factor. Specifically, it provided: "The defendant has previously been convicted of murder for which a sentence of life imprisonment or death was imposable, or [felony] murder under 2C:11-3(a)(3)." Senate Bill No. 112 lines 121-25. Before enactment, the Attorney General suggested that the proposed language be broadened to provide "(a) [t]he defendant has previously been convicted of murder." Public Hearing Before Senate Judiciary Committee on Senate Bill No. 112 (Death Penalty) at 14 (Feb. 26, 1982).
Thus, under the Proposed Code, the previously convicted felon death-eligibility trigger included the three common law degrees of homicide, first-degree murder, second-degree murder and manslaughter; most of the common-law felonies; and any other crimes that involved the use of violence. When the Death Penalty Act was introduced after the Code had become effective, the previously convicted felon aggravating factor was reduced to prior murders "for which a sentence of life imprisonment or death was imposable, or [felony] murder under 2C:11-3(a)(3)." Senate Bill No. 112 lines 121-25. Although the record does not reflect the legal analysis that inspired the Attorney General to suggest, or the Legislature to accept the suggestion, that all terms modifying the prior murder aggravating factor be dropped, we find substantial legal reasons for the change.
That the prior murder aggravating factor contained in Senate Bill No. 112 was limited to those for which a sentence of life imprisonment or a sentence of death could have been imposed meant that, under pre-Code law, only first-degree murder was contemplated. Felony murder was firstdegree murder. N.J.S.A. 2A:113-2 to -4 (repealed 1978); Cooper, supra, 151 N.J. at 360, 700 A.2d 306. Under prior law, first-degree murder was the only homicide that made a defendant eligible for death or a life sentence. N.J.S.A. 2A:113-4 (repealed 1978); State v. Maguire, 84 N.J. 508, 520 n. 12, 423 A.2d 294 (1980); State v. Funicello, 60 N.J. 60, 68, 286 A.2d 55, cert. denied, 408 U.S. 942, 92 S.Ct. 2849, 33 L.Ed.2d 766 (1972). All homicides were presumed to be murder in the second degree. N.J.S.A. 2A:113-4 (repealed 1978); State v. Bess, 53 N.J. 10, 17, 247 A.2d 669 (1968). In contrast, the maximum punishment for second-degree murder was thirty years of imprisonment. Bess, supra, 53 N.J. at 18, 247 A.2d 669. That maximum sentence exposure would have precluded second-degree murder as a prior murder aggravating factor as originally proposed in Senate Bill No. 112. By accepting the Attorney General's suggestion, the Legislature agreed that it did not intend to be that restrictive. We conclude that when the Legislature adopted the Attorney General's suggested change, it intended to *23 make any prior murder committed by a defendant at any time and at any place an aggravating factor.
B
We are also persuaded that the Code's early sentencing options for murder support the conclusion that the c(4)(a) prior murder aggravating factor includes foreign judgments of convictions for murder in the first or second degree. From the inception of the Code there were two sentencing options for murder: (1) a sentence of thirty years of which the defendant must serve fifteen years without parole, and (2) an extended term sentence between thirty years and life, with a mandatory minimum of twenty-five years of parole ineligibility, N.J.S.A. 2C:11-3b; N.J.S.A. 2C:43-7a(1) and b. A third sentencing option of a different extended term was available in the Code as enacted in 1978. N.J.S.A. 2C:11-3b; Maguire, supra, 84 N.J. at 521, 423 A.2d 294. That option was eliminated, however, when the death penalty became available in 1982. State v. Serrone, 95 N.J. 23, 26, 468 A.2d 1050 (1983). Nonetheless, this Court has concluded that the extended term option that was repealed when the Death Penalty Act became effective is an indication that the Legislature intended the Code's definition of "prior conviction" used as part of the criteria for extended term sentencing, N.J.S.A. 2C:44-3, also be used when considering sentencing issues related to murder. Biegenwald, supra, 96 N.J. at 636, 477 A.2d 318. A prior murder conviction in another jurisdiction satisfies the Code's definition of a "prior conviction." N.J.S.A. 2C:44-4c. "It is not unreasonable to surmise that the Legislature intended the definition of `prior conviction,' as articulated in N.J.S.A. 2C:44-4b, to apply to N.J.S.A. 2C:11-3c(4)(a) as well." Biegenwald, supra, 96 N.J. at 636, 477 A.2d 318.
This Court also has held that a prior murder conviction under our former Title 2A, now repealed, satisfies the prior murder conviction aggravating factor under N.J.S.A. 2C:11-3c(4)(a). State v. Ramseur, 106 N.J. 123, 272-75, 524 A.2d 188 (1987). Additionally, the Court has allowed an out-of-state prior murder conviction to satisfy the c(4)(a) aggravating factor. State v. Koedatich, 112 N.J. 225, 265-66, 548 A.2d 939 (1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed.2d 803 (1989). Although the method for establishing the existence of prior convictions vary between jurisdictions, New Jersey has adopted a statutory procedure as simple as the introduction of a judgment of conviction. N.J.S.A. 2C:44-4d. See generally Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967) (upholding Texas procedure for enforcing its habitual criminal statutes through allegations in indictment of prior offenses and introduction of proof respecting past convictions with charge by court that such matters are not to be taken into account in assessing defendant's guilt or innocence).
C
We reject defendant's contention that the State was obligated to prove that Pennsylvania's prior second-degree murder conviction satisfies the murder requirements of N.J.S.A. 2C:11-3a(1) or (2). In 1970, the Appellate Division, in a noncapital case, rejected the argument that before a foreign conviction may be used for sentence enhancement, the State must prove that the foreign conviction was equivalent to, or congruent to, a similar criminal offense in this State. State v. Hines, 109 N.J.Super. 298, 305-06, 263 A.2d 161 (App.Div.), certif. denied, 56 N.J. 248, 265 A.2d 703, cert. denied, 400 U.S. 867, 91 S.Ct. 108, 27 L.Ed.2d 106 (1970). The court in Hines held that to determine whether Pennsylvania burglary and larceny convictions were similar to New Jersey's requirements for similar offenses, a court need only examine the indictment and the nature of the evidence presented that led to the convictions. Ibid. That approach has been accepted in a capital case as well. In Ramseur, defendant contended *24 that his prior conviction for the murder of his wife should not be used as a c(4)(a) aggravating factor in his capital punishment trial because his non vult plea to the indictment for that murder made it unclear whether the jury found him guilty of manslaughter or murder. Ramseur, supra, 106 N.J. at 272, 524 A.2d 188. In rejecting that argument, the Court held that for sentence enhancement, a court should "not look behind the fact of the conviction because the conviction itself is the statutory aggravating factor." Id. at 276, 524 A.2d 188. That rationale remains sound for domestic and foreign convictions because the statute refers to a prior conviction "at any time, of another murder." N.J.S.A. 2C:11-3c(4)(a).
Ordinarily, the State proves the existence of a prior murder conviction as an aggravating factor by simply introducing into evidence a judgment of conviction. N.J.S.A. 2C:44-4d; State v. Biegenwald, 126 N.J. 1, 13, 594 A.2d 172 (1991). The judgment of conviction for a prior murder is introduced into evidence during the penalty phase of a trial for the limited purpose of aiding the jury in its determination of whether to impose a life or death sentence. Because a prior murder conviction is not relevant to guilt, and a penalty jury is not concerned with guilt, definitions of the elements that comprised the prior murder conviction cannot affect the value of the prior murder conviction to the deliberating jury in the penalty phase.
Similarly, other states have concluded that prior foreign convictions can be established for sentence enhancement purposes without looking behind the facts, provided that the foreign convictions satisfy the home state's statutory aggravating factor requirement. Miller v. State, 280 Ark. 551, 660 S.W.2d 163, 165 (1983); People v. Guest, 115 Ill.2d 72, 104 Ill.Dec. 698, 503 N.E.2d 255, 267 (1986), cert. denied, 483 U.S. 1010, 107 S.Ct. 3241, 97 L.Ed.2d 746 (1987); State v. Taylor, 304 N.C. 249, 283 S.E.2d 761, 780 (1981), cert. denied, 463 U.S. 1213, 103 S.Ct. 3552, 77 L.Ed.2d 1398 (1983); Grasso v. State, 857 P.2d 802, 808-09 (Okla.Crim.App.1993); Commonwealth v. Maxwell, 534 Pa. 23, 626 A.2d 499, 501-02, cert. denied, 510 U.S. 995, 114 S.Ct. 558, 126 L.Ed.2d 459 (1993). South Carolina reached a different conclusion when its Supreme Court ruled that a Virginia second-degree murder fell between South Carolina's crimes of murder and manslaughter. State v. Norris, 285 S.C. 86, 328 S.E.2d 339, 344-45 (1985), overruled on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991).
Even if the South Carolina approach was followed, and we were to look behind the foreign conviction, the prior Pennsylvania murder satisfies the requirements of our prior murder aggravating factor, N.J.S.A. 2C:11-3c(4)(a). Defendant was tried in Pennsylvania for first and second-degree murder of a former girlfriend, Beth Smith Dusenberg. The murder occurred on January 13, 1974. At that time, New Jersey and Pennsylvania defined first and second-degree murder essentially the same. State v. Williams, 30 N.J. 105, 114-15, 152 A.2d 9 (1959); N.J.S.A. 2A:113-2 (repealed 1978). As of January 1974, both states divided murder into first and second-degree offenses. In January 1974, murder was defined in Pennsylvania as follows:
(a) Murder of the first degree.A criminal homicide constitutes murder of the first degree when it is committed by means of poison, or by lying in wait, or any other kind of willful, deliberate, and premeditated killing. A criminal homicide constitutes murder of the first degree if the actor is engaged in or is an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary, or kidnapping.
(b) Murder of the second degree.All other kinds of murder shall be murder of the second degree. Murder of the *25 second degree is a felony of the first degree.
[18 Pa. Cons.Stat. Ann. § 2502 (West 1998) (Historical and Statutory Notes).]
Pennsylvania required malice to be established as an element of both first and second-degree murder in 1974. Commonwealth v. Boyd, 461 Pa. 17, 334 A.2d 610, 613 (1975). Consistent with Pennsylvania law, the trial court in its jury charge defined malice as either "an express intent to kill or inflict great bodily harm, or of a 'wickedness of disposition, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty' indicating an unjustified disregard for the probability of death or great bodily harm and an extreme indifference to the value of human life." Ibid. (quoting Commonwealth v. Carroll, 412 Pa. 525, 194 A.2d 911 (1963)). The trial court also clarified its malice charge by informing the jury that "a killing is with malice if it is with the specific intent to kill and without any legal justification or excuse, or circumstances which would reduce the killing to voluntary manslaughter." First-degree murder was distinguished from second-degree murder based on willfulness, deliberateness, and premeditation. Commonwealth v. Jones, 355 Pa. 522, 50 A.2d 317, 319 (1947).
Prior to enactment of the Code in 1979, murder was charged in a statutory form. The jury was required to designate whether the murder was first or second-degree for sentencing purposes. Graves v. State, 45 N.J.L. 347, 358 (E. & A. 1883); State v. Paris, 8 N.J.Super. 383, 385, 72 A.2d 558 (Law Div.1949). The law presumed that unlawful killings were second-degree murders. State v. DiPaolo, 34 N.J. 279, 294, 168 A.2d 401, cert. denied, 368 U.S. 880, 82 S.Ct. 130, 7 L.Ed.2d 80 (1961). The statutory form of murder simply codified the common law definition of murder prior to 1979. Brown, supra, 22 N.J. at 410, 126 A.2d 161. Like Pennsylvania, New Jersey required proof of malice for first and second-degree murder.
New Jersey defined malice as a state of mind to mean, "(a) [a]n intention to cause the death of, or grievous bodily harm to, any person, ... [and/or] (b) [k]nowledge that the act which causes death will probably cause the death of, or grievous bodily harm to, some person, ..., although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused." State v. Gardner, 51 N.J. 444, 458, 242 A.2d 1 (1968) (quoting Great Britain, Royal Commission on Capital Punishment Report 1949-1953, 27 (1953)). As difficult as malice has been to define, the essence of malice is an "evil or wicked state of mind." State v. Williams, 29 N.J. 27, 36, 148 A.2d 22 (1959).
We reject defendant's speculation that the Pennsylvania second-degree murder conviction could have been no more than manslaughter under our Code. First, passion/provocation or voluntary manslaughter as an available option in Pennsylvania in 1974 was presented to, and rejected by, the jury in the trial. Malice as defined by Pennsylvania and New Jersey was not an element of manslaughter. Commonwealth v. Rife, 454 Pa. 506, 312 A.2d 406, 410 (1973); Williams, supra, 29 N.J. at 36, 148 A.2d 22; Brown, supra, 22 N.J. at 411, 126 A.2d 161; State v. Guild, 10 N.J.L. 163 (Sup.Ct.1828). The jury's verdict finding defendant guilty of second-degree murder is a clear finding that he acted with malice. The fact that the jury rejected passion/provocation or voluntary manslaughter as a potential verdict is further corroboration that defendant acted with malice. Furthermore, our "pre-Code analogue of passion/provocation manslaughter was referred to as `voluntary manslaughter,' which typically involved an intentional killing rather than one committed recklessly." State v. Grunow, 102 N.J. 133, 144, 506 A.2d 708 (1986) (quoting State v. Powell, 84 N.J. 305, 311, 419 A.2d 406 (1980)). Similarly, under the Code a claim of "passion/provocation *26 usually causes an intentional reaction and that it is rare for passion/provocation to lead to recklessness." Grunow, supra, 102 N.J. at 144, 506 A.2d 708.
Second, the victim of the second-degree murder in Pennsylvania died from a gunshot wound to the head after being shot once in the neck and once in the head. The fatal bullet entered between her eyes. There was evidence presented to the jury that defendant pulled a gun from his waistband and shot the victim after she had called him a derogatory name. Although he was charged with first-degree and second-degree murder, the jury reasonably could have found the absence of premeditation or deliberation or both based on the suddenness of defendant's response.
Third, under our Code, defendant's conduct reasonably can be viewed as sufficient to satisfy a purposeful or knowing murder rather than manslaughter. N.J.S.A. 2C:11-3a(1) or (2). When the Pennsylvania court defined malice, use of the phrase "recklessness of consequences and a mind regardless of social duty indicating an unjustifiable disregard for the probability of death or great bodily harm and an extreme indifference to the value of human life," does not come close to being equivalent to the recklessness standard required for manslaughter under N.J.S.A. 2C:11-4. The phrase in the Pennsylvania malice charge that included "recklessness" when viewed in the context of shooting the victim through the neck and between the eyes more closely satisfies the definitions of acting purposely or knowingly, N.J.S.A. 2C:2-2b(1) and (2), than the definition of recklessness in N.J.S.A. 2C:2-2b(3). Recklessness can generally be distinguished from purposely and knowingly based on the degree of certainty involved. Purposely and knowingly states of mind involve near certainty, while recklessness involves an awareness of a risk that is of a probability rather than certainty. Shooting the victim between the eyes created a "practical certainty[ ] that death would result." State v. Breakiron, 108 N.J. 591, 606, 532 A.2d 199 (1987); see Rose, supra, 112 N.J. at 484, 548 A.2d 1058 (stating a person who fires a shotgun into the abdomen of another at point-blank range "`is practically certain' that such conduct will cause the victim's death"); State v. Tansimore, 3 N.J. 516, 529, 71 A.2d 169 (1950) (stating that firing multiple shots into body of victim from close range creates a presumption of intent to kill). We conclude, therefore, that the foreign second-degree murder conviction was properly used as a c(4)(a) aggravating factor.
VI
Jury Selection
Defendant contends he should be given a new penalty-phase trial because he was denied his right to an impartial jury. He argues that because the trial court failed to excuse nine potential jurors for cause, he was forced to use nine peremptory challenges to excuse Harvey Beebe, Jr., Jeff Jenson, John Braddock, Anthony Pomorski, Timothy McGrorey, David Davenport, Arthur Fenska, Susan Frerks, and Barry LeFevre. Defendant claims that the court forced him to exhaust his peremptory challenges prematurely and that ultimately led to the seating of three biased jurors Almyer Neigh, Diane Laudenbach, and Patricia Carlin.
The record reveals that defendant used a total of twenty-five peremptory challenges and the State used thirteen. Initially, defendant was granted twenty peremptory challenges. Once those challenges were exercised, he asked for and received four additional challenges. Defendant used seven of his first twenty challenges to excuse jurors he had challenged for cause during voir dire: Harvey Beebe, Jr., Jeff Jensen, John Braddock, Anthony Pomorski, David Davenport, Timothy McGrorey, and Arthur Fenska. Of the four additional challenges allotted to defendant, two were used to excuse Susan Frerks and *27 Barry LeFevre, both of whom defendant had challenged during voir dire. When defendant used his fourth challenge, Patricia Carlin, another juror defendant had challenged on voir dire, was seated in the jury box. The State then exercised a peremptory challenge, which caused Michelle Strano, another juror defendant had challenged during voir dire, to be seated on the jury box.
Defendant then requested two additional challenges. Although the court refused that request, it granted the State and defendant one additional challenge each. Defendant used his challenge to excuse Michelle Strano. The State excused one more juror after that, and then passed on its last opportunity to challenge. Thus, when the jury selection was concluded, Almyer Neigh, Diane Laudenbach, and Patricia Carlin became members of the sworn jury.
A
Jurors Not Excused for Cause
New Jersey has adopted the Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), and Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), approach to excluding prospective jurors for cause. Harris, supra, 156 N.J. at 168 n. 3, 716 A.2d 458; Ramseur, supra, 106 N.J. at 255-56, 524 A.2d 188. The test is "whether, in the trial court's discretion, the juror's beliefs or attitudes would substantially interfere with his or her duties." Harris, supra, 156 N.J. at 168 n. 3, 716 A.2d 458 (citing Koedatich, supra, 112 N.J. at 293, 548 A.2d 939). The party challenging the juror must demonstrate that "the juror's view would prevent or substantially impair the performance of that juror's duties in accordance with the court's instructions and the juror's oath." DiFrisco II, supra, 137 N.J. at 469, 645 A.2d 734; Ramseur, supra, 106 N.J. at 255, 524 A.2d 188. "Trial courts possess considerable discretion in determining the qualifications of prospective jurors," which stems from "the inability of appellate courts to appreciate fully the dynamics of a trial proceeding." DiFrisco II, supra, 137 N.J. at 459, 645 A.2d 734.
Thus, since juror qualification is necessarily predicated upon the trial judge's observation of the jurors and his unique position to evaluate credibility and demeanor, the trial court's decision to include or exclude a juror from the jury pool will not be reversed absent an abuse of discretion. Ibid.; State v. Hunt, 115 N.J. 330, 348, 558 A.2d 1259 (1989); Ramseur, supra, 106 N.J. at 260, 524 A.2d 188. Factors to be considered when determining whether an alleged improper denial of a for-cause challenge requires a new trial are (1) whether the jurors were eventually removed; (2) the stage at which that occurred; (3) the effect on counsel's strategy; (4) any apparent unfairness to defendant; and (5) whether additional peremptory challenges were required. Harris, supra, 141 N.J. at 543, 662 A.2d 333.
It is not reversible error to fail to excuse a juror for cause who is thereafter peremptorily dismissed by a defendant who exhausts all his peremptory challenges as long as the deliberating jury is impartial. DiFrisco II, supra, 137 N.J. at 467, 470, 645 A.2d 734. However, erroneous failure to remove a juror for cause is reversible error if the defendant shows "(1) that the trial court erred by failing to remove a juror for cause; (2) that the juror in question was eliminated by the exercise of defendant's peremptory challenge and that defendant exhausted his remaining challenges; and (3) that at least one of the remaining jurors that sat on the jury was a partial juror." Id. at 471, 645 A.2d 734.
Here, defendant argues that five of the nine jurorsArthur Fenska, Anthony Pomorski, John Braddock, Susan Frerks, and Jeff Jensenshould have been dismissed for cause because they *28 were not open to considering mitigating evidence. Each of those five jurors, however, stated he or she did not believe that the death penalty should automatically, or always, be imposed for murder, or that it should be imposed on someone who had murdered before. They also repeatedly stated that he or she would be open to considering whatever mitigating evidence defendant presented.
Fenska specifically stated that in order for him to reach a decision, he would want to listen to "the whole case from start to finish" and that he would be willing and able to consider and weigh, with an open mind, mitigating evidence in making his final determination. Moreover, once Fenska had a better understanding of the penalty phase and mitigating evidence, he told the court that
understanding a little more about the mitigating factors, you would have to weigh those. It's not just a person is guilty, but I have to weigh the mitigating factors along with the four other factors for the death penalty.... [The death penalty is] not automatic.
Similarly, Pomorski indicated he would need "all the facts" before making his decision. Although he was not certain how much weight he would give evidence of a defendant's character and background, he said he would be able to give such evidence his open, fair consideration and balance it against the aggravating factors.
Jensen was also uncertain about how much weight he would give the mitigating evidence of a defendant's character and background, but he repeatedly stated that he would have to "hear both sides" before making a decision and that he would be willing and able to consider the mitigating evidence with an open mind. He further stated that he would find certain mitigating evidence more compelling than other evidence; however, he explained that he would not automatically impose the death penalty.
Braddock also indicated that he would consider mitigating evidence of a defendant's character and background. However, he, too, felt restricted in his ability to gauge how much weight he would give certain mitigating evidence because he had no idea what evidence would be presented. He also stated that he would "use any information" that the court instructed him to use and that he would use that information with an open mind.
Frerks repeatedly indicated that the nature of the crime would not be the sole determining factor in her decision. She stated that she would want to consider "the person involved," including a defendant's upbringing and background. In fact, despite defendant's attempt to convince this Court that Frerks was totally offense-oriented in terms of mitigating factors, Frerks was very much open to ideas that "factor[ ] in people's background." Indeed, Frerks believed that as long as circumstances in a person's background were related to a determination of "what kind of person this ended up being and why they would do that at that point in time," then she would give the evidence its due weight.
Based on the totality of their responses, and having had the opportunity to observe their demeanor in the context of the overall setting, the trial court qualified each of those five jurors, fully setting forth its reasons for doing so in each instance. The court determined that Braddock was "articulate... straightforward and not evasive" and would be able to follow the law as instructed by the court. The trial court found that Pomorski demonstrated a "sincere understanding" of his role as a juror, and that based on its "overall qualitative evaluation" of him, it was satisfied that his personal beliefs "would not substantially impair his ability to follow the law." Although the trial court found both Fenska and Jensen "close calls," it concluded that both would consider mitigating evidence fairly, with an open mind and give it whatever weight they each deemed appropriate. *29 The court found Frerks to be "open[,] candid and sincere ... throughout her questioning" in that she would consider "any mitigation" evidence presented to her.
Considering the deference this Court must give to the trial court's evaluation of those jurors, especially when the court's reasons are thoroughly spelled out in the record, nothing in this record suggests that the trial court abused its discretion, or erroneously evaluated the credibility, demeanor and qualification of any of those five potential jurors. See Harris, supra, 141 N.J. at 543, 662 A.2d 333; DiFrisco II, supra, 137 N.J. at 466, 645 A.2d 734; Hunt, supra, 115 N.J. at 348, 558 A.2d 1259. Therefore, we find no abuse of discretion with regard to those five jurors and conclude that the trial court did not err in failing to remove those prospective jurors for cause.
With regard to Harvey Beebe, Jr., defendant claims he was substantially impaired because Beebe was pre-disposed toward the death penalty since a police officer was killed. However, while Beebe stated he had a "certain regard" for police officers, believing they are "there for [his] protection," he also stated that he had not formed any opinion on the outcome of the case and that he would be willing to vote against the death penalty even though the victim was a police officer. In fact, Beebe indicated he would not "be happy about" voting for the death penalty and that the decision "would be difficult for [him]." Moreover, he stated that he would want to know about defendant's background so that he could determine whether there were "things going on there that could ... warp a person to the point where they would" commit heinous crimes.
At the conclusion of Beebe's voir dire, the court stated that Beebe was "a balanced individual and not biased one way or another." The court found significant the fact that Beebe saw the importance in considering defendant's background, even when a police officer was killed.
After reviewing Beebe's voir dire, we reject defendant's contention that Beebe should have been excused. The totality of his voir dire showed that Beebe was, as the trial court found, "a balanced individual and not biased one way or another." In fact, Beebe was highly favorable to defendant because he thought voting for the death penalty would be difficult for him. Regardless, we find that the trial court did not abuse its discretion when failing to excuse Beebe for cause.
Defendant challenges Timothy McGrorey on the ground that he stated that he would consider premeditation and lack of remorse as aggravating factors when determining whether to impose the death penalty. However, when defense counsel questioned him about his statement, McGrorey indicated that he would not automatically vote for the death penalty even where the murder was premeditated and the killer lacked remorse. He explained that he would want to hear the "background" of the defendant before making any decision, and that he only would consider the aggravating factors presented to him.
In qualifying McGrorey, the trial court noted that lay persons with no knowledge of the law "commonly" consider premeditation an important issue in deciding whether the death penalty might be an appropriate punishment. Nonetheless, the court was satisfied that McGrorey would not use premeditation as an aggravating factor and would follow the law and apply it as the court would instruct him.
Again, we find no abuse of discretion by the trial court. Looking at the totality of McGrorey's voir dire, it appears that he would have been willing and able to apply the law as instructed.
As for David Davenport, defendant contends that he should have been dismissed for cause because he never fully abandoned the view, as expressed in his questionnaire, that thirty years in prison *30 would rarely be sufficient punishment for intentional murder. However, during voir dire, Davenport stated that he would "feel comfortable" imposing a thirty-year minimum prison sentence under "any set of circumstances," "[i]f that was the law."
The trial judge found Davenport to be a "a sincere and credible individual who was not in any way trying to fabricate answers or fashion answers in a particular way or conceal information, and who was being forthright and sincere in the responses that he gave." When reviewing Davenport's voir dire in its entirety, it is clear that following the law was important to him, and that he could have, and would have, set his personal feelings aside as the court would have instructed him to do in order to carry out his functions as a juror. Therefore, we find that the trial court did not err in failing to excuse this potential juror for cause.
Finally, defendant claims that Barry LeFevre should have been excused for cause because his voir dire demonstrated that he was the type of person who was "hard-put not to vote for death," and because he had heard something about "a plea" on the radio. LeFevre's voir dire, however does not support defendant's positions. LeFevre was of the opinion that a minimum thirty-year prison sentence could be a sufficiently harsh sentence because some people "can possibly change as they grow older," and where appropriate "you have to give that person that small chance to do it." He further stated that he would not automatically vote for the death penalty, although, he believed that punishment would be appropriate "if there's nothing, no mitigating circumstances that can defend [defendant] from what he did." He also noted that he would not let his personal views interfere with his deliberation process because "each case has to be treated as an individual."
In terms of LeFevre's exposure to information about "a plea," nothing in the record indicates that he heard that defendant attempted to withdraw his plea. LeFevre stated that he had heard "something," "not directly with this case," about defendant's "alleged accomplice," "possibly regarding his plea with that case." But, when pressed, he said that he could not recall anything about the plea and that whatever he heard was very "brief," and was basically about defendant's alleged accomplice.
The trial court concluded that although LeFevre expressed "somewhat strong law and order type viewpoints," he was capable of being "open-minded and balanced in his evaluation of both aggravating and mitigating factors." With regard to the plea, the court stated that it was satisfied that what LeFevre heard was about Staples, not defendant, and that, in any event, whatever he heard was not enough for him to recall "anything of substance."
We agree with the trial court's assessment of LeFevre's voir dire. Although all potential jurors who knew about defendant's attempt to change his plea were dismissed, it appears from the record that LeFevre did not know anything about defendant's attempt to change his plea and could barely remember anything about the story he had heard. We are satisfied that LeFevre could have deliberated with an open mind. Therefore, we find no abuse of discretion.
In sum, we reject defendant's contention that he should be given a new penalty phase trial because he was denied his right to an impartial jury. We find that the trial court did not err in failing to exclude any of the nine jurors challenged in this appeal.
B
Biased Jurors
Defendant contends that three deliberating jurors were biased. They are included in the group of jurors defendant should have excused for cause. Defendant argues that Almyer Neigh believed that the system was too lenient on criminals and that the constitutional protections of *31 the accused serve to help the accused and that courts do nothing to help victims, leading to unjust results. According to defendant, Neigh said that he would impose death unless defendant could convince him that there was a reason for the shooting.
Of the three allegedly biased deliberating jurors, Neigh was among the first sixteen jurors seated. Although defendant had originally challenged Neigh for cause during voir dire, he by-passed him twentyfive times after Neigh was seated in the jury box. Thus, his claim of bias is certainly belied by the record. DiFrisco II, supra, 137 N.J. at 471-73, 645 A.2d 734. Apart from that, the trial court did not err by failing to excuse him for cause. Neigh told the court that he did not think that death should be automatic for killing a police officer. He stated that all circumstances should be considered and that he would be willing to vote against the death penalty if the mitigating factors equaled or outweighed the aggravating factors.
With regard to Diane Laudenbach, defendant argues that she was not impartial as indicated by her answer on the jury questionnaire which said that she would automatically impose a death sentence for "the purposeful and willful murder of an innocent person." Defendant further contends that Laudenbach gave inconsistent answers regarding whether she would vote for the death penalty if after considering all the evidence she was convinced that defendant willfully killed an innocent person.
Again, defendant's claim of bias is belied by the record because defense counsel passed her by twenty-three times to peremptorily challenge twenty-three other people. Furthermore, it is clear that Laudenbach should not have been excused for cause. Laudenbach stated that she believed the death penalty should not be automatic and that she would be willing to consider defendant's background and character.
As for Carlin, defendant contends that she placed the burden of proof on defendant to prove that death was not the appropriate punishment for an intentional killing. Defendant argues that her statements that she could set aside that belief were merely her attempts to search for the right answer. We disagree. Carlin stated that she believed that the death penalty should only be used "for some cases." She further indicated that each case had to be treated individually and that information about defendant's background was relevant to her evaluation of the appropriate sentence. Importantly, Carlin stated that she was open-minded and that given the information she had at that point in time, she was not leaning in one direction or the other, but was somewhere in the middle.
In addition, a review of the record reveals that defendant could have used his twenty-fifth and last peremptory challenge to remove Carlin, but instead he chose to remove Michelle Strano. Defendant removed Strano because her husband was removed for cause on the basis that he believed death should be automatic for someone who has killed more than one time. Defendant felt that Strano might feel some kind of pressure from her husband to vote for death based on his views. The trial court, however, properly rejected this argument because each juror has to be qualified on his or her own merits, and because there was "no basis or reason to think" that Strano would not comply with the court's instruction not to discuss the matter with her husband. Therefore, since neither Carlin nor Strano should have been removed for cause, the record does not support defendant's assertion that Carlin was biased.
This Court simply cannot sanction defendant's point of view. To do so would allow a defendant to gain a new penaltyphase trial by simply arguing that while one juror was objectionable, another was more objectionable. Our system is designed for a defendant to have a fair jury, not the perfect jury. Therefore, we cannot *32 grant relief where a defendant has had more than the twenty peremptory challenges Rule 1:8-3(d) allows and the jurors to which defendant objects were not required to be removed for cause. Thus, we reject defendant's contention that three biased jurors sat on his jury.
VII
Excusing Prospective Juror James Clevenger
Defendant argues that the trial court erroneously excluded prospective juror James Clevenger. He contends that unlike the failure to dismiss a biased juror for cause, the erroneous exclusion of a prospective juror because of his or her opposition to the death penalty can never be harmless error. Thus, he seeks a reversal of his death sentence and a new penalty-phase trial.
In Adams v. Texas, supra, the United States Supreme Court held that "a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." 448 U.S. at 45, 100 S.Ct. at 2526, 65 L.Ed.2d 581; see Davis v. Georgia, 429 U.S. 122, 123, 97 S.Ct. 399, 400, 50 L.Ed.2d 339 (1976); see also Cooper, supra, 151 N.J. at 352, 700 A.2d 306 (stating that a potential juror can be removed for cause based on that belief "if such views would substantially impair his or her ability to follow the law during the trial"); Ramseur, supra, 106 N.J. at 255-56, 524 A.2d 188 (recognizing the Adams test in death-qualifying a jury). "If a prospective juror is excluded on any broader grounds than his ability to follow the law or abide by his oath, the death penalty cannot be imposed." Ramseur, supra, 106 N.J. at 255-56, 524 A.2d 188. "[A] juror's bias for or against capital punishment need not be shown with `unmistakable clarity.'" State v. Pennington, 119 N.J. 547, 588, 575 A.2d 816 (1990) (quoting Ramseur, supra, 106 N.J. at 256, 524 A.2d 188). In fact, trial courts possess broad discretion in determining whether a potential juror should be removed, and their determination will be disturbed only if that discretion is abused. DiFrisco II, supra, 137 N.J. at 460, 645 A.2d 734. This is because evaluating whether a potential juror is biased is a subjective decision based upon "an observation of the juror's demeanor during the course of voir dire observations which an appellate court is precluded from making." State v. Singletary, 80 N.J. 55, 63, 402 A.2d 203 (1979).
During his voir dire, James Clevenger, a Quaker, stated that he did not believe in the death penalty. When asked whether matters of personal conscience and beliefs would prevent him from imposing a death sentence, Clevenger stated that he thought he could vote for the death penalty.
However, when questioned further by the prosecution, Clevenger explained that he had "religious qualms" about imposing the death penalty since the age of sixteen or seventeen, and only in rare cases where the defendant had committed an "execution style" murder would he have felt comfortable imposing the death penalty. He further stated that since imposing the death penalty is a subjective determination, he believed he would have a hard time reconciling his religious beliefs with his civic duties. In fact, he repeatedly told the court he would have a "tough time" in this respect.
Based on his voir dire, the trial court decided to excuse Clevenger for cause. The court told Clevenger that since imposing the death penalty would have forced him to decide between his personal conscience and his civic duty, he would be excused. The court stated, "I'm not going to ask you to do that, so you're excused."
We reject defendant's contention that Clevenger was removed for cause because he did not believe in the death penalty. From the explanation the trial court gave Clevenger, it is clear that he was not *33 removed because he believed in the death penalty. Instead, he was removed because it was obvious that Clevenger's views about capital punishment would have substantially impaired his ability to follow the law, despite his pronouncement that he thought he could impose the death penalty if he was forced to make that decision. See Singletary, supra, 80 N.J. at 64, 402 A.2d 203 (stating a potential "juror's professions of impartiality will not always insulate him from excusal for cause"). Thus, the trial court was correct in not forcing Clevenger to decide between his personal conscience and his civic duty because it was not clear which one would have prevailed. Furthermore, since the trial court was in a position to accurately assess the sincerity and credibility of Clevenger's statements, we pay due deference to its evaluation. Therefore, we conclude that defendant is not entitled to a reversal of his death sentence or a new penalty-phase trial based on the excusal of Clevenger for cause.
VIII
Jury Instructions Regarding Mitigating Factors
Defendant contends for the first time on appeal that his constitutional rights to a fair trial were violated when the trial judge instructed the jury that its decision to consider a mitigating factor should be unanimous, and that in order to spare defendant from a sentence of death the jury must find that the mitigating factors outweighed the aggravating factors. Because defendant did not object to the jury instruction during the penalty-phase trial, the issue is raised as plain error. Under that standard, defendant must demonstrate that the jury instruction was clearly erroneous, and that it caused the jury to reach a verdict it otherwise would not have reached. State v. Jordan, 147 N.J. 409, 422, 688 A.2d 97 (1997); State v. Macon, 57 N.J. 325, 335, 273 A.2d 1 (1971); R. 2:10-2. Defendant is unable to satisfy that standard.
The objective of jury instructions is to assist the jurors in applying the law to the facts presented in order to reach a verdict. DiFrisco II, supra, 137 N.J. at 491, 645 A.2d 734; State v. Martini, 131 N.J. 176, 271, 619 A.2d 1208 (1993) (Martini I). When an appellate court reviews jury instructions, the court must examine the challenged language in the context of the entire charge. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); DiFrisco II, supra, 137 N.J. at 491, 645 A.2d 734.
In a capital case, a jury must be instructed that in order to impose the death penalty, it must be satisfied beyond a reasonable doubt that the statutory aggravating factors outweigh all of the mitigating factors. N.J.S.A. 2C:11-3c(3)(a); State v. Biegenwald, 106 N.J. 13, 63-67, 524 A.2d 130 (1987). Aggravating factors must be found unanimously by the jury. State v. Bey, 112 N.J. 123, 159, 548 A.2d 887 (1988) (Bey II); State v. Zola, 112 N.J. 384, 433, 548 A.2d 1022 (1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1146, 103 L.Ed.2d 205 (1989). On the other hand, mitigating factors can be found non-unanimously. Bey II, supra, 112 N.J. at 159-61, 548 A.2d 887. As long as one juror finds any mitigating factor exists that is not outweighed beyond a reasonable doubt by the aggravating factors, the jury may not impose a sentence of death. Id. at 161, 548 A.2d 887.
In this case, defendant challenges the following statement made by the trial court:
You are asked here to indicate below one, and only one, choice which is the decision of the jury. You have three choices. First choice is, the jury is unanimously satisfied that any aggravating factor or factors proven to exist fail to outweigh the mitigating factor or factors. So that if all 12 of you conclude that there are one or more mitigating factors and that those mitigating *34 factors in the judgment of each of you equal or outweigh the aggravating factors, that's the other way of saying it, then you unanimously agree that death is not the appropriate sentence.
[Emphasis added.]
Defendant contends that the trial court committed reversible error in telling the jurors: (1) that all of them had to conclude that there are one or more mitigating factors, and (2) that such mitigating factor or factors must be equal to or outweigh the aggravating factors. The State answers by asserting that notwithstanding the above quoted partial charge, the trial court repeatedly informed the jury that it did not have to be unanimous in finding mitigating factors.
The portion of the charge defendant finds objectionable was given at the end of the portion of the charge explaining the functions of the aggravating and mitigating factors, how the balancing of those factors works, and how many verdict options the jury could choose from in its deliberations. The following excerpts from the charge make it clear that the jury was instructed that it need not be unanimous to find the existence of a mitigating factor or that the mitigating factors had to be equal to or outweigh the aggravating factors in order for defendant to avoid the death penalty. The charge stated:
As I stated earlier, unlike aggravating factors, the law does not require unanimity with respect to the finding of a mitigating factor. Obviously, you should all engage in a full and complete discussion regarding both aggravating and mitigating factors to the extent reasonably possible. You should attempt to reach agreement on the question of whether a particular mitigating factor does or does not exist. However, the law does not require unanimity with respect to the finding of mitigating factors. Rather, each of you must individually determine whether or not each mitigating factor exists and then weigh it, or them, mitigating factors that is, against the aggravating factors which have been unanimously found by all 12 jurors.
If after a full discussion you find that you are not unanimous on the existence or nonexistence of a mitigating factor, the foreperson will record your last vote on that question on the verdict form in the boxes which are shown there as number yes or no. However, remember that whether a mitigating factor exists is not to be decided by the majority. So for a vote on either one is 9 to 3, that doesn't mean it exists as a pure yes, it means nine say yes, three say no. That will be written in for the mitigating factors, number yes nine, number no three, if that's what the final vote is and you have given a full and thorough discussion to it and attempted to reach agreement among yourself. If after a full and reasonable time of discussion you can't reach a unanimous agreement, then you just record the final vote on mitigating factors.
In the weighing process you will weigh the aggravating factors which have unanimously been found against the mitigating factors that each of you find. If you are not unanimous on the presence of an aggravating factor, then none of you may weigh that factor against the mitigating evidence. So with the aggravating factors, in order for that factor to be considered at all in the weighing process, it must be unanimously found to exist beyond a reasonable doubt by all 12 jurors. If not, it must be disregarded even if you as one individual juror believe that it has been proven. With respect to a mitigating factor, however, each of you considers whatever mitigating factors, factor or factors, if any, you find to exist and weigh and balance that against aggravating factors that have been proven, beyond a reasonable doubt, unanimously by all 12.
The court then explained to the jury the three verdict options in the following manner: *35 If even one juror finds a mitigating factor which in that juror's mind is not outweighed beyond a reasonable doubt by the aggravating factor or factors, then the jury may not sentence the defendant to death. A consequence of the jury finding the presence of one or more aggravating factors and no member of the jury finding the existence of a mitigating factor would mean that all members of the jury agree that the appropriate punishment is death.
If any of you find that the state has failed to prove that the aggravating factor or factors outweigh the mitigating factors beyond a reasonable doubt or if you cannot reach a unanimous verdict on the question of punishment, then the punishment shall be imprisonment for the defendant.
In an attempt to amplify the first option that the aggravating factors do not outweigh the mitigating, the trial court used the quoted language that defendant finds objectionable. That objectionable portion of the charge simply informed the jury that even if the jury unanimously agreed on the existence of one or more mitigating factors, and if one or more jurors found that one or more of the mitigating factors were equal to or outweighed the aggravating factor or factors, that result would be the same as if the jury had unanimously agreed that death is not the appropriate sentence. In other words, when the charge is considered as a whole, notwithstanding the fact that the jury was not required to be unanimous in finding mitigating factors, the effect on the ultimate verdict can be the same: No death penalty.
Based on our review of the jury charge as a whole, we find no basis to conclude that the jury was confused. In State v. Loftin, we observed that when a jury non-unanimously finds the existence of mitigating factors, that is "compelling evidence" that the jury was not confused on the permissibility of non-unanimity on mitigating factors. 146 N.J. 295, 376, 680 A.2d 677 (1996). In fact, the Loftin jury was non-unanimous on 19 of the 31 mitigating factors presented to them. We reaffirmed that principle in Cooper, supra, and concluded that defendant's claim lacked merit, considering the jury was non-unanimous on fourteen of the eighteen mitigating factors. 151 N.J. at 399, 700 A.2d 306.
In the present case, the jury also knew that non-unanimity on mitigating factors was permissible. The jury found 47 of the 126 mitigating factors non-unanimously. In addition, even assuming arguendo that this jury charge was confusing, the trial court explained to the jurors on several occasions, individually and as a group, that non-unanimity on mitigating factors was permissible.
Similarly, defendant's claim that the trial court erred when it stated that the mitigating factor or factors must be equal to or outweigh the aggravating factors also lacks merit. With regard to the aggravating and mitigating factors, there are only three possibilities: (1) the aggravating factors may outweigh the mitigating factors; (2) the factors may be equal; and (3) the mitigating factors may outweigh the aggravating factors. The first option results in a death verdict, while the other two result in a non-death verdict. There is no difference between telling the jury that a death verdict results only if they find the aggravating factors outweigh the mitigating factors and telling them that a non-death verdict results only if they find that the mitigating factors are equal or greater than the aggravating factors.
Based on the foregoing, we reject defendant's contention that his rights to a fair trial were violated when the trial court instructed the jury on mitigating factors.
IX
Random Jury Selection Process
Defendant claims that the trial court's refusal to grant a stay to consider whether Hunterdon County was employing a random *36 jury selection process violated his constitutional right to be tried by a jury that represents a cross-section of the community. A defense expert testified that given the size of the population in Hunterdon County, the high incidence of members of the same family called for jury duty suggested an error in the attempt to randomly select the jurors. Defendant wanted the trial court to grant a stay to give him time to investigate whether the county's jury selection process was nonrandom.
Rule 1:8-3 provides that challenges to the jury array are to be initiated "before any individual juror is examined." Relaxation of the rule should be granted only where there is a prima facie showing of actual prejudice to defendant's right to a fair and impartial jury. R. 1:1-2; State v. Butler, 155 N.J.Super. 270, 271, 382 A.2d 696 (App.Div.1978). As a result, time limitations are "strictly enforced" because to do otherwise would "impede the orderly administration of [the] criminal justice system." Gerald, supra, 113 N.J. at 128, 549 A.2d 792.
In this case, pursuant to Rule 1:8-5, defense counsel was provided a list of the general panel of petit jurors in September 1996 for defendant's trial commencing in October. Due to defendant's guilty plea, the panel was dismissed and a new list was compiled. A new list of jurors was given to defense counsel in November 1996 for the penalty phase that commenced in December. Preliminary jury selection was conducted on December 11 and 12, 1996, but because there had been a substitution of counsel for defendant, trial was adjourned until early March 1997 so that defense counsel would have an opportunity to prepare to conduct individual juror voir dire. Over 300 jurors were interviewed during fourteen consecutive court days commencing March 3, 1997. Defendant's request for a stay was not filed until the very last day of jury interviews, and the day before the final sixteen jurors were to be selected and the actual trial was scheduled to begin.
The request for a delay was properly denied for several reasons. First, the request was untimely. Defendant had several months to identify jurors with the same last names. By simply reviewing the list at any time between November and March, defendant would have had an "ample opportunity" to challenge the jury array before any individual juror was examined. See State v. McClain, 263 N.J.Super. 488, 497, 623 A.2d 280 (App. Div.), certif. denied, 134 N.J. 477, 634 A.2d 524 (1993). See also R. 1:8-2; State v. Robinson, 128 N.J.Super. 525, 529, 320 A.2d 533 (Law Div.1974) (denying challenge to grand jury array where defense counsel had "many months to investigate").
Second, defendant failed to make a "prima facie showing of actual prejudice." Butler, supra, 155 N.J.Super. at 271, 382 A.2d 696. The most defendant offered the court was the fact that five pairs of related jurors were discovered during questioning and that nine other pairs of jurors had the same last names. Defense counsel did not even know whether the latter group of jurors was related. However, even assuming arguendo that all fourteen pairs of jurors were related, defendant's claim that his right to an impartial jury was jeopardized was merely speculative. He presented no additional facts to prove prejudice.
Third, Hunterdon County is a small county. Considering the large number of jurors assembled for the false start in October and the even larger list of jurors assembled for the December start, coupled with the regular list of jurors assembled on a weekly basis and the need for jurors for another out-of-county capital case, there had been an enormous strain placed on the available prospective jury pool. As a result, the trial court properly was concerned that a third delay in the commencement of the trial would have had the "substantial *37 capacity" to taint the alreadyquestioned and ready-to-be-selected jurors.
Fourth, defendant did not contact any officials from Hunterdon County to register a complaint about the jury process. As the trial court stated:
Whether it's the jury manager, county counsel, a representative of the assignment judge, county prosecutor's office, some appropriate official or authority... would have a right to be notified and heard, since it is the procedures of the Hunterdon County jury manager's office and this vicinage ..., which are being challenged and called into question here.
Input from such officials is a necessary part of any hearing on the merits of such a motion.
Finally, this Court in State v. Long and in Gerald did not mandate a stay. In both cases, the Court found that despite the apparent problems in the jury selection procedures, in the absence of any purposeful or ill-intentioned deviations and no clear evidence of statutory or constitutional violations, there was no basis to strike either panel and reversals were not warranted. State v. Long, 119 N.J. 439, 470-71, 575 A.2d 435 (1990); Gerald, supra, 113 N.J. at 131, 549 A.2d 792.
Therefore, we find that the trial court properly denied defendant's request for a stay.
X
Constitutionality of the Death-Penalty Statute
Defendant claims that New Jersey's Death Penalty Act, N.J.S.A. 2C:11-3c to -3i, violates the Eighth Amendment. The basis for this claim is that the deathpenalty statute fails to adequately "narrow and define the class of individuals eligible for death" and fails "to provide for a system of meaningful appellate review." Thus, defendant insists that his death sentence should be reduced to a term of imprisonment.
This Court has repeatedly rejected this claim and has upheld the constitutionality of the death-penalty statute. Loftin, supra, 146 N.J. at 333, 680 A.2d 677; Martini I, supra, 131 N.J. at 221-22, 619 A.2d 1208; Ramseur, supra, 106 N.J. at 185-97, 524 A.2d 188. Defendant has presented no persuasive reason for retreating from that view. We, therefore, reaffirm our decisions upholding the constitutionality of the Death Penalty Act.
XI
Customary International Law
Defendant contends that New Jersey's Death Penalty Act, N.J.S.A. 2C:11-3c to -3i, violates international customary law and should be invalidated. He maintains that there is a trend in international law toward the abolition of the death penalty. Defendant further contends that in recent years N.J.S.A. 2C:11-3c(6), the victim impact statute, and N.J.S.A. 2C:11-3i, a provision making conduct causing serious bodily injury resulting in death eligible for the death penalty, were expansions to the Death Penalty Act. According to defendant, those expansions resulted in a violation of customary international law. As a result, he insists that this violation requires a reversal of his sentence.
We disagree. The Court previously rejected this argument in State v. Nelson when we stated that "[i]nternational law does not require invalidation of New Jersey's death penalty." 155 N.J. 487, 512, 715 A.2d 281 (1998), cert. denied, ___ U.S. ___, 119 S.Ct. 890, 142 L.Ed.2d 788 (1999). We reaffirm our decision finding that international law does not invalidate New Jersey's Death Penalty Act.
XII
Cruel and Unusual Punishment and Proportionality Review
Defendant contends that a sentence of death constitutes a disproportionate *38 and excessive punishment, violating the federal and state constitutional guarantees against cruel and unusual punishment. We adhere to our decision in Ramseur, supra, 106 N.J. at 190, 524 A.2d 188, in which we rejected arguments that the statute violated the Eighth Amendment of the United States Constitution or Article 1, paragraph 12 of the New Jersey Constitution. We, however, note and preserve defendant's challenge to the proportionality of his death sentence and will conduct the proportionality review of his sentence, N.J.S.A. 2C:11-3e, in a separate proceeding.
XIII
CONCLUSION
We affirm defendant's convictions and capital and noncapital sentences. We grant defendant's request that this Court conduct proportionality review of his death sentence, and that he be allowed to make full argument at that time.
The State argues on cross-appeal that the trial judge erred in allowing into evidence a supplemental report summarizing an interview with a doctor and a lawyer regarding the conditions in the Pennsylvania prison isolation units where defendant spent six and one-half years of his twenty years in prison. That issue would be relevant only in the event of a new penalty trial. Because we are affirming defendant's convictions, we need not address that issue.
Affirmed.
O'HERN, J., concurring in Parts I, II, and IV-XII and dissenting in Parts III and XIII.
I concur in the opinion of the Court except with respect to Part III, in which the Court concludes that the trial court was not clearly erroneous in rejecting defendant's application to withdraw his guilty plea. By posing the wrong question, the Court has reached the wrong conclusion. The real question is whether the trial court should have accepted the plea in the first place.
I
Rule 3:9-2 imposes a non-delegable duty on a court accepting a guilty plea to satisfy itself independently "that there is a factual basis for the plea and that the plea is made voluntarily, not as the result of any threats or of any promises or inducements not disclosed on the record, and with an understanding of the nature of the charge and the consequences of the plea." (Emphasis added.) The federal counterpart, Federal Rule of Criminal Procedure 11, mirrors our rule's requirements for the acceptance of guilty pleas. Such rules have their genesis in the nature of a guilty plea. Chief Justice Warren has explained:
A defendant who enters such a [guilty] plea simultaneously waives several constitutional rights, including his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers. For this waiver to be valid under the Due Process Clause, it must be "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 82 L.Ed. 1461, 1466 58 S.Ct. 1019 [,1023], 146 A.L.R. 357 (1938). Consequently, if a defendant's guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void.
[McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418, 425 (1969) (footnotes omitted).]
Our law is the same. "A guilty plea violates due process and is, thus, constitutionally defective if it is not voluntary and knowing." State v. Barboza, 115 N.J. 415, 421 n. 1, 558 A.2d 1303 (1989) (citing McCarthy, supra, 394 U.S. at 466, 89 S.Ct. at 1171, 22 L.Ed.2d at 425). A court's acceptance of a guilty plea is "explicitly contingent on the trial court's independent evaluation of voluntariness...." State v. *39 Ford, 125 Wash.2d 919, 891 P.2d 712, 715 (1995).
Although the record discloses that the trial court engaged in a colloquy with defendant, the court did not discharge its independent obligation to assure that the plea was in fact voluntary. The record must "instill confidence" that a waiver of constitutional rights was voluntary. United States v. Ready, 82 F.3d 551, 558 (2d Cir.1996). Defendant Robert Simon was permitted to play a cat-and-mouse game with the court that undermined the court's independent obligation to determine if the plea was voluntary. The trial court "failed to put these matters to rest," and failed to "deal with these ambiguities" in Simon's answers. People v. Jenkins, 72 A.D.2d 876, 421 N.Y.S.2d 934, 935 (1979).
"Even if a defendant wishe[s] to plead guilty to a crime he or she did not commit, he or she may not do so." State v. Smullen, 118 N.J. 408, 415, 571 A.2d 1305 (1990). The most conclusive evidence bearing on the voluntariness of the plea appears in the transcript of the in camera hearing involving the court, the defendant, and his public defender attorneys. The defendant's attorneys had learned from cocounsel, not from Simon, that Simon intended to plead guilty on the first day of trial. Counsel for co-defendant Charles Staples had informed Simon's attorneys that, anticipating that Simon would plead, he did not expect to be in Burlington County for more than one day.
Simon and Staples were both members of the Warlocks motorcycle gang. Staples was the president of the South Jersey chapter. Staples had taken Simon under his wing when Simon was released from prison three months before the offense at issue.
Simon announced his decision to plead guilty after the intervention of gang members. Defense counsel asked the court not to accept Simon's plea. The court asked Simon whether, after he had telephoned the leader of the gang, "Was it something that has caused you to change your mind about pleading guilty?" Simon answered, "Of course it was," but added, "I'm not saying no more about it, Your Honor." Simon also stated that he did not want to plead guilty, but could not reveal why he was going to plead guilty anyway. When the court asked him to explain why he was giving up his right to trial by jury when he believed he might not be convicted of capital murder, Simon replied, "It's just something I got to do."
Such a record does not establish a voluntary plea to a capital crime. During the in camera proceedings, the defendant refused to state for the court what had made him plead guilty. The court had an independent obligation not to accept a plea that was on its face involuntary. That was not done because the court permitted Simon to withhold the underlying facts.
The majority finds it significant that when Simon made his later motion to withdraw the plea, he failed to prove that threats had been made sufficient to establish duress. Ante at 447, 737 A.2d at 17. Does that make an invalid plea valid? Of course not. Judge Douglas Ginsburg of the District of Columbia Circuit Court of Appeals has set forth the correct analysis of a motion to withdraw a guilty plealook first at the plea itself. If the plea taken did not conform to the rule, the plea must be vacated.
[W]e will likely achieve greater economy and perhaps also clarity if we begin our analysis in such cases by assessing whether the defendant's plea was taken in compliance with Rule 11. If we determine that there was no error in the taking of the defendant's plea, we will be extremely reluctant to reverse the district court, even if the defendant makes out a legally cognizable defense to the charges against him. That is, a defendant who fails to show some error under Rule 11 has to shoulder an extremely heavy burden if he is ultimately to prevail.
*40 This more structured inquiryfocusing first on the most important, indeed, the determinative factor in all our decisions to datewill both conserve the resources of the bench and provide better guidance to the bar, and we adopt it today as the presumptive framework for analyzing a district court's denial of a presentence motion to withdraw a guilty plea under Rule 32(d). It will conserve resources because the court will not need exhaustively to examine all three issues in every case. As a result, our decisions will inform the bar of what is required to make out each element on appeal, without confusing matters by implying that there are simple trade-offs to be made among them. This sequential inquiry will properly focus the efforts of defense counsel and the Government upon the key issue raised by the appeal of an order denying a motion to withdraw a guilty plea: Has a defendant knowingly and voluntarily waived his right to meet the charges brought against him?
[United States v. Cray, 47 F.3d 1203, 1208 (D.C.Cir.1995).]
There is lingering resentmentand justifiably sothat defendant was playing games with the court and hoodwinked the State into trying Staples first. The problem is that we do not execute people because they play games. Because we respect life, we do not permit anyone, prosecution or defense, to inject the irrational into the capital-sentencing process. "The death penalty is unique, in result and in procedure." State v. Kiett, 121 N.J. 483, 499, 582 A.2d 630 (1990); see also State v. Koedatich, 112 N.J. 225, 329-30, 548 A.2d 939 (1988) (holding that defendant in capital case may not waive right to present mitigating evidence during penalty phase), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed.2d 803 (1989), appeal after remand, 118 N.J. 513, 572 A.2d 622 (1990). On its face, Simon's plea did not comply with Rule 3:9-2. The "unique" procedures applicable to death penalty cases do not allow for an exception.[1]
II
The totality of the information before the court at the time of Simon's plea required a rejection of the plea. Contrary to the Court's treatment of this issue as involving a review of an exercise of discretion, our jurisdiction in this respect is plenary. State v. Perez, 122 Idaho 1, 830 P.2d 1, 2 (App.1992); LoConte v. Dugger, 847 F.2d 745, 750 (11th Cir.), cert. denied, 488 U.S. 958, 109 S.Ct. 397, 102 L.Ed.2d 386 (1988). The record failed to describe the underlying facts that led to Simon's plea. Among the factors relied upon by defendant to show that the totality of the information before the trial court was counter indicative of voluntariness are the facts that follow.
Simon decided to plead guilty to the murder indictment on the same day that jury selection was scheduled to begin in the joint-capital murder trial of Simon and Staples. On the preceding Friday, October 4, 1996, the local and national presidents of the Warlocks had appeared in court. That same day, Staples passed on *41 to Simon a slip of paper containing the telephone number of the local president of the Warlocks. On Saturday, October 5, a local newspaper reported that members of the Warlocks were pressing Simon to plead guilty. On Monday, October 7, Simon announced his intention to plead guilty. Counsel urged Simon to delay entry of the plea until they could appeal to this Court on the issue of severing Simon's trial from Staples's trial. Counsel told the court that Simon answered, "what good would it do. It wouldn't make any difference. I'd be in prison and get a shiv in the back...." At the colloquy between the court and Simon, the following exchanged occurred:
THE COURT: What is this thing about the shiv in the back? You said it was out of context.
SIMON: I was making a comment to him [counsel] that ifif I'm wrong, tell the Judge. I said, like I could go to court and we could beat this whole thing or do whatever we're going to do and then two minutes after I walk out of the courtroom and I'm back in prison somebody could stab me in the back. That's the way life is.
You know, it wasn't like somebody was threatening me that they were going to stab me in the back. I love threats, your Honor. I'm telling you the truth. I love them cause then I know some a's going to try something. That's the type of person to threaten somebody
....
THE COURT: Did you say to your attorneys that you didn't know about it [that he would plead guilty] until Friday yourself?
SIMON: That's right.
THE COURT: What did that mean?
SIMON: I can't tell you. Really, if it means anything to you or to them, but I just can't tell you.
THE COURT: Did someone inform you about something between Thursday and Friday [October 3 and 4] that you didn't know Thursday, that you did learn of and, therefore, know about on Friday?
SIMON: Something like that. I mean, you can talk all around it and all day long. I'm not telling you what happened and, like, it's nothing where it's a threat toward me or anybody I know.
Simon believed that he could defeat the capital aspect of the case and offered no reason for risking his life by pleading to capital murder. The colloquy continued:
THE COURT: Did you tell your attorneys, as they reported to me, that you recognize, that you believe them, that they have a fair shot, whether they said a good shot or real good shot, pretty good shot, but some reasonable shot at avoiding a death penalty phase, because
SIMON: I told them that.
THE COURT: Because they think that it would be hard for the prosecutor to convince all twelve jurors beyond a reasonable doubt that you were the trigger man.
SIMON: I told them that.
THE COURT: Do you feel that way? Was that something that was the truth when you told them that, that you do really believe that?
SIMON: I believe that if we went to court I'd have a shot at not even getting a death penalty, but I don't care. Like I said, I don't care. I mean, like I don't want to spend the rest of my life in prison. Okay? So, like if I get the death penalty, I get it. Who cares? I don't care.
THE COURT: So, your reason for giving up the shot that you have, which you acknowledge is at least a reasonable shot at not having to face the death penalty, is you just don't care?
SIMON: I don't care.
*42 Simon received no legal benefit in exchange for the plea. The only benefit of the plea was to Staples:
THE COURT: [I]s it your expressed desire to plead guilty, does it have to do with exonerating Staples from having to face the possibility of a death sentence on his part?
SIMON: That could help, but don't use that against me. You know, I'd like to help Staples. I would. I can't see, like I said in the beginning, I can't see the both of us going down the tubes. No reason for that.
....
THE COURT: What do you think would happen if I didn't accept your plea of guilty? What if you tried to put it through and I just reject it? What do you think would happen?
SIMON: I don't know. I have no idea. I want to take some of the burden off of Shovel's [Staples's] family. You know, I think that would help them out cause they're going to puthave to put out a whole bunch of money to this clown that's representing Shovel.
THE COURT: Is that becauseyou tell me in your own mind why do you want to take this burden off Shovel and his family?
SIMON: Cause I think that would be the right thing to do.
THE COURT: Are you under any pressure from anyone else to do that?
SIMON: Not at all.
THE COURT: Either through Shovel or his family?
SIMON: No. I'm trying to be a nice guy here. Maybe that's the last good gesture I'll be able to do in my life, you know.[2]
Simon's lawyers believed that Simon was entering the plea under duress and urged the court not to accept the plea. They also requested that the court seal the proceedings to protect Simon and asked to be removed as counsel so that they could testify without a conflict of interest, should their replacement counsel find it necessary to offer their testimony at a future date. The court refused to remove them as counsel and took no testimony other than during the in camera hearing.
Finally, Simon himself indicated that he did not want to plead but had to plead and expressly told the court that he could not reveal his reason for doing so.
THE COURT: Was it something that has caused you to change your mind about pleading guilty?
SIMON: Of course it was. I did it.
THE COURT: Does it have something to do with Mr. Staples and hiswhatever his outcome in this case might be?
SIMON: I told you, I'm not saying no more about it, your Honor. It was something personal and I can take care of whatever it is. I give you my word it's nothing where I was threatened or I'm worried about anything. It's just the wayit's the way I'm going to do things.
At the in-court hearing on the plea, it was the court's suggestions to defendant that furnished the reasons for the plea. Defendant was smart enough to realize that the court would accept the plea if he repeated the language suggested by the court. After defense counsel identified legal inconsistencies between Simon's account and the elements of capital murder, the court subjected Simon to further questioning. Simon eventually stated that he had fired the gun with the intention of hitting the officer. Defense counsel then stated that "the forensics of this case are essentially inconsistent with the recitation *43 that Mr. Simon just rendered to this court."
Recall that the deceased officer, Sergeant Ippolito Gonzales, was found with Simon's social security card and Staples's driver's license under his leg with a bullet hole through them. The automobile insurance and registration cards were found in the vehicle with a bullet hole through them. A forensic expert testified that one of the two shots was fired at a distance of perhaps twenty inches from the insurance card. There was evidence of "gun powder grains found on the insurance card of Mr. Staples, that was apparently in the hand of the police officer" when he was shot. Officer Kenneth Crescitelli, Sergeant William Clay, and a neighbor, John Lyman, all observed Officer Gonzalez talking to the driver at different times during the stop. No one saw the officer talking to the passenger.
Simon testified that he was sitting on the passenger side of the car and had just stepped out of the car when he saw the officer reaching for his gun. Simon told the court, "I got out with the intent of trying to talk to him and I started to say something and as I did he started to go for his gun, so then I went for mine." Simon testified that he fired two shots at a distance of about six feet from Sergeant Gonzalez. When pressed by the court, Simon answered, "He was about six foot from my body. Maybe when I held the gun out he might have been three foot from that."
Because defense counsel was unwilling to help Simon further "improve" his plea, counsel declined the court's offer to be more specific about his objections:
Well, I don't intend to do that, your Honor, for this reason. We believe that this is a coerced plea and I believe that as soon as I begin to do that Mr. Simon will then answer your Honor's questions consistent with what he needs to get this plea through, just as when I explained to the court why ... the expert evaluation of the distance of the shooting [was inconsistent with defendant's statement]... and then Mr. Simon said, well, I thought it was six feet, but maybe it was a little closer. I'm not going to set him up for that.
I realize that it is difficult for society to accept that those who stand to be convicted of the shocking and heinous crime of killing a police officer should expect society to afford them the benefit of its laws. Society will not understand why we should insist that there be a "textbook ... inquiry", Cray, supra, 47 F.3d at 1208, as to whether Simon's plea was voluntary. He himself said, "So, like if I get the death penalty, I get it. Who cares? I don't care." Why should we care if he did not care? We can only recall what Justice Handler said on another occasion: "Although perhaps unwittingly, in failing to insist that death be imposed with the full measure of constitutional protection or not at all, we lose a significant and irredeemable part of our civilization built on the rule of law." State v. Bey (Bey IV), 137 N.J. 334, 430, 645 A.2d 685 (1994) (Handler, J., dissenting), cert. denied, 513 U.S. 1164, 115 S.Ct. 1131, 130 L.Ed.2d 1093 (1995).
A 1997 report of the Death Penalty Information Center stated that sixty-nine wrongful capital convictions have been documented in the United States since 1976. David E. Rovella, Illinois Expands Right to DNA Testing: Seven Men's Release From Death Row in Three Years Spurs Bipartisan Support, Nat'l L. J., Aug. 11, 1997, at A6. Thus far in the administration of the death penalty, New Jersey has been spared the error of sentencing the wrong person to death. This is no doubt due to commitment by our system of criminal justicethe judiciary, the bar and law enforcement officialsto the observance "of those indispensable safeguards for the ascertainment of guilt." State v. Harris, 156 N.J. 122, 201, 716 A.2d 458 (1998). Among those indispensable safeguards for the ascertainment of guilt is the responsibility in a capital case to insure that a plea is voluntary. The record in this case failed to meet that requirement.
*44 Simon, in effect, said to the court, "My plea is voluntary, Your Honor, but I have to do it." That is like saying to the court, "I want to plead guilty to the crime, Your Honor, but I did not do it." No court may accept such a plea.
HANDLER and STEIN, JJ., join in this opinion.
HANDLER, J., dissenting.
I dissent for the reasons expressed in the opinions of Justices O'Hern and Stein.[1] Accordingly, I, too, believe that defendant's death sentence should be vacated. I write separately to address concerns related to the Court's review of the adequacy of defendant's plea. The enhanced protections constitutionally required in capital prosecutions demand that the adequacy of guilty pleas to capital murder be reviewed with particular rigor and care, by standards pursuant to which the plea in this case would certainly have been rejected. Such precautions should follow evidently from the importance law and society place upon avoiding wrongful convictions and, especially, executions. The Court's failure to require a more exacting standard of review coupled with its failure to reject the plea in the present case is, moreover, reflective and indeed an active component of a more invidious and wide-ranging development: Death penalty jurisprudence is weakening the constitutional protections of general criminal law.
I
A.
Defendant's death sentence must be vacated because the record does not establish that defendant's plea of guilty to capital murder was voluntary. Ante at 488-94, 737 A.2d at 40-43 (O'Hern, J., dissenting in part and concurring in part). As Justice O'Hern points out, the record contains substantial evidence that defendant pled under duress from coercive external pressures. See id. at 487, 737 A.2d at 39 (O'Hern, J., dissenting in part and concurring in part). The record sufficiently presents the possibility that defendant's admissions to the factual circumstances of the crime, which were evoked, notably, by the plea court's leading inquiry, see id. at 491-92, 737 A.2d at 42 (O'Hern, J., dissenting in part and concurring in part) (noting that "it was the court's suggestions to defendant that furnished the reasons for the plea"), were lies. Consequently, Simon's plea was unacceptable. See Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711-12, 23 L.Ed.2d 274, 279 (1969) (holding that guilty plea is invalid unless defendant makes affirmative showing on record that plea is knowing and voluntary); State v. Howard, 110 N.J. 113, 122, 539 A.2d 1203 (1988) (same); see also R. 3:9-2 (requiring that court not accept guilty plea without first determining "that there is a factual basis for the plea and that the plea is made voluntarily, not as the result of any threats or of any promises or inducements not disclosed on the record, and with an understanding of the nature of the charge and the consequences of the plea"). The plea was, plainly, of the sort that "[n]o court may accept," in any criminal proceeding. Ante at 494, 737 A.2d at 44 (O'Hern, J., dissenting in part and concurring in part); see State v. Smullen, 118 N.J. 408, 415, 571 A.2d 1305 (1990) ("Even if a defendant wished to plead guilty to a *45 crime he or she did not commit, he or she may not do so.").
The insufficiency of the plea in this case is particularly egregious because Simon pled guilty to capital murder. It is aphoristic that enhanced constitutional protections are required in capital prosecutions. See, e.g., Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976). The protections due capital defendants under the New Jersey Constitution may exceed those of the federal Constitution. See Ramseur, supra, 106 N.J. at 190, 524 A.2d 188 (interpreting N.J. Const. art. I, ¶ 12); id. at 369-82, 524 A.2d 188 (Handler, J., dissenting) (interpreting N.J. Const. art. I, ¶¶ 1, 5, and 12). I continue to believe that courts must apply exacting inquiry, and appellate courts scrupulous review, before accepting a plea of guilty to a capital crime. Accord State v. DiFrisco, 118 N.J. 253, 284-89, 571 A.2d 914 (1990) (Handler, J., concurring in part and dissenting in part); State v. Davis, 116 N.J. 341, 383-90, 561 A.2d 1082 (1989) (Handler, J., dissenting in part and concurring in part). The Court has previously recognized that because capital punishment is "unique," special care must be taken in capital cases to insure that the defendant pleading understands the nature of the charges and consequences of the plea. See State v. Kiett, 121 N.J. 483, 495-96, 499, 582 A.2d 630 (1990) (allowing defendant to withdraw plea where guilty plea was entered in reliance on misinformation that by doing so he would avoid the death penalty, for which he was not in fact eligible); see Davis, supra, 116 N.J. at 374, 561 A.2d 1082 (reversing death sentence and guilty plea to capital murder where defendant was not adequately informed of the then-pertinent Gerald distinction between capital and non-capital murder); accord id. at 383-84, 561 A.2d 1082 (Handler, J., dissenting in part and concurring in part) (explaining how "standards by which a defendant is informed of the nature and consequences of a guilty plea must be more meticulously defined and scrupulously applied"). I would add that special precautions must be applied in assessing the factual basis of pleas to capital murder. Davis, supra, 116 N.J. at 385-87, 561 A.2d 1082 (Handler, J., dissenting in part and concurring in part). Further, before a guilty plea to capital murder can be accepted, "the court should also require the State to demonstrate the evidence available to prove aggravating factors." Id. at 389, 561 A.2d 1082 (Handler, J., dissenting in part and concurring in part).
The circumstantial evidence of coercion in this case, see ante at 488-94, 737 A.2d at 40-43 (O'Hern, J., dissenting in part and concurring in part), when viewed in a light consistent with the Court's conception of enhanced constitutional protections for capital defendants, resolves the issue unquestionably in defendant's favor. The Court, however, makes no special mention of the fact that Simon pled guilty to capital murder; it assesses the validity of defendant's guilty plea according to the standards applicable to criminal offenses generally. See ante at 444-45, 737 A.2d at 15-16. Consequently, the Court's conclusion that "defendant's plea was made voluntarily," id. at 446, 737 A.2d at 16, is all the more unsound and untenable. The plea record reflects the distinct and realistic possibility that Simon's plea was made subject to coercive influence from a source and circumstances external to the adjudicative forum. If that form of involuntariness were to appear in an ordinary criminal case, it should give a court long pause before accepting such a plea. In a capital case, the acceptance of a plea that is the result of external coercion is manifestly unsatisfactory.
B.
The potential injustice in this case is compounded by the fact that the lack of voluntariness of defendant's plea affected the factual basis established for the plea. The evidence in the record was equivocal *46 with regard to who shot the victim. See id. at 434-35, 737 A.2d at 10 ("Because the State did not know whether defendant or Staples was the trigger-person who killed Sergeant Gonzalez, it decided to charge both of them with purposeful and knowing murder by his own conduct and require the jury to determine which one actually was the killer."). Because it was not clear that Simon desired to plead guilty independently of reasons externally imposed, we must entertain the possibility that defendant was innocent of capital murder. See ante at 494, 737 A.2d at 44 (O'Hern, J., dissenting in part and concurring in part) (suggesting that Simon's plea was, in effect, "I want to plead guilty to the crime... but I did not do it").
Wrongful convictions are recognized to be more likely in cases settled by guilty pleas than in cases adjudicated by trial. See, e.g., William S. Laufer, The Rhetoric of Innocence, 70 Wash. L.Rev. 329, 359 (1995) ("Plea bargain contracts increase the likelihood of convicting innocents as compared with fully adjudicated cases that are decided after testimony of witnesses to the particular event has been heard and all of the truth-checking devices of a vigorous adversary procedure have been used.") (footnote omitted); Stephen J. Schulhofer, Plea Bargaining as Disaster, 101 Yale L.J. 1979 (1992) ("[P]lea bargaining seriously impairs the public interest in effective punishment of crime and in accurate separation of the guilty from the innocent."). It is also recognized that wrongful convictions are prevalent in capital prosecutions, sometimes as the result of guilty pleas. See, e.g., Michael Radelet et al., In Spite of Innocence (1992) (listing cases of innocent defendants who were wrongfully convicted).
In a capital case, wrongful conviction is not the only risk associated with a defendant's coerced pleaso is the execution of an innocent person. The execution of innocent people is a prospect that even the strongest proponents of capital punishment cannot abide. See Samuel R. Gross, The Risks of Death: Why Erroneous Convictions are Common in Capital Cases, 44 Buff. L.Rev. 469, 471-72 (1996). The execution of defendants guilty of murder, but not capital murder and not eligible for capital punishment, is equally intolerable; insofar as society accepts the death penalty, it is reserved as punishment only for a few, especially egregious crimes. As Justice O'Hern points out, the possibility of executing an innocent person is attendant to coerced pleas, and we have been fortunate thus far, perhaps due to our recognition of the heightened safeguards needed in capital cases, to have avoided such a disaster. See ante at 493-94, 737 A.2d at 43-44 (O'Hern, J., dissenting in part and concurring in part). The fact that this case presents that very possibility provides all the more reason why defendant's questionable plea should have been rejected.
II
Failing to find what would plainly be involuntariness in any case and ignoring the risk that the defendant to be executed has not committed capital murder, the Court has, rather than vigilantly protecting the rights of this capital defendant, diluted his constitutional protections. The damage done by the Court's opinion, however, goes beyond manifest injustice to Simon. The Court's decision adds another incremental layer to a body of death penalty precedent that reflects not the evolutionary enhancement but the gradual diminishment of protections for capital defendants. More alarmingly, the Court's opinion has the prepotency to soften the general standards that provide a protective bulwark for all citizens charged under our criminal law. Because this is a capital case, the Court's opinion becomes tempting precedent; it can easily be marshalled as authority in an ordinary criminal case to justify the conviction of a noncapital defendant. The Court's decision then not only weakens the standards needed to protect defendants in capital cases, it erodes the fundamental protections *47 long accepted as a basic part of our criminal law.
The problem begins when the Court, as here, subscribes to a single standard generally applicable in all criminal cases, that it aims to apply more scrupulously in capital cases, but then gives at most token deference to enhanced protection for capital defendants. Even in certain other capital prosecution contexts, where the Court adopts a different and stricter legal standard, it may apply the standard in a lax manner. Quite often, it seems, we state the principles of enhanced protection in capital cases and then operate inversely; that is, actually to provide capital defendants with less protection. Indeed, we may be prone to this course, even though we are consciously opposed to it. See, e.g., id. at 488, 737 A.2d at 40 (O'Hern, J., dissenting in part and concurring in part) ("On its face, Simon's plea did not comply with Rule 3:9-2. The `unique' procedures applicable to death penalty cases do not allow for an exception.") (footnote omitted).
One of the dangers of begrudging application of constitutional safeguards in capital cases is the creation of precedent that by example becomes the measure of protection for the Court in its review of future capital cases. For example, in State v. Koedatich, 112 N.J. 225, 325, 548 A.2d 939 (1988), the Court upheld the defendant's conviction, despite flagrant prosecutorial misconduct. I dissented, pointing out that the Court failed to apply the particularly rigorous review of prosecutorial misconduct we recognize to be necessary in capital cases. Id. at 368, 548 A.2d 939 (Handler, J., dissenting) (citing Ramseur, supra, 106 N.J. at 324, 524 A.2d 188); accord id. at 341-42, 548 A.2d 939 (Clifford, J., dissenting). The misconduct alleged in Koedatich, supra, now pales in comparison to that upheld in the Court's recent decision in State v. Timmendequas, 161 N.J. 515, 570-93, 737 A.2d 55, 84-97 (1999), in which the Court implicitly approves of the Koedatich holding, see id. at 571, 737 A.2d at 84 (citing Koedatich, supra, 112 N.J. at 320-25, 548 A.2d 939, for proposition that prosecutorial misconduct is not reversible error unless it deprived defendant of fair guilt-phase trial).
This Court's treatment of pretrial publicity beginning with State v. Biegenwald, 106 N.J. 13, 524 A.2d 130 (1987), follows a similar pattern. Earlier, in State v. Williams, 93 N.J. 39, 63, 459 A.2d 641 (1983), the Court enunciated a heightened standard to protect a defendant's right to an impartial jury in the face of pretrial publicity by allowing a change of venue where there was a `realistic likelihood' of prejudice. The Court directed that in capital cases, such as Williams's, "trial courts must exercise special caution." Id. at 65, 459 A.2d 641. In Biegenwald, supra, the Court professed to prescribe rigorous standards for dealing with the inflammatory publicity that preceded the defendant's capital trial; yet, despite prejudicial pretrial publicity, it affirmed the denial of the defendant's motion for a change of venue, finding that the court's voir dire preserved defendant's right to an impartial jury. 106 N.J. at 37, 524 A.2d 130. I protested the dilution of the heightened standard enunciated in Williams, supra. See Biegenwald, supra, 106 N.J. at 88, 524 A.2d 130 (Handler, J., dissenting). In Koedatich, supra, 112 N.J. at 282, 548 A.2d 939, the Court echoed its holding in Biegenwald, under extreme circumstances. I observed that "[t]o the extent that the Court's review is influenced by the fact that this is a capital case, that influence seems to have lessened the scrutiny of the record below." Id. at 363, 548 A.2d 939 (Handler, J., dissenting). Since then, in even more outrageous conditions, the Court has further enfeebled the standard. See State v. Harris, 156 N.J. 122, 141-57, 716 A.2d 458 (1998); see also id. at 212-31, 716 A.2d 458 (Handler, J., dissenting) (examining extent and effect of pretrial publicity). Timmendequas, supra, in which the Court allowed the empanelment *48 of a jury on which a preponderance of the jurors knew of the accused sex offender's inadmissible prior sex conviction, exemplifies the Court's substantial retreat from the Court's prior attempts to protect capital defendants from the prejudicial effects of pretrial publicity. See 161 N.J. at 722, 737 A.2d at 172 (Handler, J., dissenting).
If token deference to enhanced protections for capital defendants has such a weakening effect on this Court's capital jurisprudence, one must be concerned with the effect those decisions may have upon general criminal legal standards in our justice system. Death penalty cases, because they are assumed to be exemplars of fair prosecutions, are frequently cited as authority to sustain criminal convictions; as such, they filter back into and influence the general criminal law. In an ordinary criminal case, in which a non-capital defendant alleges like circumstances as the basis for protectable rights, the court may look to the similar capital precedent as an example of the appropriate, presumably heightened, standard to be followed. The court, assuming the standard for its noncapital case to be less rigorous than the capital precedent, could understandably feel no compunction in following that precedent, even if by application in the capital case the standard was weakened. It is not easy to identify and gauge this effect. When the prevalence of cases cited for a proposition are capital, however, and those cases are most often cited as authority for affirming convictions, that suggests capital jurisprudence is coloring the discretion being exercised by criminal trial courts. In sum, by failing to apply enhanced standards of protection for capital defendants while professing to do so, the Court creates a climate in which trial courts are more likely to apply reduced standards of protection in all criminal cases.
Such is the stature of the Court's application of the standard requiring knowing and voluntary guilty pleas to Simon's case. The Court's indolent application of the standard for voluntary and knowing pleas in this capital case begets a legacy that will be inherited by other criminal defendants.
I, therefore, dissent.
STEIN, J., dissenting.
Simply stated, a critical issue posed by this capital appeal is whether a defendant's second-degree murder conviction in Pennsylvania, following a jury charge that permitted a finding of malice on the basis of a mental state equivalent to that required for aggravated manslaughter under New Jersey's Code of Criminal Justice, can qualify as a prior murder and serve as an aggravating factor under New Jersey's Death Penalty Act. Remarkably, the Court concludes that the Legislature "intended to make any prior murder committed by a defendant at any time and at any place an aggravating factor." Ante at 457, 737 A.2d at 22-23. That conclusion cannot be sustained because it would permit the definition of murder adopted by other states, rather than New Jersey's definition of murder, to determine whether a defendant is eligible for the death penalty.
N.J.S.A. 2C:11-3c(4)(a) allowed the jury to consider, as an aggravating factor weighing on defendant's death-worthiness, its finding that "[t]he defendant ha[d] been convicted, at any time, of another murder." In this appeal defendant challenges the admissibility of a foreign murder conviction as an aggravating factor in a capital penalty proceeding. In addition, defendant contends that as a prerequisite to the admission of a prior murder conviction from another state, the prosecution must establish that the foreign jurisdiction's definition of murder at the time of defendant's prior conviction comported substantially with the offense of murder as defined by N.J.S.A. 2C:11-3.
Although I agree with the majority's holding that N.J.S.A. 2C:11-3c(4)(a) contemplates the admissibility as a statutory aggravating factor of a murder conviction *49 entered "at any place" as well as "at any time," I cannot endorse the majority's view that a foreign conviction for murder, no matter how defined, is admissible in a capital penalty phase. Under the majority's holding, a defendant's death-worthiness may depend on whether that defendant's prior homicide was committed in this State, or in a foreign jurisdiction that chooses to define "murder" as including conduct that would support no more than a conviction for the lesser offense of aggravated manslaughter in New Jersey. To allow a jury to impose a death sentence based on a foreign conviction for "murder" when that murder, as defined by the foreign jurisdiction, would not qualify as a statutory aggravating factor in this State would inject an arbitrariness into our death-penalty jurisprudence that this Court has heretofore been unwilling to tolerate.
Because I believe that the majority's holding wrongly expands the category of death-eligible defendants and undermines the Legislature's explicitly stated intention to strictly limit death eligibility to the circumstances enumerated under N.J.S.A. 2C:11-3, I dissent.
I
In deciding a defendant's death-worthiness, N.J.S.A. 2C:11-3c(4)(a) allows a jury to consider as an aggravating factor a defendant's prior conviction, "at any time, of another murder." Pursuant to the statute, the jury in this case found that defendant's 1984 Pennsylvania conviction for second-degree murder constituted an aggravating factor. Whether the offense for which defendant was convicted in 1984 would qualify as a prior "murder" if committed in this State requires an examination of the New Jersey statutes as well as the law of Pennsylvania, as that law was charged to the jury in defendant's 1984 trial.
N.J.S.A. 2C:11-3a provides that criminal homicide constitutes "murder" when the actor purposely or knowingly causes death or serious bodily injury resulting in death, or when the homicide is committed when the actor is engaged in the commission of certain enumerated felony offenses. Because defendant's prior homicide did not involve the commission of a felony, in my view the question in this case is whether he was convicted of "purposely or knowingly caus[ing] death or serious bodily injury resulting in death."
In defendant's 1984 Pennsylvania trial, the court instructed the jury that "Robert Simon is charged with Criminal Homicide; that iswith the taking of the life of Beth Smith without lawful justification or excuse." The court charged the jury that the Commonwealth of Pennsylvania, at that time, recognized three types of homicide: murder in the first degree, murder in the second degree, and voluntary manslaughter. Each category of homicide required the jury to find that defendant had caused the victim's death; therefore the crimes were distinguishable on the basis of defendant's mental state. First-degree murder required the jury to find that defendant had a specific intent to kill. A conviction for either first- or second-degree murder, the court charged the jury, required the jury to find that the killing was committed with malice. Malice, the court explained,
is a short-hand way of referring to any of the various bad mental states or attitudes which a person who kills must have for the killing to be Murder.
A killing is with malice and is, therefore, Murder if the killer acted with one of the following states of mind: an intent to kill, or an intent to inflict serious bodily injury, or a wickedness of disposition, hardness of heart, cruelty, recklessness, disregard of the consequences, and a mind regardless of social duty, indicating an unjustified disregard for the probability of death or great bodily harm, and an extreme indifference to the value of human life. That's what we mean by malice.
*50 On the other hand, a killing is without malice if the killer acted with lawful justification or excuse, or under circumstance reducing the killing to Voluntary Manslaughter.
[Emphasis added.]
The court instructed the jury that because the definition of malice encompasses an intentional homicide, a finding that defendant intended to kill the victim would also satisfy the malice element, resulting in a conviction for first-degree murder. A conviction for second-degree murder, on the other hand, would result if the jury found either of the remaining two mental states included within the broad definition of malice: intent to cause serious bodily injury; or "a wickedness of disposition, hardness of heart, cruelty, recklessness, disregard of the consequences, and a mind regardless of social duty, indicating an unjustified disregard for the probability of death or great bodily harm, and an extreme indifference to the value of human life."
II
As defendant has argued, the problem in this case arises because it is impossible to know which of the two possible mental states for second-degree murder, included within the court's definition of malice, the jury found that he possessed at the time of the Pennsylvania homicide. If the jury's verdict was based on a conclusion that defendant intended to cause the victim serious bodily injury, defendant's Pennsylvania conviction clearly would have been admissible as a prior "murder" conviction. See N.J.S.A. 2C:11-3a(1) and (2) (defining as murder an actor's purposely or knowingly causing serious bodily injury resulting in death). If, however, the jury found defendant guilty of second-degree "murder" based on a finding that defendant acted with "a wickedness of disposition, hardness of heart, cruelty, recklessness, disregard of the consequences, and a mind regardless of social duty, indicating an unjustified disregard for the probability of death or great bodily harm, and an extreme indifference to the value of human life," then defendant's conviction parallels the crime of aggravated manslaughter under New Jersey law. See N.J.S.A. 2C:11-4 (defining as aggravated manslaughter an actor's recklessly causing death under circumstances manifesting extreme indifference to human life). A prior conviction for aggravated manslaughter does not qualify as a prior murder conviction under N.J.S.A. 2C:11-3c(4)(a). See State v. Bey, 137 N.J. 334, 387-88, 645 A.2d 685 (1994) (noting that guilty plea to manslaughter cannot be asserted by prosecutor as priormurder-conviction aggravating factor), cert. denied, 513 U.S. 1164, 115 S.Ct. 1131, 130 L.Ed.2d 1093 (1995).
Contrary to the majority's implication, a Pennsylvania second-degree murder conviction under the "wickedness of disposition, hardness of heart" formulation of malice unquestionably is the equivalent of aggravated manslaughter as defined by the New Jersey statutes. In this State, "[c]riminal homicide constitutes aggravated manslaughter when the actor recklessly causes death under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4a. Aggravated manslaughter is identical to the lesserincluded offense of reckless manslaughter except for the difference in the degree of risk of death; an aggravated manslaughter results if the risk is a probability as opposed to a possibility. State v. Pridgen, 245 N.J.Super. 239, 246, 584 A.2d 869 (App.Div.), certif. denied, 126 N.J. 327, 598 A.2d 886 (1991). Similarly, in Pennsylvania, the less culpable version of seconddegree malice murder is defined as a homicide committed with "a wickedness of disposition, hardness of heart, cruelty, recklessness, disregard of the consequences, and a mind regardless of social duty, indicating an unjustified disregard for the probability of death or great bodily harm, and an extreme indifference to the value of human life." See Commonwealth v. Taylor, 461 Pa. 557, 337 A.2d 545, 548 *51 (1975) (noting that "between the recklessness or culpable negligence necessary to support the charge of involuntary manslaughter, and the specific intent to kill which is a prerequisite of murder of the first degree, there is a class of wanton and reckless conduct which manifests such an extreme indifference to the value of human life which transcends the negligent killing and reaches the level of the malice which supports a verdict of murder in the second degree") (citation omitted); Commonwealth v. Coleman, 455 Pa. 508, 318 A.2d 716, 718 (1974) (noting that second-degree malice murder is established by "intentional doing of an uncalled-for act in callous disregard of its likely harmful effects on others") (citation omitted).
That our Legislature has, at other times in our statutory history, also defined murder as including the offense now termed manslaughter under the Code does not, as the majority suggests, warrant the Court's according that term a broader construction than that contained in the Code's current definition of murder for purposes of both death-eligibility and death-worthiness.
Nor, as the majority suggests, ante at 462-63, 737 A.2d at 25-26, does our decision in State v. Ramseur, 106 N.J. 123, 524 A.2d 188 (1987), aff'd sub nom., Ramseur v. Beyer, 983 F.2d 1215 (3d Cir.1992), cert. denied, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed.2d 653 (1993), support the Court's holding that "murder," however that term may be defined by a foreign jurisdiction, is an admissible aggravating factor. The definition of murder was not at issue in Ramseur because the New Jersey indictment to which Ramseur pled guilty alleged that he "did willfully, feloniously and of his malice aforethought kill and murder" his victim and "did not mention manslaughter, which would have been charged separately." Id. at 274, 524 A.2d 188. The issue in Ramseur was whether a non vult plea to an indictment for first-degree murder could be used as a prior "conviction" to trigger death-eligibility. Ramseur argued that the plea should not carry the same weight as a conviction after trial because of the possibility that he may have been convicted of a lesser offense, such as manslaughter, had he chosen to go to trial and contest the indictment. Id. at 272, 524 A.2d 188. We did not decide in Ramseur that a conviction for "murder" is on its face an admissible aggravating factor; rather, our decision was founded on the well-settled principle that "a non vult plea is regarded as the equivalent of a guilty plea to the charge to which defendant has pleaded." Id. at 273, 524 A.2d 188. Simply put, Ramseur had pleaded guilty to murder, not manslaughter, and his non vult plea had the same legal significance as a conviction by a jury. Id. at 272-73, 524 A.2d 188.
In Ramseur, we observed that courts "ordinarily will not look behind the fact of the conviction because the conviction itself is the statutory aggravating factor." Id. at 276, 524 A.2d 188 (footnote omitted). Rather than requiring the State to reprove the allegations of the former offense, the conviction itself is used, we explained, "because of the high degree of its reliability [and] because of the time and energy that would be spent trying to prove the prior murder through a trial within a trial." Id. at 278, 524 A.2d 188. Where, as in Ramseur, "[i]t is simply undeniable that [the defendant] was convicted, and that he was convicted of murder," id. at 272, 524 A.2d 188, we refused to engage in futile speculation about what verdict a jury may have rendered had the matter been tried. The majority, seizing on Ramseur's refusal to "look behind the conviction" to reexamine the facts underlying a valid conviction for murder, makes an unjustifiable leap of logic in concluding that a prior murder conviction is ipso facto admissible, without any inquiry into its qualification as an aggravating factor as a matter of law. In so holding, the majority fails to recognize that a prior conviction is reliable only as proof that a defendant committed the crime for which he was convicted; it cannot establish a prior "murder" conviction if the offense *52 for which he was convicted would have been manslaughter as a matter of New Jersey law.
In an analogous context, the court in State v. Hines, 109 N.J.Super. 298, 263 A.2d 161 (App.Div.), certif. denied, 56 N.J. 248, 265 A.2d 703, cert. denied, 400 U.S. 867, 91 S.Ct. 108, 27 L.Ed.2d 106 (1970), refused to allow the admission of a foreign conviction as evidence of the defendant's habitual-offender status unless the offense would qualify as a high misdemeanor in this State, a prerequisite for admission under N.J.S.A. 2A:85-12. 109 N.J.Super. at 302-03, 263 A.2d 161. Accordingly, the court struck the allegations regarding three of the defendant's prior Pennsylvania convictions because the offenses would not qualify as high misdemeanors under New Jersey law: a prior conviction for prison breach was stricken because that offense was not a high misdemeanor in New Jersey; a prior theft conviction was stricken for failure to meet the $200 limitation of our theft statute; and a prior conviction for bringing stolen property into the state was stricken because the comparable offense in New Jersey was only a misdemeanor. Id. at 303, 263 A.2d 161.
On Hines's appeal, he contended that a prior Pennsylvania larceny conviction considered in the habitual-offender trial also was not the equivalent of a high misdemeanor in this State. Id. at 304, 263 A.2d 161. The Pennsylvania larceny statute read that "[w]hoever commits larceny, is guilty of a felony, and shall, upon conviction thereof, be sentenced...." Ibid. The relevant New Jersey statute "provided that any person who steals money, goods, chattels or other personal property of another is guilty of a misdemeanor, if the price or value of such property was under $50 and, if over $50 is guilty of a high misdemeanor." Ibid. Hines claimed that, looking merely at the statute, "the Pennsylvania offense could possibly have been no more than a mere misdemeanor, and so could not be considered under [the habitual-offender statute]." Id. at 304-05, 263 A.2d 161. The court rejected that argument, noting that because the indictment stated the amount of money stolen $564the court was able conclusively to determine that the offense would have been a high misdemeanor, as defined by New Jersey law, and that it properly had been admitted at Hines's trial. Id. at 305-06, 263 A.2d 161.
Significantly, in both Ramseur and Hines, the courts were able to verify, simply by looking at the prior record of conviction, whether the prior offenses fell within the definition of the relevant New Jersey offense: in Ramseur because the defendant did not contest the indictment charging him with willful murder; and in Hines because the indictment stated the objective fact of the amount of money stolen. Similarly, in each of the cases cited by the majority allowing the admission of a prior conviction from a foreign jurisdiction, it was possible, without the necessity of any inference or speculation, for the forum court to determine conclusively whether the foreign conviction fell within the scope of a comparable offense in the forum state. See People v. Guest, 115 Ill.2d 72, 104 Ill.Dec. 698, 503 N.E.2d 255, 263-67 (1986) (upholding admission of prior California murder conviction as aggravating death-eligibility factor, after conducting comparative analysis of Illinois and California murder statutes and concluding they were "substantially similar" in requiring "virtually identical" mental states to sustain murder conviction), cert. denied, 483 U.S. 1010, 107 S.Ct. 3241, 97 L. Ed.2d 746 (1987); Grasso v. State, 857 P.2d 802, 808-09 (Okl.Crim.App.1993) (questioning admissibility of defendant's prior conviction under Florida's aggravated battery statute, which included provision allowing conviction for conduct that would be considered only as misdemeanor under Oklahoma law, but finding it unnecessary to resolve issue because defendant's second prior Florida conviction for robbery, under statute "substantially similar" to Oklahoma's, "sufficiently supported the *53 trial judge's finding of [prior felony] aggravating circumstance beyond a reasonable doubt"); Commonwealth v. Maxwell, 534 Pa. 23, 626 A.2d 499, 501 (refusing to recognize, on res judicata grounds, defendant's claim that prior felony conviction was improperly admitted in penalty phase because New York conviction for possession of loaded weapon would have been misdemeanor in Pennsylvania, but observing that New York offense was more serious offense and was not equivalent to Pennsylvania's statute, which proscribed both loaded and unloaded weapons), cert. denied, 510 U.S. 995, 114 S.Ct. 558, 126 L. Ed.2d 459 (1993); State v. Norris, 285 S.C. 86, 328 S.E.2d 339, 344-45 (1985) (vacating defendant's death penalty based on erroneous admission of prior second-degree murder conviction under Virginia statute that did not require mental state of malice and therefore did not qualify as aggravating factor under South Carolina law), overruled on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991).[1]
Here, in contrast to Ramseur, Hines, and the foregoing out-of-state cases, our objective examination of the Pennsylvania record of conviction cannot possibly shed light on the one fact necessary in order to conclude that defendant was, in fact, convicted of murder rather than manslaughter, i.e., on which groundintent or callous indifferencethe jury's verdict rested. The Court's conclusory observation that defendant's conduct "reasonably can be viewed as sufficient to satisfy a purpose[ful] or knowing[ ] murder" under N.J.S.A. 2C:11-3a(1) or (2), ante at 463, 737 A.2d at 26, is not an adequate basis for upholding the admission of the prior conviction. That conclusion requires the very speculation about a jury's thought processes, or "looking behind the conviction," that we found inappropriate in Ramseur.
The Court's most glaring error lies in its attempt to distinguish "callous indifference" malice under Pennsylvania law from the mental state of recklessness required under New Jersey law for a conviction of aggravated manslaughter. The Court states:
When the Pennsylvania court defined malice, use of the phrase "recklessness of consequences and a mind regardless of social duty indicating an unjustifiable disregard for the probability of death or great bodily harm and an extreme indifference to the value of human life," does not come close to being equivalent to the recklessness standard required for manslaughter under N.J.S.A. 2C:11-4. The phrase in the Pennsylvania malice charge that included "recklessness" when viewed in the context of shooting the victim through the neck and between the eyes more closely satisfies the definitions of acting purposely or knowingly, N.J.S.A. 2C:2-2b(1) and (2), than the definition of recklessness in N.J.S.A. 2C:2b(3).
[Ante at 463-64, 737 A.2d at 26.]
The Court's suggestion that the evidence of defendant's Pennsylvania trial may have been adequate to sustain a conviction for purposeful murder begs the question. But the Court errs grievously when it states that "callous indifference" malice under Pennsylvania law "does not come close to being equivalent to the recklessness standard required for manslaughter" under New Jersey law. Under our manslaughter statute, N.J.S.A. 2C:11-4, "[c]riminal homicide constitutes aggravated manslaughter when the actor recklessly causes death under circumstances manifesting extreme indifference to human life." Under the Code, N.J.S.A. 2C:2-2, *54 "[a] person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct." In defendant's Pennsylvania trial the court's secondary definition of malice was "a wickedness of disposition, hardness of heart, cruelty, recklessness, disregard of the consequences, and a mind regardless of social duty, indicating an unjustified disregard for the probability of death or great bodily harm, and an extreme indifference to the value of human life." Contrary to the Court's conclusion, the Pennsylvania court's secondary definition of malice parallels in many respects New Jersey's definition of recklessness and the elements of aggravated manslaughter. Both definitions emphasize recklessness as the crucial mental state, as well as a "[conscious] disregard" of consequences and "extreme indifference to human life." A fair reading of the two relevant definitions demonstrates that the Pennsylvania court's secondary definition of malice is the essential equivalent of aggravated manslaughter under New Jersey law.
III
The Court's inexacting level of scrutiny is simply insufficient when the issue is whether the evidence supports a priormurder-conviction aggravating factor. Where, as here, the record leaves the reviewing court uncertain about the actual ground on which the jury's decision rested, and one ground would not be admissible as an aggravating factor, the appropriate remedy is the reversal of defendant's death sentence and a remand for resentencing. See Zant v. Stephens, 462 U.S. 862, 881, 103 S.Ct. 2733, 2745, 77 L.Ed.2d 235, 252 (1983) (noting rule that "a general verdict must be set aside if the jury was instructed that it could rely on any of two or more independent grounds, and one of those grounds is insufficient, because the verdict may have rested exclusively on the insufficient ground") (citing Stromberg v. California, 283 U.S. 359, 369-70, 51 S.Ct. 532, 535-36, 75 L.Ed. 1117, 1123 (1931)). Consistent with that doctrine, this Court in State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988), refused to rely for death-eligibility purposes on any jury verdict that failed to state explicitly whether the conviction reflected the jury's finding that the defendant intended to kill, or to inflict serious bodily injury on the victim. Id. at 92, 549 A.2d 792.
Nor should we expand death-eligibility to include prior offenders whose crimes never would have been presented for the jury's consideration if committed in this State, simply because the foreign jurisdiction defines the offense of murder more broadly than does New Jersey. As we noted in Ramseur:
By establishing a prior conviction as an aggravating factor the State adequately fulfills its constitutional duty to "narrow the class of persons eligible for the death penalty and ... [to] reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder."
[Ramseur, supra, 106 N.J. at 276, 524 A.2d 188 (quoting Zant, supra, 462 U.S. at 887, 103 S.Ct. at 2748, 77 L.Ed.2d at 249-50) (alteration in original).]
The States have been accorded considerable latitude in defining the factors, both statutory and non-statutory, that may be considered in deciding a defendant's deathworthiness. See Barclay v. Florida, 463 U.S. 939, 956, 103 S.Ct. 3418, 3428, 77 L.Ed.2d 1134, 1148 (1983) (stating that "[t]he trial judge's consideration of Barclay's criminal record as an aggravating circumstance was improper as a matter of state law") (emphasis added); Zant, supra, 462 U.S. at 878-79, 103 S.Ct. at 2747, 77 L.Ed.2d at 251 (holding no constitutional violation occurs if a state permits consideration of non-statutory aggravating factors in the penalty phase of a capital case). Therefore, the fairness and rationality of death-penalty proceedings depends almost *55 entirely on each state's strict and uniform adherence to its own procedures to channel a jury's discretion in imposing the penalty of death. We fail in that constitutional duty, and introduce into the process an element of uncertainty and irrationality, when we allow the existence of an aggravating factor to be determined by whether defendant's prior crimes were committed in this or another State. An aggravating factor based on so arbitrary a standard cannot "reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Ramseur, supra, 106 N.J. at 276, 524 A.2d 188 (quoting Zant, supra, 462 U.S. at 887, 103 S.Ct. at 2748, 77 L.Ed.2d at 249-50).
HANDLER, J., joins in this dissent.
For affirmanceChief Justice PORITZ and Justices POLLOCK, GARIBALDI and COLEMAN4.
For reversalJustices HANDLER, O'HERN and STEIN3.
NOTES
[1] We do allow an exception that a defendant in a capital case need not provide a factual basis for a plea. Rule 3:9-2 states in part:
When the defendant is charged with a crime punishable by death, no factual basis shall be required from the defendant before entry of a plea of guilty to a capital offense or to a lesser included offense, provided the court is satisfied from the proofs presented that there is a factual basis for the plea.
"The rationale for this singular exception is that a defendant exposed to the death penalty should not be required to state anything that can support an aggravating factor; he need not aid in rendering his own death sentence." State v. DiFrisco, 118 N.J. 253, 285, 571 A.2d 914 (1990) (Handler, J., concurring in part and dissenting in part) (citing Comment, Supreme Court Committee on Criminal Procedure, reprinted in Pressler, Rules Governing the Courts of the State of New Jersey, 533 (1989)).
[2] Even the prosecutor had difficulty believing that defendant was acting out of genuine concern for Staples. He later said: "Mr. Simon has a very unsavory criminal background and it's perhaps uncomfortable to conclude that he would do something noble for a friend and colleague, but it's not impossible."
[1] I concur in the opinion of Justice Stein, notwithstanding my position that the non vult plea at issue in State v. Ramseur, 106 N.J. 123, 524 A.2d 188 (1987), did not satisfy the prior murder conviction aggravating factor under N.J.S.A. 2C:11-3c(4)(a). See Ramseur, supra, 106 N.J. at 436-43, 524 A.2d 188 (Handler, J, dissenting). Accordingly, rather than distinguish the non vult plea in Ramseur as a clearcut conviction for first-degree murder, see ante at 507-09, 737 A.2d at 51-52 (Stein, J., dissenting), I would argue that the ambiguity underlying Simon's Pennsylvania murder conviction is synonymous with the uncertainty that was attendant to Ramseur's non vult plea under the repealed New Jersey murder statute.
[1] Miller v. State. 280 Ark. 551, 660 S.W.2d 163 (1983), and State v. Taylor, 304 N.C. 249, 283 S.E.2d 761 (1981), cert. denied, 463 U.S. 1213, 103 S.Ct. 3552, 77 L.Ed.2d 1398 (1983), also cited by the majority, involved the propriety of the state's having introduced allegedly inflammatory evidence of the prior crime rather than simply admitting the conviction as an aggravating circumstance. Those cases, while impliedly recognizing the admissibility of a foreign conviction, do not address the question presented in this appeal. | 01-03-2023 | 10-30-2013 |
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