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https://www.courtlistener.com/api/rest/v3/opinions/1032516/ | claims relating to the deprivation of constitutional rights that occurred
prior to the entry of the guilty plea" (internal quotation marks omitted)).
Having considered Schneider's contentions and concluded
that he is not entitled to relief, we
ORDER the judgment of conviction AFFIRMED.
J.
Hardesty
cc: Hon. Nancy L. Porter, District Judge
Elko County Public Defender
Attorney General/Carson City
Elko County District Attorney
Elko County Clerk
2 | 01-03-2023 | 07-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610034/ | 467 P.2d 14 (1970)
81 N.M. 348
Sister Mary Assunta STANG, Personal Representative for Catherine Lavan, Deceased, Plaintiff-Appellant-Respondent,
v.
HERTZ CORPORATION, a corporation, and Firestone Tire & Rubber Company, a corporation, Defendants-Appellees-Petitioners.
No. 8979.
Supreme Court of New Mexico.
March 23, 1970.
*15 Smith, Ransom & Deaton, Richard E. Ransom, William G. Gilstrap, Albuquerque, for appellant.
Rodey, Dickason, Sloan, Akin & Robb, James C. Ritchie, Robert G. McCorkle, Modrall, Seymour, Sperling, Roehl & Harris, Allen C. Dewey, Peter J. Broullire, III, Albuquerque, for appellees.
OPINION
TACKETT, Justice.
Petitioners seek a review of a decision of the Court of Appeals, which reversed the trial court in a case arising under our Wrongful Death Act, § 22-20-1 through 22-20-3, N.M.S.A., 1953 Comp. The facts are adequately set forth in the opinion of the Court of Appeals in Stang v. Hertz, Corp., 81 N.M. 69, 463 P.2d 45 (Ct.App. 1969), and will not be detailed herein, except to state that decedent was a nun, a member of the Sisters of Charity, and had taken the simple but perpetual vow of poverty upon entering the Order. She died some fifteen days after receiving injuries in an automobile accident.
The questions for decision before this court are: (1) If there is no pecuniary injury to the statutory beneficiaries, may there be recovery for the wrongful death? (2) May the personal representative recover for pain and suffering, and medical and related care, from the injury until death?
Sections 22-20-1 and 22-20-3, supra, of the Wrongful Death Act provide:
(§ 22-20-1)
"Whenever the death of a person shall be caused by the wrongful act, neglect or default of another, although such death shall have been caused under such circumstances as amount in law to a felony, and the act, or neglect, or default, is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured. (Emphasis added.)
(§ 22-20-3)
"Every such action as mentioned in section 1821 [22-20-1] shall be brought by and in the name or names of the personal representative or representatives of such deceased person, and the jury in every such action may give such damages, compensatory and exemplary, as they shall deem fair and just, taking into consideration the pecuniary injury or injuries resulting from such death to the surviving party or parties entitled to the judgment, or any interest therein, recovered in such action, and also having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect or default. The proceeds of any judgment obtained in any such action shall not be liable for any debt of the deceased: Provided, he or she shall have left a husband, wife, child, father, mother, brother, sister, or child or children of the deceased child, but shall be distributed as follows:
"First. If there be a surviving husband or wife, and no child, then to such *16 husband or wife; if there be a surviving husband or wife and a child or children or grandchildren, then equally to each, the grandchild or grandchildren taking by right of representation; if there be no husband or wife, but a child or children, or grandchild or grandchildren, then to such child or children and grandchild or grandchildren by right of representation; if such deceased be a minor, childless and unmarried, then to the father and mother, who shall have an equal interest in the judgment, or if either of them be dead, then to the survivor; if there be no father, mother, husband, wife, child, or grandchild, then to a surviving brother or sister, or brothers or sisters, if there be any; if there be none of the kindred hereinbefore named, then the proceeds of such judgment shall be disposed of in the manner authorized by law for the disposition of the personal property of deceased persons." (Emphasis added.)
It is to be noted that § 22-20-2, N.M.S.A., 1953 Comp., 1969 Pocket Supp., is a statute of limitation, which sets forth the time limit for instituting actions under the Wrongful Death Act, and also provides that the cause of action accrues as of the date of death.
The term "personal representative" is used simply to designate the agency, the trustee, or the person who may prosecute this particular character of statutory action. Henkel v. Hood, 49 N.M. 45, 156 P.2d 790 (1945). If there be none of the kindred named in the statute, then the proceeds of such judgment shall be disposed of in the manner authorized by law for the disposition of the personal property of deceased persons. Section 22-20-3, supra. This statute certainly contemplates that a wrongful death action shall not fail merely because there is absent pecuniary injury to a statutory beneficiary. Henkel v. Hood, supra; Hogsett v. Hanna, 41 N.M. 22, 63 P.2d 540 (1936).
We find in Henkel v. Hood, supra, 49 N.M. at 51, 156 P.2d at 794 the following:
"Thus, the personal representative who makes a recovery under the Act, * * * serves as a trustee, a `statutory trustee,' for discoverable and identifiable beneficiaries in the line of named kinship or descent. Nevertheless, by express mandate of the Act, he is none the less a trustee for the state and for estate creditors where none of the named kin were left, or the line of descent runs out and exhausts itself in the fruitless search for an heir. This is rendered clear by the italicized language of the statute quoted, supra."
Defendant Firestone contends that damages for wrongful death are not recoverable if there is no pecuniary injury to at least one statutory beneficiary. Defendant Hertz contends that, in the absence of pecuniary injury to a statutory beneficiary, there can be no recovery of substantial damages. Thus, Hertz at least recognizes the right to sue for wrongful death, but would limit recovery to only nominal damages. Even though authority may be found in support thereof, we do not agree with those contentions, as § 22-20-3, supra, clearly permits recovery by other than a statutory beneficiary, and recovery may be had even though there is no pecuniary injury to a statutory beneficiary. Damages are recoverable by proof of the worth of the life of the decedent, even though there is no kin to receive the award. Cerrillos Coal Railroad Company v. Deserant, 9 N.M. 49, 49 P. 807 (1897).
Justice Hudspeth, in a well-reasoned opinion in Hogsett v. Hanna, supra, discussed in detail the statute under consideration here and arrived at the conclusion that a right of action under the Wrongful Death Act is not dependent or conditioned upon the survival of any kindred. The statute, § 22-20-1, supra, allows a cause of action against the culpable party "in every such case." With this we agree.
The statutes allowing damages for wrongful act or neglect causing death have for their purpose more than compensation. It is intended by them, also, to promote *17 safety of life and limb by making negligence that causes death costly to the wrongdoer. Hogsett v. Hanna, supra; Trujillo v. Prince, 42 N.M. 337, 78 P.2d 145 (1938); Tauch v. Ferguson-Steere Motor Co., 62 N.M. 429, 312 P.2d 83 (1957). See also, Whitmer v. El Paso & S.W. Co., 201 F. 193 (5th Cir.1912); McKirdy v. Cascio, 142 Conn. 80, 111 A.2d 555 (1955).
The cases of Varney v. Taylor, 77 N.M. 28, 419 P.2d 234 (1966 2d appeal), and Varney v. Taylor, 79 N.M. 652, 448 P.2d 164 (1968 3d appeal); Duncan v. Madrid, 44 N.M. 249, 101 P.2d 382 (1940); and Mares v. New Mexico Public Service Co., 42 N.M. 473, 82 P.2d 257 (1938), indicate that the measure of damages for wrongful death is the worth of life of decedent to the estate.
The reasoning of Justice Watson in the withdrawn opinion in Valdez v. Azar Bros., 33 N.M. 230, 264 P. 962 (1928), quoted in Hogsett v. Hanna, supra, seems the more reasonable construction of our statute to the effect that substantial damages are recoverable without proof of pecuniary loss.
We are to consider the language of the Act as a whole. State ex rel. Clinton Realty Co. v. Scarborough, 78 N.M. 132, 429 P.2d 330 (1967); Winston v. New Mexico State Police Board, 80 N.M. 310, 454 P.2d 967 (1969). We have not only considered the reference to pecuniary injury, but have also considered the reference in § 22-20-1, supra, to liability "in every such case."
The statute must be considered so that no word and no part thereof is rendered surplusage or superfluous. State v. Thomson, 79 N.M. 748, 449 P.2d 656 (1969); Martinez v. Research Park Inc., 75 N.M. 762, 410 P.2d 200 (1965); State ex rel. Clinton Realty Co. v. Scarborough, supra. To hold that pecuniary injury "* * * to the surviving party or parties entitled to the judgment * * *" is a prerequisite to a recovery of damages for wrongful death would make superfluous the provision of the statute allowing recovery where there is no surviving kin. Section 22-20-3, supra.
We next turn to the question of allowing recovery for decedent's pain and suffering and medical and related care from injury until death. We here hold that a recovery may be had by the "personal representative," even though there is no statutory beneficiary. If we were to hold that recovery may be had in one aspect and not in the other, it would be most illogical. The defendant is liable "in every such case." The liability is for "damages." Section 22-20-1, supra. The statutory language, while it does not say so specifically, nevertheless authorizes recovery for pain and suffering, and for medical and related care, between the time of injury and death, the same as could have been recovered by an injured party where death does not ensue. Kilkenny v. Kenney, 68 N.M. 266, 361 P.2d 149 (1961). Compare, Jones v. Pollock, 72 N.M. 315, 383 P.2d 271 (1963). See also, In Re Consolidation Coal Company, 296 F. Supp. 837 (W.D.Pa. 1968); McCoy v. Raucci, 156 Conn. 115, 239 A.2d 689 (1968); Chase v. Fitzgerald, 132 Conn. 461, 45 A.2d 789 (1946); Farrell v. L.G. De Felice & Son, 132 Conn. 81, 42 A.2d 697 (1945); Mitchell v. Akers, 401 S.W.2d 907 (Tex.Civ.App. 1966). It has been held that such right of action is dependent upon the right of the person injured, had he not died as a consequence of his injury, to maintain an action for personal injuries. Natseway v. Jojola, 56 N.M. 793, 251 P.2d 274 (1952); Saunders v. Hill, 202 A.2d 807 (Del. 1964).
The statutes state the actions are to be brought by the "personal representative." In Kilkenny v. Kenney, supra, a case under our Wrongful Death Act, we held:
"* * * [T]he provision of § 22-20-3, supra, * * * when considered with the language contained in § 22-20-1, supra, warrants the allowance to the administrator of the decedent's damages prior to death, provided they are not the same as those for which the husband, individually, has a right of recovery."
Even though "personal representative" is not mentioned in the Kilkenny opinion, we hold, for the purposes of the case before *18 us, that "administrator" and "personal representative" are one and the same. Stang, as "personal representative," was also ancillary administratrix with the will annexed. Therefore, plaintiff can recover for decedent's damages prior to death. See Barnes v. Smith, 305 F.2d 226 (10th Cir.1962).
Prior to 1961, our Wrongful Death Act was considered a survival statute. Hogsett v. Hanna, supra; Natseway v. Jojola, supra; Kilkenny v. Kenney, supra. Defendants strenuously argue that the 1961 amendment to § 22-20-2, supra, altered the Act as a survival Act. That section reads:
"Every action instituted by virtue of the provisions of this and the preceding section [22-20-1] must be brought within three [3] years after the cause of action accrues. The cause of action accrues as of the date of death."
The 1961 amendment added the second sentence.
In our view, while the 1961 amendment created an ambiguity, it did not alter the Act as a survival Act. The Court of Appeals resolved the ambiguity correctly.
The cause of action under our Wrongful Death Act is in the "personal representative." Baca v. Baca, 71 N.M. 468, 379 P.2d 765 (1963). Prior to the 1961 amendment, the decisions held that the limitation period began running as to the "personal representative's" cause of action at the date of the injury. The result was not logical, since a "personal representative" has no cause of action until the injured person dies. The 1961 amendment simply provides that the limitation period begins running, as to the "personal representative's" cause of action, upon the death of the injured person. Thus, a more logical time is set for the commencement of the limitation period, since it is not until the injured person's death that our statute authorizes the "personal representative" to proceed.
Defendants seek comfort in U.J.I. 14.17 in presenting their contentions. That instruction affords little comfort. Item numbered "1" in U.J.I. 14.17 was included through error. We dislike admitting our mistake, but this instruction should not have been given our approval in the light of Kilkenny v. Kenney, supra. Because of our holding in this case, we now specifically disavow the statement in Cerrillos Coal Railroad Company v. Deserant, supra, to the effect that nothing is to be included for "suffering or anguish of mind or body by the deceased."
The majority opinion of the Court of Appeals reviews in detail our earlier decisions, and, in our view, has undertaken to explain what appears to be inconsistencies existing between them. We adopt the explanations as set forth in their opinion, and commend the majority for an outstanding effort. Many uncertainties heretofore existing should be laid to rest. The decision of the Court of Appeals is affirmed and the cause remanded to it to proceed in accordance therewith.
It is so ordered.
MOISE, C.J., and COMPTON, J., concur.
WATSON, Justice (concurring in part, dissenting in part).
While I agree with the majority that substantial damages for the death may be recovered under the statute even though no pecuniary damages result to the beneficiary, I cannot agree that recovery can be had for pain and suffering and medical and hospital expenses for the following reasons:
(1) The Act does not authorize such damages. Section 22-20-3, N.M.S.A., 1953 Comp., only provides for consideration of pecuniary injuries resulting from the death to the surviving parties and mitigating or aggravating circumstances attending the wrongful act.
(2) Cerrillos Coal Railroad Co. v. Deserant, 9 N.M. 49, 49 P. 807 (1897), the only New Mexico case in point, excludes damages for pain and suffering. I would not disavow it.
*19 (3) Our Wrongful Death Act, particularly with the 1961 amendment stating that the cause of action accrues on the date of death, is now clearly a death act rather than a survival act. Compare, Chase v. Fitzgerald, 132 Conn. 461, 45 A.2d 789 (1946); Kling v. Torello, 87 Conn. 301, 87 A. 987 (1913); Connecticut Public Acts, 1903, Ch. 193, §§ 1 and 2; Mitchell v. Akers, 401 S.W.2d 907 (Tex.Civ.App. 1966); Texas Stat., Art. 5525, V.A.C.S. (survival), and Art. 4671, V.A.C.S. (death); Cummins v. Kansas City Public Service Co., 334 Mo. 672, 66 S.W.2d 920 (1933), where the Missouri statute similar to ours is compared with Lord Campbell's Act, St. 9 to 10, Vict., the first death act. See Baca v. Baca, 71 N.M. 468, 379 P.2d 765 (1963); State ex rel. DeMoss v. District Court of Sixth Judicial Dist., 55 N.M. 135, 227 P.2d 937 (1951).
(4) Reason directs that the legislature would not permit unaccountable recovery by the personal representative for medical and hospital expenses which the executor or administrator must pay. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610037/ | 12 Ariz. App. 32 (1970)
467 P.2d 256
LECHUGA, INC., a California corporation, Appellant,
v.
Eddie MONTGOMERY, Appellee.
No. I CA-CIV 1197.
Court of Appeals of Arizona, Division 1, Department A.
April 9, 1970.
Rehearing Denied May 8, 1970.
Review Denied June 9, 1970.
*33 Beer & Kalyna, by Olgerd W. Kalyna, Phoenix, for appellant.
Westover, Keddie & Choules, by Tom C. Cole, Yuma, for appellee.
STEVENS, Judge.
The application of the doctrine of strict liability in tort to lessors is presented in this appeal from the Superior Court of Yuma County.
Plaintiff-appellee, Eddie Montgomery, brought suit against defendant-appellant, Lechuga, Inc., a California corporation, for personal injuries he sustained as a result of the use of a truck owned by the defendant and leased to plaintiff's employer. Defendant by its answer placed in issue its negligence, the contributory negligence of the plaintiff and the defense of the assumption of risk. After the close of the evidence and at the time of settling instructions, plaintiff requested and was granted permission to amend his complaint to add allegations of strict liability in tort. The plaintiff had forewarned the defendant of his intention to request this amendment.
The jury returned a verdict in favor of plaintiff and after denial of defendant's post trial motions, this appeal followed.
*34 Defendant is the owner of certain trucks used in the harvesting of lettuce. These trucks were leased to Vukasovich, Inc., plaintiff's employer. The lease provided that defendant was to keep and maintain the trucks in good and serviceable condition.
In connection with the leasing operation, defendant maintained a storage yard and maintenance shop in Yuma, Arizona, where the leased trucks were delivered each evening and picked up in the morning by lessee's employees. The lessee dispatched all trucks, and assigned individual drivers to each truck. It was the duty of the individual drivers before taking the trucks out each morning to check the tires, water and oil and to start and warm up the engines. Some of these operations required the engine cover to be lifted. Because of the special construction of these trucks and their height, it was necessary to walk onto an area which would be the right front fender of an ordinary automobile and lift the engine cover. These engine covers weighed between eighty and eightyfive pounds. The cover is hinged at the front of the truck and opens from the back of the engine to the front. Most of the trucks were equipped with a chain which was attached to the engine cover and the frame of the truck to keep the engine cover from swinging over the front of the truck and damaging the cover. The "safety chain" was of sufficient length to allow the engine cover to be raised to a height where a metal rod could be easily inserted between the engine cover and the frame of the truck and thus allow the engine cover to remain open and to make the engine compartment accessible. It was also the duty of the individual driver to report to the defendant's mechanics any malfunctions of the various trucks.
On the morning of 18 February 1967 the particular truck involved in this accident had been assigned by plaintiff's employer to one Frank Mills, this truck's normal driver. The truck was not equipped with a safety chain. Mills was aware of its absence but he had not brought this to the attention of defendant's employees. After performing the normal checking procedures including raising the engine cover and closing it, Mills climbed into the cab and attempted to start the engine warm-up procedure. The engine did not start. The plaintiff, among others, was of the opinion that the "emergency kill switch" had been activated. The "emergency kill switch" is a device which is activated inside the cab and is used to stop the engine from running in emergency situations. In order to deactivate the switch, it was necessary to lift the engine cover and turn a mechanism located on the engine.
Plaintiff volunteered to assist his fellow employee in resetting this switch. He had no knowledge that this particular truck had no safety chain. The plaintiff climbed up on the catwalk over the right front wheel, stooped to grasp the handle on the engine cover, and proceeded to lift the cover. As he pulled up, the cover continued to rise to a point where it became overbalanced and went over the front of the vehicle. Plaintiff was unable to extract his hand from the engine cover handle, lost his balance, fell and injured his leg.
Defendant presents several questions on appeal which may be summarized as follows:
(1) Was the evidence sufficient to submit to the jury the liability of the defendant under the theory of negligence?
(2) Does the doctrine of strict liability in tort apply to lessors of chattels?
(3) If the doctrine applies, was the absence of a safety chain a "defective condition, unreasonably dangerous" within the concept of this doctrine?
(4) Was plaintiff precluded from maintaining this action because of the Workmen's Compensation Laws of the State of Arizona?
ORDINARY NEGLIGENCE
Defendant first contends that there was insufficient evidence to submit the *35 question of defendant's liability to the jury under ordinary theories of negligence. This evolves itself into a determination of whether defendant owed a duty to the plaintiff, whether it breached that duty, and whether that breach was a proximate cause of plaintiff's resultant injury. Massengill v. Yuma County, 104 Ariz. 518, 456 P.2d 376 (1969). Defendant's duty as the lessor of chattels is stated in Restatement (Second) of Torts § 408 (1965):
"One who leases a chattel as safe for immediate use is subject to liability to those whom he should expect to use the chattel, or to be endangered by its probable use, for physical harm caused by its use in a manner for which, and by a person for whose use, it is leased, if the lessor fails to exercise reasonable care to make it safe for such use or to disclose its actual condition to those who may be expected to use it."
This same duty of a lessor of personal property is imposed in Arizona. See Patterson v. Chenowth, 89 Ariz. 183, 360 P.2d 202 (1961); Casey v. Beaudry Motor Co., 83 Ariz. 6, 315 P.2d 662 (1957). That defendant was required to lease a chattel as safe for immediate use is evidenced by its lease with plaintiff's employer, which contained language that defendant covenanted to maintain and keep the trucks it leased in a "good and serviceable condition." This is further evidenced by testimony that all needed repairs to the leased trucks were to be reported to defendant's employees.
The lease itself also provided that plaintiff's employer was to "provide and pay for all operators" of the leased trucks. The jury could reasonably conclude that plaintiff was among the class of persons which defendant "should expect to use the chattel."
Tacitly admitting these factors, the defendant argues that since the absence or presence of a safety chain does not affect the primary use for which the truck was leased, the harvesting of lettuce, defendants breached no duty to the plaintiff. However, the evidence discloses that among other duties imposed upon the drivers of the leased trucks was the duty, each morning, to check the oil and add any, if necessary. While the first function did not necessarily require the lifting of the engine cover, the evidence disclosed that this was a general practice among the lessee's employees. The function of adding oil necessitated the raising of the engine cover. We hold that the duty to supply a truck reasonably safe for the purpose for which it was intended, not only includes the general intended use, that is, the transportation of lettuce, but also includes any incidental use of that truck consistent with its general leased purpose, including placing the truck in such a condition that it will perform its leased purpose. From all the testimony, there was sufficient evidence to submit to the jury whether or not plaintiff's injury by the truck was "caused by its use in a manner for which * * * it is leased."
The evidence further disclosed that all of the leased trucks which plaintiff had driven were equipped with a "safety chain." Plaintiff testified that he came to rely on the existence of this chain in raising the engine cover. Because of this reliance, the length of the chain, the length of the rod in supporting the cover when raised, and the weight of the engine cover itself when compared to the physical strength of the lessee's several employees, we believe there was sufficient evidence from which the jury could find that the injuries suffered by the plaintiff were foreseeably by the defendant.
From what has been stated, whether defendant's failure to provide plaintiff's employer with a truck having a safety chain or ascertaining that the chain was missing was a breach of the duty of defendant to "exercise reasonable care" to make this truck safe, was a proper jury question.
We hold that there was sufficient evidence to submit to the jury the question of the defendant's duty, whether that duty was breached, and whether that breach resulted in a proximate cause of plaintiff's injury.
*36 STRICT LIABILITY
Defendant's second contention raises a question of first impression in Arizona, that is, the applicability of the doctrine of strict liability to lessors, who are neither manufacturers, sellers, retailers nor wholesalers. However, we need not make such a determination in this case, for our conclusion as to plaintiff's burden of proof as to this doctrine is dispositive of this issue. Under these circumstances we are not called upon to decide whether the doctrine of strict liability applies to lessors of personal property or whether the doctrine applies under the circumstances of this particular commercial lease transaction. The nature of the defect complained of in this action is the absence of a safety chain to prevent the engine cover from falling over the front of the vehicle. In order for plaintiff to assert the applicability of the doctrine of strict liability he has the burden of proving that this defect was present when the truck was first placed in the stream of commerce. O.S. Stapley Co. v. Miller, 103 Ariz. 556, 447 P.2d 248 (1968); Ford Motor Co. v. Lonon, 217 Tenn. 400, 398 S.W.2d 240 (1966); Greeno v. Clark Equipment Co., 237 F. Supp. 427 (D.Ind. 1965); Annot., 13 A.L.R. 3d 1057, 1082 (1967); Restatement (Second) of Torts § 402A, comment g (1965).
We turn then to the evidence presented by the plaintiff in this case as it deals with his proof of condition of the truck when it was initially placed in the stream of commerce by the defendant. Suffice it to say, there is none. In fact, we are unable to determine whether a chain on this particular truck was even present at the time the truck was leased to plaintiff's employer, let alone when defendant might have first leased this truck. For this reason, the plaintiff failed to sustain his burden of proof as to strict liability and the trial court erred in instructing the jury on this doctrine. Since we are unable to determine from the verdict whether the jury found for the plaintiff on the question of negligence or on the question of strict liability, we must grant the defendant a new trial in this matter.
WORKMEN'S COMPENSATION
Defendant's last contention deals with the application of the Workmen's Compensation Act. Defendant reasons that since the lease between the defendant and plaintiff's employer contained a "hold harmless" clause running in defendant's favor, if the plaintiff is successful in this suit against the defendant, the ultimate judgment would be paid by the plaintiff's employer, in contravention of the Workmen's Compensation Act. In this case, we see nothing in the Workmen's Compensation Statute, or as a matter of public policy, which would prohibit an employer from contractually making himself liable for his employees' injuries. We do not, however, intend to intimate that in our opinion the plaintiff's employer would be liable under the particular hold harmless clause used in this lease for the lessor's own negligence, or if such were the case, that such a clause avoiding liability for one's negligence would or would not be against public policy.
Judgment reversed and this cause is returned to the trial court for proceedings consistent with this opinion.
DONOFRIO, P.J., concurs.
JACOBSON, Judge (concurring).
I agree with the majority of this court that a reversal of this case is required because of the failure of the plaintiff to sustain his burden of proof as to the applicability of the doctrine of strict liability to the defect present here. However, since our decision in this matter requires a new trial be granted, I feel the issue as to the applicability of this doctrine to lessors, as applied to this case, must be met in order to determine whether or not plaintiff on the retrial and upon the presentation of proper evidence would be entitled to an instruction on this issue.
*37 The Arizona Supreme Court has specifically held that § 402A of the Restatement (Second) of Torts (1965) shall be followed in Arizona in applying the doctrine of strict liability. O.S. Stapley Co. v. Miller, supra. This section, insofar as applicable, provides as follows:
"One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
"(a) the seller is engaged in the business of selling such a product * * *." (Emphasis added.)
As can be seen, this section of the Restatement deals specifically with "sellers," and makes no mention of lessors of personal property. Moreover, Wagner v. Coronet Hotel, 10 Ariz. App. 296, 458 P.2d 390 (1969) held that:
"The theory of strict liability in tort applies only to those who are engaged in the business of selling products for use or consumption, such as a manufacturer, wholesaler, retailer, or distributor. (cases cited)." (Emphasis in original.) 458 P.2d, at 394.
However, disregarding the expressed designation in the Restatement, at least two jurisdictions[1] have extended the rule of strict liability to include lessors of personal property.
On the other hand, the Federal District Court of Pennsylvania, applying the law of Pennsylvania, in Speyer, Inc. v. Humble Oil & Refining Co., 275 F. Supp. 861, aff'd, 403 F.2d 766 (3d Cir.1968), has specifically rejected the application of the doctrine of strict liability to lessors of personal property.
In making a determination as to whether or not the doctrine should apply to lessors in Arizona, a foundational inquiry into the reasons underlying the development of this doctrine is aptly in order.
It is apparent from a reading of the Restatement, and the leading cases on this subject, that the doctrine of strict liability was evolved to place liability on the party primarily responsible for the injury occurring, that is, the manufacturer of the defective product. This, as Justice Traynor stated in his concurring opinion in Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal. 2d 453, 150 P.2d 436 (1944), is based on reasons of public policy:
"If public policy demands that a manufacturer of goods be responsible for their quality regardless of negligence there is no reason not to fix that responsibility openly." 150 P.2d, at 441.
These public policy considerations have been variously enumerated as follows:
(1) The manufacturer can anticipate some hazards and guard against their recurrence, which the consumer cannot do. Restatement, supra, comment c.
(2) The cost of injury may be overwhelming to the person injured while the risk of injury can be insured by the manufacturer and be distributed among the public as a cost of doing business. Greenman v. Yuba Power Products, Inc. [59 Cal. 2d 57], 27 Cal. Rptr. 697, 377 P.2d 897 (1962).
(3) It is in the public interest to discourage the marketing of defective products. Escola v. Coca Cola Bottling Co. of Fresno, supra.
(4) It is in the public interest to place responsibility for injury upon the manufacturer who was responsible for its reaching the market. Greenman v. Yuba Power Products, Inc., supra.
(5) That this responsibility should also be placed upon the retailer and *38 wholesaler of the defective product in order that they may act as the conduit through which liability may flow to reach the manufacturer, where ultimate responsibility lies. Vandermark v. Ford Motor Co. [61 Cal. 2d 256], 37 Cal. Rptr. 896, 391 P.2d 168 (1964).
(6) That because of the complexity of present day manufacturing processes and their secretiveness, the ability to prove negligent conduct by the injured plaintiff is almost impossible. Escola v. Coca Cola Bottling Co. of Fresno, supra.
(7) That the consumer does not have the ability to investigate for himself the soundness of the product. Santor v. A and M Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (1965).
(8) That this consumer's vigilance has been lulled by advertising, marketing devices and trademarks. Concurring opinion, Lockwood, J., Nalbandian v. Byron Jackson Pumps, Inc., 97 Ariz. 280, 399 P.2d 681 (1965).
Inherent in these policy considerations is not the nature of the transaction by which the consumer obtained possession of the defective product, but the character of the defect itself, that is, one occurring in the manufacturing process and the unavailability of an adequate remedy on behalf of the injured plaintiff.
For this reason I find no logical basis for differentiating between the liability to an injured consumer of a dealer who is in the business of selling an automobile which is in a defective condition because of the manufacture thereof, and a dealer who is in the business of leasing the same automobile. Obviously, the liability should be the same strict liability in order to reach the ultimate culprit, the manufacturer. The distinction to be made is not in what capacity the dealer acts, that is, as seller or lessor, but in the nature of the defect itself, that is, was it the result of either design or manufacture?
My determination in this matter would appear to be contrary to the Supreme Court's statement that the rule in Arizona is that set forth in the Restatement which refers only to "sellers." However, my reading of the Arizona Supreme Court decisions on this subject leads me to the conclusion that the Arizona Supreme Court would not hesitate to hold that the term "seller" is a term designating a class (one in the business of placing products in the stream of commerce) rather than a designation of limitation.
Because of my analysis of the underlying policy considerations and my determination that the designation of the transaction insofar as the ultimate consumer is concerned is not controlling but that the nature of the defect of the product is, I am unable to agree with the reasoning of either the New Jersey or California courts. The cases previously cited in footnote 1 of this concurring opinion from these two jurisdictions would seem to elevate a lessor to the status of manufacturer without a determination of the underlying defect which caused plaintiff's injuries. I am likewise unable to agree with the Pennsylvania case which categorically denied liability under the doctrine of strict liability because the defendant was not a "seller."
As I view the problem, the nature of the defect is primarily a question of plaintiff's proof. If plaintiff in this action could prove that defendant Lechuga was in the business of leasing trucks and that the truck on which plaintiff was injured initially came into the hands of defendant, that is, when it was first placed in the stream of commerce, without the necessary safety chain, I would have no difficulty in determining that a prima facie case for the application of the doctrine of strict liability had been proven. After such a prima facie showing, the burden then shifts to the defendant to show, if he is able, that the particular defect was not the result of manufacture. Greco v. Bucciconi Engineering Co., 283 F. Supp. 978 (W.D.Pa. 1967), aff'd, 407 F.2d 87 (3d Cir.1969); 21 Stanford L.Rev. 1777 (1969).
*39 The defendant next contends that in any event the absence of the safety chain was not a "defective condition unreasonably dangerous." The courts have had some difficulty in defining this term. After reading many definitions, I am of the opinion that the definition offered by the Restatement is the most logical: if the product reaches the ultimate consumer in a condition not contemplated by him and that condition renders that product unreasonably dangerous to him, a "defective condition" exists. Restatement, supra, comment g. While I express some concern that the absence of a chain to keep an engine cover from falling would render the use of that engine cover "unreasonably dangerous," this must be a question for the trier of facts looking at all the attendant circumstances.
In view of my conclusion on this subject, on a retrial of this matter, I would not preclude the plaintiff from offering proof as to the applicability of the doctrine of strict liability to the facts in this case, and if such proof was sufficient, instructing the jury on this issue.
NOTES
[1] Cintrone v. Hertz Truck Leasing & Rental Service, 45 N.J. 434, 212 A.2d 769 (1965); McClaflin v. Bayshore Equipment Rental Co., 79 Cal. Rptr. 337 (Cal. App. 1969); Price v. Shell Oil Co., 79 Cal. Rptr. 342 (Cal. App. 1969). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610048/ | 2 Wash. App. 248 (1970)
467 P.2d 219
LLOYD SANBORN et al., Respondents,
v.
BRUNSWICK CORPORATION, INC., Appellant.
No. 49-40448-3.
The Court of Appeals of Washington, Division Three.
April 3, 1970.
Milne & Peterson and K.D. Peterson, for appellant.
Hormel & Whitford and C.E. Hormel, for respondents.
EVANS, C.J.
Defendant, Brunswick Corporation, appeals *249 from a judgment for plaintiffs Lloyd Sanborn and Meta Sanborn, husband and wife, mortgagees, in a suit brought for conversion of bowling equipment secured by plaintiffs' mortgage.
The findings entered by the trial court, to which no assignments of error are directed except as to the italicized portions, are as follows:
III
That Eugene V. Borg operated a bowling alley, commonly known as Warden Lanes in Warden, Washington. At the time Borg came to Warden he brought with him certain bowling equipment and miscellaneous equipment of Brunswick make to be used in the operation of the bowling alley. In addition to the equipment which he brought with him, he secured substantial quantities of bowling equipment by entering into a contract and chattel mortgage with Brunswick Corporation. Eugene V. Borg had in August, 1962, executed a note and chattel mortgage to the plaintiffs, herein, Lloyd Sanborn and Meta Sanborn, in the amount of $3,000.00 and that said note was executed in the County of Snohomish; that subsequently on the 6th day of September, 1963, Eugene V. Borg executed a chattel mortgage to the Brunswick Corporation for certain items of bowling equipment sold to him by Brunswick and that said mortgage was filed on the 10th day of September, 1962, in the amount of $120,320.00; that no part of the equipment upon which the Sanborns held a mortgage was pledged in any way to the Brunswick Corporation.
IV
That on December 27, 1963, Borg renewed his obligation to the plaintiffs by signing a note in the amount of $3,000.00, and as security he executed a chattel mortgage to the plaintiffs herein on the equipment owned by him prior to his transaction with Brunswick resulting in the mortgage to that firm of September 6, 1962, which mortgage to the plaintiffs was filed January 3, 1964.
V
That Borg made no payments on the mortgage to plaintiffs but did keep the interest current until he abandoned the bowling alley sometime in the early spring of 1965.
*250 VI
That during April or May, 1965, a representative of the Brunswick Corporation was in the area and made contact with Milton W. Muller with a view towards selling the equipment in the bowling alley to Mr. Muller. Mr. Muller was interested in the purchase of the bowling alley but he was aware of the mortgage existing between Borg and the plaintiffs herein in the amount of $3,000.00 covering the property owned by Borg, and he advised the Brunswick representative that he would not make a deal unless Brunswick would take care of the Sanborn mortgage and all other encumbrances; subsequently Mr. Muller signed the order. The order was returned for the signature of Mrs. Muller; was signed by her and returned to Brunswick. This order in reality contained a provision for forfeiture, all the terms of the sale, and all the various things which constitute in actuality a conditional sales contract. This order described all of the property included in the September, 1962, mortgage from Borg to Brunswick, and in addition, it included some of the items that were covered by the mortgage from Borg to Sanborn. It also covered all other "bowling supplies and merchandise". This was an "on the site" sale and the bowling equipment specifically covered by the Brunswick mortgage was not adequate, without some or all of the equipment mortgaged to Sanborn, to enable a regular bowling alley operation to be carried on. Mr. Muller made a down payment of some $5,000.00 and about $1.500.00 additional as a monthly payment. The Brunswick Corporation entered into the contract represented by the order, which included some of the property mortgaged to Sanborns by specific description and the balance by inclusion of the same as "all other bowling supplies and merchandise", and accepted the benefits therefrom. They were thereby exercising dominion over the property mortgaged to Sanborn. This dominion, either through themselves or through their contract purchaser Muller, continued for a period of eleven months.
VII
In about March or April of 1966, Mr. Muller abandoned the enterprise and left it all at its original location in Warden. Thereafter Brunswick's representatives came in and moved out the exact equipment covered by their original mortgage of September, 1962, from Borg. There *251 is no showing that they had Borg's permission to take possession of the mortgaged property, either at this time, or when they sold it to Muller in the spring of 1965.
VIII
Early in the spring of 1965, the plaintiffs, upon hearing that Borg had abandoned the property, came to Warden for the purpose of seeking advice as to what proceedure they should follow to protect their interest in the property set forth in the Sanborn-Borg mortgage. Upon arrival, they found Mr. Muller operating the bowling alley and exercising dominion over the property. At this time Muller learned that Brunswick had not contacted the plaintiffs and had not paid off the Sanborn-Borg mortgage. The plaintiffs later contacted the Brunswick Corporation in an effort to obtain some satisfaction with regard to their $3,000.00 mortgage. The defendant, Brunswick Corporation, through its representatives, refused to discuss the matter with the plaintiffs, Lloyd Sanborn and Meta Sanborn.
IX
That the defendant through the manner of its dealings with Muller caused Muller to believe, and caused the plaintiff to believe through a conversation with Muller, that Brunswick would take care of the obligations to the plaintiffs and plaintiffs delayed taking action on that account; that said circumstances, together with the depreciation in the equipment during the time it was used by Muller and the further fact that Brunswick, without any notice to plaintiffs, moved all of the equipment covered by their mortgage from Borg, leaving only the isolated equipment covered by the mortgage to plaintiffs, resulted in a major depreciation in value of plaintiffs security, leaving it worth far less than the amount due on plaintiff's mortgage.
X
That at the time Mr. Muller signed the contract (order) and took possession of the property, including that covered by the Sanborn mortgage, the reasonable value of said property was $3,000.00.
XI
That no part of the equipment contained in the Sanborn-Borg mortgage was ever pledged to the Brunswick Corporation.
*252 Appellant first assigns as error the failure of the trial court to grant its motion to dismiss at the end of respondents' case in chief, upon the ground that a mortgagee without a right to immediate possession cannot maintain an action for conversion.
In considering this assignment of error we must accept as verities the findings of fact of the trial court above set forth, to which the appellant has made no assignment of error. Union Bank v. Kruger, 1 Wash. App. 622, 463 P.2d 273 (1969); Weiss v. Weiss, 75 Wash. 2d 596, 452 P.2d 748 (1969); State ex rel. Bain v. Clallam County Bd. of County Commis., 77 W.D.2d 549, 551, 463 P.2d 617 (1970).
It is appellant's contention that if a chattel mortgagee can reach the mortgaged chattels by foreclosure, he is limited to bringing an action for impairment of security (citing Muscatel v. Storey, 56 Wash. 2d 635, 354 P.2d 931 (1960)). There, the mortgagee of hotel furnishings brought an action for conversion against the lessors of the hotel after the lessee-mortgagors abandoned the premises. The court held that a refusal to surrender the mortgaged property to the mortgagee upon demand was insufficient to constitute a conversion, since the terms of the mortgage required the mortgagee to resort to one of the statutory realization methods to obtain possession.
Respondents, in turn, rely on Loudon v. Cooper, 3 Wash. 2d 229, 100 P.2d 42 (1940), where the court held that one who purchased apples subject to a chattel mortgage in favor of the defendant, and resold the crop with knowledge they were subject to a mortgage, converted the apples by putting them out of reach of the mortgagee, stating, at page 237:
We think it also the rule in this state that, where a third party converts property covered by a chattel mortgage, properly executed and filed, the mortgagee may sue such converter and recover the value of the property as of the time of conversion, up to the amount of the mortgage. Brotton v. Langert, 1 Wash. 227, 23 P. 803; German-American State Bank v. Seattle Grain Co., 89 Wash. 376, 154 P. 443; Bollen v. Wilson Creek Union Grain Co., 90 Wash. 400, 156 P. 404; John Smith Co. v. Hardin, *253 133 Wash. 194, 233 P. 628; Union State Bank v. Warner, 140 Wash. 220, 248 P. 394; Cashmere Valley Bank v. Pacific Fruit & Produce Co., 198 Wash. 363, 88 P.(2d) 579. We are of the opinion that the last cited case is especially applicable herein, as to the time when the conversion took place, which the cited case held to be at the time the apples were sold and placed beyond the reach of the mortgagee.
[1] We hold that the ruling in Loudon v. Cooper, supra, is controlling in the present factual situation, and that Muscatel v. Storey, supra, is distinguishable. In Muscatel, the alleged converter rightfully regained possession of the hotel in which the mortgaged chattels were located. In the present case, Brunswick came onto the property of a third person, exercised a nonjudicial repossession of chattels which it knew were subject to the mortgage of plaintiff, and attempted an outright sale of that property without the authority or right to do so.
Both Muller and Brunswick knew that neither had title to the mortgaged property nor right to possession. It was only upon Brunswick's representation to Muller that Brunswick would "take care of" the Sanborn mortgage and all other encumbrances, that Muller agreed to complete the transaction. On these representations Brunswick obtained from Muller a $5,000 downpayment and a $1,500 monthly payment. The trial court correctly held that Brunswick's actions in exercising dominion over property to which it had no title or right to possession amounted to a conversion, and that representations made by Brunswick to Muller caused plaintiffs to delay bringing an action to reach the property by one of the statutory methods.
[2] Appellant assigns error to the refusal of the court to accept its proposed findings of fact to the effect that the purchase order did not amount to a contract to sell. These proposed findings are based upon language in the purchase order between Brunswick and Muller to the effect that the purchase order would not be binding on the seller until it had been accepted in writing by a duly authorized officer of the seller at its office in Chicago, Illinois. It is appellant's *254 contention that since there was no formal acceptance of the offer there was no contract to sell. We find no merit to this assignment of error for two reasons: first, appellant makes no assignment of error to finding of fact No. 6, supra, wherein the court found that in entering into the contract represented by the order, Brunswick accepted the benefits therefrom and thereby exercised dominion over the property mortgaged to Sanborn; second, defendant's acts are sufficient to constitute a conversion without recourse to the purchase order. The gist of this conversion action turns on whether Brunswick or someone acting on its behalf took actual or constructive possession. Martin v. Sikes, 38 Wash. 2d 274, 229 P.2d 546 (1951).
[3] Appellant next assigns error to the court's refusal to accept its proposed findings of fact and conclusions of law, finding in effect appellant did not put the property beyond the reach of plaintiffs, and plaintiffs rested upon their rights by failing to realize upon their security interest. These proposed findings and conclusions are in conflict with the findings made by the trial court to which no assignment of error has been made, and are, therefore, not properly before the court. Union Bank v. Kruger, supra.
Defendant next assigns as error acceptance of oral testimony of Milton Muller to the effect that Brunswick agreed to satisfy the obligation owed by Eugene Borg to Sanborn. The contention is that the court permitted oral testimony to establish an agreement to answer for the debt of a third person, in violation of the statute of frauds. This contention disregards the finding made by the trial court, to which no assignment of error is made, that Brunswick, knowing it had no interest in the mortgaged property, made representations to Muller and exercised such dominion and control over the property as to cause Muller to believe that Brunswick did, in fact, have a right to sell the property. The claim of plaintiffs that the defendant converted their property is not predicated upon the theory there was a binding contract between Muller and Brunswick. It is predicated upon an unlawful exercise of dominion and control over *255 the property. We find no merit to this assignment of error, nor do we find merit in appellant's assignment of error directed to the italicized portion of finding of fact No. 3, supra, which refers to a prior unrecorded mortgage between Borg and Sanborn. This finding merely recites background history, and the unrecorded mortgage referred to in finding of fact No. 3 had no bearing upon the judgment which was entered.
Appellant's next assignment of error is directed to the italicized portion of finding of fact No. 5, supra, and finding of fact No. 8, supra, referring to the early spring of 1965 as the time when Borg abandoned the property. It is appellant's contention that the Sanborns first learned that Borg had abandoned the property in the spring of 1964, when Mrs. Sanborn made a trip to Warden and found the bowling alley closed. A review of the record indicates that Mrs. Sanborn did make a visit to Warden, at which time she found the bowling alley closed, but her testimony is confusing and conflicting as to precisely when this visit occurred. The evidence is clear, however, that she did return to Warden in 1965, at which time she learned not only that the bowling alley was closed but that Borg had abandoned the operation. However, the material question is not when Borg abandoned the property. Abandonment by Borg did not vest Brunswick with any rights in the property. The basic question remains whether Brunswick exercised such dominion and control over the property as to amount to a conversion.
[4] Appellant's final assignment of error is directed to the court's finding of fact No. 10, supra, determining that the reasonable value of the property at the time of conversion was $3,000. This assignment of error is based upon the contention that plaintiffs failed to prove the value of each item of property at the time of conversion. Both the plaintiffs and Mr. Muller testified that the value of the property subject to plaintiffs' mortgage was in excess of $3,000, the amount of the mortgage. Mr. Muller also testified the property at the time he ceased operation of the bowling alley *256 was so depreciated as to be virtually valueless. Under these circumstances there is no requirement that the plaintiffs prove the value of each specific item of property at the time of its conversion. There is substantial evidence to support the court's determination that the reasonable value of the property converted was $3,000 at the time of conversion and this court will not disturb that finding. Stone Machinery Co. v. Kessler, 1 Wash. App. 750, 758, 463 P.2d 651 (1970).
Judgment is affirmed.
GREEN and MUNSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610238/ | 79 Wash. 2d 351 (1971)
485 P.2d 449
THE CITY OF SPOKANE, Respondent,
v.
PETER J. McDONOUGH, Appellant.
No. 40913.
The Supreme Court of Washington, En Banc.
May 27, 1971.
Fredrickson, Maxey, Bell & Allison, Carl Maxey, and Gordon L. Bovey, for appellant.
Norman dePender, John O. McLendon, and Frederic G. Fancher, for respondent.
ROSELLINI, J.
The defendant was charged with disorderly *352 conduct as defined in Spokane City Ordinance No. C1377, § 3. His conviction in the Spokane Municipal Court was confirmed on appeal to the superior court in a trial to the court without a jury. The defendant now appeals the superior court judgment and sentence. He challenges the sufficiency of the evidence, claims unconstitutional vagueness in the ordinance, and asserts abridgment of his constitutional rights to freedom of speech.
The case comes here with an unique feature: a sound film, taken at the rally and put into evidence at trial, shows most of the transaction upon which the conviction rested. The defendant's statement of the case in his brief adopts the film as a complete account of the operative facts; respondent city, in its counterstatement of the facts, accepts "in general Appellant's Statement of the Case" and thus adopts the film, too, as a statement of the case. Consequently, we are in the same position as was the trial court in viewing the evidence.
Several thousand people had gathered at the Parkade Plaza in downtown Spokane at a political rally to hear Mr. Spiro Agnew, the Republican vice-presidential candidate. The defendant, a senior at Gonzaga University, stood among a group of spectators near the railing on what could be described as a balcony or second-story walkway located above the plaza area. Mr. Agnew was well into his speech when defendant shouted "Warmonger." Looking up, Mr. Agnew inquired, "Who said that?" and the defendant, moving to the balcony railing and looking down at the speaker, called, "I said it," giving the current peace sign by making a "V" with his fingers, and adding, "What the hell do you think this means?" By then, a police officer, stationed on the balcony, had reached defendant's side and placed him under arrest.
Spokane City Ordinance No. C1377, § 3, under which the complaint was filed, reads:
Every person who shall on any street, sidewalk, alley, or public place, or in or upon any private house, building or premises, act in a noisy, riotous or disorderly manner, or use any profane, obscene or abusive language, or do *353 any indecent or immoral act tending to debauch the public morals, or do any act tending to disturb the public peace, shall be guilty of a misdemeanor.
The complaint charged that defendant acted in a noisy, riotous and disorderly manner, used abusive language and committed acts tending to disturb the public peace.
We need not consider the defendant's contentions that the ordinance is void for vagueness or that it is violative of the First Amendment right of free speech, inasmuch as we are convinced that the defendant's words did not constitute disorderly conduct under the circumstances.
Giving the ordinance a reasonable interpretation, we do not conceive that it was intended to prohibit conduct which is customarily considered acceptable at events of the type at which it occurs, assuming the event itself is lawful.
The evidence, including the film viewed by this court, showed that the political rally was a noisy and partisan event. There were banners and slogans and shouting.
[1] On such an occasion, where an open-air crowd is tacitly invited to demonstrate its approval of the speaker and his party through applause, cheers and friendly expletives, it is to be expected that those of opposing views in the audience are likely to convey vociferously their disapproval in an orderly but vocal way. Shouting the word "Warmonger" but once without more to indicate a further purpose or intention of breaking up the meeting, or to deprive the speaker of his audience, or to interfere with the rights of others to hear, or the speaker to speak did not amount to a disturbance of the peace, in fact or in law.
The judgment is reversed and the prosecution dismissed.
HAMILTON, C.J., STAFFORD, J., and HILL and DONWORTH, JJ. Pro Tem., concur.
HALE, J. (concurring specially)
The court's opinion reminds me of Scopes' case in Tennessee. John Thomas Scopes, a high school biology teacher, was convicted of teaching the theory of evolution in a public high school, a theory which denied the Biblical story of man's Divine *354 Creation and taught that man had descended from a lower order of animals. The trial judge not the jury imposed a fine of $100 and Scopes, challenging the constitutionality of the anti-evolution statute, appealed. Holding that the court had exceeded its jurisdiction in imposing the $100 fine fines in excess of $50 in such cases being exclusively for the jury the Supreme Court of Tennessee ordered a nolle prosequi of the prosecution, but, nevertheless, proceeded to determine the constitutionality of the statute. Scopes v. State, 154 Tenn. 105, 289 S.W. 363, 53 A.L.R. 821 (1927), and 152 Tenn. 424, 278 S.W. 57 (1925). Merits aside, that court, I think, did well to reach the question of constitutionality in Scopes' case; we should resolve the same issues in young McDonough's case.
McDonough was convicted both in municipal court and in superior court of violating Spokane's disorderly conduct ordinance. To decide merely whether he should in law be relieved of the onus of a conviction for a minor offense, or pay a fine or, perhaps, get a deferred or suspended sentence does not resolve the real issues of this appeal. In limiting our review to an evaluation of McDonough's behavior, we miss the primary issue before us which is to test the constitutionality of the Spokane ordinance, vis-a-vis the constitutional guarantees of freedom of speech, peaceable assembly and reasonable certainty of declaring the law.
It would have been a disappointment to young McDonough, I think, had he been acquitted on the facts in either Spokane Municipal Court or in the superior court. His perfunctory motion for dismissal at the close of the city's case in superior court, without summary or analysis of the evidence or argument on the law,[1] coupled with counsel's lucid and analytic exposition of the constitutional issues in this appeal persuades me that, even though defendant's behavior, in my judgment, did not quite reach the point proscribed by the ordinance, his contentions that the ordinance *355 under which he was convicted both in municipal and superior courts is void for vagueness and contravenes the freedom of speech amendment are still with us. These issues are precisely why the case is here and should be answered. Present trends of widespread public disturbance throughout this state and this country in recent years invite a definitive ruling on this ordinance.
Spokane City Ordinance No. C1377, § 3, under which the complaint was filed, reads:
Every person who shall on any street, sidewalk, alley, or public place, or in or upon any private house, building or premises, act in a noisy, riotous or disorderly manner, or use any profane, obscene or abusive language, or do any indecent or immoral act tending to debauch the public morals, or do any act tending to disturb the public peace, shall be guilty of a misdemeanor.
So far as pertinent to the events of this case, the complaint charged that defendant acted in a noisy, riotous and disorderly manner, used abusive language and committed acts tending to disturb the public peace. Defendant contends the language of the ordinance is so vague that a charge cannot be brought under it which will meet the constitutional requirements of reasonable certainty. A person of ordinary understanding, he says, would not understand what conduct is prohibited.
Defendant raises this issue of vagueness only as to the ordinance, and not as to the charge set forth in the complaint. It is the ordinance and not the accusation which he challenges for he makes no attack upon the complaint to challenge it for vagueness and uncertainty, too.
Was the ordinance specific enough to enable a person of ordinary understanding and intelligence to understand the kinds of conduct it was designed to prohibit? Would a person of ordinary understanding comprehend what is meant by acting in a "noisy, riotous or disorderly manner" or in a way "tending to disturb the public peace?"
It is virtually impossible in law to make a straightforward, simple, declarative statement that cannot in one way or another be questioned, doubted or denied. That doubts *356 are expressed or expressible, however, does not render the proposition doubtful. The constitutions require no more of the wording of a criminal statute or ordinance than that it be susceptible of comprehension by a person of ordinary or common understanding. In my judgment, anyone who could not understand this Spokane ordinance would be incapable of comprehending a municipal traffic code or even the traffic signs and symbols which control traffic on our streets and highways, and would have great difficulty in comprehending a weather report.
A person of ordinary understanding, I think, can readily perceive the difference between conduct that will be deemed noisy, riotous, abusive and disorderly in one context and conduct that is acceptable in others.
It requires no more than average intelligence and comprehension, regardless of education to understand, for example, that behavior considered suitable at a baseball or football game or a prizefight, could well amount to disorderly or disruptive conduct at a religious service, or in a theater, or in a college classroom, library or laboratory, or at a scholarly symposium or academic convocation. Conduct acceptable in law in some situations should be readily identifiable by persons of common understanding as a disruptive breach of the peace or disorderly conduct in other circumstances and there is rarely a true mystery about distinguishing one occasion from the other.
Black's Law Dictionary 556 (4th ed. 1951), for example, defines disorderly as follows:
Contrary to the rules of good order and behavior; violative of the public peace or good order; turbulent, riotous, or indecent.
Accordingly, what may be lawful and acceptable conduct in one context may be deemed noisy, riotous, disruptive and disorderly in another, and a person of ordinary intelligence should have little difficulty in perceiving the difference.
In similar context, for example, lewd, obscene, libelous and insulting words uttered under such circumstances that their very utterance will publicly inflict injury or tend to *357 incite an immediate breach of the peace or induce a riot can well be determined disorderly conduct. Cantwell v. Connecticut, 310 U.S. 296, 84 L. Ed. 1213, 60 S. Ct. 900, 128 A.L.R. 1352 (1940); Chaplinsky v. New Hampshire, 315 U.S. 568, 86 L. Ed. 1031, 62 S. Ct. 766 (1942). However peaceful and sincere and whatever their purpose, protest demonstrations and public gatherings are subject to all laws and regulations reasonably designed to preserve the public peace, health and safety. Cox v. Louisiana, 379 U.S. 559, 13 L. Ed. 2d 487, 85 S. Ct. 476 (1965). This means that, although there is in law a time and place for peaceful protest and peaceable public assemblies, such gatherings and demonstrations are always subject to the law the same as all other legitimate pursuits and enterprises.
There is no precise formula for the language defining public disorder and breach of the peace generally. For example, the State of Washington unlike the City of Spokane has subdivided notions of public disorder, breach of the peace, riot, and disruptions of the repose and peace of others into several categories, making it a crime to willfully disturb a lawful assembly or meeting (RCW 9.27.010), and another offense to willfully disturb, interrupt or disquiet any assemblage of people meeting for religious worship (RCW 9.76.050), or to appear in a public place and behave in a boisterous manner. RCW 9.68.040. It is one offense to be disorderly in the presence of either convened house of the legislature (RCW 9.55.010), and another to commit a nuisance by conduct which annoys or injures the comfort or repose of any considerable number of persons. RCW 9.66.010. A different statute in this vein describes a vagrant as a lewd, disorderly or dissolute person. RCW 9.87.010.
In State v. Levin, 67 Wash. 2d 988, 410 P.2d 901 (1966), we held that the word "disorderly" means contrary to the rules of good order and behavior, violative of public peace or good order, turbulent, riotous or indecent. This is language of ordinary usage and should be comprehensible to persons of common understanding. A person of common understanding, therefore, should be able to understand the instant *358 Spokane ordinance which makes it an offense, inter alia, to act in public in a noisy, riotous or disorderly manner, or to use abusive language, or to act so as to induce a disturbance of the public peace.
As earlier noted, RCW 9.27.010 makes it unlawful to "wilfully disturb any assembly or meeting not unlawful in its character," and a similar statute (RCW 9.76.050) makes it unlawful to disturb or interrupt religious services both obviously intended to prevent private encroachments on the rights of peaceful assembly. Construing a similar statute in State v. Stuth, 11 Wash. 423, 39 P. 665 (1895), this court held good an information which charged that the defendant, at a meeting of the Salvation Army, a religious society, "did use loud and profane language, and did smoke a cigarette, and did refuse to leave said room when requested so to do." The information, we said, charged an offense under the statute because the word "disturb" has a well-known legal significance. The rationale of that case applied to conduct in a large public gathering amounts to a holding, I think, that the Spokane ordinance here is phrased in words of common and general usage and is comprehensible to persons of average intelligence and understanding. See State v. Finrow, 66 Wash. 2d 818, 405 P.2d 600 (1965). The ordinance, therefore, I think meets the constitutional standards that a penal law be so written that a man of ordinary understanding will be able to comprehend it.
This court has recently sustained a similar enactment in State v. Dixon, 78 Wash. 2d 796, 479 P.2d 931 (1971), where we held that RCW 9.27.060 (2) and (3) prohibiting unlawful assemblies and employing such terms as to "disturb the public peace," or "attempt or threaten any act tending toward a breach of the peace," were not unconstitutionally vague or indefinite.
And the ordinance here fits the circumstances of the occasion. Mr. Agnew, at the invitation of the Republican Party, was speaking at the Parkade Plaza to an outdoor crowd of several thousand people gathered there at open invitation. Young McDonough, as an invited guest to see *359 and listen, had not been included among the speakers nor asked to express his views or otherwise participate in the program. He was not a performer; the throng of people had been invited there to hear Mr. Agnew and not Mr. McDonough. Mr. McDonough's invitation, unlike the one given Mr. Agnew, extended only to listening and not to speaking or performing. As one of thousands comprising the general public invited to hear the Republican candidate for the vice-presidency present his campaign, McDonough's role as guest did not go beyond listening and seeing.
A full-color, sound newsreel film taken at the event shows that the speaker was discussing the dangers of nuclear war[2] when the word "Warmonger" was shouted from the balcony above the crowd in the lower plaza. The film shows that the speaker paused, looked up and asked, "Who said that?" and defendant, from the balcony railing, responded, "I said it," and held up the "V" sign for peace. There were a few other words indistinctly exchanged, but at just about the moment that defendant made the "V" sign, a policeman reached his side and without any hesitation *360 pulled defendant away from the balcony railing. The court in its opinion here is saying no more than had a public disturbance actually developed on the balcony, it might well have become dangerous, but so momentary and fleeting was the interruption that the point of danger, real or illusory was not reached.
Thus, although charged with disturbing the peace and acting in a noisy, riotous and disorderly manner, the court concludes as a matter of law that defendant was shown by the evidence to have done little more than shout the solitary word "Warmonger" at an open-air political rally at the speaker and that his subsequent words innocent enough if taken by themselves were in response to a query from the speaker to make his identity known. With this assumption of fact I agree, for in the film apparently taken and played at a normal speed the time elapsing between the uttering of the word "Warmonger" and the query, "Who said that?" and the reply, "I said it," or words to that effect, was about 6 1/2 seconds according to my timing of the film and the total time between the word "Warmonger" and the arrival of the officer at defendant's side took not over 15 seconds. Then, too, the record, visual, auditory and written, shows, too, that the crowd being addressed was not a quiet one. It demonstrated enthusiastic and vocal support both for and against the speaker's declared points of view.
But had the defendant persisted in this behavior so as to deprive the speaker of his audience, or to interfere with the rights of others to hear, or the speaker to speak the issue of defendant's guilt must inevitably, I think, have been resolved against him as a matter of law and would have constituted disorderly conduct under the Spokane ordinance. I therefore concur in the result but would sustain the ordinance under which the defendant was charged.
FINLEY and NEILL, JJ., concur with HALE, J.
NOTES
[1] "Mr. Maxey: I move to dismiss, your Honor. At this stage I don't think there is sufficient evidence to take it beyond this point. The Court: The motion is overruled."
[2] "MR. AGNEW: The vice-presidential candidate for the Third Party had some things to say that made anyone who contemplates with horror the prospect of a nuclear conflagration made us all very worried. [sic] Today the Third Party ticket actually bristles with increased iron-jawed defiance of good judgment. A nuclear catastrophe can be unleashed by a thoughtless gesture on the part of the person in power. A single careless incident can turn this Nation and the world into a cinder. The United States has never been a saber-rattling nation. I want to remind you that, at a time without any question having the only nuclear capacity in the world, we could have conquered the world, and for those who called us imperialists, look at our conduct. MR. McDONOUGH: Warmonger! [faintly] MR. AGNEW: Who said that? MR. McDONOUGH: I said it. [faintly] MR. AGNEW: Whoever did MR. McDONOUGH: What the hell do you think this means? [makes "V" sign with fingers] MR. AGNEW: You did? [Officer reaches defendant's side and with the assistance of several bystanders pulls him forcibly from the railing.] [booing] MR. AGNEW: Well, it's really tragic to think that somewhere, somebody in that young man's life has failed him. Somewhere. [applause and booing] MR. AGNEW: But where dissent interferes with the rights of others to express an opinion or to have that opinion heard, it is not the kind of dissent that this country is looking for or needs. [Mr. Agnew continues speech.]" | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876253/ | 283 So.2d 585 (1973)
Theodoer WILLIAMS, Appellant,
v.
STATE of Florida, Appellee.
No. R-309.
District Court of Appeal of Florida, First District.
October 11, 1973.
*586 Robert P. Miller, Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
PER CURIAM.
This case is before the Court on a Rule Nisi dated September 17, 1973 issued to the Honorable Robert P. Miller, Public Defender of Daytona Beach, Florida, directing him to show cause why he should not be held in contempt of this Court for his failure to prosecute this appeal in accordance with his professional responsibilities as attorney for the appellant in accordance with Florida Appellate Rules. The said Robert P. Miller has this date appeared before the Court and given an explanation as to why this appeal has not been properly prosecuted as required by law which explanation we find to be insufficient and without merit.
It is therefore the judgment of this Court that the said Robert P. Miller be and he is hereby adjudged to be in contempt of this Court for his failure in the premises and he is hereby publicly reprimanded for his failure to discharge the duties and requirements of his employment as attorney for appellant. The said Robert P. Miller is hereby directed to prosecute this appeal to a conclusion on the merits without any further delay pursuant to the Florida Appellate Rules.
RAWLS, C.J., and SPECTOR, WIGGINTON and JOHNSON, JJ., concur. (Sitting en banc). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876256/ | 247 S.W.3d 92 (2008)
Christina M. O'DELL, et al., Respondent,
v.
Juan Paplo PEREZ-LUNA, Appellant.
No. WD 68007.
Missouri Court of Appeals, Western District.
March 11, 2008.
William E. Erdrich, Esq., St. Joseph, MO, for Appellant.
Jennifer L. Simmons, Esq., St. Joseph, MO, for Respondent.
Before HARDWICK, P.J., SMART, JJ. and WITT, Sp. J.
Juan Paplo Perez-Luna appeals from a paternity judgment granting sole legal and physical custody of his two minor children to their mother, Christina O'Dell. The judgment is affirmed. Rule 84.16(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2026878/ | 126 Ill. App. 3d 448 (1984)
467 N.E.2d 592
BEVERLY VAN FLEET, Plaintiff-Appellant,
v.
FRED VAN FLEET et al., Defendants-Appellees.
No. 3-83-0543.
Illinois Appellate Court Third District.
Opinion filed August 6, 1984.
Modified on denial of rehearing August 23, 1984.
*449 Herbert F. Schultz, of Wingard, Schultz, Shearer & Melaas, of Rock Island, for appellant.
Karl Bredberg, of Aledo, for appellees.
Judgment affirmed.
JUSTICE STOUDER delivered the opinion of the court:
This appeal is the result of a ruling by the circuit court of Mercer County that defendant-appellee, Tony Van Fleet, was a proper party entitled to redeem three tracts of real estate from a mortgage foreclosure sale to the purchaser, plaintiff-appellant Beverly Van Fleet.
In divorce proceedings between the plaintiff, Beverly Van Fleet, and her husband, Fred Van Fleet, an order was entered in July 1980 awarding Beverly a mortgage against three tracts of real estate owned by her husband in the amount of $103,460. In addition, certain other sums of money totaling $43,524 in settlement of property issues were awarded Beverly and reduced to judgment in November 1981. The court then ordered the execution of the judgment and the foreclosure of the mortgage.
On June 28, 1982, a judgment sale was held, at which time the three tracts were sold separately for the total amount of the November 1981 judgment plus accrued interest and costs. Tracts I and II were purchased by Beverly for $22,747 each and Tract III was purchased by Tony for $501.
The court entered a judgment for foreclosure and sale in this cause of action in October 1982 and on November 12, 1982, the three tracts were sold at a sheriff's sale en masse to Beverly for $178,336. Of this amount, $131,633 represented the mortgage debt plus costs and attorney's fees, and $6,703 was the bid for the November 1981 judgment together with statutory interest. On January 7, 1983, the final redemption date set forth in the order of October 12, 1982, Beverly was issued a sheriff's deed for all three tracts. Thereafter, on March 28, 1983, Tony received a sheriff's deed as to the tract he had purchased on June *450 28, 1982, and the next day he filed a motion to redeem.
On April 29, 1983, Fred Van Fleet quitclaimed his interest in all three tracts to Tony and on May 11, 1983, the court ruled on the motion to redeem, declaring Tony to be a proper party to redeem all three tracts and determining the final redemption date to be May 11, 1983. The court also found that the sheriff's deed dated January 7, 1983, had been prematurely issued to Beverly prior to the expiration of the redemption period and that Beverly had extinguished her judgment by bidding the judgment amount at the mortgage foreclosure sale. The redemption amount was held to be $187,131, consisting of the foreclosure bid price of $178,336 plus $8,795 in accrued interest.
On May 11, 1983, Tony quitclaimed his interest in all three tracts to John D. Shunick, who redeemed the property that same day by paying the amount to the clerk of the court. The plaintiff declined to accept the amount so tendered and filed this appeal.
The issue raised by plaintiff on appeal is whether the defendant was a proper party to redeem all three tracts of the real estate in question. We find that he was entitled to redeem all three tracts.
Section 12-128 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 12-128) deals with the redemption rights of a defendant as to real property sold at a sheriff's sale. This section applies to suits to foreclose the lien of a mortgage or trust deed in the nature of a mortgage executed on or after August 7, 1961, or to foreclose any other lien upon real estate, arising on or after August 7, 1961, which is not governed by sections 12-124, 12-125, 12-126 and 12-127.
On June 29, 1981, by Public Act 82-511, section 18e of "An Act in regard to judgments * * *" (Ill. Rev. Stat. 1981, ch. 77, par. 18e) was amended to reduce the redemption period from 12 months to six months, effective January 1, 1982. On August 19, 1981, the legislature adopted Public Act 82-280, the Code of Civil Procedure, wherein section 18e of "An Act in regard to judgments * * *" (Ill. Rev. Stat. 1981, ch. 77, par. 18e) was to become section 12-128 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 12-128), effective July 1, 1982.
Although section 18e had been prospectively amended, such amendment was not reflected in section 12-128 until July 13, 1982, when by Public Act 82-783, section 12-128 was amended to conform with the change in the redemption period effected by Public Act 82-511. Thus, the redemption period for real estate sold at a mortgage foreclosure sale or a sale to foreclose any other lien upon real estate was six months from January 1, 1982, through June 30, 1982; 12 *451 months from July 1, 1982, through July 12, 1982; and six months thereafter.
Beverly contends that because the six-month redemption period was in effect on the date of the judgment sale, June 28, 1982, Fred's right to redeem expired on December 28, 1982, at which time Beverly acquired Fred's right to redeem Tracts I and II under the mortgage foreclosure sale. Beverly further contends that Tony acquired no right of redemption as to Tracts I and II under the mortgage foreclosure sale by virtue of the quitclaim deed conveyed to him from Fred. According to Beverly, Tony only had a right to redeem Tract III based on his sheriff's deed acquired at the judgment sale, and because the property was sold en masse, Tony could only acquire title to Tract III by tendering the entire purchase price.
1 Section 12-138 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 12-138) provides that anyone entitled to redeem "may redeem the whole or any part of the premises sold, in like distinct parcels or quantities in which the same were sold." This section has been construed to permit a redemption in "distinct parcels" only when the tracts were so sold. Where two or more tracts of land are sold en masse, redemption must be en masse. Oliver v. Croswell (1866), 42 Ill. 41; Oldfield v. Eulert (1893), 148 Ill. 614, 36 N.E. 615.
However, Beverly's contention that she acquired Fred Van Fleet's right of redemption under the mortgage foreclosure sale upon the expiration of the redemption period for the judgment sale is clearly erroneous. Beverly only received a certificate of sale for Tracts I and II following the judgment sale. She was never issued a sheriff's deed for these tracts.
2, 3 A certificate of sale is nothing more than a right to either the redemption money if a redemption is made or a deed in case no redemption is made. The title of the holder of the right to redeem is a fee title. If a deed is never issued to the holder of the certificate of sale, the title remains in the holder of the right to redeem and does not revest in him. The holder of the right to redeem never loses title until the deed actually issues. Lightcap v. Bradley (1900), 186 Ill. 510, 58 N.E. 221; Hack v. Snow (1929), 338 Ill. 28, 169 N.E. 819; Schroeder v. Bozarth (1906), 224 Ill. 310, 79 N.E. 583; Sutherland v. Long (1916), 273 Ill. 309, 112 N.E. 660.
In Lightcap, the court stated:
"The certificate of purchase does not transfer title, but only assures to the purchaser a conveyance of the legal title if the premises are not redeemed * * *.
* * * In this State the purchaser under a sheriff's sale upon *452 judgment and execution, or at a master's sale on foreclosure of a mortgage, acquires by his purchase no new title to the premises until the period of redemption has passed, and he is entitled to a deed. * * * After the expiration of the period of redemption the title of the mortgagor would be absolutely gone, in the sense that the purchaser had become absolutely entitled to a conveyance of it and in this sense it has often been said that his title is gone, but it is never actually out of him until a conveyance is made. The purchaser cannot oust him from possession or call for an account of rents and profits, without a deed, and the certificate of purchase could never change from a lien into title to the land until a deed is made. The mortgagor's right is gone if the purchaser complies with the statute and avails himself of the right to a conveyance of the title. By the decree and by the statute the title of the mortgagor and those claiming under him would only be divested, and the legal title vested in defendant upon the execution of a deed * * *." Lightcap v. Bradley (1900) 186 Ill. 510, 531-33, 58 N.E.2d 222, 227-28.
4 Beverly successfully bid on Tracts I and II at the judgment sale and was issued a certificate of sale; however, she never received a sheriff's deed for said tracts. Because of her failure to do so, Fred's title to Tracts I and II was never divested. The quitclaim deed of April 29, 1983, conveyed Fred's interest in Tracts I and II to Tony, including the right to redeem Tracts I and II under the mortgage foreclosure sale. By virtue of this interest in Tracts I and II, and his sheriff's deed to Tract III, Tony Van Fleet was the proper person to redeem all three tracts of real estate under the mortgage foreclosure sale.
Beverly also contends that, while the sheriff's deed of January 7, 1983, was erroneously issued, it should still be given effect. Beverly cites cases holding that erroneous application of a statute does not render the resulting judgment void and that a litigant's only remedy is to appeal that decision. While these cases recite abstract propositions of law, they are not applicable to the present case.
5, 6 It is well settled that the statutory right of redemption after the foreclosure sale is independent of the decree. The statute gives the right, not the decree. No action of the court is necessary to confer the right on the parties entitled, and no action of the court can take it away. (Illinois National Bank v. Gwinn (1945), 390 Ill. 345, 61 N.E.2d 249.) The court in Gwinn held that "A purchaser at a foreclosure sale buys the property subject to the statutory right of redemption, which can be exercised in the mode prescribed by statute, regardless *453 of the provisions of the decree and notwithstanding the premature issuance of a master's deed in accordance with such decree." 390 Ill. 345, 353, 61 N.E.2d 249, 253.) It is important that anyone, who possesses the right of redemption, should not lose that right by mistake or misinterpretation. The trial court was correct in finding that the sheriff's deed based on the foreclosure sale was prematurely given before the redemption period had run and in ordering it void.
Accordingly, the decision of the circuit court of Mercer County that defendant appellee Tony Van Fleet was a proper person to redeem all three tracts of property is affirmed.
Affirmed.
SCOTT and BARRY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610041/ | 467 P.2d 966 (1970)
Glen WESTFALL, Appellant,
v.
Howard WILSON, Margaret A. Wilson, Nicholas Shewczyk and Frances Shewczyk, Individually, and As Co-Partners, Dba Jake's Famous Crawfish, Respondents.
Supreme Court of Oregon.
Argued and Submitted January 8, 1970.
Decided April 15, 1970.
Brian W. O'Brien, Portland, argued the cause and filed a brief for appellant.
No appearance for respondents.
Before McALLISTER, P.J., and SLOAN, O'CONNELL, DENECKE, HOLMAN and TONGUE, JJ.
DENECKE, Justice.
The only question is the power of the trial court to change the provisions of a consent decree of foreclosure over the objection of one of the parties.
The plaintiff and his assignees owned a restaurant business, including the equipment and fixtures. Plaintiff was the lessee of the premises upon which the business was operated. Plaintiff sold the business to the defendants upon an installment contract. The defendants were assigned the lease and assumed the obligation of paying the rent due under the lease; however, plaintiff was still obligated to the landlord for the rent.
Plaintiff brought a suit for foreclosure alleging that defendants had defaulted in *967 paying the rent and in failing to pay $500 of the $35,000 purchase price. When the case came to trial, with all parties being represented by counsel, the parties agreed to a decree which was denominated "Stipulated Judgment Order." The judgment, or, as it more properly should have been termed, decree, provided that the defendants were foreclosed of all interest in the business and its property; the assignment of lease was rescinded; and defendants were to pay plaintiff $500 plus an attorney fee.
The decree further provided that execution of the decree was to be stayed 60 days upon the condition that the landlord be paid the past-due rents and those accruing during the 60-day period. The decree recited that the purpose of the 60-day stay was to enable the defendants to find a buyer for the business who would be acceptable to the landlord so that the landlord would release plaintiff from his obligation under the lease.
Finally, the decree provided that if defendants would pay the rent as due and obtain the release within the 60 days, then plaintiff would waive all claims to the property by reason of the decree or the sales contract, the lease, or the lease assignments, provided further that defendants would pay plaintiff $500 damages plus the attorney fee.
On the third day after the expiration of the initial stay, the defendants moved for a stay of execution for another 30 days. Over plaintiff's objection, a stay of 15 days was granted. The order recited that the stay was to allow defendants to complete the sale and get a release for plaintiff from the landlord.
On the last day of the second stay, plaintiff filed a notice for application of writ of assistance to get possession of the premises. The next day, defendants filed a motion for an additional stay. A hearing was held on both matters and defendants were granted an additional eight days to obtain a release for plaintiff and pay the landlord the balance of the rent due for the remainder of the lease. This same order further provided "that the terms and conditions set forth having been complied with; IT IS FURTHER ORDERED AND DECREED that F.G. Westfall * * * [is] released * * * and the Clerk of the Circuit Court of Multnomah County exonerate, return, and disperse the $3,000.00 cash * * * $1,500.00 payable to Glen Westfall [for the $500 and attorney fee]."
Plaintiff assigns as error the last order as well as the order of August 21 staying the execution an additional 15 days.
The general rule is as stated by the annotator at 139 A.L.R. 422 (1942):
"* * * [T]hat an order, judgment, or decree, entered by the court upon the consent of the parties litigant, being in the nature of a contract to which the court has given its formal approval, cannot subsequently be opened, changed, or set aside without the assent of the parties, in the absence of fraud, mutual mistake, or actual absence of consent, and then only by an appropriate legal proceeding."
This is also the general rule in Oregon. Rader v. Barr, 22 Or. 495, 29 P. 889 (1892), and Schmidt v. Oregon Gold Mining Co., 28 Or. 9, 22-33, 40 P. 406, 1014, 52 Am. St. Rep. 759 (1895), held that the parties could not appeal from a consent decree. In the later case Mr. Justice Wolverton stated for the court:
"* * * But a consent decree is not in a strict legal sense a `judicial sentence.' `It is,' says Mr. Gibson in his excellent treatise entitled Suits in Chancery (Section 558), `in the nature of a solemn contract, and is, in effect, an admission by the parties that the decree is a just determination of their rights upon the real facts of the case, had such been proved. As a result, such a decree is so binding as to be absolutely conclusive upon the consenting parties, and it can neither be amended or in any way varied without a like consent, nor can it be reheard, appealed from, or reviewed upon a writ of error. The one only way in which it *968 can be attacked, or impeached, is by an original bill alleging fraud in securing the consent.'" 28 Or. at 28, 40 P. at 1014.
In Stites v. McGee, 37 Or. 574, 61 P. 1129 (1900), the ground for the decision was that a consent decree could not be amended after the term. The court, however, used approximately the same language as Mr. Justice Wolverton quoted above, particularly: "It [a consent decree] cannot be amended or varied in any way without the consent of all the parties affected by it; nor can it be reheard, vacated, or set aside by the court rendering it, especially after the expiration of the term." 37 Or. at 576, 61 P. at 1129.
A court of equity sitting in a foreclosure suit has some discretion. However, when the parties have contracted, as expressed by the terms of a consent decree, that the foreclosure decree shall be executed unless certain conditions are met within a definite time, and if those conditions are not met within the time limit, the court of equity has no discretion to further stay execution.
Reversed with instructions to proceed in accordance with the "Stipulated Judgment Order," dated June 26, 1968. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1635866/ | 285 S.W.2d 425 (1955)
Vesta KIMBLE et al., Appellants,
v.
Fred R. BAKER et al., Appellees.
No. 3188.
Court of Civil Appeals of Texas, Eastland.
November 25, 1955.
Rehearing Denied January 6, 1956.
Roberts & O'Connor, Hawkins & Dean, Breckenridge, for appellants.
J. G. Harrell, Breckenridge, for appellees.
COLLINGS, Justice.
This suit was brought by Fred R. Baker and H. E. Baker, trustees under a testamentary trust set up by the wills of Mabel Baker and her husband, J. F. Baker, seeking *426 a construction of the wills and trust and of an agreement between plaintiffs and defendants extending the term of the trust. Plaintiffs particularly sought instructions from the court concerning their powers and duties in winding up the trust. Vesta Kimble and her husband, LaVerna Cox and her husband, and Ralph Kimble were named as defendants. The defendants, together with plaintiffs, were devisees under the wills and beneficiaries of the trust.
Plaintiffs alleged that by the terms of the wills the testators left the residue of their estates to the plaintiffs as trustees to be held and distributed in accordance with the terms of the wills until their youngest grandchild had arrived at the age of 21 years, at which time, upon the expiration of the trust, the trustees were directed to distribute the whole of the estate to the named beneficiaries in stated proportions, that is, one-fourth each to Fred R. Baker, H. E. Baker and Vesta Kimble, children of the testators, and one-eighth each to testators' grandchildren, Laverna Cox and Ralph Kimble. Attached to plaintiffs' petition were copies of the wills, each of which contained the following provisions:
"This trust shall terminate upon the arrival at the age of twenty-one years of the youngest of my said grandchildren * * *, and the whole of said trust estate shall thereupon be distributed, free of the trust, * * *.
"Fourth I give to my executors and trustees hereinafter appointed full power to sell real or personal property at public or private sale, for cash or upon credit, upon such terms and conditions as they may deem sufficient; to continue to carry on the business I am engaged in at the time of my death or to change such business at will; to invest and reinvest in such property or securities as they shall deem expedient without being limited to what is known as legal investments for trustees; to borrow money and to pledge or mortgage any property of my estate as security therefor; to exercise any and all rights and powers necessary or proper in their uncontrolled discretion, to carry on any business of my estate; to compromise and settle any and all claims in favor of the estate or against it; to distribute the whole or any part of my estate in kind by undivided shares or otherwise in the absolute discretion of the trustees. The judgment of my trustees shall be conclusive as to the value of any property included in any division of my trust estate, and it shall not be necessary for my trustees to employ any appraisers or to apply to any court whatsoever for any order ratifying or approving any such division. After the division of my trust estate has been completed by my trustees, they, or the survivor of them, shall file a final account of their acts as trustees with the beneficiaries receiving said estate, and if the account so filed shall be approved in writing by such beneficiaries, then such accounting shall be conclusive in behalf of such trustees upon all such beneficiaries.
"Fifth I nominate and appoint my sons, Fred R. Baker and H. E. Baker, executors of this my will and trustees thereof, and direct that no bond be required of them in either capacity * *.
* * * * * *
"I hereby release my said executors and trustees of and from any liability for any loss or damage that may result to my estate by reason of their management thereof as directed hereunder, and they shall not be liable for any mistakes of judgment but shall only be liable for actual fraud or misappropriation."
Plaintiffs further alleged that on January 13, 1953, Ralph Kimble, the youngest of the grandchildren, became 21 years of age; that all parties involved then executed an agreement extending the trust until the 1st day of September, 1954; that the extension was made for the stated purpose of enabling the trustees to operate the property until the estate taxes had been fully determined and settled; that the estate taxes were finally disposed of on June 24, 1954, but on account of the complexities of the affairs *427 of the estate it was impossible for plaintiffs to wind up and make distribution of the estate before September 1, 1954. Plaintiffs alleged that prior to such date they had paid all inheritance and estate taxes and had faithfully performed all of the terms, provisions and purposes of the trust except the preparation of a division of the estate among the beneficiaries and the preparation of a final accounting; that they were preparing to make a division among the beneficiaries on September 1, 1954, in accordance with the purpose of the trust but were prevented from doing so because they were advised by defendants to proceed no further in the matter; that defendants urged and contended that plaintiffs' power to act as trustees and to carry out the purpose of the trust was at an end; that such power expired on September 1, 1954; that soon after September 1, 1954, defendants instructed the bank not to honor any more checks on the account maintained by the trustees and instructed the pipe line companies to hold up all funds for oil runs from the leases belonging to the trust and thereby made it impossible for a time for plaintiffs to operate the property. In this connection, plaintiffs further alleged that by the terms of the trust they were directed to make a division of the property upon the expiration of the trust and then to make a final accounting; that the estate consisted of about 40 oil and gas leases and some 80 or 90 oil wells and that considerable time would be required to make a partition and make a final accounting covering eight years operation of the leases. Plaintiffs alleged that they were ready and willing to perform the various duties and obligations as trustees but under the circumstances, and in view of the attitude and contentions of the defendants, they could not do so without great risk of loss to themselves. They alleged that they had completed an inventory of the estate and prepared a partition of the property in accordance with the terms of the wills and had prepared a final accounting; that in the event the court should hold that they had authority as trustees to partition the estate and to file a final accounting, the matter could be closed promptly. Plaintiffs prayed and requested the court to construe the wills and the trust therein provided, together with the agreement of the parties extending the trust and to answer the following questions:
"(1) Do the Trustees have authority to partition the trust property among the beneficiaries in accordance with the terms of the wills after September 1, 1954?
"(2) Do the Trustees have authority to adjust the accounts between the parties in the making of the final account?
"(3) Do the Trustees have the authority to pay the auditor a fee out of the trust funds for the preparing of the final account?
"(4) Do the Trustees have authority to pay a reasonable attorney's fee for the filing of this suit for the construction of the wills?"
Defendants alleged in their answers that the trusteeship had terminated; that plaintiffs had been guilty of fraud and misrepresentations in obtaining the agreement to extend the trust; that, during the existence of the trust, plaintiffs had been guilty of fraud and wrong doing; that they had endeavored to retain excessive possession and control of the trust; that they were now incompetent to administer the trust, had refused to render any accounting; had been guilty of converting property belonging to the trust to their own use and benefit, paying themselves large sums of money to which they were not entitled; that they were hostile to the estate and to defendants' interest therein and had threatened to tear down and destroy the property of the estate.
Defendants prayed for judgment, holding that the trusteeship had terminated, and that plaintiffs be removed as trustees and denied the right to partition the property of the estate; that a receiver be appointed; that an accounting be had and a partition made of the property. Defendants also made similar allegations in their *428 cross action in which they sought substantially the same relief.
When the case was called, plaintiffs announced ready, subject to their motions and special pleas. The defendants announced that they were not ready on their cross action but announced ready on their answer to plaintiffs' alleged cause of action for a declaratory judgment.
Plaintiffs Fred R. Baker and H. E. Baker had filed a motion to sever defendants' cross action for removal of the trustees and the appointment of a receiver and for an accounting and for a partition of the estate from their suit for a declaratory judgment, urging that the issues presented in the cross action constituted no defense to their suit for instructions as to their powers and duties in winding up the trust under the terms of the will and extension agreement. The motion to sever was granted and the causes of action asserted by defendants for an accounting and appointment of a receiver, removal of the trustees, for damages and for an injunction as set out in their cross action was ordered placed on the docket as a separate suit.
Upon a trial of that portion of the suit in which plaintiffs sought a declaratory judgment defining their status, powers and duties as trustees, judgment was rendered on February 25, 1955, denying defendants the relief of an injunction against the trustees from further acting as such and for the appointment of a receiver as sought in their answer and holding that plaintiffs, as trustees, were, on September 1, 1954, authorized to continue to exercise the powers necessary and proper for the preservation of the trust, to partition the property and to prepare and file a final accounting and that a reasonable time for the performance of such duties would be on or before March 1, 1955; that the trustees had authority to adjust the accounts between the parties in making their final accounting; that they had authority to employ an auditor to prepare a final accounting and to pay him a reasonable fee therefor, and that they had authority to employ an attorney to file suit for a declaratory judgment to determine their status and powers. The court further decreed that plaintiffs, as trustees, should wind up the affairs of the trust on or before March 1, 1955 and should, prior to that date, partition the properties among the beneficiaries by delivering to each his or her share therefrom and should also file in court a complete accounting of the trust properties covering the full period of the trusteeship. Defendants have brought this appeal.
It is first urged by appellants that the court erred in sustaining appellees' motion to sever their suit for a declaratory judgment and for instructions concerning their power and duties as trustees from the issues and causes of action set out in appellants' cross action for an accounting, for removal of appellees as trustees and for an injunction restraining appellees from further acting as trustees, for a receivership of the trust estate and partition of such estate under authority of the court.
Plaintiffs, here appellees, were trustees under the will and extension agreement. By the terms of these instruments the trust expired on September 1, 1954. Plaintiffs' authority to perform any act as trustees after that date was challenged by the defendants, and they, as trustees, brought this suit on September 10, 1954, for a declaratory judgment defining their powers, particularly regarding the questions specifically inquired about. The principal issue involved under plaintiffs' petition was whether under the terms of the trust instruments plaintiffs' power to perform any further act as trustees had, as defendants were contending, fully terminated on September 1, 1954. This disputed question was vital to all parties concerned.
Defendants also contended, in the alternative, in both their answer and cross action that plaintiffs were guilty of such misconduct as trustees that the court should remove them and appoint a receiver to take charge of the trust estate, make an accounting and partition the estate among the beneficiaries. The question presented for determination in this point is whether the *429 court erred in severing the cause of action presented in defendants' alternative pleading and cross action from the issue raised by plaintiffs' pleadings, that is, whether the trustees' powers finally terminated by the very terms of the trust instruments on September 1, 1954. In our opinion the court did not err in granting the motion to sever. Rule 174(b), Vernon's Ann.Texas Revised Civil Rules, provides:
"The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues."
Defendants had announced that they were not ready on their cross action which involved their alternative claim of misconduct on the part of the trustees and a plea for removal of appellees as trustees and appointment of a receiver. Under the circumstances it was proper, or at least not an abuse of discretion, for the court to grant plaintiffs' motion for a severance and first determine whether they, as trustees under the terms of the trust instruments, had a reasonable time after the expiration of the trust to close up the affairs of the estate. Plaintiffs were entitled to have this question speedily determined. It was essential to the trustees, to those with whom they dealt and to the estate itself to determine the authority of the trustees. Otherwise, any action on their part concerning the estate would be based upon uncertainty and would be perilous and unsatisfactory to the trustees and all other parties concerned. The defendants' claim of fraud and misappropriation by the trustees is not prejudiced by the severance. The wills provided that the trustees should first make a partition of the property and then file an accounting, which, if approved in writing by the beneficiaries, should be conclusive on all parties and further provided, in effect, that the trustees were to be liable "for actual fraud or misappropriation." The court, in entering the declaratory judgment, ordered the accounting to be made. If upon the trial of their cross action for removal of the trustees, appellants are able to successfully challenge the accounting and distribution made by the trustees and to establish the alleged fraud and misappropriation by the trustees, they will be entitled to full relief. The wills provided, in effect, that the trustees, after filing their final accounting, would be liable for "fraud or misappropriation." The trustees would be liable for such misconduct under the law even in the absence of such a provision in the wills. There is no showing of the existence of any facts which would render the severance and separate trial of the issues and causes of action in question unduly prejudicial to any right that appellants have. Appellants, as defendants, announced that they were not ready on their allegations of fraud and misappropriation until plaintiffs had made an accounting. The court did not abuse its discretion in granting the motion to sever, and in proceeding to trial on the issues raised in the plaintiffs' petition.
Appellants contend that the court erred in refusing to hear evidence on "many disputed questions * * * demanding forcible sanctions." The evidence sought to be introduced by appellants bears upon issues of misconduct by the trustees as alleged in appellants' cross action. These issues were severed and will be determined upon the trial of the cross action. The court did not err in sustaining objections to such evidence.
Appellants next contend that the court erred in entering a declaratory judgment under the facts and circumstances in evidence and urge that the court was without power or jurisdiction to enter such a judgment. We cannot agree with this contention. The use of a declaratory judgment to determine the powers and duties of trustees is authorized by statute. Article 2524, Vernon's Annotated Revised Civil Statutes. Also see Arterbury v. United States Nat. Bank of Galveston, Tex.Civ.App., 194 S.W.2d 803. In its discretion a court may enter a declaratory judgment where the judgment will end the *430 controversy between the parties or will serve some useful purpose. Joseph v. City of Ranger, Tex.Civ.App., 188 S.W.2d 1013 (Ref.W.M.).
Appellees were trustees of a trust estate which, under the terms of the wills and the extension agreement, terminated on September 1, 1954. Their right to act as trustees after September 1, 1954, for the purpose of winding up the affairs of the estate or for any other purpose, had been questioned by appellants. This suit was brought by the trustees for a declaratory judgment and for instructions concerning their powers. It thus appears that there was a bona fide dispute between the parties concerning the power of the trustees to wind up the affairs of the estate and to distribute the estate among the beneficiaries within a reasonable time after September 1, 1954, the date of expiration of the trust. The judgment disposed of this dispute. The judgment was beneficial and served a useful purpose in that it settled such controversy and enabled the trustees to proceed with the winding up of the affairs of the estate if done in accordance with the terms of the wills with safety to themselves and persons with whom they dealt as trustees. There was no basis for a receivership on the theory that under the very terms of the trust instruments the trustees were wholly without authority to perform any further duty or do any other act as such, and that a receiver was therefore necessary to take charge of the estate. Any relief to which appellants may be entitled in case they are able to establish fraud in the partition of the estate or misappropriation by the trustees after an accounting is filed, may be had upon a trial of the cross action. The issues presented in appellees' petition for a declaratory judgment were disposed of by the judgment.
Appellants particularly urge that the court "erred as a matter of law in holding that the trustees had a reasonable time after the expiration of the trust in which to make an accounting and partition of the property between the beneficiaries." The wills provide, in effect, that upon the termination of the trust the trust property should be distributed among the beneficiaries and that after the division the trustees should file a final account with the beneficiaries. The rule in such cases is that subject to the provisions of the trust instrument, the trustee has such powers and duties as are necessary for winding up the estate and has the duty to make a reasonably prompt distribution. 90 C.J.S., Trusts, § 343, p. 604; Restatement of the Law of Trusts, Vol. 2, page 344. There was nothing in the trust instruments inconsistent with the trustees' exercising such powers as were necessary to wind up the trust estate within a reasonable time after the expiration of the trust. The wills provided, in effect, that upon the termination of the trust the trust estate should "thereupon be distributed," and further provided that after the division of the trust was completed, the trustees should file a final account.
It was found in the judgment rendered on February 25, 1955, that a reasonable time after expiration of the trust on September 1, 1954, for the trustees to partition the property and to prepare and file an accounting would be on or about March 1, 1955. The evidence shows that the estate consists of about 80 or 90 producing oil wells on approximately 40 leases and a large amount of oil field equipment and machinery. The operation of the estate and its affairs are complicated and complex. On September 1, 1954, the date of the expiration of the trust, appellants demanded an immediate distribution of the trust estate and informed appellees that they no longer had any powers as trustees. Shortly thereafter, appellants wrote letters instructing the bank to honor no further checks of the trustees and the pipe line companies to make no further oil payments. Appellants warned such parties that any further dealings with appellees as trustees would be at their own peril. On September 10, 1954, appellees filed this suit seeking instruction concerning their powers and duties. Under the circumstances, we cannot say that the court erred in holding on February 25, 1955, the date of *431 the judgment, that a reasonable time for the trustees to partition the property and file a final accounting would be on or before March 1, 1955.
We overrule the contention that the court erred in holding the trustees were authorized to employ an attorney for the prosecution of this suit and to pay him a reasonable fee. We cannot say as a matter of law that the bringing of this suit by the trustees for instructions under the facts of this case was not in good faith. The trustees, under the law, had a reasonable time after the termination of the trust to make a distribution of the assets and to make an accounting. Their power to do this was questioned by appellants.
The trustees were entitled to apply to the court for instructions concerning their powers and to incur the expense of making the application. Article 7425b-25, Vernon's Texas Civil Statutes; 54 Am.Jur., page 491; West Texas Bank & Trust Co. v. Matlock, Tex.Civ.App., 172 S.W. 162. The trustees were also authorized to pay reasonable fees to an auditor for the preparation of a final account.
The judgment further provided that the trustees in making their final accounting should adjust the accounts of the respective beneficiaries so that the property might be divided at the final partition in accordance with the provisions of the wills. Appellants complain of this provision in the judgment and urge that the court erred in so holding. In our opinion, the court did not err in holding that the trustees had authority to adjust accounts between the parties. The trustees had and have the duty in dividing the property to do so in accordance with the wills. If it should appear that there have been or are errors in distribution among the beneficiaries prior to the final partition, then it will be their duty at that time to make whatever adjustments are necessary to give to each beneficiary that to which he is entitled under the terms of the wills.
If, in the final partition and accounting made by the trustees, and presentation thereof to appellants for inspection, as provided by the wills, it should appear that the trustees are guilty of misappropriation of the assets of the estate or of fraud in the partition and division of the estate among the beneficiaries, then appellants will have their remedy upon the trial of their cross action.
We have examined all points presented and find no reversible error.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611885/ | 884 P.2d 813 (1994)
118 N.M. 657
UNIVERSAL CONSTRUCTORS, INC., a New Mexico corporation, Andrew J. Morrow, and James G. Harding, Plaintiffs-Appellees,
v.
Thomas E. FIELDER and Park Development II, a New Mexico corporation, Defendants and Third-Party Plaintiffs-Appellants,
v.
James W. STRETZ, Third-Party Defendant-Appellee.
No. 13229.
Court of Appeals of New Mexico.
August 17, 1994.
*814 Christopher M. Moody, Poole, Kelly & Ramo, P.C., Albuquerque, for plaintiffs-appellees.
William J. Darling, Margaret P. Armijo, William J. Darling, & Associates, P.A., Albuquerque, for defendants and third-party plaintiffs-appellants.
Joseph Goldberg, Freedman, Boyd, Daniels, Peifer, Hollander, Guttmann & Goldberg, Albuquerque, for third-party defendant-appellee.
OPINION
BLACK, Judge.
Plaintiffs Universal Constructors, Andrew Morrow, and James Harding ("Plaintiffs") filed a complaint alleging a violation of the New Mexico Securities Act, NMSA 1978, Sections 58-13-1 through 58-13-46 (Repl. Pamp.1984) (the "Securities Act"), and seeking rescission and a refund on their purchases of limited partnership shares in Park Development II ("Park II"). Defendants Park II and Thomas Fielder ("Fielder") claimed an exemption under the Securities Act and filed a third-party complaint against the other general partner in Park II, James Stretz ("Stretz"). The district court granted an oral motion to dismiss the third-party complaint against Stretz, entered an order dismissing the third-party complaint, and ultimately entered judgment granting rescission to Plaintiffs. Defendants Fielder and Park II appeal. We affirm the rescission and reverse the dismissal of the third-party complaint.
I. JURISDICTION
The district court entered a "closing order" dismissing appellees' suit without prejudice on April 16, 1990. The closing order provided, in part: "If the parties fail to seek reinstatement within 60 days, the case shall be deemed dismissed with prejudice." Plaintiffs moved for reinstatement on May 29, 1990, well within the sixty days provided. After originally denying the motion for reinstatement, the district court, upon rehearing, granted it.
Appellant argues that under NMSA 1978, Section 39-1-1 (Repl.Pamp.1991), the district court lost jurisdiction over the case thirty days after entry of the closing order. On its face, however, Section 39-1-1 applies to "[f]inal judgments and decrees." An order which merely dismisses a claim without prejudice is not a final, appealable order. Montoya v. Anaconda Mining Co., 97 N.M. 1, 4, 635 P.2d 1323, 1326 (Ct.App.1981). Obviously, a dismissal without prejudice that specifically authorizes further proceedings in the case is not a final order. Cf. Ortega v. Transamerica Ins. Co., 91 N.M. 31, 33, 569 P.2d 957, 959 (Ct.App.1977) (dismissal without prejudice ordinarily imports further proceedings).
Our Supreme Court considered the effect of a similar dismissal in Gonzales v. Maes, 106 N.M. 342, 742 P.2d 1047 (1987). The Court stated the issue was "whether an order of dismissal without prejudice is a final order when it contains a condition such as the statement that the cause of action is dismissed without prejudice subject to reinstatement upon request to the court." Id. at 343, 742 P.2d at 1048. Speaking for the Court, Justice Ransom stated: "We hold that, under the above-stated facts, the order of dismissal could become a final order only if the condition were not satisfied." Id. The Court concluded: "Because, in the instant case, plaintiff satisfied the condition by requesting reinstatement, the dismissal never became a final order." Id. at 344, 742 P.2d at 1049.
*815 As in Gonzales, the district court in the present case entered a conditional order of dismissal. Since the present appellees "satisfied the condition by requesting reinstatement, the dismissal never became a final order." Section 39-1-1 therefore does not apply.
II. ABUSE OF DISCRETION
Appellants Fielder and Park II next argue that, even if the district court did retain jurisdiction to reinstate the case, it abused its discretion in doing so. However, since the conditional order of dismissal was interlocutory, the district court had the authority to revise the order at any time prior to entry of a final judgment. See Barker v. Barker, 94 N.M. 162, 165-66, 608 P.2d 138, 141-42 (1980). Such an interlocutory order, by definition, is open for revision, and the district court, "upon further reflection or examination, was at liberty to change it." See Speckner v. Riebold, 86 N.M. 275, 278, 523 P.2d 10, 13 (1974). In general, the trial court must have broad discretion to revise interlocutory orders that would impede the process of achieving a just result. Cf. Gallegos v. Yeargin W. Constructors, 104 N.M. 623, 624, 725 P.2d 599, 600 (Ct.App.1986) (modification of pretrial order is discretionary with trial court). We find no abuse of discretion in reinstating Plaintiffs' complaint when Plaintiffs met the stated condition and moved to reinstate the complaint within sixty days.
III. THE THIRD-PARTY COMPLAINT
On November 7, 1990, the district court sent out a non-jury docket for the month of January 1991. This one-page, unsigned document on judicial stationery directed that pretrial orders be filed by December 3, 1990, "or all attorneys are to be available for status conference during the week of December 3, 1990." The document then stated: "FAILURE TO COMPLY WITH PRETRIAL ORDER REQUIREMENTS MAY CAUSE THE IMPOSITION OF SANCTIONS, INCLUDING DISMISSAL OR DEFAULT JUDGMENT."
Three weeks later, on November 29, 1990, local counsel for Defendants Fielder and Park II filed a motion to withdraw on the basis of a conflict. This motion was granted the same day. The order allowing the withdrawal of local counsel provided: "Until such time as said Defendants retain new local counsel in New Mexico, service of all notices and pleadings shall be made upon said Defendants at [the address of Defendants' Kentucky attorney.]" Although Defendants' Kentucky counsel was directed to receive notice, she was permitted to participate only in association with local counsel. See SCRA 1986, Rule 1-089.1(A) (Repl.1992). Since Fielder's local counsel was permitted to withdraw on November 29, 1990, and new local counsel did not enter an appearance until January 15, 1991, Defendant Fielder was effectively without counsel during the critical six-week period when the pretrial order was drafted and presented to the district court.
On December 12, 1990, Fielder, pro se, wrote to the district court:
I'm afraid that I have absolutely no financial means to acquire legal representation in order to defend myself in this case. I simply do not understand what this pre-trial order as referenced in [Plaintiffs' counsel's] letter of December 5, 1990 is all about. I don't know what to do about this case and I have discussed my financial condition in detail with [Plaintiffs' counsel] and have given him a complete financial disclosure by telephone as well as authorized him to pull credit reports on me to verify my individual finances. Whatever is necessary, I guess I am by default in compliance with.
When the pretrial order was presented to the district court on January 8, 1991, counsel for Stretz made an oral motion to dismiss the third-party complaint. The court granted this motion orally at the hearing and entered an order dismissing the third-party complaint on January 17, 1991. On January 18, 1991, Fielder filed a motion to reinstate the third-party complaint. The district court denied the motion.
It is general policy to decide claims on the merits. See George M. Morris Constr. Co. v. Four Seasons Motor Inn, Inc., 90 N.M. 654, 658, 567 P.2d 965, 969 (1977). *816 Dismissal constitutes a penalty, and generally mere negligence does not warrant such a penalty. Sandoval v. Martinez, 109 N.M. 5, 9, 780 P.2d 1152, 1156 (Ct.App.), cert. denied, (July 27, 1989). Involuntary dismissals are limited to instances where plaintiff's conduct is extreme. Lowery v. Atterbury, 113 N.M. 71, 74, 823 P.2d 313, 316 (1992); see also Peden v. Brinker, 132 F.R.D. 31, 32 (W.D.Pa. 1990) (refusing to default pro se defendants lacking sufficient funds for counsel, despite repeated violations).
The district court should also consider alternatives to dismissal. Lowery, 113 N.M. at 75, 823 P.2d at 317; see also SEC v. First Houston Capital Resources Fund, Inc., 979 F.2d 380, 382-83 (5th Cir.1992) (error to default pro se defendant for failure to appear at pretrial without a record showing consideration of lesser sanctions). Our Supreme Court's discussion in Lowery is instructive on this point:
In the instant case, we are not convinced that the trial court considered any alternative sanctions to that of dismissal. At the time that he dismissed the action, the trial judge stated "[t]oday was the day set for either the tendering of the [settlement] agreement of the parties or the trial of the matter. I'm prepared for one or the other. But that's all I'm prepared for." The trial judge did not consider Lowery's explanation for being unprepared, nor did he inquire into the amount of time that Lowery would need to prepare for trial. In addition, he did not consider that the parties made diligent efforts to settle this matter. Further, he did not consider that the dismissal would be a windfall for the defendants, who also were unprepared for trial.
113 N.M. at 75, 823 P.2d at 317.
While the district court clearly had the authority to dismiss the third-party complaint, there is no evidence in the instant case that the district court considered any alternatives. At the time the dismissal was granted, the district judge said:
The third-party complaint will be dismissed for failure of the third-party Defendantthird-party Plaintiff to comply with the Court's requirements to comply with pretrial order requirements to participate in the preparation of pretrial order, and for failure to attend this hearing today, which was scheduled to resolve a pretrial order.
And since the third-party Plaintiff is not present to proceed, the Court will grant the application to dismiss, both on its merits and as a sanction for failure to comply with the order of the Court.
Notice and opportunity to be heard is required before a case can be dismissed on the merits. Otero v. Sandoval, 60 N.M. 444, 446, 292 P.2d 319, 320 (1956); cf. State v. Wilson, 116 N.M. 802, 806, 867 P.2d 1184, 1188 (Ct. App.) (trial court must give advance notice before dismissing a criminal case), cert. quashed, (September 3, 1993). To the extent the district court relied on the arguments presented at the January 8 pretrial conference and dismissed the claim "on its merits," the order violated this requirement.
IV. RESCISSION
Fielder and Stretz began developing Park II in 1985. They decided to sell limited partnership shares in order to raise capital. Plaintiff Harding purchased one limited partnership share on December 20, 1985, and Plaintiff Morrow purchased a one-half limited partnership share on December 30, 1985. It was also on December 30, 1985, that the New Mexico Securities Division received a notice of a claim of exemption from Park II. Plaintiff Universal purchased a one-half limited partnership share on January 27, 1986.
The pertinent provision of the Securities Act in effect at the time of the sale of the limited partnership shares allowed an exemption for the private placement of securities. See § 58-13-30(O) (Repl.Pamp.1984). However, Plaintiffs argue, and the district court held, that the private placement exemption was not available to Park II and Fielder because they failed to file a claim of exemption prior to their first sale of securities. Perhaps in response to descriptions such as "technical," Julie Allecta, Comment, Securities: Private Placement in New Mexico, 7 N.M.L.Rev. 105, 110-11 (1977), and "trenchant weapon," Theodore Parnal & Wilmer R. Ticer, A Survey of the Securities Act of *817 New Mexico, 2 N.M.L.Rev. 1, 2-3 (1972), the 1986 legislature repealed this provision to eliminate liability for failure to file any notice of claim of exemption. See 1986 N.M.Laws, ch. 7, § 59. The filing statute in effect at the time of the sale, however, required:
[A]ny person, corporation or issuer claiming the exemptions afforded by subsections I, N or O of Section 58-13-30, NMSA 1978 shall give notice in a form prescribed by the chief of his intention to avail himself of the exemptions afforded by those subsections prior to the first offer or sale[.]
Section 58-13-31 (Repl.Pamp.1984). Under the plain terms of Section 58-13-31 it was necessary to file the notice of claim of exemption before the first offer or sale of limited partnership shares. Cf. Redman v. Board of Regents, 102 N.M. 234, 238, 693 P.2d 1266, 1270 (Ct.App.1984) ("The use of the word `shall' ordinarily imposes a mandatory requirement."), cert. denied, 102 N.M. 225, 693 P.2d 591 (1985).
Defendant Fielder's arguments regarding the implicit intent of the legislature and relying on authority from other jurisdictions are unavailing. The failure to file the notice of a claim of exemption until ten days after the sale of the first limited partnership share to Plaintiff Harding prevents Defendants Fielder and Park II from claiming any exemption under the Securities Act and entitled Plaintiffs to rescind the transaction and receive a refund of the purchase price.
V. CONCLUSION
We hold the district court did not abuse its discretion in reinstating the complaint when Plaintiffs complied with the terms set forth in the closing order. By contrast the district court allowed Defendant Fielder's local counsel to withdraw three weeks before the scheduled pretrial conference, then dismissed Fielder's third-party complaint in spite of his letter stating that he lacked the funds to come to Albuquerque for the pretrial conference. Under these circumstances, it was error for the district judge to dismiss the third-party complaint without evidence lesser sanctions were considered. Finally, the provision of the Securities Act in effect at the time of the sale of the limited partnership shares clearly required the filing of a claim of exemption prior to the first sale of a regulated security. Defendants Fielder and Park II failed to file such a notice of exemption prior to the first sale and therefore are barred from claiming any exemption under the Securities Act. The district court was correct in granting the plaintiffs rescission and ordering restitution.
The order dismissing the third-party complaint is reversed. The judgment of the district court is otherwise affirmed.
IT IS SO ORDERED.
APODACA and BOSSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2236052/ | 929 N.E.2d 166 (2006)
367 Ill. App.3d 1086
LUGO
v.
TOYS "R" USDELAWARE, INC.
No. 1-05-1814.
Appellate Court of Illinois, First District
October 20, 2006.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1913828/ | 981 A.2d 1279 (2009)
Andre TURPIN, Petitioner
v.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.
No. 109 EM 2009.
Supreme Court of Pennsylvania.
September 10, 2009.
ORDER
PER CURIAM.
AND NOW, this 10th day of September, 2009, the Petition for Review is DENIED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8326481/ | Haggerty, S. Jane, J.
INTRODUCTION
On June 15, 2010, the plaintiff shareholders of Demoulas Super Markets, Inc. (DSM), provided written notice to DSM’s Board of Directors of their desire to sell their DSM stock, in accordance with the stock transfer restriction provision in Article 5 of DSM’s Articles of Organization. Pursuant to Article 5, the plaintiffs appended to their written notice a proposed stock purchase agreement stating the terms upon which the plaintiffs were willing to sell their shares and, as an alternative, designated an arbitrator that the Board could select at its option to ascertain the value of the shares. On July 6, 2010, the Board (by a vote of four members out of seven) determined that the plaintiffs’ notice was invalid and took no further action. On July 14, 2010, however, the Board adopted resolutions acknowledging receipt of the notice and of the attached proposed stock purchase agreement. The Board elected not to purchase the shares on the terms set forth in the proposed agreement, but rather elected to proceed to arbitration for valuation of the shares by naming a second arbitrator, consistent with the terms of Article 5. The Board stated that it was reserving its right to contest the validity of the initial notice in the future.
On July 16, 2010, the plaintiffs filed this complaint for declaratory relief (Count I), seeking a declaration that the written notice that they provided to the Board complied with the terms of Article 5 and, further, that the Board’s decision to commence the arbitration process bars it from challenging the validity of the notice going forward. The plaintiffs also allege breach of contract (Count II), breach of the covenant of good faith and fair dealing (Count III), and, alternatively, breach of fiduciary duty (Count IV) against the four Board directors. The plaintiffs seek damages on Counts II, III and IV.
On August 6, 2010, DSM answered and asserted counterclaims for the following declarations: (1) once the Board rejected the plaintiffs’ proposed stock purchase agreement, the proposed terms were of no further effect; (2) once the arbitrators have been selected, DSM has the absolute right to purchase the shares at the value ascertained by the arbitrators without regard for the terms of the plaintiffs’ proposed agreement; (3) once the arbitration process has begun, no party has the right to terminate the arbitration process; and (4) if the proposed agreement is still in effect after its rejection by the Board, it is inconsistent with Article 5 and thus invalid (collectively, Counterclaim Count I). DSM also asserted counterclaims for the *285following declarations: (5) the plaintiffs are bound by their fiduciary duties not to sell their shares to any entity that would defeat DSM’s right to qualify as a Subchapter S corporation (Counterclaim Count II); and (6) if DSM elects not to purchase the shares at the value ascertained by the arbitrators, the plaintiffs may not sell the shares to a third party at a lower value unless they first offer to sell the shares to DSM for that lower value (Counterclaim Count III).
On August 6, 2010, individual defendants Shea, Carleton, and Roazen answered and asserted counterclaims for a declaration that the plaintiffs’ notice and tender were invalid (Counterclaim Count I), or, in the alternative, for a declaration of the rights and obligations of the parties under Article 5 (Counterclaim Count II).
Defendant Darman moved to dismiss the counts against him pursuant to Mass.R.Civ.P. 12(b)(6) for failure to state a claim. The plaintiffs opposed Damian’s motion as to Counts I, II and III, but noted that they would not object to a determination by this court that, pursuant to Chokel v. Genzyme Corp., 449 Mass. 272, 275-78 (2007), contract law, rather than fiduciary law (Count IV), governs the parties’ conduct with respect to Article 5.
Thereafter, the plaintiffs moved to dismiss Count II of Shea, Carleton, and Roazen’s counterclaims for lack of standing or, alternatively, for failure to state a claim. They also moved to dismiss Counts II and III of DSM’s counterclaims for failure to state a claim.
More recently, the plaintiffs and DSM/Shea, Carlton, and Roazen cross moved for judgment on the pleadings—the plaintiffs, for declarations that their written notice was valid and that the Board waived its right to challenge the validity of the notice; DSM, for a declaration consistent with each of its counterclaims; and Shea, Carlton, and Roazen, for a declaration that the Board retains the option to purchase at the arbitrators’ price without consideration of the terms set forth in the plaintiffs’ proposed stock purchase agreement (which essentially parallels Count I of DSM’s counterclaim). Darman opposed the plaintiffs’ motion for judgment on the pleadings on the grounds set forth in his motion to dismiss.
On January 19, 2011, while the aforementioned motions were under advisement, DSM filed a motion titled “Notice of Mootness of Certain Issues in Pending Motions, in which it asserted that the arbitration process at the forefront of the dispute had concluded, thereby rendering moot the following: (1) the plaintiffs’ motion for judgment on the pleadings as to Count I of their complaint, to the extent that it seeks declarations that their notice was valid to trigger the arbitration process and that DSM waived its right to contest the validity of the notice; and (2) DSM’s cross motion for judgment on the pleadings as to Count I of its counterclaims, which seeks declarations relative to the terms and scope of arbitration. DSM contends that all that remains for the court to consider are (1) subpar-agraph 5 of prayer 2 of the plaintiffs’ request for declaratory relief, which relates to the effect of DSM’s Subchapter S status on the plaintiffs’ right to transfer their stock; and (2) Counts II and III of DSM’s counterclaims, regarding the Subchapter S issue and whether DSM retains a perpetual right of first offer under Article 5. For their part, the plaintiffs do not oppose the motion insofar as it narrows the live issues for declaratory judgment; however, they reserve the right to press forward on their claims against the individual defendants.
To summarize, the matter is before the court on (1) Plaintiffs’ motion for judgment on the pleadings as to Count I of their complaint (Pleading No. 24); (2) DSM’s and Shea, Carleton, and Roazen’s cross motions for judgment on the pleadings on their counterclaims (Pleading Nos. 25 and 26); (3) Plaintiffs’motion to dismiss Counts II and III of DSM’s counterclaims (Pleading No. 22); (4) Plaintiffs’ motion to dismiss Count II of Shea, Carleton, and Roazen’s counterclaims (Pleading No. 23); and (5) Darman’s motion to dismiss the plaintiffs’ complaint against him (Pleading No. 14).
DISCUSSION
I. Plaintiffs’ Motion for Judgment on the Pleadings as to Count I of Complaint
The plaintiffs initially sought a declaration that the written notice they provided to the Board complied with the terms of Article 5 and, further, that the Board’s decision to commence the arbitration process barred it from challenging the validity of the notice going forward. Presumably, they sought a declaration to this effect so that, in the event that the plaintiffs prevailed in their argument that the proposed terms of their written offer to sell carried forward even after arbitration, the Board would effectively be “locked in” to purchasing the stock at the arbitrators’ price and on the plaintiffs’ terms (however unreasonable they might be). Otherwise, the plaintiffs would have been free to sell to third parties.
At a hearing on March 11, 2011, the parties represented that they had completed the Article 5 arbitration process while the court held these matters under advisement, and that the Board had declined to purchase the plaintiffs’ shares at the price set by the arbitrators. Because the arbitration process has concluded and the defendants no longer contest the validity of the plaintiffs’ notice, the plaintiffs’ motion for judgment on the pleadings as to Count I, and all corresponding cross motions on that particular issue, are moot. There is no question that the plaintiffs may offer their shares to a third party in accordance with last sentence of Article 5; the sole question that remains is whether there are any restrictions, contractual or otherwise, on the manner in which the plaintiffs may dispose of their stock. Therefore, the court shifts its focus to DSM’s second and third counterclaims.
*286II. DSM’s Cross Motion for Judgment on the Pleadings as to Counts II and III of Its Counterclaim
A. Count II (Subchapter S)
In Count II of its counterclaim, DSM seeks a declaration that the plaintiffs have a fiduciary duty not to dispose of their stock in a manner that would destroy the corporation’s Subchapter S status. See A.W. Chesterton Co. v. Chesterton, 128 F.3d 1, 4-7 (1st Cir. 1997) (implicit in shareholders’ agreement to elect Subchap-ter S status was understanding that they would take no action to destroy such status, and minority shareholder’s attempt to sell shares in manner destructive to Subchapter S status was breach of fiduciary duty).3
In support of a completely contrary position, the plaintiffs rely on Chokel v. Genzyme Corp., 449 Mass. 272 (2007). When rights of stockholders arise under a contract [such as the corporation’s articles of organization, id. at 275] .. . the obligations of the parties are determined by reference to contract law, and not by the fiduciary principles that would otherwise govern." Id. at 278. In Chokel, the Supreme Judicial Court held that, notwithstanding the fact that a corporation’s directors owe a fiduciary duly to their shareholders, the motion judge properly dismissed the plaintiff shareholder’s claims that the defendant directors breached a fiduciary duiy based on the timing of a stock exchange, where the procedure for exchanging stocks fell squarely within the corporation’s articles of organization. M.4
Other cases support this general principle. See BPR Group Ltd. Partnership v. Bendetson, 453 Mass. 853, 863 (2009) (“Where an agreement addresses a particular issue, the terms of the agreement control, and the rights and obligations of the parties are determined by reference to principles of contract law”); Blank v. Chelmsford OB/GYN, P.C., 420 Mass. 404, 408 (1995) (“However, questions of good faith and loyalty with respect to rights on termination or stock purchase do not arise when all the stockholders in advance enter into agreements concerning termination of employment and for the purchase of stock of a withdrawing or a deceased stockholder. See [Donahue v. Rodd Electrotype Co. of New England, Inc., 367 Mass. 578,] 598 n.24 [1975]; Evangelista v. Holland, 27 Mass.App.Ct. 244, 248-49 (1989)”); Knapp v. Neptune Towers Assocs., 72 Mass.App.Ct. 502, 507 (2008) (“In this case, the procedure for hiring a broker and selling the partnership property falls squarely within the contract, and the duties the general partners owed the limited partners are circumscribed by the terms in the partnership agreement”). Cf. Nahill v. Raytheon Co., 2009 WL 909813, at *3 & n.7 (Mass.Super. Dec. 11, 2008) (Fabricant, J.) [25 Mass. L. Rptr. 320] (applying Delaware law, but observing that Massachusetts also follows rule that where “a dispute arises from rights and obligations created by a contract between the corporation and a particular shareholder or class of shareholders, no fiduciary duly extends obligations beyond those provided by contract; in such an instance, the dispute is governed by contract principles, not equitable principles”). Indeed, “(t]o allow a fiduciary duty claim to coexist in parallel with an implied contractual claim, would undermine the primacy of contract law over fiduciary law in matters involving the essential contractual rights and obligations of [the] shareholders.” Nahill, 2009 WL 909813, at *3, quoting Wood v. Baum, 953 A.2d 136, 143 n.23 (Del. 2008).
In the same vein, the procedure for DSM shareholders to dispose of their stock falls squarely within Article 5 of the Articles of Organization. Therefore, in the plaintiffs’ view, any obligations the minority shareholders owe the majority shareholders with respect to the manner of sale are determined only by the terms of that provision. See, e.g., Chokel, 449 Mass. at 278. At this stage in the process, they point out, the provision authorizes the plaintiffs to sell “in any manner [they] may see fit.”
It is worth noting that, provided certain procedures are followed, the Massachusetts Business Corporations Act authorizes corporations to impose restrictions on the transfer of shares to, among other things, “maintain the corporation’s status when it is dependent on the number or identity of its shareholders.” G.L.c. 156D, §6.27(c)(1). DSM did not include in its Articles of Organization an explicit restriction to insure its Subchapter S status. The relevant question, then, is whether, as the plaintiffs argue, Chokel requires the court to disregard fiduciary principles and instead to strictly construe Article 5 to permit the plaintiffs to sell their stock as they see fit, or whether fiduciary law complements contract law and restricts the plaintiffs’ ability to sell by requiring that they not act in a manner contrary to the corporation’s interests.
Based on the plain language of the aforementioned cases, the plaintiffs appear at first blush to have the better of the argument. However, this court would be remiss if it did not look beyond the broad language in Chokel to determine its relationship to other Massachusetts cases dealing specifically with the fiduciary obligations of shareholders in close corporations. For the reasons that follow, this court concludes that the plaintiffs do not owe DSM a fiduciary duly to refrain from selling their shares in a manner that terminates DSM’s Subchapter S status, but that their freedom to sell under Article 5 is nevertheless subject to the implied covenant of good faith and fair dealing.
To start, this court acknowledges a recent Supreme Judicial Court decision distinguishing Chokel on the grounds that it involved a public corporation. Pointer v. Castellani, 455 Mass. 537, 554 (2009). In Pointer, the plaintiff was a member of a limited liability company, treated as a close corporation, who had been frozen out by the other members. Id. at 538, 549. In response to the defendants’ argument that the terms *287of Pointer’s employment contract controlled, rather than their fiduciary duty, the Court pointed out that Chokel, on which the defendants relied, involved a company whose stock was publicly traded. Id. at 554.
On the surface, this would seem to suggest that Chokel's reach does not extend beyond public corporations. However, the Blank case, on which Chokel relied for the proposition that shareholder rights arising under contract are not governed by fiduciary principles, did involve a close corporation. Blank, 420 Mass. at 404-05, 408. See Fronk v. Fowler, 456 Mass. at 331-32. There, the Supreme Judicial Court held that the plaintiff shareholder’s termination was authorized by an employment agreement among the shareholders, which permitted the board to terminate the plaintiff without cause upon proper notice, and that the propriety of the events leading to the termination was to be evaluated in terms of the implied covenant of good faith and fair dealing applicable to contracts, rather than the shareholders’ fiduciary duties of good faith and loyalty. Blank, at 407-09. Contrast Pointer, 455 Mass. at 542, 554 (fiduciary principles governed where employment agreement appointing plaintiff as president of close corporation stated that he could be terminated only on certain grounds, e.g., violating the employment agreement, and the evidence supported the judge’s conclusion that the plaintiff had not violated the agreement). These two cases may be reconciled in that fiduciary duties may still govern where shareholders act in a manner inconsistent with the express terms of a shareholder agreement, but that courts will not entertain fiduciary claims where a shareholder’s action falls clearly within the scope of an agreement. See id. at 554 (distinguishing cases concerning terminations that were consistent with applicable employment contracts).
In this case, Article 5 does not impose any explicit restrictions on the sale of stock to third parties once the Board has declined to purchase at the arbitrators’ valuation, and there are no other conditions precedent to such a sale (i.e., termination only upon violation of an employment agreement, as in Pointer) that might call into question the plaintiffs’ compliance with the letter of Article 5.
DSM suggests that, even after Chokel courts must look to the parties’ understanding of their rights and obligations in evaluating their conduct. See O’Brien v. Pearson, 67 Mass.App.Ct. 29, 36 n.10 (2006), rev’d on issue of damages only, 449 Mass. 377 (2007) (“Whether the agreement [to acquire a subdivision] is legally enforceable as an independent contract is not dispositive with respect to an analysis regarding an alleged breach of fiduciary duty. An agreement such as this, a company policy, or an understanding among stockholders may have bearing on the questions whether a duly existed and, if so, whether it was breached. [Citing Chesterton, 128 F.3d at 6-7.] The answers turn, of course, upon the terms of such agreement, policy, or understanding”). DSM argues that all parties understood that the Subchapter S election would survive any stock transfer, and that the plaintiffs “cannot defend a breach of fiduciary duly claim on the basis that [they have] not violated the Articles of Organization." Chesterton, 128 F.3d at 8.
In Sery v. Federal Bus. Ctrs, Inc., 616 F.Sup.2d 496 (D.N.J. 2008), a federal district judge grappled with the interrelationship between a stock transfer provision that imposed no restriction regarding the company’s Subchapter S status and the shareholders’ common-law fiduciary duties of good faith and loyalty. Id. at 501-02. The plaintiffs there argued that the absence of any Subchapter S restrictions on stock transfers gave them unfettered ability to sell their shares in the manner of their choosing. Id. at 501. In attempting to divine what the New Jersey Supreme Court would say on the matter, District Judge Chesler found “no reason why the common law duties of good faith and loyalty cannot complement the statutory provisions governing restrictions on the transferability of S corporation stock.” Id. at 502. He settled for a test that focused on the sellers’ motives, concluding that “the fiduciary duties of good faith and loyalty restrict the sale or transfer of S corporation stock to the extent that these duties bar a shareholder from entering into a bad faith or sham transaction which destroys the corporation’s Subchapter S status for the primary purpose of injuring fellow shareholders.” Id. On the other hand, “where the shareholder sells or transfers their S corporation shares in good faith in an economically reasonable manner, even if that entails a sale to an unqualified entity, [the court] would uphold the sale.” Id.
Significantly, the Sery court was interpreting New Jersey law, and it. was not confronted with a decision from the state’s highest court that unambiguously provides that parties may displace their fiduciary obligations via contract. See Chokel, 449 Mass. at 278. Despite the intuitive appeal of Sery’s “hybrid” approach, this court is not at liberty to fashion a test rooted in fiduciary principles, as the plaintiffs’ ability to transfer their shares plainly falls within the scope of Article 5. See id.
It may well be that, given the opportunity, the Supreme Judicial Court would reject an expansive interpretation of Chokel and adopt the Chesterton view that fiduciary principles attach to the sale of stock pursuant to a contractual provision. There is certainly support for this stance in Smith v. Atlantic Props., Inc., 12 Mass.App.Ct. 201 (1981), and the factual circumstances of Chokel and the cases relying thereon are distinguishable from this case.
In Smith, the defendant shareholder was one of four members holding equal voting shares in the company, and the plaintiff shareholders were the other three members. Id. at 202. The company’s articles of orga*288nization included a provision that required a vote by eighty percent of the voting stock before the company could, among other things, distribute dividends. Id. The effect of this provision was that any one shareholder could veto corporate decisions. Id. Noting that the provision allowed a single minority shareholder to become an “ad hoc controlling interest,” the Appeals Court held that Massachusetts case law appeared to favor a weighing of business interests in determining whether the minority shareholder’s exercise of his rights violated his fiduciary duty. Id. at 207-08. The Appeals Court found guidance in a law review article that stated:
In spite of the . . . imprecision of such criteria for evaluating commercial behavior as good faith, commercial reasonableness, and unconscionability, the courts have moved toward imposing minimum requirements of fair dealing in nonfiduciary business situations. The similarly imprecise concept of fiduciary responsibility, at least as applied to majority shareholders . . . has clearly promoted fair dealing within business enterprises. The majority may not exercise their corporate powers in a manner which is clearly intended to be and is in fact inimical to the corporate interest, or which is intended to deprive the minority of its pro rata share of the present or future gains accruing to the enterprise. A minority shareholder whose conduct is controlling on a particular issue should be bound by no different standard.
Id. at 208 n.9, quoting Hetherington, The Minority’s Duty of Loyally in Close Corporations, 1972 Duke L.J. 921, 946.
Here, as in Smith, the plaintiffs’ unfettered exercise of their freedom under Article 5 would give them ad hoc control over DSM’s tax consequences. See Smith, 12 Mass.App.Ct. at 209. At minimum, Smith suggests that the plaintiffs’ freedom to sell their shares “in any manner [they] may see fit” is circumscribed by the requirement that they exercise their rights under Article 5 in good faith and for a legitimate purpose. See Smith, 12 Mass.App.Ct. at 207-08, citing Wilkes v. Springside Nursing Home, Inc., 370 Mass. 842, 849-52 (1976). See also Blaiklock, Fiduciary Duties Owed by Frozen-Out Minority Shareholders in Close Corporations, 30 Ind.L.R. 763, 772-73 (1997).
Despite compelling support in pre-Chokel cases for application of a fiduciary duty to the plaintiffs’ exercise of their Article 5 rights, this court is reluctant to stray too far from the general rule set forth in Blank, Chokel and their progeny that contract law governs when all stockholders in advance enter into agreements regarding certain rights and obligations. The matter does not end there, however. Even if Chokel tacitly overruled Smith by signaling that the fiduciary duties of utmost good faith and loyalty are not the proper vehicles for limiting a minority shareholder’s ad hoc control over corporate affairs, the law plainly affords aggrieved parties in a close corporation some check on the manner in which shareholders exercise their contractual rights. See Chokel, 449 Mass. at 276 (directors bound to act in accordance with implied covenant of good faith and fair dealing with respect to performance of obligations created in articles of organization); Blank, 420 Mass. at 408-09 (“Because there is a stock purchase agreement, the method of determining the value of the plaintiffs shares on proper termination is not subject to question. A duty of good faith and fair dealing exists during the course of events leading up to and including termination, but that duty is to be evaluated in light of an agreement that permits termination by either parly without cause on notice”). Accordingly, even if the plaintiffs’ rights and obligations were determined solely by reference to contract principles, their sale of stock would still be subject to the covenant of good faith and fair dealing implied in DSM’s Articles of Organization.
The parties did not frame their arguments on the Subchapter S issue in terms of an implied covenant of good faith and fair dealing. To the extent that DSM might argue that the plaintiffs’ sale of shares in a manner destructive to DSM’s interests would breach the covenant of good faith and fair dealing implied in the Articles of Organization, this court notes simply that the implied covenant ensures that parties “remain faithful to the intended and agreed expectations of the contract,” Uno Restaurants, Inc. v. Boston Kenmore Realty Corp., 441 Mass. 376, 385 (2004), and “[a] breach occurs when one party violates the reasonable expectations of the other” (emphasis supplied). Chokel, 449 Mass. at 276. “The covenant does not supply terms that the parties were free to negotiate, but did not, nor does it create rights and duties not otherwise provided for in the contract” (internal quotations and citations omitted). See id. The plaintiffs’ right to dispose of their shares, though not subject to scrutiny under fiduciary principles, is nevertheless circumscribed by the covenant of good faith and fair dealing implied in Article 5. On the limited record before the court, any claim by DSM that the plaintiffs have breached or intend to breach the implied covenant is premature.
In reaching its conclusion, the court has considered DSM’s alternative argument that the 1986 Subchapter S election and the 2002 memorandum of agreement retrospectively confirming the corporation’s Subchap-ter S status for the tax years 1994 to 2000 constituted separate agreements among the shareholders not to terminate DSM’s status. According to DSM, Article 5, when read in conjunction with the parties’ agreement regarding DSM’s Subchapter S status, must be construed in light of the parties’ subsequent agreement not to transfer their stock in a manner that would terminate the Subchapter S status. See Chesterton, 128 F.3d at 6. If the agreement regarding Subchapter S status were independently enforceable, then it would not matter whether, as the plaintiffs contend, Chokel *289trumps Chesterton, because the restriction on the sale of stock so as to destroy DSM’s Subchapter S status would derive not from fiduciary law, but from basic principles of contract interpretation.
As District Judge Chesler noted in Sery, “finding that a shareholder is bound forever by the decision to elect Subchapter S status is a bridge too far.. .” 616 F.Sup.2d at 505. Moreover, the complex procedural history between these parties and how they came to hold their respective shares casts serious doubt on the fairness of binding them in perpetuity for their acquiescence to prior tax elections.5 The fact that the Subchapter S election has generally benefitted the plaintiffs as well as DSM’s majority shareholders may resonate as an equitable consideration, but it is not a persuasive argument in favor of placing artificial restrictions on the alienability of shares under an independent contract theory. Even assuming arguendo that an undercurrent of fiduciary law imbues the parties’ respective rights and obligations even when they are covered by a contract, the present case is sufficiently distinguishable from Chesterton to justify a different result.
In Chesterton, the First Circuit upheld a permanent injunction against a minority shareholder, Chesterton, who had grown frustrated with the company’s direction and devised a scheme to transfer his 27 percent interest to two shell corporations wholly-owned by him, which would have destroyed the company’s Subchapter S status. 128 F.3d at 5. Chesterton was the company’s single largest shareholder and, as an officer and director, had participated heavily in the Subchapter S election process. Id. at 3-4. Although the Articles of Organization gave the company a right of first refusal to purchase Chesterton’s shares, the company lacked the financial ability to do so. Id.
While the First Circuit rejected Chesterton’s argument that he had a “legitimate business purpose” for his scheme based on its interpretation that the test inures only to the benefit of corporations, rather than shareholders,6 it went on to note that Chesterton did not have a legitimate purpose, nor would transferring a portion of his shares to two shell corporations enhance the market for the shares or enable him to achieve complete divestment. Id. at 7-8.
The present case differs in several respects, two of which are particularly significant: (1) there is no evidence here, as in Chesterton, that the plaintiffs plan to transfer their shares for the sole purpose of destroying DSM’s favorable tax status; and (2) DSM chose not to purchase the plaintiffs’ shares, despite having two distinct opportunities to do so—once on the plaintiffs’ terms and once on the arbitrators’ terms. Whereas the balance of equities in Chesterton weighed strongly in favor of prohibiting a spiteful shareholder from harming a close corporation that did not have the financial means to buy out his shares, here there is no indication that DSM lacked the ability to purchase the plaintiffs’ shares at the arbitrators’ valuation, and it has offered no explanation for its decision to forego the purchase. The court infers from the nature of DSM’s requests for declarations that it had strategic reasons for declining to purchase the plaintiffs’ shares through the Article 5 process.
Regardless of DSM’s motives, this court would not have been inclined to follow the result in Chesterton, even if it had concluded that Chokel did not abrogate common-law fiduciary duties in the context of contractual stock transfer provisions. Instead, this court would have declared that the “legitimate business purpose” test applies to the plaintiffs’ exercise of their freedom under Article 5. See note 6, supra.
B. Count III (Right of First Offer)
DSM’s argument that its right of first offer survives in perpetuity upon any change in the price or terms offered to the Board appears to be premised on DSM’s baseless assumption that the plaintiffs may only offer their shares to third parties at the value determined by the arbitrators, and that, if they are unable to secure an outside buyer on those terms, then their “offer” is terminated and the process starts anew. This interpretation is flatly inconsistent with the plain language of Article 5 and, unlike DSM’s claim for a Subchapter S restriction, which at least arguably finds support in the case law and the record of the parties’ dealings, there is nothing before this court to support DSM’s view that its explicit right of first offer is, in effect, a never-ending right of refusal.
If the court were to give effect to DSM’s reading of the right of first offer in Article 5—that, if the Board elects not to purchase at the arbitrators’ price and the plaintiffs elect to sell to a third party at a lower price or on more favorable terms, they must present the terms of this “new offer” to the Board—the result would be to eviscerate the last sentence of the provision, which states that, upon the Board’s election not to purchase, “the owner of the stock shall be at liberty to dispose of the same in the manner he may see fit.” Indeed, under this construction, the shareholder’s reward for reaching the end of the arbitration process, during which the Board has all the leverage in determining whether to purchase the shares, would be to start the process all over again upon the slightest change in the price or terms offered to a third party. Given the animosity between these parties, it is easy to imagine the shenanigans that would ensue if this were the case.
This court will not countenance, an artificial stock transfer restriction that empowers DSM to add new obstacles to the plaintiffs’ divestment of their shares. The Board’s Article 5 protection against unfettered stock transfers and unwanted outsiders is to: (1) purchase the stock at the price and terms that the plaintiffs propose, or (2) purchase the stock at the price set by the arbitrators. This protection is adequate, given the Board’s considerable leverage throughout the process in deciding whether to purchase. If the Board fails to avail itself of its options, *290Article 5 provides no additional recourse to prevent sale of the stock to third parties on more favorable terms and no plausible claim for breach of the implied covenant of good faith and fair dealing exists.
III.Plaintiffs’ Motion to Dismiss Counts II and III of DSM’s Counterclaim for Failure to State a Claim
In view of the court’s disposition of DSM’s cross motion for judgment on the pleadings on its counterclaims, no action is necessary on the plaintiffs’ motion to dismiss Counts II and III.
IV.Plaintiffs’ Motion to Dismiss Count II of Shea, Carleton, and Roazen’s Counterclaim for Lack of Standing or, Alternatively, for Failure to State a Claim
Because Count II of Shea, Carleton, and Roazen’s counterclaim essentially parrots Count I of DSM’s counterclaim, which the court has addressed by way of DSM’s cross motion for judgment on the pleadings, no action is necessary.
V.Darman’s Motion to Dismiss Plaintiffs’ Complaint
Darman moves to dismiss the counts against him pursuant to Mass.R.Civ.P. 12(b)(6) for failure to state a claim. The plaintiffs oppose Darman’s motion as to Counts I, II, and III, but would not object to a determination by this court that, pursuant to Chokel v. Genzyme Corp., 449 Mass. 272, 275-78 (2007), contract law, rather than fiduciaiy law (Count IV), governs the parties’ conduct with respect to Article 5.
The plaintiffs’ contract claims (Counts II and III of their complaint) are based on the Board’s July 14 reservation of a right to challenge the validity of the plaintiffs’ written notice under Article 5.
“Under Massachusetts law, a corporation’s articles of organization form a contract between the corporation and its shareholders.” Chokel, 449 Mass. at 275. The plaintiffs assert no basis for holding Darman individually liable for DSM’s alleged breach of its contractual obligations under Article 5. Accordingly, the court allows Darman’s motion to dismiss as to Counts II (breach of contract) and III (breach of the implied covenant of good faith and fair dealing). With respect to Count IV, the court allows the motion to dismiss on the grounds that contract law, rather than fiduciaiy law, applies. See id.
Darman is also entitled to dismissal of Count I because his individual participation is no longer required to resolve the controversy surrounding the validity of the plaintiffs’ Article 5 notice and the Board’s reservation of the right to contest said notice.
ORDER
For the foregoing reasons, it is hereby ORDERED that Darman’s motion to dismiss (Pleading No. 14) be ALLOWED. It is further DECLARED that:
1. The plaintiffs are not bound by fiduciaiy duties with respect to their disposition of their shares in accordance with Article 5, even if the consequence of such disposition is that it causes DSM to lose its Subchapter S status. However, the plaintiffs must exercise their Article 5 rights in a manner that comports with the implied covenant of good faith and fair dealing.
2. Article 5 does not require the plaintiffs to re-offer their shares to DSM before selling them to third parties on terms more favorable than those set by the designated arbitrators.
“In order to qualify for Subchapter S treatment, a corporation must be a domestic corporation which does not: (1) have more than seventy-five shareholders, (2) have a corporation or other non-individual as a shareholder, (3) have a non-resident alien as a shareholder, and (4) have more than one class of stock. 26 U.S.C. §1361(b). Failure to abide by any of these limitations results in automatic termination of Sub-chapter S status. 26 U.S.C. §1362(d)(2).” Id. at 3.
Chokel has since been addressed and reaffirmed in Fronk v. Fowler, 456 Mass. 317, 331-32 (2010).
In Chesterton, the First Circuit did not quarrel with the district court’s conclusion that “[b]y unanimously electing S status, the shareholders agreed that they would not act in any way that would cause the Company to lose the considerable benefits of S status.” 128 F.3d at 6, quoting A.W. Chesterton Co. v. Chesterton, 951 F.Sup. 291, 295 (D.Mass. 1997).
The plaintiffs represented during the March 11 hearing that, because they had been the victims of a fraud perpetrated by other shareholders in the close corporation during the relevant period, they were not even aware that they owned shares at the time DSM’s purported shareholders unanimously consented to Subchapter S treatment. If this is true, and the court has no reason to doubt that it is, then DSM’s argument that the plaintiffs were parties to a binding Sub-chapter S agreement that modified Article 5 rings especially hollow.
A subsequent First Circuit decision rejected the suggestion that a minority shareholder may never, under the legitimate business purpose test in Donahue (as modified by Wilkes), take its own interest into account in exercising its shareholder rights, calling the argument “both unrealistic and too biased.” Medical Air Tech. Corp. v. Marwan Inv., Inc., 303 F.3d 11, 21 (1st Cir. 2002).
This view comports more closely with the spirit of Donahue, inasmuch as it treats minority and majority shareholders alike regardless of percentages of ownership. Although the “legitimate business purpose” test was fashioned specifically as a check against controlling groups in close corporations, see Wilkes, 370 Mass. at 851-52, the same principles apply where majority shareholders in a close corporation challenge an action by minority shareholders that affects the company’s operations. See Zimmerman v. Bogoff, 402 Mass. 650, 657-58 (1988) (applying legitimate business purpose test to 50 percent shareholder in close corporation and stating that “(t]he protections of Donahue are not limited to those with less than 50% share ownership”). | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3765406/ | {¶ 15} I would also reverse. However, I would reverse on the issue that the court did not seem to consider the fact that one or both of the parties may have been in contempt of the original order for not providing a schedule themselves as the original decree provided. The court jumped to the next step of determining, without journalizing it, that the court's shared parenting time would be the default order.
(Reader, J., retired, of the Fifth District Court of Appeals, sitting by assignment pursuant to, § 6(C), Article IV, Constitution.) | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1238362/ | 569 F.3d 250 (2009)
Zeinab Jamil EL-MOUSSA, Petitioner,
v.
Eric H. HOLDER, JR., Attorney General, Respondent.
No. 08-3982.
United States Court of Appeals, Sixth Circuit.
Argued: April 30, 2009.
Decided and Filed: June 17, 2009.
*251 ARGUED: Frank Gregory Becker, Frank G. Becker & Associates, P.C., Southfield, Michigan, for Petitioner. Susan Bennett Green, U.S. Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Frank Gregory Becker, Frank G. Becker & Associates, P.C., Southfield, Michigan, for Petitioner. Susan Bennett Green, U.S. Department of Justice, Washington, D.C., for Respondent.
Before KENNEDY, GIBBONS, and ROGERS, Circuit Judges.
OPINION
ROGERS, Circuit Judge.
Zeinab El-Moussa petitions for review of a Board of Immigration Appeals decision denying her application for asylum, withholding of removal, and protection under the Convention Against Torture. El-Moussa *252 asserts that her failed marriage to a Lebanese imam, whom she met and married shortly after entering the United States, and her subsequent marriage to a Christian, place her at risk of violence if she returns to Lebanon. The Immigration Judge denied El-Moussa's asylum claim because she did not apply for asylum within one year of entering the United States. Her claim does not fall under one of the exceptions that would give this court jurisdiction to review a denial based on untimeliness. El-Moussa does not qualify for relief on either of her other two claims because the IJ's determination that El-Moussa did not testify credibly is entitled to deference under the standards set forth in the REAL ID Act of 2005.
I.
Zeinab El-Moussa, a native and citizen of Lebanon, entered the United States on September 19, 2001, with a six-month tourist visa. Her stated reason for coming to the United States was to care for her ailing mother, who has resided legally in this country since 1999. El-Moussa received two extensions, which allowed her to stay until March 18, 2003. She did not leave the country when her extended visa expired. Instead, she remained in the United States with no official status. INS served El-Moussa with a Notice to Appear on December 6, 2004. After several initial hearings, El-Moussa appeared before an IJ on November 17, 2005, and filed an application for withholding of removal and protection under the Convention Against Torture. At that hearing, her attorney conceded that El-Moussa was not eligible for asylum because she did not file her application within one year of entering the United States.
El-Moussa explained in her application that, after entering the United States, she married an imam named Haydar Jawad. This marriage, which took place under Islamic law and has since been terminated under the same law, never became official under U.S. law because Jawad was already married to another woman. El-Moussa listed various ways that her ex-husband had abused her, including giving her drugs to cause her to miscarry, threatening to have her killed if she returned to Lebanon, threatening to have her deported, taking away her passport, and beating her. She stated in her application that she feared returning to Lebanon because Jawad, who was a member of Hezbollah and a man of standing in the Lebanese community, could easily have her killed there.
The merits hearing was scheduled for March 7, 2007, more than fifteen months later. In the meantime, on February 19, 2007, El-Moussa filed an addendum to her application, stating that changed circumstances both in Lebanon and in her personal situation made her eligible for asylum. With regard to her personal situation, she reported that since the time of her divorce from Jawad, she had married a Christian man and given birth to two children. According to El-Moussa, her marriage was a violation of Islamic law and placed her life in danger should she return to Lebanon. El-Moussa's testimony at the hearing ultimately led the IJ to conclude that El-Moussa's account lacked credibility and that El-Moussa's fear of persecution was based on her deteriorated relationship with her ex-husband rather than on a protected ground. At the hearing, El-Moussa testified about several instances of abuse. She recounted a time when her husband came to the Arabic school where she taught and dragged her out of the classroom by her hair. El-Moussa also submitted a letter from a co-worker who recounted learning about the incident from El-Moussa's students, looking for El-Moussa, and not finding *253 her. El-Moussa testified in contrast that the co-worker did find her after the beating and brought her back into a classroom to comfort her. El-Moussa acknowledged that her co-worker's account differed from her own, and said that fear prevented her co-worker from testifying at the hearing.
El-Moussa also testified that at the time of this beating she was six weeks pregnant. Later on the day of the beating, her husband gave her some medicine for abdominal pain resulting from the beating. The medicine caused her to start bleeding. After the bleeding continued for nine days, El-Moussa's husband took her to a clinic. El-Moussa testified that the nurse told her that, because of all the bleeding, the child could not be brought to term. Instead, El-Moussa received an abortion. In apparent contradiction to El-Moussa's testimony, her medical records reflect a normal pregnancy and an elective abortion.
El-Moussa also testified about a civil lawsuit she pursued and won against Jawad. The first time she mentioned the lawsuit was in the context of the poisoning/abortion account, and the implication was that the suit somehow arose from that incident. El-Moussa later gave more details about the lawsuit, saying that she was awarded $4,900 that Jawad had stolen from her. The pleadings that El-Moussa filed in the civil lawsuit indicate that Jawad induced her to marry him by promising to sponsor her for citizenship and to provide a home for her. After the marriage, he asked her to give him $4,800 to rent a house, and she gave him the money. Jawad did not keep either promise. Instead he abused and threatened El-Moussa. The pleadings do not mention the poisoning/abortion incident. El-Moussa won a $4,900 judgment against Jawad. Based on the documents from her civil case and El-Moussa's initial reticence to discuss the fact that the lawsuit was about money, the IJ concluded that El-Moussa's marriage to Jawad had primarily been for the purpose of obtaining citizenship.
After divorcing Jawad, El-Moussa met and married Wisam Halia, a native Iraqi and naturalized U.S. citizen. Halia is a Christian; however, he and El-Moussa married under Islamic law. Like El-Moussa's previous marriage, this marriage is also unofficial because Wisam's divorce from another woman has been pending for three years. While El-Moussa explained that the initial delay in finalizing the divorce occurred because Halia left the country to serve as a contractor with the U.S. military, she was unable to explain why the divorce had not been finalized in the year and a half since Halia's return. El-Moussa testified that she has since given birth to twins, the children of Halia. She did not present official birth certificates for these children, although she did present documents issued by the hospital.
El-Moussa testified that she fears reprisal in her own country because of Jawad's connections to Hezbollah and because she married and bore children to a Christian man. She testified that Jawad had told others of his intent to harm her if she returned to Lebanon, but that she believed she would be safe in the U.S. because of the rule of law. She also testified that she fears Hezbollah will issue a fatwa against her because she has breached Islamic tradition by marrying a Christian man. When specifically asked on cross-examination, she testified that her siblings in Lebanon had warned her that people were looking for her in Lebanon.
At the conclusion of the testimony, the IJ dismissed the translator, after asking whether there was any objection, and hearing none. The IJ then heard closing arguments and discussed procedural matters with El-Moussa's attorney. Near the conclusion of El-Moussa's closing argument, *254 the IJ asked the attorney to provide official versions of various documents. Six weeks later, having received no additional documents, the IJ issued his decision. The opinion was issued on April 19, 2007.
The IJ denied all relief. Several grounds supported the denial of asylum and withholding of removal. First, the IJ barred El-Moussa's asylum application as untimely. The IJ found that no extraordinary circumstances excused the late filing. He also found that general unrest in Lebanon and El-Moussa's remarriage did not constitute changed circumstances, because neither circumstance materially affected her eligibility for asylum. Further, the IJ found that El-Moussa's account was not credible. In addition to noting the inconsistencies stated above, the IJ also noted that El-Moussa testified that she had not seen Jawad since her divorce, while her current husband testified that she had seen Jawad at his deposition for her civil suit. The IJ also noted that El-Moussa did not say anything about a warning from her siblings either in her asylum application or on direct examination, but claimed for the first time on cross-examination that her siblings told her that people were looking for her in Lebanon. Furthermore, El-Moussa failed to submit reasonably available corroborating evidence, such as birth certificates for her children.
Six days after the opinion was issued, El-Moussa filed additional evidence and a motion to reopen. The IJ issued an order denying the motion. The IJ noted that, although the court had agreed to consider additional evidence, it had not given the petitioner any date certain before which the opinion would not issue. The IJ therefore denied the motion without considering the new evidence. However, the IJ went on to state that the new evidence, even if considered, did not overcome El-Moussa's general lack of credibility or the court's conclusions that any harm she feared was not due to a protected ground.
El Moussa appealed the denial of her claim to the Board. She also asserted bias by the IJ, error in the allegedly premature dismissal of the translator, and prejudice-causing errors in translation and transcription. The Board affirmed the IJ's decision in its entirety, noting that the record supported the IJ's adverse credibility finding. Further, the Board found no evidence that the IJ was biased or that the IJ erred by dismissing the translator at the end of the testimony. The Board also determined that the transcript remained understandable despite minor errors identified by El-Moussa. The Board concluded that any translation errors had been adequately addressed on the record as they arose. Finally, the Board affirmed the denial of the motion to reopen, concluding that the IJ did not err by issuing the opinion before the supplemental evidence arrived. The Board noted that El-Moussa was not prejudiced by the denial, as the evidence she submitted would not have overcome the adverse credibility determination.
II.
As an initial matter, this court does not have jurisdiction to review the IJ's decision that El-Moussa's asylum application was untimely and that no changed circumstances materially affecting her application have occurred. An alien who, like El-Moussa, fails to file a timely application may still qualify for asylum if she demonstrates "the existence of changed circumstances which materially affect [her] eligibility for asylum"; however, the effectiveness of this demonstration is within the discretion of the administrator and is not subject to review by this court. 8 U.S.C. § 1158(a)(2)(D), (3). The IJ rejected El-Moussa's claim of changed circumstances for several reasons. First, the IJ noted *255 that the circumstance giving rise to El-Moussa's claim for protection was her divorce from Jawad and that she did not demonstrate that she filed her application within a reasonable time after her divorce, as 8 C.F.R. § 1208.4(a)(4)(ii) requires her to do. The IJ also held that general unrest in Lebanon, El-Moussa's remarriage, and the birth of her children did not constitute changed circumstances because they did not materially affect her eligibility for asylum. The Board affirmed these conclusions.
Although this court has jurisdiction to review untimeliness decisions where the petitioner raises constitutional claims or matters of statutory construction, it does not have jurisdiction to review claims like El-Moussa's that raise discretionary or factual questions. Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir.2006). Although El-Moussa purports to raise "due process" issues, her claim that changed circumstances in her personal situation make her eligible to apply for asylum and that the IJ failed to properly evaluate her situation is factual, not constitutional, for purposes of the statutory preclusion of review. El-Moussa does not overcome the limits on this court's jurisdiction merely by adverting to "due process."
III.
With respect to El-Moussa's other claims, affirmance is required because of the deference we owe to the IJ and the Board on the issue of credibility. El-Moussa cannot demonstrate entitlement to withholding of removal or protection under the torture convention because the evidence in this case does not compel reversal of the IJ's adverse credibility determination. The IJ identified six areas where El-Moussa's testimony was inconsistent with either her asylum application, other documentary evidence in the record, or other testimony. Although not every inconsistency identified by the IJ is beyond debate, substantial evidence supports the IJ's findings. For instance, El-Moussa's testimony that she went to the clinic because of persistent bleeding is inconsistent with the record of her pre-operative examination, which reflects no abnormal bleeding or discharge. Likewise, while the IJ could have regarded the conflicts between El-Moussa's account of the school beating and her co-worker's account as mere differences in memory, the evidence does not compel such a conclusion.
Another circumstance that raised the IJ's suspicions about the credibility of the entire application was the civil lawsuit El-Moussa filed against Jawad. El-Moussa initially indicated that the lawsuit concerned Jawad's physically abusive behavior. She later elaborated that the lawsuit had to do with money he had taken from her. However, the record of that lawsuit indicates that the lawsuit was partially motivated by Jawad's failure to follow through on a promise to help El-Moussa obtain citizenship. The IJ therefore found, contrary to El-Moussa's testimony at the immigration hearing, that El-Moussa entered into the marriage with Jawad for the purpose of obtaining citizenship. The facts do not compel a contrary conclusion.
Because the Board adopted the IJ's decision in full before adding brief additional analysis, we review the IJ's decision directly while also considering the Board's additional analysis. Gilaj v. Gonzales, 408 F.3d 275, 282-83 (6th Cir.2005). The IJ denied relief and the BIA upheld the decision based on the IJ's finding that El-Moussa did not testify credibly. We review the IJ's credibility determination under the deferential "substantial evidence" standard. Yu v. Ashcroft, 364 F.3d 700, 703 (6th Cir.2004). An administrative *256 finding of fact, such as the adverse credibility determination here, is "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." See 8 U.S.C. § 1252(b)(4)(A), (B). Moreover, "a decision that an alien is not eligible for admission to the United States is conclusive unless manifestly contrary to law." Id. § 1252(b)(4)(C). While the IJ's adverse credibility determination can be questioned in some respects, the substantial evidence supporting the IJ's finding calls for denial of this petition.
This case appears to be one of the first in which the stricter review provided by the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 302, applies to credibility determinations. The credibility standards of the Act apply to applications for asylum, withholding of removal, or other relief from removal filed on or after May 11, 2005. Id. at § 101(h)(2), 119 Stat. at 305. Under the previous law of this circuit, an IJ could base an adverse credibility determination only on "issues that [went] to the heart of the applicant's claim" and not on "irrelevant inconsistencies" or inconsistencies that could not be viewed "as attempts by the applicant to enhance his claims of persecution." Sylla v. I.N.S., 388 F.3d 924, 926 (6th Cir.2004) (quotations and citations omitted). Under the REAL ID Act, credibility determinations are based on the "totality of the circumstances" and take into account "all relevant factors." 8 U.S.C. § 1158(b)(1)(B)(iii). These factors include:
the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant's or witness's account, the consistency between the applicant's or witness's written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor.
Id. (emphasis supplied) (asylum). The same credibility standard applies to claims for asylum, withholding of removal, and for relief under the torture convention. See 8 U.S.C. § 1229a(c)(4)(C) (applying identical language to proceedings for relief from removal).
Under this new standard, the IJ's adverse credibility determination would stand even if this court would come to a different conclusion under prior law. Congress doubtless has power to narrow our review this way. The IJ made several findings that El-Moussa's testimony contradicted her written application or the testimony of her corroborating witnesses. These findings, which are supported by the record, entitle the IJ's overall adverse credibility determination to deference, regardless of whether the inconsistencies bear on the heart of El-Moussa's claim. This interpretation of the REAL ID Act's credibility standard is consistent with that of five other circuits that have considered the new standard in published opinions. See Wang v. Holder, ___ F.3d ___, ___, 2009 WL 1519805, at *5-7 (5th Cir.2009); Krishnapillai v. Holder, 563 F.3d 606, 616-17 (7th Cir.2009); Qun Lin v. Mukasey, 521 F.3d 22, 26-27 (1st Cir.2008); Lin v. Mukasey, 534 F.3d 162, 165-68 (2nd Cir.2008); Chen v. U.S. Attorney General, 463 F.3d 1228, 1231-33 (11th Cir.2006).
The IJ's adverse credibility finding is fatal to all three of El-Moussa's claims for relief. El-Moussa's argument that the Government did not present evidence to *257 refute her claims of persecution reveals a fundamental misunderstanding of the nature of the relief she seeks. Applicants for asylum, withholding of removal, and protection under the torture convention have an affirmative duty to demonstrate entitlement to each form of relief. An IJ need not credit an applicant's testimony or supporting evidence even in the absence of refutation. For each claim here, El-Moussa bore a burden of proof that she could not meet unless the court credited her testimony. The adverse credibility finding thus provides an alternative ground for upholding the denial of asylum and a primary ground for denying the other claims. To establish eligibility for asylum, El-Moussa needed to demonstrate a well-founded fear of future persecution. Gilaj, 408 F.3d at 283. The standard to qualify for withholding of removal is even higher, requiring El-Moussa to demonstrate a clear probability that she would more likely than not be subject to persecution if she returned to Lebanon. Almuhtaseb, 453 F.3d at 749. Protection under the torture convention is only available to an alien who establishes that "it is more likely than not that he or she would be tortured if removed to the proposed country of removal." 8 C.F.R. § 208.16(c)(2). The IJ's finding that El-Moussa did not testify credibly precludes her from meeting any of these burdens of proof.
IV.
The Board correctly held that the IJ did not demonstrate bias against El-Moussa, that the IJ did not commit reversible error by dismissing the translator at the end of the testimony, and that El-Moussa was not prejudiced by any errors in translation or transcription. El-Moussa's claim of bias appears to stem from her misunderstanding of the burden of proof that she faced at her removal hearing. For instance, she objects to the IJ's decision not to credit her testimony and the testimony of her corroborating witnesses, given that the Government did not present contrary evidence. She also accuses the IJ of attempting to subvert reality because he did not accept facts, such as the existence of her two children, for which she failed to submit verified documentation. Because El-Moussa bore the burden of proof to establish her entitlement to each form of relief she sought, the Government was not required to present evidence, nor was the IJ required to give El-Moussa the benefit of the doubt.
With regard to the dismissal of the translator, El-Moussa's attorney consented to the dismissal and the only question which arose after the dismissal that might have called for translation was resolved through documentary evidence. That issue was whether El-Moussa had been fingerprinted, and El-Moussa's attorney quickly located a record that resolved the issue.
El-Moussa has not effectively argued the presence of defects in the transcript of her removal hearing. El-Moussa fails to tell this court what the defects were, to explain or document her arguments to the Board on this matter, or to say why the Board's determination was incorrect. "Issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument in [a] skeletal way, leaving the court to put flesh on its bones." McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir.1997) (quotation and alterations thereto omitted).
V.
For the foregoing reasons, the petition for relief is DENIED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2227942/ | 904 N.E.2d 1246 (2005)
359 Ill. App.3d 1208
McCARTY
v.
UTZ.
No. 3-04-0787.
Appellate Court of Illinois, Third District.
August 2, 2005.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610044/ | 467 P.2d 475 (1970)
Dorothy Elaine ALBRIGHT, Executrix of the Estate of Peter Joseph Jeplawy, Deceased, Plaintiff in Error,
v.
Elaine MILLER, Marylin Rivera and Geraldine Potchern, Defendants in Error.
No. 42410.
Supreme Court of Oklahoma.
March 24, 1970.
John M. Lawrence, Tom J. Lee, Oklahoma City, for plaintiff in error.
Charles Hill Johns, James F. Howell, Toney M. Webber, Midwest City, for defendants in error.
IRWIN, Chief Justice.
This case involves a will contest. The testator, Peter Joseph Jeplawy, and his first wife were divorced in 1937, after three daughters were born to this marriage, Elaine Miller, Marylin Rivera and Geraldine Potchern (contestants and defendants in error). He remarried and his second wife died in 1960. He executed the will in question on May 3, 1966, entered the hospital on June 7, 1966 and died July 4, 1966.
*476 In this will he left $10.00 to each of his three daughters and left the remainder of his estate to a friend, Dorothy E. Albright, (proponent). His estate primarily consisted of two residential homes in Oklahoma City. He occupied one and proponent rented the other.
The county court sustained the will. Contestants appealed to the district court alleging undue influence, fraud and lack of testamentary capacity. The district court sustained a demurrer on the issues of fraud and undue influence but reversed the county court upon the grounds that testator, on the day he executed his will, did not have sufficient mental capacity to make, execute and publish a will and testament, and on said date did not possess sufficient mental capacity to know the extent of his property and the natural objects of his bounty. From the order overruling proponent's motion for a new trial this appeal was perfected.
Proponent contends that the judgment of the trial court is against the clear weight of the evidence and is not supported by law.
The record reflects that testator was a printer and had been employed by a local firm for about 16 years; that testator consumed wine and beer consistently during the last 15 years of his life and his drinking increased in 1965; that about the middle of March 1966, testator stopped going to work and his job was terminated about the middle of April 1966; that during this time and thereafter his drinking increased and his intake of food was reduced to an extreme minimum; and that his mind would wander from one subject to another and his answers were unrelated to the questions.
The contestants submitted the testimony of their doctors. Dr. P, who is the husband of one of the contestants, testified he was aware of testator's drinking problem during the last 15 years and had examined him in December of 1965; that his diagnosis at that time was alcoholic cirrhosis and/or organic brain disease, hepatic encephalopathy or liver disease affecting the brain; that the disease was due to alcoholic ingestion of alcohol associated with inadequate ingestion of food and the liver could not properly perform its function; that at that time testator's disease had progressed to such an extent you couldn't effect a cure and irreversible brain damage had already been done; that he advised testator if he did not seek medical help he would not live more than six months; and that by May 3, 1966, testator did not have sufficient mental capacity to properly comprehend most anything.
Dr. J, who was disinterested in the matter and had experience with this type problem, was testator's attending physician when he entered the hospital where various tests were conducted. He testified that he diagnosed testator's condition as acute decompensation of the liver with manifestations of very severe alterations in mental processes usual to this disorder together with chemical poisoning of the kidneys as a result of the liver disorder; that he would only casually consider the possibility that the duration of the disease had been less than a year; that on May 3, 1966, testator did not have the mental capacity to know and understand the extent of his property and the natural objects of his bounty and testator was totally incompetent to know and understand such concepts; and by an understanding of the natural course of the disease he would have predicted testator had long periods of time when his judgment was grossly faulty for as long as five or six years at least.
On cross-examination of Dr. J, it was brought out that testator made the monthly payments on his real property; that he paid his automobile payments; that he sent a monthly check to Michigan to pay his mother's telephone bill and had given her a Mother's Day present; and remembered each of his daughters on their birthdays. Dr. J was asked if these would be the acts of a man who did not know the consequences of his actions. Dr. J responded, "It could be, yes, sir." Later *477 on Dr. J was asked if there would be any period of time during the year preceding testator's death in which testator could be considered competent or able to understand the consequences of his acts and Dr. J replied, "Your Honor, I am not trying to evade the question sincerely here again, we are talking about the consequences of his acts. Now, from the standpoint of being lucid, this man or a man any person with this illness may be lucid enough to identify an individual; maybe lucid enough to discharge a regular, ordinary responsibility and may appear to be competent to make decisions of judgment, but in my opinion in relationship to this man and his illness, he was unable to make decisions concerning judgment on a sound, relevant basis for months prior to the time I saw him."
The trial court asked Dr. J this question: "Within this year, would there have been any time that he would have a lucid period when he would have known the consequences of his acts?" Dr. J answered, "In my opinion, no, sir."
Dr. N, who was also disinterested in the matter, performed an autopsy on testator which supported the previous diagnosis. He testified that based on findings and experience, the testator had severe, irreversible grave organic disease of the brain at least 6 months prior to death; that on May 3, 1966, testator did not have enough understanding to know the extent of his property and the natural objects of his bounty; and that testator could conduct simple acts but not conduct very complicated transactions.
The evidence submitted by proponent relating to the execution of this will reflects substantially the following: that testator contacted the attorney who prepared the will and appeared at the appointed time; that they talked for an hour or more about testator's assets, relatives and various other pertinent subjects; and that when the will was executed testator was sober. Another attorney was a witness to this will and he described the execution thereof. He testified that after the will was duly executed he and testator visited about 35 to 45 minutes; that they discussed each others dogs and the testator recalled an incident when this witness previously had some printing done by testator's former employer; and that testator was perfectly sober and knew what he was doing and the disposition he was making of his property.
Proponent also introduced evidence that testator had always paid his regular monthly bills without assistance; that he always remembered Mother's Day and the birthdays of his children; and that one of the contestants wanted him to convert an insurance policy to her benefit and testator told her he would if she would pay the premiums. Proponent also had a Dr. P testifying in her behalf.
Proponent's evidence disclosed that the primary beneficiary (proponent) under the will had prepared meals for testator and had purchased his groceries and did other things for the comfort of testator.
Proof of testamentary capacity of a testator is not necessarily confined to the exact time of the execution of the will, but the court may consider such evidence of the testator's mental status, together with his appearance, conduct, acts, habits and conversation, both before and after the execution of the will, as would tend to show his mental condition at the time of the execution of the will. Brummett v. King, 207 Okl. 607, 251 P.2d 1062. Where in a will contest, the testator was shown by a preponderance of the evidence to be a chronic alcoholic and from the evidence bearing upon the subject there was ground for a reasonable difference of opinion as to the soundness of his mind for testamentary purposes, the trial court's judgment of the will's invalidity on account of testamentary incapacity was not clearly against the weight of the evidence; and this Court will not reverse a judgment of the trial court in refusing to admit a will to probate unless the judgment is clearly against the weight of the evidence. Duckwall *478 v. Lawson, 197 Okl. 472, 172 P.2d 415.
The trial court determined that testator did not have the testamentary capacity to make a will and rendered judgment denying admission of the will to probate. It is evident from the trial court's findings that it placed a strong reliance on contestants' medical testimony. The trial court found that the doctor who testified on behalf of the proponent of the will "apparently was not positive at all in his testimony * * * but there isn't any escaping the contestants' medical testimony. It's so conclusive. * * *."
Although the evidence may disclose that on the day testator executed his will he appeared perfectly sober, was able to carry on a conversation and had been discharging his ordinary responsibilities; there is medical evidence that testator's physical and mental condition was such that testator's judgment was grossly faulty; that he was unable to make decisions concerning judgment for several months prior to the time he executed his will; and that testator did not have the mental capacity to know and understand the extent of his property and objects of his bounty and was totally incompetent to know and understand such concepts several months prior to and on the day he made his will.
We have carefully examined the record and can only conclude that the trial court's judgment that testator, on the day he executed his will, did not have sufficient mental capacity to make, execute and publish a will and testament, and on said date did not possess sufficient mental capacity to know the extent of his property and the natural objects of his bounty, is not against the clear weight of the evidence.
Judgment affirmed.
DAVISON, WILLIAMS, JACKSON, HODGES, LAVENDER and McINERNEY, JJ., concur.
BERRY, V.C.J., concurs in results. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610045/ | 467 P.2d 437 (1970)
Ralph OLSON, Respondent,
v.
John Wallace ROOP and Lois B. Roop, Husband and Wife, and Pansy L. Roop, Appellants.
Supreme Court of Oregon, In Banc.
Argued and Submitted October 9, 1969.
Decided April 8, 1970.
Norma Paulus, Salem, argued the cause for appellants. With her on the briefs was William M. Gehlen, Stayton.
Dale Pierson, Salem, argued the cause and filed a brief for respondent.
Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN,[*] DENECKE and HOLMAN, JJ.
*438 HOLMAN, Justice.
This was a suit by a builder to foreclose a mechanic's lien arising out of labor and materials furnished for the construction of a house for defendants. The trial court denied the lien but entered a judgment for plaintiff for certain specified items for which the court found that no payment had been made. Defendants appeal upon the ground that the lien was not valid and, therefore, no authority remained pursuant to which a court of equity could give legal relief in the form of a money judgment.
Plaintiff does not contest the court's ruling concerning the inadequacy of his lien, nor do defendants contend there was insufficient evidence to sustain the judgment. The only question is whether, when the lien failed, equity retained authority to determine the legal issues and to enter a judgment.
The law in this state concerning the authority of a court of equity in such circumstances was, for many years, in a condition of considerable confusion. Without attempting to enumerate all of the many cases bearing upon the subject, it can be said as a general rule that equitable rights must be both averred and proved before purely legal rights will be determined by a court of equity. Walker v. Mackey et al., 197 Or. 197, 211, 251 P.2d 118, 253 P.2d 280 (1953); Ward v. Town Tavern et al., 191 Or. 1, 38-39, 228 P.2d 216, 42 A.L.R. 2d 662 (1951); Oregon Growers' Co-op. Ass'n v. Riddle, 116 Or. 562, 569, 241 P. 1011 (1926). It has also been recognized in many cases that a party may waive the equity court's lack of authority and submit himself to a determination of the legal issues by the equity court. After all, the only material difference is whether a jury or a judge decides the facts because the same person is the judge, whether at law or at equity. A party may certainly waive a jury.
The dispute in the past has arisen principally over what constitutes a waiver of the court's lack of authority. This court has held many times that asking for affirmative relief and proceeding to try the issues without any objection constituted a sufficient waiver by a defendant. Ward v. Town Tavern et al., supra, 191 Or. at 40, 228 P.2d 216; Oldenburg v. Claggett, 142 Or. 238, 241-242, 20 P.2d 234 (1933); Hansen v. Bogan, 127 Or. 399, 403, 272 P. 668 (1928). However, in Winkleman v. Oregon-Washington Plywood Co., 240 Or. 1, 10, 399 P.2d 402 (1965), we, finally, clearly held that a jury trial is waived by defendant's failure, at the completion of plaintiff's case in chief, to request that the case be transferred to the law side of the court for a jury trial. See also Ward v. Town Tavern et al., supra, 191 Or. at 38, 228 P.2d 216 and Topolos v. Skotheim et al., 126 Or. 683, 693, 250 P. 235, 270 P. 753 (1928). We believe this rule to be an eminently fair one, which adequately protects the right of a jury trial and at the same time avoids repetitious trials resulting from a change of heart after an adverse result is known.
We must now determine whether defendants adequately protected their right to a jury trial under the above rule. At the completion of plaintiff's case, defendants made the following motion:
"* * * And upon the plaintiff now resting his case, the defendants, Mr. and Mrs. Roop, would move the court for an involuntary nonsuit on the basis and on the ground that the lien and the items mentioned on it, first were erroneous, and in at least four instances on this list were items which had been fully paid and paid by the person against whom the lien was sought. There is no dispute in the evidence that the plaintiff here did not complete the contract, but there is a contention made, a very vague contention made as to certain extras that were supposed to have been over and above the contract. The plaintiff is quick to state that he did not complete the terms of the contract, but that these matters in this proceeding here are extras over and above it.
*439 "Now, Your Honor, so we start with this premise (1) that the involuntary nonsuit I am going to ask for it on three grounds. No. 1, that the matters for which the plaintiff is claiming this lien, this lien foreclosure, are wrong, voidable, vague, and were and are wrong. (2) That the items that are mentioned in the lien foreclosure arise out of a contract, supposed contract, which was never completed by the plaintiff, and further that the plaintiff allowed a mechanic's lien or labor lien to be applied or filed against this same job, which he did not finish.
"I thing the law is clear that where a person, and also on the third ground, there has been an intentional misstating of the money or the moneys due, even under these items which I contend were extras, and I call it to the court's attention because I feel that the window casings and surrounds, and the matter relating to the shower, and the matter relating to the building, and, certainly, to the matter relating to the labor lien, which was subsequently paid, were There was ample time for them to be corrected, and I think the fact he didn't complete the contract on the second time and allowed this lien to be filed, the law is clear that this defeats them, and also the fact that the items claimed are so vague and so meticulously put down, I don't think the lien will stand. For that reason I move for an involuntary nonsuit."
We see nothing in defendants' motion which apprises the trial court that defendants were objecting to the court's authority to determine all issues because of the lack of equitable cognizance and a jury trial. One of the issues under the pleadings was whether defendants were indebted to plaintiff. After the motion was denied, defendants proceeded to submit their evidence on the issues without further objection. The following language from Ward v. Town Tavern et al., supra, is particularly appropriate:
"* * * Notwithstanding the fact that the defendant's motion deemed the lien invalid, it did not ask that the cause be transferred to the law side of the court and that it be tried from there on as a law action. We add that after defendant had become satisfied from the evidence that the lien was invalid, it did not object to the jurisdiction of equity over the remaining phases of the controversy." 191 Or. at 38, 228 P.2d at 231-232.
It should be recognized, of course, that there is no such thing as a motion for an involuntary nonsuit in an equity case. Also, pursuant to ORS 16.460(3), the motion should have been to transfer the case to the law side of the court rather than one to dismiss.
We hold that the defendants waived the lack of equitable cognizance and a jury trial. The judgment of the trial court is affirmed.
NOTES
[*] GOODWIN, J., resigned December 19, 1969. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610046/ | 467 P.2d 986 (1970)
81 N.M. 414
KAISER STEEL CORPORATION, a Corporation, Plaintiff-Appellee,
v.
W.S. RANCH COMPANY, a Corporation, Defendant-Appellant.
No. 8842.
Supreme Court of New Mexico.
March 16, 1970.
Rehearing Denied April 29, 1970.
Montgomery, Federici, Andrews, Hannahs & Morris, Seth D. Montgomery, Santa Fe, Robertson & Robertson, Raton, for appellant.
*987 Modrall, Seymour, Sperling, Roehl & Harris, Albuquerque, Wright & Kastler, Raton, for appellee.
OPINION
MOISE, Chief Justice.
In this case, involving a simple but interesting fact situation we are called upon to answer two legal problems of first impression in this jurisdiction. These are: (1) Is § 75-1-3, N.M.S.A. 1953, constitutional as applied to the parties and facts in this case? (2) Is inverse condemnation the exclusive remedy available to defendant-appellant, hereinafter referred to as "Ranch"?
Plaintiff-appellee, hereinafter referred to as "Kaiser," owns a tract of land located some distance from the Vermejo River in Colfax County, New Mexico, which tract is completely surrounded by lands owned by Ranch. Kaiser also owns certain water rights in the river, which it is entitled to use for industrial purposes. See W.S. Ranch Company v. Kaiser Steel Corporation, 79 N.M. 65, 439 P.2d 714 (1968), where certain of the rights of the parties to the water were litigated.
In order for Kaiser to use the water in a coal mine being developed by it, the water had to be made available on its land. This was accomplished in 1966 by the simple expedient of Kaiser sending its employees onto the lands of Ranch, drilling some holes or wells in the stream bed, and laying a pipeline from the river source across the lands of Ranch to the coal property of Kaiser, all without seeking permission of Ranch, or undertaking to condemn under § 75-1-3, supra. This action by Kaiser was followed promptly by the filing of an action in the United States District Court, based on diversity of citizenship, wherein an injunction against further trespasses was sought, as well as compensatory and punitive damages for the past trespasses.
After the hearing, the complaint of Ranch was dismissed for failure to state a claim on which relief could be granted. On appeal, the decision of the District Court was reversed. W.S. Ranch Company v. Kaiser Steel Corporation, 388 F.2d 257 (10th Cir.1967). Thereafter, Kaiser filed a petition for rehearing and a motion for a stay pending determination of the issues presented in a declaratory judgment action instituted by Kaiser that day in the District Court of Colfax County. Both requests were denied. On certiorari the United States Supreme Court, in a per curiam opinion, reversed the holding denying the stay, and remanded the case with directions that a stay be granted pending determination of the issues raised in the declaratory judgment action filed as set out above. Kaiser Steel Corporation v. W.S. Ranch Company, 391 U.S. 593, 88 S. Ct. 1753, 20 L. Ed. 2d 835 (1968).
After issue was joined in the declaratory judgment action, Ranch filed a motion for judgment on the pleadings and Kaiser asked for summary judgment. The trial court granted summary judgment to Kaiser, and made the following determinations:
"2. The Court hereby declares that Kaiser Steel Corporation, a corporation, has, under § 75-1-3, New Mexico Statutes Annotated, 1953 Compilation, which statute is constitutional under the Constitution of the State of New Mexico, the power of eminent domain for the purpose of entry upon, and use of, the lands more particularly described in the Amended Complaint on file herein for the purpose of diversion and transportation of its recognized water rights to its York Canyon Mine and processing facilities; and
"3. That the exclusive remedy of the Defendant, W.S. Ranch Company, for the existing entry upon and use of said lands described in the Amended Complaint for the said water distribution purpose is that of `inverse condemnation' as set forth under Section 22-9-22, New Mexico Statutes Annotated, 1953 Compilation, as Amended."
We here consider whether the court ruled correctly on these two issues.
We restate the first question which we are called on to determine as follows: Does *988 the New Mexico Constitution permit a taking of private property by a person, firm or corporation, for the conveyance of water for use in an industrial endeavor, specifically coal mining? Refining the issue further, it becomes one of whether the question of public use turns on the ultimate purpose for which the property was taken, or on the nature of the product (water) involved.
Section 75-1-3, supra, reads as follows:
"The United States, the state of New Mexico, or any person, firm, association or corporation, may exercise the right of eminent domain, to take and acquire land right of way for the construction, maintenance and operation of reservoirs, canals, ditches, flumes, aqueducts, pipelines or other works for the storage or conveyance of water for beneficial uses, including the right to enlarge existing structures, and to use the same in common with the former owner; any such right of way for canal, ditch, pipeline, or other means for the conveyance of water shall in all cases be so located as to do the least damage to private or public property consistent with proper use and economical construction. Such land and right of way shall be acquired in the manner provided by law for the condemnation and taking of private property in the state of New Mexico for railroad, telegraph, telephone and other public uses and purposes. The engineers and surveyors of the United States, the state and of any person, firm or corporation shall have the right to enter upon the lands and waters of the state and of private persons and of private and public corporations, for the purpose of making hydrographic surveys and examinations and surveys necessary for selecting and locating suitable sites and routes for reservoirs, canals, pipelines and other waterworks, subject to responsibility for any damage done to such property, in making such surveys."
The statute clearly provides a right in "any person, firm, association or corporation" to condemn land right of way for "construction, maintenance and operation" of "canals, ditches, * * * pipelines or other works for the storage or conveyance of water for beneficial uses, * * *."
It is the position of Ranch that if § 75-1-3, supra, is read to permit a taking for any "beneficial use" it necessarily conflicts with the New Mexico Constitution, Art. II, § 20, which reads in its entirety, "Private property shall not be taken or damaged for public use without just compensation."
At the outset, there can be no question under our Constitution that the taking or damaging of private property through eminent domain is permitted for none other than a public use. Threlkeld v. Third Judicial District Court, 36 N.M. 350, 15 P.2d 671, 86 A.L.R. 547 (1932). However, with this statement our problem is not answered; as a matter of fact, it only commences. What is meant by the term "public use"? When we can arrive at a definition, we will be approaching the answer to Ranch's contention that there was no element of public use present in Kaiser's entry upon Ranch's land for the purpose of laying pipelines to convey water to its coal mine. This latter statement has a measure of support in this state in our holding in Gallup American Coal Co. v. Gallup Southwestern Coal Co., 39 N.M. 344, 47 P.2d 414 (1935).
In the Gallup case, this Court considered the meaning of "public use" as applied to the coal mining industry. We weighed the so-called "liberal" approach to the definition of "public use," as opposed to one described as "orthodox," and, for a second time (the first being in Threlkeld, supra), refused to embrace either one fully. While expressing some concern that upon departing "from the `orthodox' view, we shall find no easy or logical stopping place," we stated we were not willing to accept the "liberal" view so as to embrace coal mining, but did not foreclose a different result in another case. We concluded that coal mining was more "in a class with the timber or lumbering industry" than with metal mining in Nevada, held to be a public use in Nevada, in Dayton Gold & Silver Mining *989 Co. v. Seawell, 11 Nev. 394 (1876), or with irrigation in Utah, as determined in Nash v. Clark, 27 Utah 158, 75 P. 371, 1 L.R.A., N.S., 208 (1904), aff'd 198 U.S. 361, 25 S. Ct. 676, 49 L. Ed. 1085, (1905), or in New Mexico, as concluded in City of Albuquerque v. Garcia, 17 N.M. 445, 130 P. 118 (1913).
This brings us to a consideration of the new or different element present in the instant case, and absent from the Gallup case. Here we are dealing with condemnation for a right of way to convey water under § 75-1-3, supra, to be used in coal mining, whereas in the Gallup case, condemnation for a road or highway right of way was at issue under § 88-401, N.M.S.A. 1929 (now appearing at § 22-9-30, N.M.S.A. 1953). Does the fact that the element of water has been introduced require a result different from that reached in Threlkeld, supra, and in Gallup, supra? Appellant says "no," whereas, appellee says "yes."
In approaching the problem, we would state at the outset that the fact that two different statutes (§§ 22-9-30, supra, and 75-1-3, supra) are involved is not material to our analysis. Neither do we propose to depart from the position taken in the earlier cases and hold that any "public benefit" is equivalent to "public use." We remain unconvinced that all rights in private property should be left unprotected from the ambitions and plans and hopes of the advocates of unrestricted or unlimited progress. Accordingly, we here consider only if a different result from that reached in Gallup, supra, follows because of the fact that the right of way being sought is for transportation of water, as distinguished from conveyance by truck of a natural resource, such as lumber or coal.
Consideration of this issue requires us to look to our constitutional provisions relating specifically to water. We note Art. XVI, §§ 1, 2 and 3, which we quote:
"Section 1. All existing rights to the use of any waters in this state for any useful or beneficial purpose are hereby recognized and confirmed.
"Section 2. The unappropriated water of every natural stream, perennial or torrential, within the state of New Mexico, is hereby declared to belong to the public and to be subject to appropriation for beneficial use, in accordance with the laws of the state. Priority of appropriation shall give the better right.
"Section 3. Beneficial use shall be the basis, the measure and the limit of the right to the use of water."
We perceive in these provisions that water was placed in a unique category in our Constitution something that cannot be said of lumbering, coal mining, or any other element or industry. The reason for this is of course too apparent to require elaboration. Our entire state has only enough water to supply its most urgent needs. Water conservation and preservation is of utmost importance. Its utilization for maximum benefits is a requirement second to none, not only for progress, but for survival. Recognition of these facts, as well as a conviction that the doctrine of prior appropriation was better suited to accomplishing the desired ends than was the common law riparian doctrine must have been the principal reason for the adoption in this state of the prior appropriation doctrine as the law applicable to water. See Yeo v. Tweedy, 34 N.M. 611, 615, 286 P. 970 (1929).
Admittedly, the use of water for irrigation was held by our Territorial Supreme Court to be a public use, making legal the provision of our law permitting a taking of the land of another, by an individual, to convey water to the place where the use was to be made. The Albuquerque Land and Irrigation Company v. Gutierrez, 10 N.M. 177, 61 P. 357 (1900), aff'd 188 U.S. 545, 23 S. Ct. 338, 47 L. Ed. 588 (1903). This case was held controlling in the later cases of City of Albuquerque v. Garcia, supra; and Young v. Dugger, 23 N.M. 613, 170 P. 61 (1918). See also Pueblo of Isleta v. Tondre, 18 N.M. 388, 137 P. 86 (1913). That water holds a unique position in our public policy was recognized in Threlkeld v. Third *990 Judicial District Court, supra, where we said:
"* * * [W]e already had a policy, also time-honored, as to waters. We had nationalized them. Not as a source of public revenue, as minerals are retained for royalties; but as an elemental necessity, like air, which must not be allowed to fall under private control. Only by invoking the power of eminent domain can the state distribute its own waters as its public policy requires. A right of way taken for that purpose is in a large sense devoted to public use. This policy finds general and express recognition in the Constitution. It is impossible to suppose that any interpretation of `public use' was intended to upset it." (Emphasis added.)
We now approach the crucial question of whether the "ultimate use," i.e., irrigation, mining, lumbering, etc., is controlling, and determinative of the question of "public use," or, is the answer controlled by the fact that the condemnation at issue is for a right of way to carry water?
The United States Court of Appeals for the Tenth Circuit, in W.S. Ranch Company v. Kaiser Steel Corporation, supra, after reviewing the cases cited above, concluded that the "ultimate use" was determinative. It reasoned that since this Court had held in Gallup American Coal Co. v. Gallup Southwestern Coal Co., supra, that when the ultimate use was coal mining, there was an absence of "public use," necessarily the use here being attempted was not public and accordingly condemnation was not permissible. In so holding, special emphasis was placed on language of this Court in Pueblo of Isleta v. Tondre, supra; in Young v. Dugger, supra; and in City of Albuquerque v. Garcia, supra. In all of these cases it was clearly stated that the right of condemnation existed in private persons for the purpose of conveying water for irrigation purposes over the land of another. Note was taken that in State ex rel. Red River Valley Co. v. District Court of Fourth Judicial District, 39 N.M. 523, 51 P.2d 239 (1935), the Court stated that irrigation as a use had long ago been held to be a public use. Based on this language, as well as on the fact that ultimate use apparently controlled our decision, both in Threlkeld, supra, and Gallup, supra, the Circuit Court felt it was on solid ground in holding that "ultimate use" was the controlling factor and accordingly, Kaiser could not condemn for a right of way to convey water for use in coal mining.
Although we hold the United States Court of Appeals for the Tenth Circuit in the highest esteem, and hesitate to take issue with its very thoughtful and erudite opinion, because of the importance of the issue to this State, and our complete confidence in our conclusion, we must respectfully disagree with the holding therein.
In doing so, it behooves us to explain our reasons in some detail. We would first note that each of our cases wherein a public use has been found in situations involving transportation of water (and consequently condemnation by private parties for rights of way was held permissible) has been a case involving irrigation. However, it should be noted that in no circumstance have we stated or suggested that right of way to convey water for industrial or other "beneficial" uses would not be for "public use." That we did not indulge in that hazardous pastime of incorporating dicta covering issues not present is to our credit. Only now when we are at last directly faced with the problem involving right of way for conveying water for industrial use is the time for us to speak on it.
We recognize that coal mining in New Mexico is not a public endeavor and that because of the lack of the element of "public use" the right of eminent domain would not exist in private parties for a roadway over which to transport coal. Gallup American Coal Co. v. Gallup Southwestern Coal Co., supra. However, that fact does not foreclose the possibility of a "public use" for the beneficial utilization *991 of water for a purpose other than irrigation. As a matter of fact, we find ourselves unable to rationalize use of water by a private citizen for irrigation as a public use, and at the same time the use of the same water by the same person for mining coal not to be. We do not suppose for a moment that it is the use for growing crops or producing food that has moved this Court to hold as it has concerning irrigation as a public use. Rather, it must have been the fact of beneficial use of water which unquestionably is of the greatest importance to the state, that dictated the result. Appropriation is not complete until the water has been put to beneficial use. State ex rel. State Engineer v. Crider, 78 N.M. 312, 431 P.2d 45 (1967). It is beneficial use that is of primary importance, not the particular purpose (ultimate use) to which the water is put. Such beneficial uses would be impossible to accomplish without the means to transport or convey the water from its source to the place of utilization. Thus, out of necessity, in 1907, the right of eminent domain was provided for the "storage and conveyance of water for beneficial uses," not for irrigation or domestic purposes alone, but for all beneficial uses. (Ch. 49, § 3, N.M.S.L. 1907). The particular ultimate use is not important, so long as the water is applied beneficially in accomplishing it. The quotation above from the Threlkeld case, to our minds, albeit dicta and used in connection with a discussion of a so-called "liberal" as opposed to the "orthodox" doctrine of public use, clearly foretold the correct analysis and conclusion under the facts now before us.
We conclude that the act permitting condemnation for rights of way to convey water is not vulnerable to the attack here levied against it, since it is in the public interest that distribution of water be provided so long as the use to which the water is to be put is beneficial, and accordingly such distribution is a public use as well. See § 68-2-1, N.M.S.A., 1953; Albuquerque Land and Irrigation Company v. Gutierrez, supra; State ex rel. Red River Valley Co. v. District Court of Fourth Judicial District, supra; Nash v. Clark, supra. The following language from the Nash case fully recognizes the problem:
"* * * [W]hether a statute of a state permitting condemnation by an individual for the purpose of obtaining water for his land or for mining should be held to be a condemnation for a public use, and, therefore, a valid enactment, may depend upon a number of considerations relating to the situation of the state and its possibilities for land cultivation, or the successful prosecution of its mining or other industries. Where the use is asserted to be public, and the right of the individual to condemn land for the purpose of exercising such use is founded upon or is the result of some peculiar condition of the soil or climate, or other peculiarity of the state, where the right of condemnation is asserted under a state statute, we are always, where it can fairly be done, strongly inclined to hold with the state courts, when they uphold a state statute providing for such condemnation. The validity of such statutes may sometimes depend upon many different facts, the existence of which would make a public use, even by an individual, where, in the absence of such facts, the use would clearly be private. Those facts must be general, notorious, and acknowledged in the state, and the state courts may be assumed to be exceptionally familiar with them. They are not the subject of judicial investigation as to their existence, but the local courts know and appreciate them. They understand the situation which led to the demand for the enactment of the statute, and they also appreciate the results upon the growth and prosperity of the state which, in all probability, would flow from a denial of its validity. These are matters which might properly be held to have a material bearing upon the question whether the individual use proposed might not in fact be a public one. It is not alone the *992 fact that the land is arid and that it will bear crops if irrigated, or that the water is necessary for the purpose of working a mine, that is material; other facts might exist which are also material such as the particular manner in which the irrigation is carried on or proposed, or how the mining is to be done in a particular place where water is needed for that purpose. The general situation and amount of the arid land or of the mines themselves might also be material, and what proportion of the water each owner should be entitled to; also the extent of the population living in the surrounding country, and whether each owner of land or mines could be, in fact, furnished with the necessary water in any other way than by the condemnation in his own behalf, and not by a company, for his use and that of others." 198 U.S. 361, 25 S. Ct. 676, at 678, 49 L. Ed., at 1087.
See also, Annot. 54 A.L.R. 56.
In holding as we do, we are not concerned that we are unduly lowering the bars to permit taking of private property for other than public use, which the court in the Threlkeld case feared would result if the "liberal" rule were embraced. To the contrary, we hold that a jus publicum being present in water, State ex rel. Red River Valley Co. v. District Court of Fourth Judicial District, supra, its beneficial use is a public use, and condemnation of a right of way to make the beneficial use possible is clearly provided for in § 75-1-3, supra, and is constitutional.
We are further convinced that a "public use" is present in this case because the legislature, in § 75-1-3, supra, has given to persons, firms, associations and corporations, the right to condemn land right of way for the purpose of conveying water for beneficial uses. Since the power of eminent domain cannot be exercised without a "public use" being present, the legislature has impliedly declared such a "public use" to be present in such conveyance of water. Although, in the last analysis, the question of "public interest" is a judicial one, the presumption is that a use is public if the legislature has declared it to be such, and the decision of the legislature must be treated with the consideration due to a coordinate branch of our government. 2 Nichols on Eminent Domain § 7.4(1) (3d Ed. 1965). In fact, it has been held that when the legislature has spoken, the public interest (i.e., "public use") has been declared in terms well-nigh conclusive. Berman v. Parker, 348 U.S. 26, 75 S. Ct. 98, 99 L. Ed. 27 (1954). Since our legislature has, in effect, declared the use in question to be public, we are constrained to accept their judgment in the absence of obvious unconstitutionality. We find no such defect. For further indications of a legislative declaration of "public use" in the conveyance of water in the circumstances comparable to our case, see §§ 68-2-1, 68-2-17, 68-2-18, N.M.S.A., 1953.
Before leaving this issue, we would add one further observation. Whereas the Court of Appeals for the Tenth Circuit felt the issue was controlled by the Gallup case, supra, and noted that the report of the case did not disclose if the condemnation there being attempted involved a way for conveying water, we do not consider the language there relied on to be decisive. That language was to the effect that coal mining was not viewed by the court as belonging "* * * in a class with * * * irrigation in * * * New Mexico * * *," but rather was considered by them "* * * in a class with the timber or lumbering industry which was involved in the Threlkeld case." The Tenth Circuit Court concluded that "* * * logic dictates that the New Mexico court would not deny the power of eminent domain in aid of coal mining under one statute, and sustain it under the statute invoked here merely because it speaks in terms of `beneficial use' of water."
However, this resort to logic contains a basic flaw in that it assumes that both statutes (i.e., § 22-9-30, supra, involved in *993 the Gallup case, supra, and § 75-1-3, supra, here in question) were "in aid of coal mining." Section 75-1-3, supra, is not in aid of coal mining, but rather "in aid of" the distribution of water for beneficial uses. This difference is crucial. In view of our state's environmental situation, the distribution of water is of paramount importance, justifying the defining of such distribution as a "public use." The same cannot be said of coal mining.
Having determined that Kaiser could legally and constitutionally acquire the right of way to convey its water across the property of Ranch by condemnation, we must still consider if Ranch could recover in an action in trespass because Kaiser entered the property without first instituting legal proceedings seeking to condemn. Otherwise stated, is inverse condemnation the only legal remedy open to Ranch for Kaiser's entering and utilizing the land of Ranch, or may Ranch sue in trespass? No question of the right to the equitable remedy of injunction is here presented.
To answer the question we first examine two recent decisions by this Court. Our latest holding on the subject is found in Garver v. Public Service Company of New Mexico, 77 N.M. 262, 421 P.2d 788 (1966), being an appeal from dismissal on motion of a suit seeking compensatory damages for trespass, for negligent maintenance of electric lines, and for slander of title. We held that plaintiff could not recover damages for trespass by the defendant utility, and that plaintiff's only right of action was one in inverse condemnation. In so holding we relied on Zobel v. Public Service Company, 75 N.M. 22, 399 P.2d 922 (1965), wherein damages for trespass were sought for alleged entry together with cutting of a corridor through trees and staking of a course for a proposed new power line before the filing of any action or proceeding seeking to condemn. We there held that § 68-1-4, N.M.S.A., 1953, which gives the right to recover damages in inverse condemnation, provided the exclusive means for recovering damages.
Ranch would distinguish the present case from Garver and Zobel, both supra, on the basis that the eminent domain statutes there involved were §§ 68-1-4 and 22-9-11, N.M.S.A., 1953, whereas here, Kaiser's rights, if any, arise out of § 75-1-3, supra, and the applicable inverse condemnation statute is § 22-9-22, N.M.S.A., 1953, as amended (Supp. 1969). Further, a distinction is urged because, in Zobel, the entry was recognized as one permitted for the purpose of making surveys, and condemnation was thereafter sought as provided in the statute; whereas, in the instant case, Kaiser neither entered to make surveys, although the applicable statute makes provision for such an entry, nor did Kaiser seek condemnation as provided in the statute, but proceeded without any pretense of complying with the law.
In Garver, supra, so far as we can discern, the defendant had entered and constructed its line without benefit of law, but we do not perceive that this fact made any difference so far as the rule of exclusive remedy there applied was concerned.
Although we recognize that the statutes here applicable differ in certain particulars from those being considered in Zobel and Garver, supra, and even though the facts may not be exactly comparable, we neither see in the language differences of the statutes, nor in the fact variations, any true basis for a different result. We have considered 6 Nichols, supra, § 28.1, relied on by Kaiser, from which we quote:
"In those jurisdictions in which there may be a constitutional taking of property by virtue of an exercise of the power of eminent domain prior to the payment of compensation, such procedure is justified by reason of legislative provision for an adequate method of obtaining just compensation by the owner. Under such circumstances the statutory remedy is deemed exclusive and the owner is prevented from asserting the ordinary common law actions arising from interference with his title or possession. * * *"
*994 We observe that our Zobel and Garver cases, supra, are cited in support of the quoted language.
We have also noted 6 Nichols, supra, § 28.22(1), advanced by Ranch as controlling. We would observe that we do not consider the section applicable because, as already pointed out, we are not here called upon to consider, nor do we express an opinion on the question of the availability of equitable remedies such as injunction to restrain the taking, since we have already determined that it was lawful. But see The Arizona & Colorado Railroad Company of New Mexico v. The Denver & Rio Grande Railroad Company, 13 N.M. 345, 84 P. 1018 (1906); 16 N.M. 281, 117 P. 730 (1911), aff'd 233 U.S. 601, 34 S. Ct. 691, 58 L. Ed. 1111 (1914). For the same reason we do not consider as helpful in the instant case the Annotations in 93 A.L.R. 2d 465 and 133 A.L.R. 11, relied on by Ranch.
Also, Ranch would have us restrict the area for exclusive resort to inverse condemnation to the situations where there has been an incidental injury or damage with no direct taking, or where there has been an unintentional taking. While admittedly damages without a direct taking give rise to an inverse condemnation action, see Springer Transfer Co. v. Board of Com'rs of Bernalillo County, 43 N.M. 444, 94 P.2d 977 (1939), we do not see anything in the language of the statute to justify the limitation urged upon us. Neither do we see any reason to hold our statutory inverse condemnation to be the exclusive remedy where the action is against the sovereign, but not when it is against a private condemnor. Section 22-9-22, supra, here applicable, makes not only the "state of New Mexico or any agency or political subdivision thereof" liable to the owner of property under the circumstances therein set forth, but also makes "[a]ny person, firm or corporation authorized by the Constitution or laws of this state to exercise the right of eminent domain" equally subject to suit. This section is clear that suit is permitted by the landowner, when there has been not only a damaging of private property but a taking as well, if just compensation has not been paid, or a proper condemnation action either has not been instituted or prosecuted to final judgment. We see in the plain language of the statute a complete method for obtaining compensation in the exact circumstances of this case. Therefore, it follows, and we so hold, that the objective sought to be accomplished by the inverse condemnation statute is not so limited as urged above, and that the prior applications of the more restricted statutes in Zobel and Garver, supra, are equally applicable here.
We would add a word to the effect that we fully appreciate the dilemma faced by both parties at the outset of the dispute that gave rise to this litigation. There had been no clear pronouncement by this Court that a party in Kaiser's position could exercise eminent domain for a right of way to convey water to a coal mine. Kaiser had the choice of attempting to obtain an answer to the question either by commencing condemnation which would have involved protracted litigation on the question of whether a public use was present, and their right to condemn, or they could have sought declaratory relief in the first instance as they belatedly have done in this proceeding. On the other hand, they could take a calculated risk and proceed on the theory they had the right to condemn, and if they did not commence an action, that in the end Ranch would receive the same damages through inverse condemnation as it would have through condemnation.
Of course, if Kaiser miscalculated and it was determined that they were mistaken in their belief that they had the right to condemn, the trespass action undertaken by Ranch would have been proper, and substantial damages would have been adjudged against Kaiser as a trespasser.
While we certainly do not recommend proceeding as Kaiser did in the instant case, and would again emphasize the risks of damages of major consequences, we must nevertheless conclude that in this instance no one has suffered. Kaiser had the right under the facts of this case to condemn *995 the right of way they occupied for the purpose for which it was taken, and may be held liable for damages to the owner only in an inverse condemnation action. It follows that the judgment appealed from should be affirmed.
It is so ordered.
COMPTON and TACKETT, JJ., WALDO SPIESS, C.J., Ct. App., and JOE ANGEL, D.J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610054/ | 467 P.2d 399 (1970)
81 N.M. 383
MONTGOMERY WARD, Plaintiff-Appellant,
v.
Gilbert LARRAGOITE, Defendant-Appellee.
No. 8834.
Supreme Court of New Mexico.
March 31, 1970.
*400 H.J. Guthmann, Santa Fe, Botts, Botts & Mauney, Albuquerque, for plaintiff-appellant.
Zinn & Donnell, Santa Fe, for defendant-appellee.
PER CURIAM:
Upon the court's own motion the opinion heretofore filed is withdrawn and the following is substituted therefor:
OPINION
MOISE, Chief Justice.
This is an appeal from a judgment on a counterclaim in favor of Gilbert Larragoite. The facts giving rise to the controversy are not in dispute.
Gilbert is an employee of Thunderhead Oil Company and lives in Albuquerque. He has several brothers, one of whom is Ben who lives with his mother in Santa Fe and works at the State Land Office. In 1964 Ben applied to Montgomery Ward in Santa Fe for a credit card. A card was issued to "G. Larragoite" with a mailing address at the Land Office in Santa Fe where Ben worked. Although Ben testified that he complained that the card was issued to "G. Larragoite," nothing was done to change it, and Ben made purchases and payments on the account. Toward the end of 1966, payments not having been made promptly, Wards commenced a series of actions in its attempts to collect. These included a call to the State Highway Department where they contacted Phil Larragoite, another brother, who advised Wards of Gilbert's whereabouts, and how he could be reached. In January, 1967, Gilbert was reached at his place of employment in Albuquerque *401 and denied any knowledge of the account. A call was made to the mother at the address in Santa Fe where Ben lived. Further investigation disclosed to Wards that Ben had made the purchases and payments. The following notation appears in the records of Wards:
"4-17-67 (Cont'd) Contacted G. Larragoite refuses to be responsible. Recommend that we sue G. Larragoite to force full P.I.F. [payment in full] from B. Larragoite. Referred to Mr. Distel for O.K. to sue. 4/20/67 Sue now E.R."
This was followed by the filing of suit naming both Ben and Gilbert as defendants. Service of process was made on Gilbert while he was at work and in his superior's presence, and the service papers were shown to the superior by Gilbert.
Ben answered, admitting the debt; the amount was stipulated and judgment was entered against him. The issues raised by the counterclaim wherein Gilbert sought recovery for damages occasioned by Ward's collection tactics alleged to have been wantonly, wilfully and maliciously performed, resulting in impairment of Gilbert's previous excellent credit rating, and in the inflicting of severe pain and distress to body and mind, and great mental anguish, embarrassment, humiliation and shame. A verdict for $15,000 damages was returned and judgment entered accordingly.
We are first called upon to determine if a prima facie showing which would support a judgment in Gilbert's favor was established at the trial. The theory on which the suit was brought and the case tried is what is known in law as invasion of privacy.
Although we have never been called upon to decide if facts such as those here present can constitute actionable invasion of privacy, we have heretofore recognized such torts. See Apodaca v. Miller, 79 N.M. 160, 441 P.2d 200 (1968); Blount v. T D Publishing Corporation, 77 N.M. 384, 423 P.2d 421 (1966); Hubbard v. Journal Publishing Co., 69 N.M. 473, 368 P.2d 147 (1962). We now decide that improper conduct in knowingly and intentionally pursuing a person to force payment of a debt, whether or not he owes it, may, under certain circumstances, give rise to a right to damages for an invasion of privacy. This accords with the rule followed in recent years in most jurisdictions. We cite only a few. La Salle Extension University v. Fogarty, 126 Neb. 457, 253 N.W. 424, 91 A.L.R. 1491 (1934); Norris v. Moskin Stores, Inc., 272 Ala. 174, 132 So. 2d 321 (1961); Lyons v. Zale Jewelry Co., 246 Miss. 139, 150 So. 2d 154 (1963); Biederman's of Springfield, Inc. v. Wright, 322 S.W.2d 892 (Mo. 1959); Bowden v. Spiegel, Inc., 96 Cal. App. 2d 793, 216 P.2d 571 (1950); Santiesteban v. Goodyear Tire & Rubber Co., 306 F.2d 9 (5th Cir.1962). See, also, Annots., 15 A.L.R. 2d 108, 158; 14 A.L.R. 2d 750, 770; 168 A.L.R. 462; 138 A.L.R. 91; 106 A.L.R. 1453; 91 A.L.R. 1495. The facts proved in this case as above detailed were sufficient to go to the jury and, if believed by them, to support a verdict for damages.
Ward's second point is addressed to the rule heretofore announced by this court in malicious prosecution cases, citing our decision in Johnson v. Walker-Smith Co., 47 N.M. 310, 142 P.2d 546 (1943); Landavazo v. Credit Bureau of Albuquerque, 72 N.M. 456, 384 P.2d 891 (1963); and Farmers Gin Co. v. Ward, 73 N.M. 405, 389 P.2d 9 (1964). Factually, the Landavazo case, supra, presented a situation not materially different from that before us here. We denied recovery to the plaintiff, holding that notwithstanding the reprehensible actions of the defendant, "an action will not lie for the prosecution of civil action with malice and without probable cause, where there has been no arrest of the person or seizure of the property of the defendant, or where the defendant has suffered no injuries except those which are the necessary result in all ordinary law suits," as held in Johnson v. Walker-Smith Co., supra.
The trouble with Ward's argument is that the case was tried on the theory of invasion of privacy, and the law, as explained *402 to the jury by the trial court, without objection, was that applicable to invasion of privacy as discussed above. This law differs from that applicable in malicious prosecution but became the law of the case here and not vulnerable to attack on appeal. Nally v. Texas-Arizona Motor Freight, Inc., 69 N.M. 491, 368 P.2d 806 (1962); Sanchez v. Board of County Commissioners, 63 N.M. 85, 313 P.2d 1055 (1957).
We are next called upon to consider if there is cause to reverse because the award in Gilbert's favor was assertedly excessive, and the result of passion and prejudice of the jury. The rule adopted and followed by us is stated in Vivian v. Atchison, Topeka and Santa Fe Railway Co., 69 N.M. 6, 9, 363 P.2d 620, 622 (1961), in the following language:
"The decisions of this court were reviewed in Montgomery v. Vigil, 65 N.M. 107, 332 P.2d 1023, and the rule announced in Hall v. Stiles, 57 N.M. 281, 258 P.2d 386, 389, approved. The rule of Hall v. Stiles, supra, is that `the mere fact that a jury's award is possibly larger than the court would have given is not sufficient to disturb a verdict' and the findings of the jury will not be disturbed as excessive except in extreme cases, such as where `it results from passion, prejudice, partiality, sympathy, undue influence, or some corrupt motive where palpable error is committed by the jury, or where the jury has mistaken the measure of damages.' (Emphasis added) Montgomery v. Vigil, supra, 65 N.M. at page 113, 332 P.2d at page 1027; Jackson v. Southwestern Public Service Co., 66 N.M. 458, 349 P.2d 1029."
Also, in Vivian, supra, we said, "In determining whether a verdict is excessive, the appellate court does not weigh the evidence, as in the case of a trial court, but instead determines the excessiveness as a matter of law." (69 N.M. 6, 12, 363 P.2d 620, 624). See, also, Transwestern Pipe Line Co. v. Yandell, 69 N.M. 448, 367 P.2d 938 (1961).
Appellant filed a motion for a new trial on April 10, 1968, six days after entry of the judgment, in which it raised the question of excessive verdict. On May 1, 1968, it filed notice of appeal. On June 18, 1968, the trial court entered an order denying the motion solely on the ground that it had lost jurisdiction.
We believe that on May 10, 1968, 30 days after the filing of the motion, it is deemed overruled by operation of law if no ruling has been entered. This would be true in non-jury cases by virtue of § 21-9-1, N.M.S.A., 1953 Comp., and would follow in jury cases as logical under our Rule 5, § 21-2-1(5), N.M.S.A., 1953 Comp. Earlier statutes on the question have been superseded by Rule 59, § 21-1-1(59), N.M.S.A., 1953 Comp., and Rule 20, § 21-2-1(20), N.M.S.A., 1953 Comp. Since the trial court's ruling on the motion prior to the expiration of the 30 day period would have been reviewable here, we hold that its failure to rule cannot avoid our review, and we will consider a motion for new trial timely filed as having been denied by the court if denied by operation of law. Terry v. Biswell, 66 N.M. 201, 345 P.2d 217 (1959).
Here we are convinced that the amount of damages awarded is so excessive that it is not supported by the evidence and is such as to indicate that the jury has mistaken the measure of damages or its verdict resulted from passion or prejudice. Vivian v. Atchison, Topeka and Santa Fe Railway Co., supra; Elder v. Marvel Roofing Co., 74 N.M. 357, 393 P.2d 463 (1964).
The judgment of the trial court will be affirmed on the condition that appellee file with the clerk of this court within ten days hereafter a remittitur in the sum of $7,500.00 fixed by this court as excessive damages; otherwise, the cause will be remanded to the trial court with directions that the appellant be granted a new trial solely on the question of damages.
It is so ordered.
COMPTON and WATSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610062/ | 467 P.2d 595 (1970)
A.H. FOX and Edith Fox, Appellants (Plaintiffs below),
v.
Walter H. MINER, Arthur H. Wacker, and Edward E. Nation, Appellees (Defendants below).
No. 3807.
Supreme Court of Wyoming.
April 10, 1970.
William A. Riner, Cheyenne, for appellants.
Kline, Tilker & Lynch and James A. Tilker, Cheyenne, for appellees.
Before GRAY, C.J., and McINTYRE, PARKER and McEWAN, JJ.
Mr. Justice PARKER delivered the opinion of the court.
Plaintiffs, the owners of Lots 9 and 10, Block 33, Mountview Park Addition, City of Cheyenne, since 1963, brought a declaratory judgment class action, seeking to void and make of no effect the "Declaration of Protective Covenants," which had been filed of record in the office of the county clerk and recorder of Laramie County in 1946, shortly after the platting and dedication of the addition to which the covenants applied and of which plaintiffs' lots are two of some three hundred and nineteen *596 lots restricted to residences.[1] Basis for the claimed relief was that the covenant restricted plaintiffs' lots to single-family residences; that the City of Cheyenne in 1946 established zoning for Mountview Park Addition and in a 1968 ordinance had adopted a different zoning regulation by which plaintiffs' lots were changed from "Residence A" zone to "Business D" zone; that presently the area to the north, south, and west of the said Lots 9 and 10 is used for business and has developed for such purposes so as to inhibit the use of Lots 9 and 10 for residences; that plaintiffs have never had an inquiry or offer for said lots for residential purposes but have had numerous inquiries for development and improvement of them for business; and that the value of the lots for business would be some $50,000 whereas for residences it would not exceed $7,500, and further that many violations of the covenant have been permitted and countenanced by owners of the lots in Mountview Park Addition.
Defendants answered and in addition to urging that the complaint did not state a claim admitted the respective ownership of the lots to which the complaint referred, the establishment of the addition, the existence of the protective covenant, and the City's zoning arrangements, alleging that the recent changes in zoning in Block 33 were irrelevant to the covenant, which presented an independent issue. Defendants also counterclaimed, asking an injunction to prevent plaintiffs' violation of the covenant.
Trial resulted in a judgment finding that the real property, which is the subject of the action, Lots 9 and 10, Block 33, Mountview Park Addition, has been and still is subject to the protective covenants and that there has been no change in the neighborhood which would nullify such covenants and accordingly denied and dismissed the complaint, enjoining plaintiffs from using the lots for business or for other purposes than residences.
Plaintiffs have appealed, urging that the trial court completely ignored the undisputed evidentiary facts, arguing specifically that (1) the finding of the trial court of no change in the nature of the neighborhood is contrary to the undisputed evidence; (2) the changes which may be considered in determining a change of the character of the neighborhood include those in the area outside the Mountview Park Addition; and (3) the changes in the nature of the neighborhood have been proved without dispute so that the protective covenants are no longer properly applicable to the lots.
In their effort to support the charged errors, plaintiffs point to evidence, oral, documentary, and photographic, showing that in 1946 at the time of platting and dedicating the Mountview Park Addition the land so platted as well as that in all directions from it was undeveloped and over the years from then to the present various businesses have moved out along East Lincolnway, the street immediately south of the lots in question, with business zoning therein being permitted by the City until now there are businesses to the west, south across the street, and on further east, and substantial highway development and realignment to the south and east. Some attempt is also made to show that in such interim there has been in Mountview Park Addition itself a departure from the one-family dwelling requirement of the covenant, but this essayed showing is feeble, disclosing at most a beauty shop in an apartment building, the construction of a church having an accompanying parking area on lots north of those in question, and the approval by the board of adjustment of a nonconforming use unobjected to by residents, including activity for a time of a photographer in his home. Evidence of a trend toward nonconformity in the Mountview Park Addition itself was so slight that counsel mentions the subject only peripherally with no apparent effort to rely *597 thereon, and we consider that the trial court would have been fully warranted in viewing such evidence as wholly insubstantial.
The facts before the court then as either actually or tacitly conceded by the litigants are:
In 1946 those platting and dedicating the Mountview Park Addition, which was then in and surrounded by undeveloped land, adopted a comprehensive plan providing for residences of different types, service and business areas, one of the latter being the half-block along the East Lincolnway across the street and immediately west of the lots here litigated. Since 1946 business in surrounding subdivisions to the west and south has with the City's consent and approval developed but there has been no real change of neighborhood in Mountview Park Addition.
The question thus presented is whether under such circumstances there has been a showing by plaintiffs, which would have under existing law required the trial court to nullify the restrictive covenants another way, perhaps, of stating plaintiffs' argument that the trial court completely ignored the undisputed evidentiary facts presented.
Effect of Rezoning
Plaintiffs comment that although the point is not a matter within the appeal the 1968 rezoning of Lots 9 and 10 for business purposes was relevant and the trial court properly admitted evidence thereof over defendants' objections. To substantiate this statement they quote from Brideau v. Grissom, 369 Mich. 661, 120 N.W.2d 829, 832:
"The change in the zoning ordinance cannot operate to destroy the obligations involved in the restrictions * * *. Such change is only a factor to be considered in determining whether a change of circumstances has occurred that an equity court will not enforce the restrictions. * * *"
They also rely upon Wolff v. Fallon, 44 Cal. 2d 695, 284 P.2d 802; and Hirsch v. Hancock, 173 Cal. App. 2d 745, 343 P.2d 959. We think this philosophy should not go unchallenged since it relates in a measure to the basis of plaintiffs' position. While an examination of the mentioned cases shows none of the three sufficiently analogous to have a bearing on the present litigation, each indicates that rezoning after establishment of the restriction may be a factor for consideration in a suit to void the covenant if such rezoning as a matter of fact created a change of conditions so fundamental or radical as to defeat the original purpose of the covenants. However, it is well settled that zoning ordinances cannot override, annul, abrogate, or relieve land from building restrictions or covenants placed thereon. 2 Yokley, Zoning Law and Practice, p. 453 (1965). We think the trial court here was most generous in admitting evidence which related to the 1968 rezoning of the lots for business since shortly after plaintiffs purchased them in 1963 for speculation, at a figure which they state as many times less than the value of the lots for business, they twice made unsuccessful efforts to have the land rezoned for business by the City. Shortly before this action they made a third attempt by indicating to the city authorities that they desired the rezoning in order that the legal status of the lots might be determined by the court.[2] Under such *598 circumstances the rezoning could not by any liberality of interpretation be said to have effected a change so as to defeat the original purpose of the covenant.
Change in Neighborhood
As we have noted earlier, plaintiffs do not seriously contend there has been any substantial violation of the covenants within the neighborhood but rely entirely on the change in the establishment of new businesses as well as progressively increased traffic which has taken place on East Lincolnway to the west of Lots 9 and 10 and across the street to the rear of the southernmost lots which by provision of the covenants fronted north on Forest Drive. As a background for any discussion of the subject, it must be observed that there has been no change as such in that adjacent area but rather a continuous development of the business district, which existed in 1946 along East Lincolnway some blocks west and has since extended eastward past the lots in issue. The testimony shows that plaintiffs were the owners of the Firebird Motel some eight blocks west on that street, having purchased it in 1946, and anticipated the growth of business along the highway to the east. In a somewhat similar situation the Utah court, upholding a covenant, said:
"It has been held that before a change of character in the neighborhood will vitiate a covenant in a deed it must be so great as clearly to neutralize the benefits of the restriction to a point of defeating the object and purpose of the restrictive covenant, or in other words the change required to afford relief is where the change is such as to render the covenant valueless. If the change in neighborhood makes the restriction valueless so its object and purpose cannot be carried out, then it should not be enforced, but in the instant case the restrictive clause was imposed because of the change already in process and as contemplated by the parties in 1956. Therefore the change in the commercial growth of the area made the object and purpose of the restrictive covenant more valuable to the defendants which destroys the force of plaintiff's argument and authorities. * * *" Metropolitan Investment Company v. Sine, 14 Utah 2d 36, 376 P.2d 940, 943-944.
However, even if we could assume arguendo that the extension of the business in this case was a change of neighborhood in the area where such businesses are conducted rather than development, no authorites are presented as holding that the encroachment of business on one side of a relatively large residential subdivision protected by a restrictive covenant brings about such a substantial change that the original purpose of the covenant can no longer be accomplished. To the contrary is another section of the same encyclopedic reference cited by plaintiffs:
"Generally speaking, in determining whether there has been such a change of conditions as to warrant a refusal to enforce, or a cancellation of, restrictions, the court gives greater weight to the changes occurring within the restricted area than to those occurring without the area. Changed conditions outside the restricted area must not be permitted to terminate the restrictions where this would cause property owners within the restricted area to suffer damage. * * *" 20 Am.Jur.2d Covenants § 284.
Courts of neighboring states have spoken on the subject. In Hogue v. Dreeszen, 161 Neb. 268, 73 N.W.2d 159, 163, it was said that the change in certain sections of property adjoining the bordering street did not affect the residential district covered by covenants. The holding in Chuba v. Glasgow, 61 N.M. 302, 299 P.2d 774, 775, was even broader:
"* * * The area to the north, east, and south is unrestricted and businesses *599 of various kinds have been established thereon; but these changes, outside the restricted area, do not defeat the purposes of the restrictions. * * *"
Similarly courts have frequently declined to nullify restrictive covenants on residential property because of increase of traffic and attendant commotion on a thoroughfare running alongside the protected area. Finley v. Batsel, 67 N.M. 125, 353 P.2d 350, 353; Wahrendorff v. Moore, Fla., 93 So. 2d 720, 723; Weinstein v. Swartz, 3 N.J. 80, 68 A.2d 865, 869.
Standing in Equity
It is elementary that good faith and justified relief from hardship constitute the essence of equity which should be accorded in the conscience of the court. Aside from the other aspects of the case which we have discussed, we observe no showing of plaintiffs by pleading or proof that would warrant an extension to them of relief in equity. By their own allegations and evidence, being fully aware of the covenants, they bought the property in issue as a speculation for a figure far less than its value for business purposes. They have failed to present any factor which would warrant a court of equity in granting relief. Although defendants' second defense that the complaint failed to state a claim might well have been utilized by the trial court as basis for denying plaintiffs the requested relief, the judgment as issued was equally proper.
Affirmed.
NOTES
[1] These lots were for the most part restricted to single-family residences although provision was made in certain blocks for multiple dwellings for not more than four families.
[2] In evidence was a copy of the minutes of the meeting at which the ordinance was adopted, reading in part:
"The Council informed Mr. and Mrs. Fox that it was their intention to clear this matter for once and for all by this action and not have it return periodically to the Council as it has been done in the past. They stated it was their intention to clear any obstacle preventing Mr. Fox from taking court action with respect to the protective covenants and that they would not issue a building permit for construction on the premises until Mr. Fox had taken this action; that if he did not take such action within a reasonable time, they would entertain application by any resident of the area to again rezone the lots to Residence `A.' The Council directed that findings of fact and conclusions of law on this matter be appended to these minutes as an exhibit." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610072/ | 467 P.2d 964 (1970)
Velma E. WILSEY, Appellant,
v.
James CAMPBELL and Charmaine Campbell, Husband and Wife, Respondents.
Supreme Court of Oregon, In Banc.
Argued and Submitted January 6, 1970.
Decided April 15, 1970.
Nicholas D. Zafiratos, Astoria, argued the cause for appellant. With him on the briefs was Ronald L. Miller, Astoria.
Duane Vergeer, Portland, argued the cause for respondents. With him on the brief was Gary A. Thye, Portland.
O'CONNELL, Justice.
This is an action to recover damages suffered by plaintiff when she slipped and fell on defendants' concrete patio. The jury returned a verdict for plaintiff whereupon defendants moved for a judgment notwithstanding the verdict. The motion was granted and plaintiff appeals.
*965 Plaintiff, who was 59 years old at the time of the accident, is the mother of defendant Charmaine Campbell and the mother-in-law of defendant James Campbell.
Plaintiff was hired by her daughter Charmaine to babysit on the morning of the accident. When her daughter returned home plaintiff was paid for her services but since it was raining plaintiff was invited to remain until James Campbell returned, at which time her daughter was to take her home. No prior arrangements had been made for transporting plaintiff to her home.
After plaintiff waited about two and a half hours her son-in-law returned whereupon she and her daughter proceeded to leave the house. They walked down four concrete steps to a concrete patio which was uncovered. Plaintiff fell when she stepped from the bottom step onto the patio and was injured. It was raining and the wind was blowing. There was no handrail on the steps. The contractor who built the patio testified that the patio was finished "smooth" and that there was "some slope at the end of the steps." Defendant James Campbell had instructed the contractor to make the patio a smooth surface. The steps had a rough surface. Both defendants testified that they knew that the patio was slippery when wet. James Campbell testified that he had slipped on the patio "several times." Charmaine Campbell testified that she had also slipped on the patio. Both testified that others had also slipped. They testified that they had not warned plaintiff that the patio was slippery.
Plaintiff had been at defendants' home five or six times before the accident but she had never previously gone out onto the patio when it was raining. There was no evidence that the patio was wet when she went into defendants' house on the day of the accident. There was testimony that the day was wet and rainy.
Plaintiff wore "wedgies" which had smooth, flat composition soles without a distinct heel.
The case was submitted to the jury on the theory that plaintiff was an invitee. Defendants contend that plaintiff was a licensee only. The evidence conclusively establishes that defendants had knowledge of the dangerous condition of the premises. If the possessor of land has knowledge of the risk which the condition of the premises creates, his duty to an invitee or a licensee is the same.
The duty of a possessor of land to a licensee is stated in Restatement (Second) of Torts, § 342, p. 210 (1965), as follows:
"A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,
"(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
"(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
"(c) the licensees do not know or have reason to know of the condition and the risk involved."
There was evidence to show that defendants knew of the slippery condition of the patio. No warning was given to plaintiff. Plaintiff had no knowledge that defendants' patio was slippery.
Defendants contend that the wet and smooth condition of the patio was open and obvious and that therefore plaintiff is chargeable with knowledge of the condition. It is argued that plaintiff is presumed to have knowledge of the slippery nature of smooth concrete surfaces covered with rain.
We think that it is the function of the jury to decide whether plaintiff knew or had reason to know of the danger to which she was subjected in this case. There was ample evidence to show that defendants *966 knew of the danger and failed to warn plaintiff. The trial judge should not have disturbed the verdict.
Defendants rely upon previous Oregon cases in which an invitee or licensee was denied recovery for injury suffered on the premises of the landowner. These and other so-called slipping and falling cases are not in point. We have found no previous Oregon case holding that a jury question is not made out where there is evidence, as there was in the present case, (1) that the defendant knew of the dangerous condition, and (2) that the plaintiff was not aware of the danger.
The judgment is reversed and the cause is remanded with directions to reinstate the verdict and enter judgment thereon. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610246/ | 485 P.2d 957 (1971)
94 Idaho 215
Andrew J. BLINZLER and Mary E. Blinzler, husband and wife, Plaintiffs-Respondents, Cross-Appellants,
v.
James R. ANDREWS, Milton D. Andrews and Janice Andrews, husband and wife, Defendants-Appellants, Cross-Respondents.
No. 10591.
Supreme Court of Idaho.
April 23, 1971.
Rehearing Denied June 21, 1971.
*958 Scott W. Reed, Coeur d'Alene, for appellant and cross-respondent James R. Andrews.
Peter B. Wilson, of Wilson & Walter, Bonners Ferry, for appellants and cross-respondents Milton D. Andrews and Janice Andrews.
Stephen Bistline, Sandpoint, for respondents and cross-appellants.
SPEAR, Justice.
This appeal concerns two land sale contracts, both of which are quite similar in content, concerning two farms located near each other in Boundary County. The Blinzlers (plaintiffs-respondents) negotiated for the simultaneous purchase of both farms from two brothers, James R. Andrews and Milton D. Andrews, and wife (defendants-appellants). Both contracts were signed by the Blinzlers November 25, 1959, and signed by the Andrews December 7, 1959.
The James R. Andrews contract provided for a purchase price on the farm of $52,500.00, with $9,000 down and $3,500 due December 1, 1960 and each December 1 thereafter until the principal was paid. The Milton D. Andrews contract stated a price of $40,000 with $7,000 down and $2,750 due December 1, 1960 and each succeeding December 1. Each contract provided for 5% interest on the deferred payments with the accumulated interest deducted from the annual payment and the balance applied to the principal. In both contracts, the relevant obligations of the Blinzlers were: to pay all taxes and assessments, to insure the annual crop, and to pay all the Andrews' reasonable attorney fees for any suit arising out of the agreements. The James R. Andrews contract also provided that the Blinzlers were to insure the buildings on the farm.
Both contracts provided that the Andrews would obtain for the benefit of the Blinzlers an easement between the two farms and that the Andrews would provide within a reasonable time a title insurance policy to the extent of the purchase price showing marketable title in the Andrews.
As relevant to the case, both contracts also contained these general provisions: the First National Bank of Bonners Ferry, Idaho was appointed escrow holder of the contracts, warranty deeds, and title insurance policies. The performance by the Blinzlers of all the terms of the contract was a condition precedent to the performance of the agreements by the Andrews. In the event of breach of any of the terms of the contracts, on 60 days notice, the Andrews were entitled to immediate possession, the Blinzlers forfeited all rights under the contract, and the Andrews were entitled to retain all moneys paid by the Blinzlers toward the purchase of the farms as rent and liquidated damages for the use and occupancy of the premises. Both contracts stated that time was of the essence.
The James R. Andrews contract provided that he was to have been afforded a reasonable time to probate his wife's estate and perfect title to the farm. The Milton D. Andrews contract provided that if the title search revealed an error in the legal description, the error not being material to the contract, the legal description should be corrected to eliminate such error.
The Blinzlers took possession of the two farms and made the payments due December 1, 1960 and 1961. When the 1962 payments were delivered to the escrow agent, the Blinzlers directed that the escrow agent should not transfer the money to the Andrews until the title insurance policies were delivered in "accordance with the terms of the contract." The escrow agent notified the Andrews of the Blinzlers' instruction to withhold the 1962 installments *959 and, after protest made by Milton Andrews, released the payments with notice to the Blinzlers.
The record is vague regarding what demands the Blinzlers made for title insurance. Mr. Blinzler testified that he was "pretty sure" that he had requested title insurance in 1960. He also testified that he did not recall having requested title insurance after February 1962. Except for one exhibit, there is no evidence that the Blinzlers requested title insurance after December 1962.
The record also reveals that respondent worked both farms during 1963 and in October 1963 requested modifications in both contracts. The requested modifications were presented as a plea for help due to a bad crop year. Both James and Milton Andrews assented to the modification which deferred the principal payment due December 1, 1963 with the Blinzlers paying only the interest.
Both title insurance policies were meanwhile being prepared. The Milton Andrews title policy was forwarded to the escrow agent on February 19, 1964 and a copy of the transmittal letter was sent to Andrew Blinzler. The title policy was issued on the James Andrews farm March 23, 1964.
When the December, 1963 payments came due, the Blinzlers had not been furnished with title insurance on either farm and the 1963 payment was not made to either James or Milton Andrews. On approximately December 28, 1963, James Andrews and Milton Andrews gave notice of default to the Blinzlers and of their intent to cancel the contract within 60 days and retain all sums paid by the Blinzlers pursuant to the forfeiture clause of the contract.
On or about February 17, 1964, the Blinzlers gave notice to the Andrews that the respective notices of default were breaches of the contract, since the Andrews had not performed their covenants in the contract by providing title insurance within a reasonable time, entitling them to rescission of the contract.
The district judge found that the delay of four years in obtaining title insurance was for more than a reasonable time and since there was no explanation for the delay, the Andrews had materially breached the contract and the Blinzlers were entitled to rescission. In computing the sum which the defendant James Andrews was to repay to the Blinzlers, the district judge allowed James Andrews credits for the reasonable rental value of the farm (approximately equal to the amount of the annual payment), rental for the buildings on the farm, damage done to the property, and amount of the contract price minus the fair market value in April 1964. The Blinzlers were allowed to recover the sum they had paid on the James Andrews farm minus the credit to James Andrews. In addition, the Blinzlers were allowed to recover the amount of taxes and insurance they had paid on the farm while they were in possession. James Andrews as a result was found to be indebted to Andrew Blinzler in the amount of $5,714.50.
The amount in which Milton Andrews was found indebted to the Blinzlers was derived similarly with additional credits due Milton Andrews for the value of crops in the ground when the Blinzlers went into possession. A credit was allowed the Blinzlers for improvements they made on the farm. Milton Andrews was found to owe Andrew Blinzler $1,637.23.
Although the Andrews allege numerous assignments of error, they can all be disposed of by considering these issues: (1) Whether the Blinzlers were entitled to rescission, and (2) Whether the Blinzlers waived their right to rescind.
The district court concluded that the Blinzlers were entiled to rescission on two grounds. The first is that the Blinzlers were entitled to rescission because the Andrews sent notices of forfeiture when they, the Andrews, were in default. Let us point out initially that these notices, one entitled "Notice of Forfeiture" and the other "Notice of Default," are actually *960 notices of default, describing the nature of the Blinzlers' default and giving them 60 days to cure. These notices were given according to the terms of the contract and did not ipso facto give the Blinzlers the right of rescission. If the Blinzlers were not in fact in default, and if they had a right to withhold the 1963 payment, then the notice of default was perhaps improper. The propriety of these notices then turns on the resolution of the second ground for rescission stated by the district court, that the title insurance was not provided within a reasonable time.
Rescission is an equitable remedy that totally abrogates the contract and seeks to restore the parties to their original positions. It is normally granted only in those circumstances in which one of the parties has committed a breach so material that it destroys or vitiates the entire purpose for entering into the contract. In re Estate of Johnson, 202 Kan. 684, 203 Kan. 262, 452 P.2d 286 (1969); Bollenback v. Continental Casualty Co., 243 Or. 498, 414 P.2d 802 (1966); Krause v. Mariotto, 66 Wash.2d 919, 406 P.2d 16 (1965); Mohr v. Lear, 239 Or. 41, 395 P.2d 117 (1964); Huggins v. Green Top Dairy Farms, Inc., 75 Idaho 436, 273 P.2d 399 (1954). While title insurance was an important part of this transaction, it was however only one aspect of the exchange. The Blinzlers were given possession of the two farms and the right to till them. Further, the Andrews rendered, in good faith, other acts that were required of them such as procuring easements and probating the estate of James Andrews' wife.
While it might be validly decided that a lapse of four years before procuring title insurance is more than a reasonable time, such conclusion is not necessary in this case. Assuming that an unreasonable time had elapsed as of December 1, 1962, the Blinzlers could have had a right to rescind the contract. However, as a precondition, the party seeking rescission must act promptly, once the grounds for rescission arise, in stating his intent to rescind and no longer treat the contract as in existence. Perry v. Woodall, 20 Utah 2d 399, 438 P.2d 813 (1968); Tyree v. Stone, 62 Wash.2d 694, 384 P.2d 626 (1963); Brunzell Construction Co. v. G.J. Weisbrod, Inc., 134 Cal. App. 2d 278, 285 P.2d 989 (1955); Bayley v. Lewis, 39 Wash.2d 464, 236 P.2d 350 (1951); Farrington v. Granite State Fire Ins. Co., 120 Utah 109, 232 P.2d 754 (1951).
Rather than notifying the Andrews of any breach by not having delivered title insurance policies, the Blinzlers continued in possession of the properties throughout 1963 and farmed both. This action by the Blinzlers can be construed in no other manner than as being consistent with their concurring in the continuing validity of the contract. Furthermore, such action is wholly inadequate when considered in light of the requirement that they unequivocally declare their intent to rescind the contract. If one considers that the right to rescind did not mature until the December 1, 1963 payment was due, the result is no different. The Blinzlers refused to make this payment, but did not actually declare their intent to rescind until February 17, 1964, some two and one-half months later. On neither account was there prompt action on the Blinzlers' part.
Where a party treats a contract as valid after facts appear which would establish the right to rescind and misleads the other party, the right to rescission is waived. Wetterow v. White, 71 Idaho 372, 232 P.2d 973 (1951); Allis-Chalmers Mfg. Co. v. Harris, 56 Idaho 769, 59 P.2d 345 (1936); Hoke v. Stevens-Norton, Inc., 60 Wash.2d 775, 375 P.2d 743 (1962); Curry v. Stewart, 189 Kan. 153, 368 P.2d 297 (1962); Farrington v. Granite State Fire Ins. Co., supra; Morse v. Kogle, 162 Kan. 558, 178 P.2d 275 (1947); Neet v. Holmes, 25 Cal. 2d 447, 154 P.2d 854 (1944). This principle is more clearly established where the party retains dominion over the subject matter of the contract and accepts benefits therefrom. As mentioned above, the Blinzlers continued in possession and tillage of both farms, an act consistent with an *961 existing contract. Another act by the Blinzlers indicating that they considered the contract still good was their request to defer the principal portion of the 1963 payment, not because of any problem with the title insurance, but because they did not have funds to meet the payment. This request was granted by the Andrews. We believe the record amply establishes that at that time Blinzlers waived their right to rescind for not having received title insurance in a reasonable time.
We are also persuaded by the fact that both policies were being prepared for some time before the 1963 payment was due and were delivered to the escrow agent early in 1964, well before the complaint was filed. The Blinzlers do not allege any damage due to the delay in receiving title insurance and acknowledge in their brief that they at no time knew of any defect in either title.
Both contracts which are the subject of this appeal provided for the forfeiture of all payments made by the Blinzlers in the event of their default. Generally, where a forfeiture provision in a contract would provide an unjust and unconscionable recovery, it will not be enforced and the recovery will be assessed according to the amount of actual damage. Williams v. Havens, 92 Idaho 439, 444 P.2d 132 (1968); Graves v. Cupic, 75 Idaho 451, 272 P.2d 1020 (1954). On remand, the district court should determine whether the amounts received by James and Milton Andrews are necessary to compensate them for any loss they actually sustained. If not, the excess should be returned to the Blinzlers.
One other point ought to be mentioned here, although the issue has been rendered moot by this decision. Rescission exists as an alternate remedy to damages for breach of contract. Williston, Contracts, Rev.Ed., Vol. 5, § 1455. Since these are alternative remedies, both cannot be granted for the same breach. In this case, the district judge granted rescission to the Blinzlers and contract price minus market value as of April, 1964 or benefit of the bargain as a set-off to the Andrews. Since this was a rescission case where the objective is to treat the contract as never having existed and to return the parties to the status quo before the contract was formed, it is improper to grant a measure of damages to any of the parties based on breach of the contract.
This case is reversed and remanded for further proceedings consonant herewith.
Costs to appellants.
McFADDEN and DONALDSON, JJ., concur.
SHEPARD, Justice (dissenting).
I dissent. The district court found that the Andrews had not performed covenants in the contract requiring title insurance to be provided within a reasonable time and that the Blinzlers were entitled to rescission. Thus, the only matter for decision here is the importance and materiality of the Andrews' breach of the covenant to furnish title insurance.
The contracts were signed by the parties in November and December, 1959. Some four years later the purchasers had still not received the title insurance policies and refused to make the annual payment which was then due. The purchasers had made down payments amounting to $16,000.00. Their annual payments were $6,250.00, together with interest at the rate of five per cent per annum on the deferred payments. Obviously, the purchasers had a very substantial financial interest and investment in the contract for the purchase of the real property. In my judgment, they were absolutely entitled to a guarantee, as would be provided by title insurance policies, that upon the payment of the large sums of money involved herein they would indeed obtain what they had paid for, i.e., a free and clear title to the real property.
To state, as does the majority opinion, that the purchasers had the duty of continuing to make the large financial yearly investment without any assurance of performance by the sellers, simply disregards *962 what any person of common sense would have done when faced with such a situation. The fact that the purchasers were given possession of the farms and the right to farm them, and that easements were procured by the sellers and that an estate was probated, simply has no bearing on the principal question. The failure to furnish the title insurance policies, in my judgment, was a material breach of one of the most significant covenants contained in the contract.
After making the $16,000.00 down payment, the purchasers in 1960, requested the title insurance. The annual payments of $6,250.00, together with the interest on the unpaid balance, were made in December, 1960 and December, 1961. In December, 1962, the purchasers delivered the annual payment to the escrow agent and directed that the agent should not transfer that money to the sellers until the title insurance policies were delivered. The purpose of the purchasers was defeated since the escrow agent nevertheless released the annual payment to the sellers. The following year the purchasers adopted another technique by refusing to make the December, 1963 annual payment until they had been furnished with the title insurance. Promptly thereafter, the sellers gave notice of default to the purchasers and of the sellers' intent to cancel the contract and retain all sums paid by the purchasers pursuant to the forfeiture clause of the contract.
In my judgment, the purchasers had acted more than reasonably in tolerating the continuing breach of the contract by the sellers' failure to furnish title insurance. It appears to me that they had attempted to obtain the performance of the sellers' duty to furnish title insurance and had failed. It is understandable that they had no desire to jeopardize their very substantial financial investment in the real property, and finally, as any reasonably minded person would, came to the conclusion that they had best stop such investment at some point in time until they received what they were entitled to under the contract, i.e., a guarantee that they would receive good title to the real property in return for their investment. Rather than receiving that guarantee, they received notice that the sellers intended to oust them from the property and retain all of the monies that the purchasers had previously paid. At that point, they gave notice of rescission and, in my judgment, were entitled so to do. The district court so held and the action of the district court should be affirmed.
McQUADE, C.J., concurs in the dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610250/ | 5 Wash. App. 106 (1971)
485 P.2d 995
TILLMAN BRADEN et al., Respondents,
v.
HOWARD T. REES et al., Appellants.
No. 244-3.
The Court of Appeals of Washington, Division Three.
June 9, 1971.
*107 Lonny R. Suko (of Lyon, Beaulaurier, Aaron & Weigand), for appellants.
Ronald F. Whitaker (of Walters & Whitaker), for respondents.
EVANS, J.
Defendants in this automobile accident case appeal from an order granting a new trial for failure to give one of plaintiffs' proposed instructions.
Plaintiffs' automobile, being driven by plaintiffs' son Bob Braden, with his mother as a passenger, was traveling east on Branch Road, an arterial highway in Yakima County. Simultaneously approaching Branch Road, traveling south on Barkes Road, was a pickup truck being driven by defendant Howard Rees, an employee of defendant Yakima Implement Company. Both drivers were familiar with the intersection, knew Rees was required to stop at Branch Road and that Rees' vision to the west at the stop sign was partially obstructed by a board fence on the west side of Barkes Road. Bob Braden testified he noticed the Rees vehicle a substantial distance before it reached the intersection and observed it slow as if to stop. Apparently he could see the top of the cab which extended above the fence. Mrs. Braden also testified that she noticed the Rees vehicle as it rolled up to the stop sign. At this point the testimony is in conflict. Mr. Rees testified that he stopped his vehicle with the front end approximately 7 feet beyond the stop sign. Not being able to see to the west because of the fence and a telephone pole he pulled ahead another 4 feet and stopped again where he could see west on Branch Road. At that time he saw the Braden vehicle approaching from the west "quite fast, I would say 80 miles an hour." He followed its progress as it started to weave, go out of control and crash into the ditch on the south side of Branch Road. He testified that at no time was he on the traveled portion of Branch Road and did nothing to cause the Braden vehicle to go out of control.
On the other hand, it was the testimony of Bob Braden and Mrs. Braden that Bob was driving 50 miles per hour *108 approaching the intersection and was approximately 200 feet from the intersection when they observed the Rees vehicle where the stop sign is located. Their first hint of danger was when the Rees vehicle rolled past the stop sign. It then accelerated onto Branch Road, paused at the center line and then crossed over into the east-bound lane, causing Bob Braden to swerve to the right to avoid colliding with the Rees vehicle.
Plaintiffs' proposed instruction 9 which the trial court determined should have been given reads as follows:
You are instructed that the excessive speed of a car, if any, is not the proximate cause of damage if the driver of such car was where he had a right to be and the driver would not have had sufficient time to avoid the collision had he been driving at a lawful speed.
Defendants contend that the rule of law expressed in the proposed instruction is adequately covered by other general instructions given by the court. These general instructions are set forth in the footnote below.[1] The trial court *109 found otherwise and held that by refusing to give plaintiffs' proposed instruction plaintiffs were prevented from arguing a substantial part of their theory of the case.
*110 [1] In determining the scope of review where a new trial has been granted, the appellate court must ascertain the reason given by the trial court. If the reason given is predicated upon an issue of law, the appellate court reviews for error only, not for abuse of discretion. Detrick v. Garretson Packing Co., 73 Wash. 2d 804, 440 P.2d 834 (1968). As stated in Johnson v. Howard, 45 Wash. 2d 433, 436, 275 P.2d 736 (1954):
We start with the recognized principle that an order granting or denying a new trial is not to be reversed, except for an abuse of discretion. Huntington v. Clallam Grain Co., 175 Wash. 310, 27 P. (2d) 583. This principle is subject to the limitation that, to the extent that such an order is predicated upon rulings as to the law, such as those involving the admissibility of evidence or the correctness of an instruction, no element of discretion is involved. Grant v. Huschke, 70 Wash. 174, 126 P. 416; ... Hayes v. Sears, Roebuck & Co., 34 Wn. (2d) 666, 209 P. (2d) 468.
The trial court determined as a matter of law that plaintiffs were entitled to have their proposed instruction 9 given. Thus we review for error of law, not abuse of discretion.
In determining that the facts of the present case required the giving of plaintiffs' proposed instruction, the court relied upon Bailey v. Carver, 51 Wash. 2d 416, 319 P.2d 821 (1957), the facts of which are set forth in an earlier appeal in Bailey v. Carver, 47 Wash. 2d 153, 286 P.2d 680 (1955). In Bailey the defendant testified that as he approached an arterial highway traveling east he stopped a short distance *111 from the intersection at a stop sign. Being unable to see traffic approaching on the highway from the north because of a high bank he pulled into the intersection, at which time he saw plaintiff's car approximately 50 feet distant approaching from the north at a speed he testified was about 15 miles per hour above the maximum speed limit. Being of the opinion he could not escape a collision with plaintiff's car, he lay down in the front seat and awaited the inevitable collision, which occurred in the lane in which plaintiff was traveling. The trial court refused to give an instruction proposed by plaintiffs which was identical to plaintiffs' proposed instruction in the present case. The Supreme Court, in holding that this was reversible error, stated:
Clearly, under appellant's theory of the case and under the law as announced in the first appeal, appellant's proposed instruction No. 17 should have been given, and the trial court erred in failing to do so.
Bailey v. Carver, 51 Wash. 2d 416 at 420, cited with approval in Bohnsack v. Kirkham, 72 Wash. 2d 183, 195, 432 P.2d 554 (1967).
[2, 3] A consideration of both the factual pattern and the instructions given in Bailey leads us to the conclusion that there are no material distinctions between Bailey and the instant case. The court ruled in Bailey that it is not enough to instruct that excessive speed is contributory negligence and to generally define proximate cause. Nor does an instruction that plaintiff has a right to assume the roadway is clear suffice. Rather, the jury must be instructed in effect that excessive speed of the favored driver is not a proximate cause if the accident could not have been avoided had he been driving at a lawful speed. While "pin-pointed" instructions are to be avoided, giving an instruction on the party's theory of the case is required provided there is evidence to support it. Sonnenberg v. Remsing, 65 Wash. 2d 553, 398 P.2d 728 (1965), Owens v. Seattle, 49 Wash. 2d 187, 299 P.2d 560, 61 A.L.R. 2d 417 (1956). There is evidence to support plaintiffs' theory, and the general instructions as *112 given do not encompass the concept expressed in plaintiffs' proposed instruction. As stated by the trial court in granting plaintiffs' motion for a new trial:
The proposed instruction, which is an exact quote from the Bailey case, imposes a limitation upon the jury as to what they can consider in determining whether or not the plaintiff's contributory negligence was the proximate cause, or a proximate cause, of the plaintiff's injury. The instructions as given by this court properly set out that the plaintiff could possibly be contributorily negligent due to excessive speed and then instructs the jury that they should find for the defendant if they find that plaintiff's contributory negligence was a proximate cause of plaintiff's own injury. However, nowhere in the instructions did the court indicate to the jury that there was a limitation upon them, as a matter of law, in respect to the excessive speed, if any, of the plaintiff as a proximate cause of the injury. As instructed, the jury in this case could well have found from the evidence that there may have been some excessive speed on the part of the plaintiff, particularly in view of the "appropriate reduced speed at the intersection" instruction, this being a failure to use ordinary care as defined by the courts and, without the limiting language, that this was a proximate cause of the accident and the plaintiff could not therefore recover.
We agree that Bailey imposes a limitation upon the jury as to what they can consider in determining whether plaintiffs' excessive speed, if they so find, was a proximate cause of plaintiffs' injury. The factual pattern of the present case required that the rule of law expressed in plaintiffs' proposed instruction 9 be given in order to put the relationship of the duties of the favored and disfavored driver in proper perspective.
Defendants also contend that by use of the words "the collision" the proposed instruction constitutes a comment on the evidence, contrary to article 4, section 16 of the state constitution. It is argued that within the commonly accepted meaning of the word there was no "collision" of the two vehicles, and since there was a dispute as to whether defendants' car was at any time within the east-bound lane and undisputed that plaintiffs' car was in its proper lane, *113 reference in the instruction to "the collision" suggests that defendants' car was in plaintiffs' lane of travel. The possibility that use of the word "collision" might be misleading was apparently recognized by both court and counsel, as counsel for plaintiffs states in oral argument and in his brief, without contradiction, that in the informal instruction discussion between court and counsel it was agreed that any unfavorable connotations to be drawn from use of the word "collision" would be satisfied by inserting the word "accident" or "damage". Under these circumstances, on a new trial the court is not bound to give the proposed instruction in the precise form it was written.
Since we affirm the order of the trial court granting a new trial, it is unnecessary to discuss cross-assignments of error urged by plaintiffs as additional grounds for granting a new trial. Suffice it to say it was proper to give instruction 6 and refuse to give plaintiffs' proposed instruction 10 for the reasons stated by the trial court.
Order granting a new trial affirmed.
MUNSON, C.J., and GREEN, J., concur.
Petition for rehearing denied July 28, 1971.
Review denied by Supreme Court August 26, 1971.
NOTES
[1] 3
"The plaintiff has the burden of proving each of the following propositions:
"First, that the defendant acted or failed to act in one of the ways claimed by the plaintiff and that in so acting, or failing to act, the defendant was negligent.
"Second, that the plaintiff was injured and plaintiff's property was damaged;
"Third, that the negligence of the defendant was a proximate cause of the injury to the plaintiff and the damage to plaintiff's property.
"The defendant has the burden of proving both of the following propositions:
"First, that the plaintiff acted or failed to act in one of the ways claimed by the defendant, and that in so acting or failing to act, the plaintiff was contributorily negligent;
"Second, that the contributory negligence of the plaintiff was a proximate cause of plaintiff's own injuries and property damage.
"If you find from your consideration of all the evidence that the plaintiff has sustained plaintiff's burden of proof, and if the defendant has not sustained defendant's burden of proof, your verdict should be for the plaintiff. If you find from your consideration of all the evidence that the plaintiff has sustained plaintiff's burden of proof, and that the defendant has also sustained defendant's burden of proof, your verdict should be for the defendant. If the plaintiff has not sustained plaintiff's burden of proof, your verdict should be for the defendant."
"No. 5
"As applied to this case, a statute provides that [a] `... driver of a vehicle approaching a stop intersection indicated by a stop sign shall stop . .. at a point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering the intersection, and after having stopped shall yield the right of way to any vehicle ... which is approaching so closely on said highway as to constitute an immediate hazard during the time when such driver is moving across or in the intersection.'
"This right of way, however, is not absolute but relative, and the duty to exercise ordinary care to avoid collisions at intersections rests upon both drivers. The primary duty, however, rests upon the driver who faces a stop sign, which duty he must perform with reasonable regard to the maintenance of a fair margin of safety at all times."
"No. 6
"A statute provides that no person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing and he shall so control his speed as may be necessary to avoid colliding with others who are complying with the law and using reasonable care.
"The statute provides that a driver shall drive at an appropriate reduced speed when approaching or crossing an intersection, if the above requirements are present.
"The maximum statutory speed limit on the Branch Road was 50 miles per hour."
"No. 7
"The violation, if you find any, of a statute is negligence as a matter of law. Such negligence has the same effect as any other act of negligence. Therefore, it will not render a defendant liable for damages or bar recovery on the part of a plaintiff claiming injury or damage unless you further find that it was a proximate cause of the claimed injury or damage.
"While the violation of a statute is, generally speaking, negligence as a matter of law, such a violation will not render a defendant liable or bar recovery on the part of a plaintiff claiming injury or damage if it is due to some cause beyond the violator's control, and which ordinary care could not have guarded against."
"No. 15
"A person, who is suddenly confronted by an emergency through no negligence of his own and who is compelled to decide instantly how to avoid injury and who makes such a choice as a reasonably careful person placed in such a position might make, is not negligent even though he does not make the wisest choice."
"No. 16
"Every person using a public street or highway has the right to assume that other persons thereon will use ordinary care and will obey the rules of the road, and he has a right to proceed on such assumption until he knows, or in the exercise of ordinary care should know, to the contrary. When known to the contrary, a reasonable reaction time must be allotted to permit him, in the exercise of due care, to act." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2026872/ | 311 B.R. 446 (2004)
In re Vance Cole CHESNUT, Debtor.
Mark T. Brown, et al., Appellants,
v.
Vance Cole Chesnut, Appellee.
No. 4:04-CV-342-A.
United States District Court, N.D. Texas, Fort Worth Division.
July 1, 2004.
*447 Dennis O. Olson, Olson, Nicoud & Gueek, Dallas, TX, for Appellants.
James M. Morrison, Jim Morrison & Associates, Fort Worth, TX, for Appellee.
Dennis Michael Lynn, Fort Worth, TX, pro se.
Case Admin Sup FW, Fort Worth, TX, pro se.
Tim Truman, Truman, Spicer & Oujesky, North Richland Hills, TX, pro se.
MEMORANDUM OPINION and ORDER
MCBRYDE, District Judge.
This action comes before the court as an appeal from a judgment in an adversary proceeding before the United States Bankruptcy Court for the Northern District of Texas, Fort Worth Division, the Honorable Dennis Michael Lynn presiding. The court, having considered the briefs of appellants, Mark T. Brown and Templeton Mortgage Corporation, and appellee, Vance Cole Chesnut ("debtor"), the record on appeal, and applicable authorities, finds that the bankruptcy court's judgment should be reversed and that the case should be remanded for further proceedings consistent with this memorandum opinion and order.
I.
Jurisdiction
This is an appeal from a final judgment entered December 24, 2003, granting relief sought by debtor. This court's jurisdiction exists pursuant to 28 U.S.C. § 158(a).
II.
Underlying Proceedings
In 1996, when debtor was twenty-four years old, he married Jacqueline Chesnut ("Mrs. Chesnut"), who was then fifty years of age. Mrs. Chesnut had accumulated *448 assets over the course of prior marriages; debtor had no assets. In 1997, debtor filed a voluntary petition for relief under Chapter 13 of the United States Bankruptcy Code. Mrs. Chesnut did not join in the filing. Debtor received his discharge from that bankruptcy in December 2002.
While debtor's first bankruptcy was pending, Mrs. Chesnut acquired approximately 2.52 acres of land in Eastland County, Texas, (the "Property") by a deed reciting that the Property was being granted to her "as her sole and separate property and estate." Mrs. Chesnut signed a real estate lien note (the "note") reflecting that the Property was her separate property. And, a title policy was issued reflecting that the Property was Mrs. Chesnut's separate property. Thereafter, appellants[1] purchased the note and deed of trust from the seller of the Property. There is no evidence that when they made the purchase appellants had any knowledge of Mrs. Chesnut's marital status or that appellants had any reason to question the accuracy of the recitations in the deed, note, and title policy. Debtor did not have, and has never had, any recorded interest in the Property.
The note was not timely paid and, by letter dated December 23, 2002, appellants gave Mrs. Chesnut notice that the loan was in default and that its maturity would be accelerated if she failed to pay the arrearages on or before January 13, 2003. By letter dated January 13, 2003, Gary W. Corbin ("Corbin"), counsel for appellants, gave notice to Mrs. Chesnut that the note had been accelerated. By notice of acceleration and notice of substitute trustee sale, Mrs. Chesnut was informed that the Property would be sold at foreclosure sale on February 4, 2003.
On January 31, 2003, debtor filed his second Chapter 13 bankruptcy proceeding and gave notice of the filing to appellants. Debtor and his attorney, James M. Morrison ("Morrison"), talked to Corbin on several occasions prior to February 4, 2003, and informed him that debtor claimed a community property interest in the Property. Morrison faxed to Corbin and to appellants copies of a two-page voluntary petition filed by debtor.[2] Believing that the Property was Mrs. Chesnut's separate property, Corbin advised appellants to go forward with the foreclosure sale and they did so.
On June 16, 2003, debtor filed an adversary proceeding against appellants, alleging that they had wrongfully foreclosed on the Property in violation of the automatic stay. On August 5, 2003, the bankruptcy judge heard testimony on debtor's motion for sanctions for violation of the stay. At the conclusion of the hearing, the bankruptcy judge announced that he would try the case on the merits before deciding the sanctions issue. The trial took place on October 14, 2003. On November 6, 2003, the bankruptcy judge signed a memoi-andum opinion and, on December 23, 2003, a judgment sanctioning appellants for having willfully violated the automatic stay and ordering them to pay $10,000.00 into the registry of the court and to reconvey the Property to Mrs. Chesnut. Appellants timely filed their notice of appeal, having been granted an extension of time in which to do so.
*449 III.
Issues on Appeal
Appellants present three issues on appeal. First, the bankruptcy court erred in holding that appellants willfully violated the automatic stay. Second, the bankruptcy court erred in holding that debtor held an interest in the Property. And, third, the bankruptcy court erred in failing to hold that debtor was estopped to claim an interest in the Property.
IV.
Standard of Review
To the extent the appeal presents questions of law, the bankruptcy court's judgment is subject to de novo review. Pierson & Gaylen v. Creel & Atwood (In re Consolidated Bancshares, Inc.), 785 F.2d 1249, 1252 (5th Cir.1986). Findings of fact, however, will not be set aside unless clearly erroneous. Memphis-Shelby County Airport Authority v. Braniff Airways, Inc. (In re Braniff Airways, Inc.), 783 F.2d 1283, 1287 (5th Cir.1986). A finding is clearly erroneous, although there is evidence to support it, when the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. The mere fact that this court would have weighed the evidence differently if sitting as the trier of fact is not sufficient to set aside the bankruptcy court's order if that court's account of the evidence is plausible in light of the record viewed in its entirety. Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985).
V.
Discussion
The parties devote substantial attention in their briefs to issues that are not properly before the court. They assume that the bankruptcy court held that debtor owned a particular interest in the Property and that debtor was not estopped from claiming that interest. Instead, the bankruptcy court stated: "[W]hether the Property is part of Debtor's estate is a question of fact which must be adjudicated by a court." Tr. at 50.[3] But, he never made a finding on that issue.[4]
The bankruptcy court determined, without citing any authority, that the mere fact that debtor gave notice of his bankruptcy filing and said that he claimed an interest in the Property was enough to stop the foreclosure sale. If that were the law, no one would be able to rely on chain of title to deal with real property in Texas. The bankruptcy court in effect ruled that property acquired during marriage is community property despite how it is titled. The inception of title rule is to the contrary: "Property acquired during marriage acquires its status of separate or community at the time of its acquisition." Henry S. Miller Co. v. Evans, 452 S.W.2d 426, 430 (Tex.1970). As the Texas Supreme Court has noted, "[t]he act of the spouses in taking a conveyance of property in the name of the wife, limiting the title to her separate use, unmistakably evidences an intention that the same shall belong to her separate estate." Id. Moreover, extrinsic evidence cannot be offered to contradict the express recitals in a *450 deed without first tendering competent evidence that there was fraud, accident, or mistake in the insertion of the recitals in the deed. Id. at 431. There is no such evidence here.
At most, debtor may have a claim for economic contribution. As the bankruptcy court noted, such a claim does not create an ownership interest in property. TEX. FAM.CODE ANN. § 3.404(b) (Vernon Supp.2004). Thus, such a claim has no bearing on the existence of the automatic stay.
The bankruptcy judge was apparently disturbed by the fact that appellants neither sought relief from the stay nor sought retroactive approval of the sale.[5] Nevertheless, there could have been no violation of the automatic stay if the Property was not property of the debtor's estate. The evidence does not support, and would not support, a finding that the stay extended to the Property.
VI.
Order
For the reasons discussed herein,
The court ORDERS that the judgment at issue in this case be, and is hereby, reversed; that debtor take nothing on his adversary complaint the subject of this appeal; that such adversary complaint be, and is hereby, dismissed with prejudice; and, that this action be, and is hereby, remanded to the bankruptcy court for such further proceedings as are necessary to restore appellants to the position they were in prior to entry of the December 24, 2003, judgment.
NOTES
[1] For ease of reference, the court refers to appellants as owners of the lien at issue. Actually, Brown is the owner and Templeton Mortgage Corporation, a company controlled by Brown, is the servicer.
[2] The petition reflected that Palo Pinto was the debtor's county of residence. Thus there was no issue about whether debtor then claimed the Property as homestead. And, in any event, no schedules were filed before the foreclosure.
[3] The court omits the extraneous leading zeros from the page numbers of the transcript.
[4] Despite the recitation that the memorandum opinion "constitutes the court's findings of fact," tr. at 42, one would be hard-pressed to identify what facts were found. The opinion contains summations of testimony with the indication that neither debtor nor Mrs. Chesnut were credible witnesses.
[5] That the bankruptcy judge was ready to rule in favor of appellants if they but sought affirmative relief is plain from the face of the record. There seems to be no question that debtor engaged in fraudulent conduct during each of his bankruptcies and that he likely perjured himself during the hearings. At the very least, Mrs. Chesnut acquiesced, if not engaged, in fraudulent conduct herself. As the bankruptcy judge intimated, the filing of false schedules may prevent debtor from obtaining his discharge. See Cadle Co. v. Mitchell (In re Mitchell), No. 03-10885, slip op., 2004 WL 1448041 (5th Cir. June 28, 2004). And, this would seem to be a case where more serious consequences should follow. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876296/ | 283 So. 2d 591 (1973)
The HOUSING AUTHORITY OF the CITY OF GULFPORT
v.
J.G. BARBEE, III.
No. 47175.
Supreme Court of Mississippi.
October 1, 1973.
Eaton Cottrell, Galloway & Lang, Gulfport, for appellant.
Dale & Upton, Columbia, for appellee.
ON MOTION FOR 5% DAMAGES ON AFFIRMANCE
ROBERTSON, Justice:
The Motion of J.G. Barbee, III, Appellee and Cross-Appellant, to assess 5% Damages against the Housing Authority of the City of Gulfport, Mississippi, Appellant and Cross-Appellee, is sustained to this extent:
5% damages will be calculated on $7,625.00, the difference between the $20,000.00 judgment and $12,375.00 which was paid to Barbee by the Housing Authority on June 15, 1972.
The stipulation, which was attached to the Order for Disbursement, provides in part:
"It is further agreed that interest on the said sum of $12,375.00 shall cease to run, and any damages based upon the verdict of the County Court shall cease to run as to that percentage of the damages represented by this sum to be withdrawn, both ceasing as of the date of withdrawal of the said sum;"
The pertinent portion of Section 1971, Mississippi Code 1942 Annotated (1956), provides:
"In case the judgment or decree of the court below be affirmed, or the appellant fail to prosecute his appeal to effect the Supreme Court shall render judgment against the appellant for damages, at the rate of five per centum and costs, as follows: If the judgment or decree affirmed be for a sum of money, the damages shall be upon such sum." (Emphasis added).
*592 Even though the Housing Authority and Barbee both were dissatisfied with the $20,000 judgment, the Housing Authority first took advantage of the appellate process and initiated an appeal. Barbee later cross-appealed. The judgment of the court below was affirmed without change, 279 So. 2d 604; this case fits squarely within the terms of the statute. The statute provides: "... the Supreme Court shall render judgment against the appellant for damages, ..." We must comply with the mandate of the law.
The litigant who first initiates an appeal was construed by us in Pearce v. Ford Motor Company, 235 So. 2d 281 (Miss. 1970) to be the appellant referred to in Section 1971 against whom damages are to be assessed upon affirmance without change of the lower court's judgment.
The Motion to Assess Damages is, therefore, sustained and 5% damages will be calculated on $7,625.00.
All Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610069/ | 467 P.2d 825 (1970)
Jose Arturo VALDEZ, Petitioner,
v.
The DISTRICT COURT FOR the COUNTY OF PUEBLO, and Honorable Matt J. Kikel, Judge Thereof, Respondents.
No. 24519.
Supreme Court of Colorado, En Banc.
April 13, 1970.
*826 Jose Arturo Valdez, pro se.
Carl Parlapiano, Dist. Atty., J. E. Losavio, Jr., Pueblo, for respondents.
DAY, Justice.
This is an original proceeding in which petitioner, Jose Arturo Valdez, appears pro se seeking a writ of mandamus to compel the district court of Pueblo County to grant him a free transcript of all the proceedings had in connection with his conviction in criminal action number 58738. A rule to show cause was directed to the district court for the County of Pueblo and to the Honorable Matt J. Kikel, one of the judges thereof, to which answer has been made and issue joined. The matter now awaits our determination as to whether the rule heretofore issued by us should be discharged or made absolute.
Judgment was entered in the action on February 10, 1969. On November 14, 1969, after the time for suing out writ of error in this court had expired, petitioner filed his motion for a free transcript.
He alleged as grounds for his motion: I. Ineffective assistance of counsel; II. denial of a fair trial by an impartial jury in violation of the United States Constitution and the constitution of the State of Colorado.
The court denied the motion for a free transcript and found as follows:
"* * * The Court finds that defendant has failed to allege sufficient facts which would warrant the granting of a free transcript or which would warrant the granting of relief under Rule 35(b) of the Colorado Rules of Criminal Procedure."
To warrant the furnishing of a free transcript, the petitioner must make a showing that "the furnishing of such would not be a vain and useless gesture." Carr v. District Court, 157 Colo. 226, 402 P.2d 182. When the time for appeal has expired, there must be a showing by the petitioner that he would be entitled to relief under Colo.R.Crim.P. 35(b). See Peirce v. People, 158 Colo. 81, 404 P.2d 843. Although the rules in Carr and Peirce were relaxed in the case of Sherbondy v. District Court, Colo., 459 P.2d 133, because of extraordinary circumstances, there is no allegation in the instant petition that would make applicable the Sherbondy exception to the requirements of Carr and Peirce.
I.
Concerning the allegation of ineffective assistance of counsel, the appropriate rule is set forth in Hampton v. People, Colo., 465 P.2d 112, wherein this court said: "The defendant failed to demonstrate to the trial court that his trial counsel was guilty of palpable malfeasance, misfeasance or nonfeasance." Trial counsel, it should be noted, was not appointed but was counsel of defendant's own choosing. Petitioner's counsel in the trial was an attorney with long experience in criminal cases, both as prosecutor and as defense counsel. See *827 Torres v. People, 159 Colo. 254, 411 P.2d 10. Petitioner alleges three reasons for deeming his counsel ineffective: (1) failure to investigate all available defenses; (2) failure to raise objections; and (3) failure to preserve the record for appeal purposes.
Petitioner's first allegation fails to apprise the court of what defenses were not investigated. The Supreme Court cannot second guess petitioner's counsel insofar as valid defenses are concerned, particularly when the court is not informed as to the specific defense. See Peirce v. People, supra. Furthermore, the record would not disclose anything concerning counsel's investigation so the granting of a transcript would afford petitioner no aid in this regard.
When and whether counsel has properly raised objections during the trial is a matter of trial strategy and technique. In Dolan v. People, Colo., 449 P.2d 828, this court stated:
"The constitutional right to the assistance of counsel is not a guarantee against mistakes of strategy or exercise of judgment in the course of a trial as viewed through the 20-20 vision of hindsight following the return of a verdict in a criminal case. Torres v. People, 159 Colo. 254, 411 P.2d 10; Valarde v. People, 156 Colo. 375, 399 P.2d 245. * * *"
Furthermore, the acts and omissions of an attorney during the course of a trial are binding upon his client, particularly where, as here, the client cannot specify a constitutional right of which he was deprived by the inaction of his attorney. See Peirce v. People, supra.
Petitioner fails to advise the court as to how his retained counsel failed to preserve the record for appeal. Since a motion for new trial was filed on behalf of the petitioner and was also argued and denied, it appears that the petitioner again has reference to the making of objections. If petitioner has reference to a failure to prosecute an appeal, this would not appear in the transcript.
It is apparent that petitioner's allegations concerning his trial counsel are lacking in merit. Moreover, as stated in Thompson v. People, 139 Colo. 15, 336 P.2d 93:
"* * * the client will not be heard to complain if he stands by, permits the case to be tried, and objects for the first time after receiving an adverse decision. * * *"
II.
The petitioner alleges that counsel became ill during the course of the trial resulting in a recess of over a week, thus creating a situation where the jury was prejudiced by the recess. However, the petitioner failed to advise this court in what manner he was prejudiced by reason of the recess. In the absence of specific allegations as to how the transcript would reflect prejudice because of the recess, the trial court could not speculate as to how a transcript would support the allegation. Nothing in the allegation indicates that the trial court abused its discretion by recessing the trial to give defense counsel time to recover from an illness.
The petitioner next alleges that the trial court erroneously "permitted testimony regarding a People's exhibit, i. e., clothes alleged to have been worn by the complaining witness" to be admitted into evidence on behalf of the prosecution. The petitioner does not contend that the evidence was irrelevant or immaterial or that the clothes were not what they were purported to be. The law in Colorado is clear that to establish the relevancy and materiality of evidence the prosecution need only connect it with the victim, the perpetrator, or the crime. Lofton v. People, Colo., 450 P.2d 638; Mathis v. People, Colo., 448 P.2d 633. To be admitted it must be shown to be what it purports to be. 2 Wharton, Criminal Evidence, § 675. In the absence of extraordinary circumstances, such as the use of false evidence, the admission of real evidence does not raise a constitutional question. See, e. g., Miller v. Pate, 386 U.S. 1, 87 S. Ct. 785, 17 L. Ed. 2d 690.
The rule is discharged. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4201282/ | Case: 16-30673 Document: 00514142772 Page: 1 Date Filed: 09/05/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-30673
Fifth Circuit
FILED
September 5, 2017
DAVID S. MAURER, Lyle W. Cayce
Clerk
Plaintiff
v.
INDEPENDENCE TOWN,
Defendant
----------------------------------------------------
DAVID S. MAURER,
Plaintiff - Appellant
v.
NICHOLAS J. MUSCARELLO, SR.; CARLO S. BRUNO; DENNIS
CROCKER; TANGIPAHOA PARISH RURAL FIRE PROTECTION
DISTRICT NO. 2,
Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
Case: 16-30673 Document: 00514142772 Page: 2 Date Filed: 09/05/2017
No. 16-30673
Before DAVIS, GRAVES, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:
David S. Maurer served a contentious seven months as fire chief in
Independence, Louisiana, before he was fired. He contends he was entitled to
notice and an opportunity to respond before that termination. Whether the
Due Process Clause affords him that right turns on whether he had a property
interest in his employment. And that depends on whether he was a civil
service employee under Louisiana law. He may have been a civil service
employee, so we reverse the district court’s grant of summary judgment and
remand for further proceedings.
I.
Independence closed its town fire department at the end of 2012. The
Tangipahoa Parish Rural Fire Protection District Number 2 (the District), a
political subdivision of the parish, took over fire protection services for the town
and surrounding areas. The District divided its jurisdiction into service areas
and contracted with ten volunteer fire departments to provide fire protection
services in defined areas. For Independence, that department was the
Independence Volunteer Fire Department (the Volunteer Department).
An unexecuted contract in the record sets out the relationship between
the District and the ten volunteer departments, including the Independence
Volunteer Department. The contract provides that the District will collect and
allocate tax dollars to the departments, and, in return, the departments will
“respond to any and all calls in their respective areas of responsibility.” The
departments also agree that “[a]ll additions or other changes to personnel shall
be ratified in accordance with the annual budget adopted by the Board of
Commissioners of the District” and that purchases of property or equipment,
or modifications to existing property, with a cost of more than $10,000 must be
preapproved by the District. Although the departments “administer their own
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No. 16-30673
payroll,” payroll expenses are reimbursed by the District. Such expenses will
“not be reimbursed for any position that has not been ratified by the Board of
Commissioners of the District.” When a department wants to hire a job
applicant, that decision “must be ratified by the District.” The applicant must
undergo a background check and drug and alcohol testing, and written
evidence that the applicant was advised of these requirements must be sent to
the District.
The contract also mandates that volunteer department members comply
with District policies and states that, if they do not, the District has the
authority to require the volunteer department to fire the member:
If an individual Fire Department does not take timely action
against its members and/or volunteers who have violated the
[District’s] adopted policies and procedures, the violation(s) shall
be immediately reported to the Administrator [of the District] and
forwarded to the Board of Commissioners of the District. After an
investigation has been completed, the District board will render a
final decision, which shall be binding upon all Fire Departments
....
The policies adopted by the District include recommended duties and a
mandatory code of conduct, drug and alcohol abuse policy, social media policy,
code of ethics, sexual and other harassment policy, and procedures for dealing
with complaints against a volunteer department or department employee.
According to the policies, the District has the authority to investigate any
complaint, determine whether it is supported by sufficient evidence, and take
“the appropriate action” under the District’s disciplinary policy.
In accordance with the new arrangement, Independence terminated its
firefighters at the end of 2012, and the Volunteer Department hired them.
Around this time, Maurer, who previously worked for Independence’s fire
department, became fire chief of the Volunteer Department. There is some
dispute about how he was hired. But taking the facts in the light most
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No. 16-30673
favorable to Maurer, Defendant Dennis Crocker, the previous fire chief for
Independence and incoming administrator for the District, selected him, and
both the District’s Board of Commissioners and the Board of Directors of the
Volunteer Fire Department reviewed and approved the hire. The record
includes an “Approval to Hire” form for Maurer’s position titled “Tangipahoa
Parish Rural Fire #2 Position Requisition/Approval to Hire Form.”
During the seven months Maurer was fire chief, his paychecks came from
the Volunteer Department, although the District allocated the funds. He set
schedules for the Department’s firefighters and managed the Department’s
day-to-day activities. He also had control over funds that came from donations.
But he testified that “anything [he] needed, as far as buying something, hiring
somebody, salary approvals, all went through” the District. He confirmed that,
in accordance with the contract, if he sought to hire a firefighter, he would
“seek approval from Fire District 2,” and if it was denied, he could not hire the
employee. District board meeting minutes confirm that he sought and received
approval for hires. In terms of Maurer’s own pay, he claims that he expected
his salary to increase after six months on the job, but the District refused to
increase the funds allocated for it. A fire chief for another department
contracting with the District submitted an affidavit saying that the District
similarly set his salary and told him it controlled hiring for his department.
During his tenure Maurer had numerous disagreements with Crocker.
For example, Crocker recommended that Maurer fire a firefighter, but Maurer
did not do so. Maurer changed the way medical calls were handled in a way
that displeased Crocker. Maurer also sent firefighters for training in a
different program than the one Crocker preferred. They also disagreed about
whether Maurer should hire Crocker’s son, despite an opinion from the
Louisiana Board of Ethics that doing so would be improper. Maurer also
described an instance when Crocker publicly criticized him for failing to get
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No. 16-30673
fire marshal approval for a fireworks show. At his deposition, Maurer said he
suffered no negative repercussions for disregarding Crocker’s input because
Crocker was not his boss.
But after seven months, following an investigation by Crocker, the Board
of the Volunteer Department voted to terminate Maurer’s employment. The
record is vague about the details of the process for removing Maurer, but there
is some evidence indicating that the District was involved. The Independence
town clerk stated that shortly before Maurer’s removal, at Crocker’s behest
and with input from a member of the District’s Board of Commissioners, she
wrote a letter to the District listing complaints about Maurer’s behavior and
threatening to withhold payments to the District in the amount of Maurer’s
salary if Maurer was not removed.
Maurer filed suit raising a procedural due process claim under section
1983 against the District, Crocker, and two members of the District’s Board of
Commissioners. Defendants moved for summary judgment on the ground that
Maurer had no property interest in his employment and thus no constitutional
protections. The district court agreed.
II.
In ruling on the motion for summary judgment, the district court refused
to consider the contract between the District and the ten volunteer
departments that has all those details about the entities’ relationship detailed
above. It thought the contract was inadmissible because it was unexecuted,
unauthenticated, and did not include a separate agreement—a cooperative
agreement between the District and the Volunteer Department—it purported
to attach.
We review a district court’s evidentiary rulings when it determines the
summary judgment record under an abuse of discretion standard. See Curtis
v. M&S Petroleum, Inc., 174 F.3d 661, 667 (5th Cir. 1999). Although that
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standard is deferential, an “erroneous view of the law” meets it. Brown v. Ill.
Cent. R.R. Co., 705 F.3d 531, 535 (5th Cir. 2013) (quoting Knight v. Kirby
Inland Marine, Inc., 482 F.3d 347, 351 (5th Cir. 2007)).
That is what happened here. At the summary judgment stage, evidence
need not be authenticated or otherwise presented in an admissible form. See
FED. R. CIV. P. 56(c); Lee v. Offshore Logistical & Transp., LLC, 859 F.3d 353,
355 (5th Cir. 2017); LSR Consulting, LLC v. Wells Fargo Bank, N.A., 835 F.3d
530, 534 (5th Cir. 2016). After a 2010 revision to Rule 56, “materials cited to
support or dispute a fact need only be capable of being ‘presented in a form
that would be admissible in evidence.’” LSR Consulting, LLC, 835 F.3d at 534
(quoting FED. R. CIV. P. 56(c)(2)). 1 This flexibility allows the court to consider
the evidence that would likely be admitted at trial—as summary judgment is
trying to determine if the evidence admitted at trial would allow a jury to find
in favor of the nonmovant—without imposing on parties the time and expense
it takes to authenticate everything in the record. See FED. R. CIV. P.
56(c)(1)(A).
There is nothing to compel a conclusion that the contract—one of the
more common types of exhibits admitted in civil cases—is not capable of being
admitted at an eventual trial. It is undisputed that the District and Volunteer
Department entered into an agreement. The contract Maurer submitted
appears to be that agreement, and Defendants have not argued otherwise. The
absence of a signature does not make the contract inadmissible for the purpose
1 As Lee and LSR Consulting show, confusion about the 2010 change to Rule 56
remains common. That confusion reaches our court. The district court relied on an
unpublished 2015 case from this court which, citing a 2000 case, stated that courts “may
consider only admissible evidence in ruling on a motion for summary judgment.” Maurer v.
Town of Indep., 148 F. Supp. 3d 555, 556 (E.D. La. 2015) (quoting Arlington Apartment Inv’rs,
LLC v. Allied World Assur. Co., 612 F. App’x 237, 238 (5th Cir. 2015) (citing Mersch v. City
of Dallas, 207 F.3d 732, 734–35 (5th Cir. 2000))).
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Maurer is using it: to show the division of authority between the parties. See
FED. R. EVID. 901; see also, e.g., Tyco Thermal Controls, LLC v. Redwood
Industrials, LLC, 2012 WL 2792435, at *3 (N.D. Cal. July 9, 2012) (refusing to
exclude unsigned contract when a witness statement said contract had been
executed); Knit With v. Knitting Fever, Inc., 742 F. Supp. 2d 568, 587 (E.D. Pa.
2010) (refusing to exclude unsigned agreement when the plaintiff presented
“significant evidence that the executed . . . [a]greement did, at one point,
exist”). That the contract does not attach a separate additional agreement it
refers to between the District and the Volunteer Department would not seem
to bar its ultimate use at trial (and if the additional agreement provided
evidence to support the District, it could have submitted that document).
Even if the some of the concerns the court raised did create substantial
doubt about the admissibility of the contract, it was the obligation of the
opposing party to object. FED. R. CIV. P. 56(c)(2); see also Donaghey v. Ocean
Drilling & Expl. Co., 974 F.2d 646, 650 (5th Cir. 1992) (noting that in the
absence of a timely objection or motion to strike, defects in summary judgment
evidence ordinarily are waived). Such an objection gives the proffering party
a chance “to explain the admissible form that is anticipated.” FED. R. CIV. P.
56 advisory committee’s note to 2010 amendment. So if the District had
objected to the contract’s admissibility, Maurer could have tried and remedied
any defects by, for example, filing a declaration authenticating the contract or
locating a signed copy. As there was no objection, Maurer was not on notice
that he needed to formalize his submission.
Because the district court’s exclusion of the contract was not consistent
with the new summary judgment rule, its ruling was an abuse of discretion.
We will thus consider the contract in determining whether the District was
entitled to summary judgment on the civil service question. See Curtis, 174
F.3d at 667 (explaining that the remedy for an erroneous evidentiary ruling at
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summary judgment is to review the district court’s grant with the excluded
evidence as part of the record); Heinsohn v. Carabin & Shaw, P.C., 832 F.3d
224, 233 (5th Cir. 2016) (noting that erroneous evidentiary rulings are subject
to harmless error ruling, but correcting those errors when they affected
whether summary judgment should have been granted).
III.
The Fourteenth Amendment guarantees “No State shall . . . deprive any
person of life, liberty, or property, without due process of law.” U.S. CONST.
amend. XIV. The process due varies by the strength of the interests involved,
but only actions that infringe enumerated interests—life, liberty, and
property—require due process. See Texas Faculty Ass’n v. Univ. of Texas at
Dallas, 946 F.2d 379, 383–84 (5th Cir. 1991). Maurer’s entitlement to process
thus depends on whether he had a property interest in continued employment.
Property interests “are not created by the Constitution” but “are created and
their dimensions are defined” by an independent source such as contract or
state law. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985).
Depending on the relevant contract or state law a person may have a property
interest in continued employment. See id.; Texas Faculty Ass’n, 946 F.2d at
379. For example, a tenured public university professor has such an interest.
See Jones v. Louisiana Bd. of Sup’rs of Univ. of Louisiana Sys., 809 F.3d 231,
236 (5th Cir. 2015). Under Louisiana law, so do civil service employees.
AFSCME, Council # 17 v. State ex rel. Dep’t of Health & Hosps., 789 So. 2d
1263, 1267–68 (La. 2001); Vanderwall v. Peck, 129 F. App’x 89, 91 (5th Cir.
2005).
The summary judgment ruling turns on whether Maurer was in a civil
service position, or at least whether he raises a factual dispute about that
question. All fire protection districts operating a “regularly paid fire
department” must establish a classified civil service system. LA. CONST. art.
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10 § 16; see also LA. R.S. § 33:2535 (creating in each “fire protection district, a
classified civil service embracing the positions of employment, the officers, and
employees of . . . fire protection districts”). A fire chief is a civil service position
if “the right of employee selection, appointment, supervision, and discharge” is
vested in the fire protection district or in an officer or employee of the district.
LA. R.S. § 33:2541(A). 2
In concluding as a matter of law that Maurer’s position was not a civil
service position, the district court properly considered Louisiana Revised
Statute section 33:2541, but it also followed Defendants’ suggestion to give
weight to a different test. It examined whether Maurer was an employee of
the District under Louisiana’s general test for determining the existence of an
employer-employee relationship. Maurer, 148 F. Supp. 3d at 561–62 (citing
Harrington v. Hebert, 789 So. 2d 649, 653 (La. App. 3 Cir. 2001)). But the
statute defining civil service status refers to “positions,” not employees, for
2 An initial question is whether the District was operating a regularly paid fire
department. Defendants did not move for summary judgment on this ground, so we assume
the District was operating such a department. Indeed, courts agree that a Louisiana fire
district operates a regularly paid fire department if it employs even one employee in
firefighting, so Crocker’s job as Fire Administrator seems to satisfy that requirement. See
Ballard v. Livingston Parish Fire Prot. Dist. No. 5, 91 So. 3d 311, 314 (La. App. 1 Cir. 2012);
France v. E. Cent. Bossier Fire Prot. Dist. No. 1, 4 So. 3d 959 (La. App. 2 Cir. 2009). This
question not disputed here—about whether a defendant was operating a “regularly paid fire
department”—is often the focus of Louisiana cases determining whether a person in a fire
services position was entitled to due process. See, e.g., Ballard, 91 So. 3d at 414. In
addressing that question, the cases have to consider whether a district employs regularly
paid employees. See, e.g., id.; Marshall v. W. Baton Rouge Parish Fire Prot. Dist. No. 1, 998
So. 2d 85 (La. 2009); Heintz v. City of Gretna, 683 So. 2d 926, 927–28 (La. App. 3 Cir. 1996).
But those cases do not address the separate question that was the basis for the district court’s
ruling: whether, assuming the District was operating a regularly paid fire department,
Maurer held a civil service position.
Also not dispositive is a case Maurer emphasizes, Wilcox v. Terrytown Fifth Dist.
Volunteer Fire Dept., Inc., 897 F.2d 765 (5th Cir. 1990). That case addressed whether a
nonprofit corporation providing fire services under contract with a fire district was a “public
agency” under the Fair Labor Standards Act. Id. at 765–66. Whether an entity is a public
agency is a different question from whether a particular position is part of the classified civil
service.
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which the District has the power of selection, appointment, supervision, and
discharge. LA. R.S. § 33:2541. When a statute provides criteria directed to
answering a specific question—in this case whether Maurer’s position was a
civil service one—that should control over general standards developed for
different situations. See Antonin Scalia & Bryan A. Garner, READING LAW
183–88 (2012). Indeed, Defendants conceded at oral argument that Louisiana’s
general framework for determining whether an employer/employee
relationship exists is not controlling.
To be sure, the test Louisiana courts apply to determine whether an
employer/employee relationship exists looks to some of the same factors as the
statutory test for deciding whether a position is a civil service position. But
there are also differences. Compare Harrington, 789 So. 2d at 653 (looking to
selection and engagement, payment of wages, power of dismissal, and power of
control), with LA. R.S. § 33:2541 (focusing on the right to selection,
appointment, supervision, and discharge). The general test focuses on
payment of wages and power of control, as opposed to the right to supervise.
The distinct Harrington framework led the district court to emphasize these
different factors. Maurer, 148 F. Supp. 3d at 561–62.
The proper inquiry focuses narrowly on section 33:2541: whether the
District had the right to select, appoint, supervise, and discharge the fire chief
for the Independence Volunteer Fire Department. There are factual disputes
on these material issues. Regarding selection and appointment, there is
evidence that Crocker, as incoming Administrator for the District, selected
Maurer as chief, and that the District’s Board of Commissioners approved his
hire. The contract itself specifies that any hire by a volunteer department—
including a fire chief—must be ratified by the District.
There is also evidence the District had the authority to supervise
Maurer. The contract says that Maurer was required to comply with the
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District’s detailed code of conduct and policies. If he did not, the District had
the authority to punish him. The contract required that any complaint about
any member of a volunteer department be forwarded to Crocker, who was
authorized to conduct an investigation in compliance with the District’s
complaint resolution procedure and take appropriate disciplinary action. The
contract also shows Maurer was required to seek District approval before
making large purchases or hiring employees. Defendants emphasize the
District did not exercise its authority by refusing to approve any hire Maurer
wanted to make. But even if the District did not exercise the right in negative,
that does not mean it lacked the authority to do so. Having a right and
exercising it are two different things. Similarly, whether the District
supervised hiring only for budgetary reasons, as Defendants assert, is beside
the point. Section 33:2541 considers only the right to supervise, not the reason
that power exists.
Finally, there is evidence that Crocker and the District had the right to
discharge Maurer. Some evidence indicates they exercised that right and were
involved in the decision to discharge him. But again, regardless of any actual
involvement, it is enough that the contract gives the District the right to make
a binding decision that Maurer be terminated. LA. R.S. § 33:2541.
With the contract considered as part of the summary judgment record,
the evidence is thus sufficient to preclude summary judgment on the question
whether Maurer was a member of the Louisiana civil service and entitled to
due process before losing his job. 3 The parties do not address, so we do not
decide, whether the civil service question is ultimately one for a judge or jury
3 Maurer claims his property interest also derives from the contract between the
District and the Volunteer Department and from Louisiana’s Firefighter Bill of Rights. LA.
R.S. § 33:2181. As we conclude summary judgment is inappropriate because of factual issues
regarding whether Maurer was employed in a civil service position, we do not address
whether those sources create a property interest protected by the Due Process Clause.
11
Case: 16-30673 Document: 00514142772 Page: 12 Date Filed: 09/05/2017
No. 16-30673
to decide. At a minimum, however, there are disputed issues concerning the
District’s authority to select, appoint, supervise, and discharge the fire chief
that a factfinder needs to answer.
***
We therefore REVERSE the judgment of the district court and REMAND
for further proceedings consistent with this opinion.
12 | 01-03-2023 | 09-06-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/2610300/ | 5 Cal. 3d 23 (1971)
485 P.2d 270
95 Cal. Rptr. 206
KENNETH I. SYMINGTON, Plaintiff and Respondent,
v.
CITY OF ALBANY et al., Defendants and Appellants.
Docket No. S.F. 22751.
Supreme Court of California. In Bank.
May 27, 1971.
*25 COUNSEL
Lawrence D. Saler, City Attorney, for Defendants and Appellants.
Arthur Bellman for Plaintiff and Respondent.
Ghitterman, Spielman & Steele and Allan S. Ghitterman as Amici Curiae on behalf of Plaintiff and Respondent.
OPINION
TOBRINER, J.
In this case we are called upon to consider whether the trial court properly followed our decision in City of Los Angeles v. Industrial *26 Acc. Com. (Fraide) (1965) 63 Cal. 2d 242, 253 [46 Cal. Rptr. 97, 404 P.2d 801], and Labor Code section 3751 in holding that the City of Albany may reduce the pension it pays to retired policemen and firemen who also receive workmen's compensation benefits by an amount proportional to the city's contribution to its pension fund. Labor Code section 3751 provides that "No employer shall exact or receive from any employee any contribution, or make or take any deduction from the earnings of any employee, either directly or indirectly, to cover the whole or any part of the cost of compensation under this division...."[1] (1a) In City of Los Angeles v. Industrial Acc. Com. (Fraide) (1965) 63 Cal. 2d 242, 253 [46 Cal. Rptr. 97, 404 P.2d 801], we held that to avoid the violation of section 3751's proscription of employee contributions and to prevent double recovery by the employee the city should receive only a partial credit against workmen's compensation liability by reason of its disability pension payments, and that such credit should be commensurate with the city's contribution to the pension fund.
Plaintiff, a retired fireman, throughout his more than 20 years of service, contributed 6 percent of his earnings to a pension fund to provide for his retirement; the city matched his contributions. The city now seeks to reduce plaintiff's pension by the entire amount of the workmen's compensation benefits otherwise due to him. Thereby the city, in substance, would deprive him of the benefit of his many years of contributions to the pension system and compel him, in violation of Labor Code section 3751, to pay indirectly for his own workmen's compensation benefits. If, however, plaintiff were to receive both the entire amount of his workmen's compensation benefits and the full city pension, he would derive from the single disability a greater recovery than authorized by section 3751 and the pension plan. We shall explain how the trial court properly followed our Fraide decision and Labor Code section 3751 to avoid these untoward results and to balance the equities of this case.
1. The facts
Plaintiff commenced his employment with the City of Albany as a fireman in July 1942. On January 29, 1963, he sustained an injury arising in the course of his employment as a fireman. As a consequence of this injury plaintiff became permanently disabled. During his more than 20 years of service, plaintiff contributed 6 percent of his salary to a city pension fund, and the city paid an equal amount.[2] Because of the pension *27 rights that had accrued during his employment, the Albany Board of Police and Fire Pension Fund Commissioners (hereinafter pension board) granted plaintiff a service connected pension in the sum of $363.50 per month, effective August 1, 1963.
On February 13, 1964, the Workmen's Compensation Appeals Board (formerly Industrial Accident Commission) awarded plaintiff permanent disability compensation of $52.50 per week beginning August 8, 1963, and continuing for 324 weeks. Thereafter, plaintiff would be entitled to receive $25.44 per week for the remainder of his life.[3] Upon plaintiff's receipt of his workmen's compensation benefits, the pension board undertook to reduce his pension ($363.50 per month) by the entire amount of his workmen's compensation benefits ($210 per month). Hence, commencing with June 1964 the city proposed to pay plaintiff a pension of only $153.50 per month. Since he received $210 per month from the city's workmen's compensation carrier he would thereafter obtain a total payment each month of $363.50.
(2a) Plaintiff then filed an action in the Alameda County Superior Court for declaratory relief to determine the legality of the pension board's deduction. He contended that by reducing his pension to the extent of the entire amount of his workmen's compensation benefits the city had violated Labor Code section 3751 in the manner found unlawful in City of Los Angeles v. Industrial Acc. Com. (Fraide), supra, 63 Cal. 2d 242, and City of Los Angeles v. Industrial Acc. Com. (Morse) (1965) 63 Cal. 2d 263 [46 Cal. Rptr. 110, 404 P.2d 814]. The trial court rendered judgment for plaintiff and ruled that the City of Albany should receive only a partial credit against its pension liability and that credit should bear the same ratio to the plaintiff's workmen's compensation payments as the city's contribution to plaintiff's pension bears to the total pension contributions.
The court reasoned that the city and plaintiff equally contributed to the pension fund, and thus the city's contributions bore a ratio of one-half to the sum of all contributions to the fund. The trial court then applied the ratio of one-half to the amount of the workmen's compensation benefits ($210 per month) and concluded that the city could reduce the pension only by an amount equal to half the workmen's compensation benefits *28 ($105). Hence, the city would pay plaintiff a pension of $258.50 per month; the workmen's compensation carrier would pay $210 per month; and he would receive a total of $468.50 each month.
2. Labor Code section 3751, Fraide, and Morse forbid the city from reducing the pension payments by the entire amount of the workmen's compensation benefits.
In Fraide we dealt with a fund established by the Los Angeles City Charter to provide pensions for city firemen and policemen, financed in part by these city employees, who contributed 6 percent of their salaries, and in part by city taxes. The city charter authorized a Board of Pension Commissioners to administer the pension fund and provided that if any policeman or fireman were awarded workmen's compensation benefits, any disability pension from the fund would "be construed to be and shall be payments of such compensation." The city paid its pensions and discharged its workmen's compensation liability from the same monies because the city served as its own workmen's compensation carrier. When the Industrial Accident Commission refused to allow the city any credit against its workmen's compensation liability for disability pension payments from the pension fund, the city sought review.
In a unanimous opinion, we held that to avoid transgressing section 3751's prohibition against employee contributions, the city should receive only a partial credit against its workmen's compensation liability for disability pension payments. (3a) Rejecting the city's contention that its charter provision entitled it to a full credit against its workmen's compensation liability, we noted that in Healy v. Industrial Acc. Com. (1953) 41 Cal. 2d 118, 122 [258 P.2d 1], we had held that the compensation provisions of the Labor Code prevail when in conflict with city charter provisions. (City & County of San Francisco v. Workmen's Comp. App. Bd. (1970) 2 Cal. 3d 1001, 1010 [88 Cal. Rptr. 371, 472 P.2d 459]; Pearson v. County of Los Angeles (1957) 49 Cal. 2d 523, 535 [319 P.2d 624]; Wilson v. Beville (1957) 47 Cal. 2d 852, 859 [306 P.2d 789]; Ferris v. Industrial Acc. Com. (1965) 237 Cal. App. 2d 427, 434 [46 Cal. Rptr. 913] (hg. den.).)[4] This court pointed out, "If we uphold the city's system *29 of employee deductions which can be used for disability pensions and permit the city a complete credit against its workmen's compensation liability, we encourage employers to set up hybrid funds composed of employee contributions and other funds for the purpose of discharging compensation liability, even though the employer cannot show that employee contributions are not used for payment of benefits. Such a system would violate the legislative mandate as interpreted by Healy and offer a stratagem for the purpose of undermining the system of workmen's compensation long established in this state." (City of Los Angeles v. Industrial Acc. Com. (Fraide), supra, 63 Cal. 2d 242, 252-253.)
In a companion case of City of Los Angeles v. Industrial Acc. Com. (Morse), supra, 63 Cal. 2d 263, 264-265 and footnote 1, we indicated expressly that the Fraide principle would limit the city's right to reduce the pension of a fireman's widow by the amount of workmen's compensation death benefits: "If the city is lawfully entitled to reduce its workmen's compensation liability to Mrs. Morse we see no reason why it may not, as an alternative, reduce its pension liability. In either case, of course, the reduction may not exceed an amount determined by the method of computation outlined in Fraide."
In the present case the City of Albany urges this court to distinguish Fraide and Morse on six grounds, none of which we find valid:
First: The city contends that the evidence does not show that any funds paid for workmen's compensation came from the earnings of an employee in violation of Labor Code section 3751. (1b) Yet the Morse case expressly holds Fraide applicable whether a city charter provision reduces pension payments to account for workmen's compensation or seeks to deduct from workmen's compensation those amounts that it has disbursed as pension payments. Cavoretto v. City of Richmond (1969) 270 Cal. App. 2d 726, 729 [76 Cal. Rptr. 94], expressly relied upon Morse in concluding that a municipality may not evade Fraide by reducing city pension payments instead of workmen's compensation liability.
Second: The Albany pension fund constitutes a separate trust account apart from the city's general fund, whereas the Los Angeles pensions were paid from the city's general fund. Although in Fraide and Morse both workmen's compensation and city pension obligations derived from the same fund to which employees were required to contribute and although in the present case the City of Albany's pension fund reposes in a trust account separate from the city's general fund, this "rather metaphysical" distinction *30 does not support a different result. (See City of Los Angeles v. Industrial Acc. Com. (Fraide), supra, 63 Cal. 2d 242, 246.)[5]
In Fraide we refused to follow the city's suggestion that we deem workmen's compensation payments totally tax supported by reason of the presence of adequate tax monies in the fund, because, we reasoned, "Both employee deductions and tax monies constitute sources for the pension fund. When a disability pension is paid, it in fact consists of money from both sources. Artificially to allocate all the employee deductions to the `additional' amount and not to the portion which discharges workmen's compensation liability is merely to choose the desired result." (63 Cal.2d at p. 251; fn. omitted.) Our refusal in Fraide to follow the city's suggestion was prompted by the fear that we would encourage precisely the evasion that Albany now attempts in setting up "hybrid funds composed of employee contributions and other funds for the purpose of discharging compensation liability, even though the employer cannot show that the employee contributions are not used for payment of benefits." (63 Cal.2d at pp. 252-253; italics added.)
As a practical matter, the city in the present case seeks the same result that Los Angeles sought in Fraide, that is, to reduce the employee's effective return on his contributions to the city pension fund solely because he was awarded workmen's compensation, and hence, "directly or indirectly" to charge him for workmen's compensation. By attempting to credit pension payments which result in part from employee contributions against workmen's compensation liability, as in Fraide, Morse, and Healy, or by attempting to reduce pension payments on account of workmen's compensation benefits, as in Cavoretto and the instant case, the employer seeks to reduce the ultimate value of the employee's contributions to the pension fund.
City of Oakland v. Workmen' Comp. App. Bd. (1968) 259 Cal. App. 2d 163, 169-170 [66 Cal. Rptr. 283] (hg. den.) does not support the city's *31 theory because the Oakland plan provided that the employee would always get both the full value of the fund supported by his contribution and the full amount of any workmen's compensation award. Unlike any of the plans in the other cases we have discussed, Oakland segregated employee and employer contributions to its pension fund, stipulated that the employee would receive the full pension to which he had contributed, and reduced only that fund supplied entirely by the city's contributions in an amount commensurate with any workmen's compensation benefits reduced in accord with the Fraide formula. Hence, the Oakland plan institutionalized the formula adopted by the Fraide decision. The Oakland plan makes certain that the value of an employee's contributions to his pension will not be decreased by virtue of any possible workmen's compensation benefits. In contrast, the Albany plan would deduct the entire workmen's compensation from the pension, to which both the employee and the city had contributed, in such a way as to diminish the full pension value of the employee's contribution.
Third: The city attaches great significance to the language of the Los Angeles Charter provision, considered in Fraide, that any payments "be construed to be and shall be payment of such workmen's compensation"[6] and purports to find no similar language in the Albany Charter. The Albany Charter does, however, indicate that payments shall be computed "to the end that said members of the Police and Fire Department shall receive an aggregate total of benefits paid for by the City of Albany and not included in this law."[7] The "benefits paid for by the City of Albany and not included *32 in this law" constitute in fact "payment of such workmen's compensation." The charter provisions are thus indistinguishable for any purpose here relevant.
(2b) Fourth: Albany attempts to distinguish cities which are self-insured, such as Los Angeles in the Fraide case, from cities which are insured by the State Compensation Insurance Fund, such as Albany itself in the present case. The practical effect of Albany's decrease of its pension payments by the entire amount of the fireman's workmen's compensation award is to diminish the value of his contributions to his pension and thus "indirectly" to compel the employee to pay for his workmen's compensation benefits. (1c) We see no reason for any distinction between section 3751's application to those employers who are permissibly self-insured and to those who are institutionally insured. (See Lab. Code, § 3700; see Cavoretto v. City of Richmond, supra, 270 Cal. App. 2d 726, 728-729.)
Fifth: The city contends that the application of Fraide would result in double liability for the city. To the contrary, Fraide as applied in this case prevents "double liability" for the city, while retaining the legislative objectives of section 3751. (Cf. City of Oakland v. Workmen's Comp. App. Bd. (1969) 271 Cal. App. 2d 555, 556 [76 Cal. Rptr. 886] (hg. den.).) The Fraide rule recognizes that the city has substantially contributed to the pension fund and the employee should not garner both the benefits of the workmen's compensation insurance for which the city has paid and the city's portion of the pension fund. Hence, Fraide permits the city to decrease its pension payments by an amount commensurate with its contributions to the pension fund because of a fireman's compensation award. (See City of Los Angeles v. Industrial Acc. Com. (Fraide), supra, 63 Cal. 2d 242, 252-253; cf. Helfend v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal. 3d 1, 10 [84 Cal. Rptr. 173, 465 P.2d 61].)
(3b) Sixth: Although the city correctly contends that the pension provisions compose an integral part of the employment contract (see Kern v. City of Long Beach (1947) 29 Cal. 2d 848, 852 [179 P.2d 799]; Dryden v. Board of Pension Commrs. (1936) 6 Cal. 2d 575, 579 [59 P.2d 104]), the city erroneously argues that the contract binds the employee to accept the city's disputed reduction in the pension. (2c) The contract, however, does not endow the city with the power to abrogate Labor Code section 3751. The section prohibits the employer from exacting "from any employee any contribution ... either directly or indirectly, to cover the whole or any part of the cost of [workmen's] compensation...." The City of Albany may no more condition employment upon the fireman's or policeman's contribution to the cost of his workmen's compensation than could the City of Los Angeles in Fraide. Since the city charter, and thus *33 the contract of employment, expressly provide for a credit against pension payments by reason of workmen's compensation benefits, the city may, however, claim a partial credit according to the formula established by Fraide. (1d) In any event, in order to take even a partial credit the city must put the employee on notice by means of the contract of employment or charter that his pension payments will not be independent of his workmen's compensation benefits for permanent disability. Neither the city nor the Workmen's Compensation Appeals Board could allow any credit if the contract of employment fails so to provide. (See City of Oakland v. Workmen's Comp. App. Bd., supra, 259 Cal. App. 2d 163, 168; cf. Lab. Code, § 4909; Herrera v. Workmen's Comp. App. Bd. (1969) 71 Cal. 2d 254, 257 [78 Cal. Rptr. 497, 455 P.2d 425] (temporary disability).)
(2d) Finally, the city suggests that even if the Fraide decision is controlling in the present case, the city in addition to the credit it receives for its contribution to the city pension fund, should be credited for the premiums for workmen's compensation that it pays to the State Compensation Insurance Fund. For the reasons stated herein we reject this suggestion. Fraide defines the "city's contributions" as "the aggregate tax monies paid into the pension fund during the years Fraide was employed by the city as a policeman and paid into the fund. `Employee contributions' are the aggregate deductions paid into the fund by all firemen and policemen during those years." (City of Los Angeles v. Industrial Acc. Com., supra, 63 Cal. 2d 242, 253-254; Cavoretto v. City of Richmond, supra, 270 Cal. App. 2d 726, 730.) Hence, the Fraide formula did not give the city any credit for premiums paid for workmen's compensation; Labor Code section 3751 as interpreted by Fraide does not warrant such a step.
(4) In conclusion, we note that we deal here with a relationship that begins as that of employee and employer but which now has matured into that of pensioner and administrator. In the vast development of pensions in today's complex society, the numbers of pension funds and pensioners have multiplied, and most employees, upon retirement, now become entitled to pensions earned by years of service. We believe that courts must be vigilant in protecting the rights of the pensioner against powerful and distant administrators; the relationship should be one in which the administrator exercises toward the pensioner a fiduciary duty of good faith and fair dealing.
The trial court in the instant case reaches an equitable result consonant with the above principle; it followed the legislative mandate of Labor Code section 3751 as articulated by Fraide and Morse to resolve the present cause "upon the basis of the exact equities of the contending parties." (City *34 of Los Angeles v. Industrial Acc. Com. (Fraide), supra, 63 Cal. 2d 242, 254.) Refusing to ignore the employee's contributions to the pension fund and the rights so earned, the trial court correlatively allowed to the city a partial credit against its pension liability because of the fireman's receipt of workmen's compensation benefits. The rights of the pensioner were thereby respected and those of the city equitably adjusted.
The judgment is affirmed.
Wright, C.J., McComb, J., Peters, J., Mosk, J., Burke, J., and Sullivan, J., concurred.
NOTES
[1] References hereinafter to section 3751, without mention of any code, are to the quoted section.
[2] Section 50(1) of the Albany City Charter provides in pertinent part: "A sum equal to six per centum (6%) out of and from the total amount of the monthly pay-roll of all of the members of both of said Departments for the current month, shall be retained by the City Treasurer, and shall be paid into said Police and Fire Relief and Pension Fund by the City; in addition thereto and out of the General Fund of the City of Albany the City shall contribute an equal amount to said fund monthly."
[3] The workmen's compensation award was subject to a $1,000 lien for attorney's fees. The parties stipulated that the trial court would make no order with respect to the $1,000 in the present litigation.
[4] The city's contention to the contrary notwithstanding, Foster v. Pension Board (1937) 23 Cal. App. 2d 550 [73 P.2d 631] does not permit a city charter provision to predominate over Labor Code section 3751. Although it may be true that section 3751's predecessor provision existed at the time that Foster was decided, Foster neither cited nor considered that provision and Foster did not discuss any conflict between the workmen's compensation law and the city charter. To the extent that the later cases of Healy, Fraide, and Morse conflict with Foster, it was overruled by those decisions.
[5] The city's reliance upon Lyons v. Hoover (1953) 41 Cal. 2d 145, 149 [258 P.2d 4], is entirely misplaced. Lyons involved the construction of the Sacramento City Charter as to a pension for a fireman's widow who had also received a workmen's compensation award. The court permitted the city to take credit for the workmen's compensation benefits "against that part of the pension allowance which is provided by contributions of the city." (41 Cal. 2d 145, 147.) Clearly, the city could not diminish the widow's pension by an amount greater than that permitted by Fraide because of workmen's compensation benefits due her. (City of Los Angeles v. Industrial Acc. Com. (Morse), supra, 63 Cal. 2d 263, 264-265 & fn. 1; see City etc. of S.F. v. Workmen's Comp. App. Bd. (1969) 269 Cal. App. 2d 382, 386-387 [74 Cal. Rptr. 810] (hg. den.).) In fact, Lyons expressly states, "Inasmuch as the deductions are to be made from the portion of the pension allowance which is provided by contributions of the city, there is no claim that such deductions could result in charging the employee with part of the cost of workman's compensation in violation of section 3751 of the Labor Code." (Lyons v. Hoover, supra, 41 Cal. 2d 145, 149, fn. 1.)
[6] Section 182 1/2 of the Los Angeles City Charter provides in pertinent part: "[A]ny payments made pursuant to the provisions of this article to such member or to such widow, child or children, dependent parent or parents or other person, shall be construed to be and shall be payments of such compensation or award under such general law, and any payments made under the provisions of this article shall be first applied to payment of such compensation or award and any balance of such payments made pursuant to the provisions of this article shall be deemed to be pension payments; and it is hereby provided that the pension provided for in this article for such member or such widow, child or children, dependent parent or parents, or such other person in case of any such award under such general law, shall be reduced in amount to the difference between the amount of pension provided for in this article, and the total amount of such compensation or award granted and paid under such general law until the total amount awarded under such general law shall have been fully paid."
[7] Section 50(n) of the Albany City Charter reads in full as follows: "Any and all benefits payable under the provisions of this law shall not be additional to and supplemental to any compensation insurance or other insurance covering the scope of this law for the benefit of members of the Police or Fire Department and paid for by the City of Albany from sources other than under this law, but the benefits of said such compensation or other insurance paid for by the City of Albany shall first be deducted from benefits payable under the provisions of this law to the end that said members of the Police or Fire Department shall receive an aggregate total of benefits paid for by the City of Albany and not included in this law, and the benefits provided for under this law, not to exceed in total the highest amounts or sums provided under the provisions of this law." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/840259/ | 756 N.W.2d 852 (2008)
480 Mich. 1078
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Anthony Michael MOSS, Defendant-Appellant.
Docket No. 134182. COA No. 274118.
Supreme Court of Michigan.
February 19, 2008.
On order of the Court, the motion for reconsideration of this Court's October 29, 2007 order is considered, and it is 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/2610056/ | 77 Wash. 2d 865 (1970)
467 P.2d 841
In the Matter of the Estate of ATTILIO SCARDIGLI.
PRIMO SCARDIGLI et al., Respondents,
v.
GINO TOGNARELLI et al., Appellants.[*]
No. 39911.
The Supreme Court of Washington, Department Two.
April 16, 1970.
Gagliardi & Gagliardi, by S.A. Gagliardi, for appellants.
Samuel Crippen, Jordan, Adair, Kasperson & Hennessey, and Max R. Nicolai, for respondents.
FINLEY, J.
This is an appeal from an order of the Pierce County Superior Court approving the final report and subsequent decree of distribution of the estate of Attilio Scardigli. The primary issue is the admission of evidence establishing the identity of the heirs presently residing in Italy. There is also a challenge to the reasonableness of the administrator's fee.
*866 Attilio Scardigli died intestate in Tacoma on November 24, 1965. A special administrator was appointed, who was made general administrator December 7, 1965. Subsequently, the Italian Consul served a request for special notice of proceedings on behalf of all heirs resident in Italy. The attorney for appellants, Gino and Guido Tognarelli and Terselia Mazzoni also served a request for special notice of proceedings. In March of 1967 the administrator filed his final report and petition for distribution. There was a hearing on this report April 17, 1967. Counsel for the heirs residing in Italy presented a letter from the Mayor of Ponte Buggianese (exhibit A) along with a copy of the "family status"[1] (exhibit B). The documents indicated that Primo and Emilio Scardigli, presently residing in Italy, were first cousins of the decedent, Attilio Scardigli. As such, they would take the estate, valued in excess of $150,000, rather than appellants who are first cousins once removed of the decedent.
The hearing was continued to May 23, 1967. At that time the Italian Consul in Seattle testified that he had sought information about heirs in Italy and had received in reply the letter and family status which he then translated and certified. A power of attorney from the claimants in Italy (exhibit C) was also introduced.
The initial question to be resolved is the admissibility of the evidence showing the identity of the heirs in Italy. The problem is created in part by CR 44. This rule has since been amended[2] to avoid problems similar to those which arose in this case. In pertinent part the previous rule read:
(1) Authentication of Copy.
An official record or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and *867 accompanied with a certificate that such officer has the custody ... If the office in which the record is kept is in a foreign state or country, the certificate may be made by a secretary of embassy or legation, consul general, consul, vice-consul, or consular agent or by any officer in the foreign service of the United States stationed in the foreign state or country in which the record is kept, and authenticated by the seal of his office.
...
(3) Other Proof.
This rule does not prevent the proof of official records or of entry or lack of entry therein by any method authorized by an applicable statute, or by the rules of evidence at common law.
This rule was the same as the old Fed. R. Civ. P. 44. The procedure set up there has been called "unreasonable or even impossible when copies of foreign official records are involved." Smit, International Aspects of Federal Civil Procedure, 61 Colum. L. Rev. 1031, 1059 (1961). The notes of the advisory committee on rules noted the many practical difficulties involved in the old rule. 5 J. Moore, Federal Practice ¶ 44.01(6) (2d ed. 1969). However, in changing the rule the advisory committee noted
[t]he amendment insures that international agreements of the United States are unaffected by the rule. Several consular conventions contain provisions for reception of copies or summaries of foreign official records. See, e.g., Consular Conv. with Italy May 8, 1878, art X, 20 Stat 725, TS No. 178 (Dept State 1878).
5 J. Moore Federal Practice ¶ 44.01(6) (2d ed. 1969). Curiously, the one consular convention cited by the advisory committee is the one which is dispositive of this case. Article 10 of the convention reads in part:
Copies of papers relative to such contracts and official documents of all kinds, whether originals, copies or translations, duly authenticated by the Consuls General, Consuls, Vice-Consuls and Consular Agents and sealed with the seal of office of the Consulate, shall be received as evidence in the United States and Italy.
Convention with the Kingdom of Italy concerning the *868 rights, privileges, and immunities of consular officers. May 8, 1878, art. 10, 20 Stat. 725, T.S. No. 178.
[1, 2] At first glance, the convention apparently permits the introduction of at least the "family status," an official Italian document. However, appellants contend that the convention only provides for authentication by a representative of the country in which the document is offered in evidence, i.e., by a consular officer of the United States. They further contend that there was no authentication of the document but only a certification of the translation. We are convinced from a close reading of the convention that the primary emphasis relates to the authority and functions of the consular officers residing in each country. The convention guarantees that Italian consuls in this country (and vice versa) shall be exempt from taxes, military service, and arrest in certain cases; shall have certain rights in their offices and shall have recourse to authorities for the redress of any infractions of treaties or conventions. The specific article quoted above (article 10) also refers in another part of the same article to the power of the consular officials to take depositions or to receive contracts relating to real property or business in the home country of the consular officials. Throughout the convention the subject is the authority of Italian consular officials in this country and United States consular officials in Italy. We are convinced that the phrase refers to the power of Italian consular officials to authenticate Italian documents which shall then be introduced as evidence in courts of this country. Of course, it would not require a treaty to allow the introduction of documents authenticated by officials of the United States. We are also convinced that the consul did authenticate the document and translation, sealing it with the seal of his office. Any question about the sufficiency of the certificate is removed by the testimony of the consul in the trial court. The Consular Convention had the standing of a treaty, and as such was part of the "supreme law of the land," by which the "judges in every state shall be bound." U.S. Const. art. 6. See Vergnani v. Guidetti, 308 Mass. 450, 32 N.E.2d 272 (1941).
*869 No objection is made to the authenticity of the power of attorney (exhibit C). Indeed, it is authenticated by the Vice Consul of the United States residing in Rome. The power of attorney was admitted for the limited purpose of showing that counsel for respondents residing in Italy was authorized to represent them and also to show that they were living. Any objection to this limited use was waived at trial when counsel for appellants said, "[i]f you are to prove your authority, I have no objection to the admission in evidence of the power of attorney. But, if it is offered for the purpose of establishing heirship, I'm objecting to that." Inherent in accepting the grant of authority is an acceptance that the grantor is presently alive.
[3] This leaves the question of the admission of the letter from the mayor (exhibit A). It was not an official document and thus admissible under the convention. It is not authenticated in accordance with rule 44. Further, it is clearly hearsay and was objected to as such. However, ample evidence that the decedent had first cousins, still living, was contained in exhibits B and C which are admissible. Exhibit A consisted largely of an informal summary of exhibit B. As such it was cumulative and any error in its introduction was not prejudicial. Vanderhoff v. Fitzgerald, 72 Wash. 2d 103, 431 P.2d 969 (1967); Scudero v. Todd Shipyards Corp., 63 Wash. 2d 46, 385 P.2d 551 (1963); Miller v. Staton, 58 Wash. 2d 879, 365 P.2d 333 (1961).
One problem remains. The family status shows that there were a total of 17 first cousins. There is competent evidence that Primo and Emilio Scardigli survived the decedent; there is no proof that the other 15 first cousins did not also survive the decedent.
We therefore remand this matter to the trial court for further proceedings as may seem proper in the exercise of sound judicial discretion regarding appropriate notice to be given to all potential heirs, proof of their present status, possible proceedings under RCW 11.76.200, and for such other action as may seem necessary to the trial court.
It is so ordered.
*870 HUNTER, C.J., NEILL and ROSELLINI, JJ., and LEAHY, J. Pro Tem., concur.
May 27, 1970. Petition for rehearing denied.
NOTES
[*] Reported in 467 P.2d 841.
[1] The "family status" might be described as an official family tree. The document itself is on a special form and is a copy of the official means of recording births by family line.
[2] The new rule was effective July 1, 1967, after the hearing here in question. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1866385/ | 150 B.R. 835 (1993)
In the Matter of Michael Alan KELLER, Debtor.
Bankruptcy No. A91-62453-ADK.
United States Bankruptcy Court, N.D. Georgia, Atlanta Division.
January 29, 1993.
*836 Joseph H. King, Jr., Atlanta, GA, for movants.
C. Brooks Thurmond, III, Atlanta, GA, for trustee.
MEMORANDUM OF OPINION
A. DAVID KAHN, Chief Judge.
The above-styled Chapter 7 bankruptcy case is before the Court on a Motion for Order Requiring Turnover of Rents Received by Trustee filed by Velma Bloss, Linda Olsein, J.C. Blackmon, Jr., Don R. Henderson, Clinton E. Muth, Virginia Muth, A.L. Bramlett, Beverly McDonald Rasmussen Clark, James Rasmussen, Daniel A. Rasmussen, Willene J. Thomason, and C.L. Holmes ("Movants").[1] A hearing was held on said Motion on September 15, 1992, after which the Court took the matter under advisement. The Court finds this matter to be a core proceeding within the meaning of 28 U.S.C. § 157(b)(2). After consideration of argument of counsel and the pleadings, the Court makes the following findings of fact and conclusions of law.
I.
Prepetition, the Debtor executed deeds to secure debt on certain properties (the "Properties") in favor of the Movants.[2]*837 The deeds to secure debt contained an assignment of rents clause. On February 6, 1991, the Debtor filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code. On the petition date, the Debtor was in possession and collecting rents from the Properties. On June 27, 1991, C. Brooks Thurmond, III was appointed as trustee (the "Trustee"), and the case was then converted to Chapter 7 on October 18, 1991. The Trustee remained in possession and collected rents from the Properties until December 1991 as provided in consent orders entered November 14, 1991 (the "Consent Orders"). The rents in dispute (the "Rents") are those rents collected by the Trustee postpetition but prior to December 1991, pursuant to the Consent Orders allowing the secured creditors to collect rents going forward upon the occurrence of certain events. See Trustee's Trial Exhibits 1-5.[3]
II.
Movants maintain that, prepetition, the Debtor unconditionally assigned all rents from the Properties to them and that, therefore, the Rents are not property of the bankruptcy estate and should be turned over to them. The Trustee contends that 1) the assignments are not unconditional in that Movants were required to take some affirmative action in order for their rights in the Rents to become effective and 2) Movants' rights in the Rents are subordinate to other rent assignments to other parties not before the Court.
Resolution of this issue is dependent upon state law. In Butner v. United States, 440 U.S. 48, 99 S. Ct. 914, 59 L. Ed. 2d 136 (1979), the Supreme Court held that
[p]roperty interests are created and defined by state law. Unless some federal interest requires a different result, there is no reason why such interests should be analyzed differently simply because an interested party is involved in a bankruptcy proceeding. Uniform treatment of property interests by both state and federal courts within a State serves to reduce uncertainty, to discourage forum shopping, and to prevent a party from receiving "a windfall merely by reason of the happenstance of bankruptcy."
440 U.S. at 55, 99 S.Ct. at 918 (citation omitted). The Properties are all located in Georgia; therefore, it is Georgia law to which we must look.
Another Bankruptcy Judge of this District has recently analyzed the current law on rent assignments in Georgia. In the case of In re Polo Club Apartments Assocs., Ltd. Partnership, 150 B.R. 840 (Bankr.N.D.Ga.1993),[4] Judge Stacey W. Cotton, after a thorough review of Georgia case law, concluded that it is possession of the property which determines the right to receive rents from that property. In so holding, the Court stated
a security deed grantee out of possession is not presently entitled to receive rents merely upon the occurrence or existence of a default. The grantor being in possession and receiving rents may not be disturbed in his right to the rents by the security deed grantee until he takes possession or takes other appropriate action to subject the land and rents to the debt. This means that affirmative action or positive steps must be taken by the security deed grantee before there is a present right to receive rents under such written rent assignment.
Polo Club Apartments, at 851.
The Court based its reasoning upon a line of Georgia cases which tied the right to collect rents with possession of the property. *838 These cases included Penn Mut. Life Ins. Co. v. Larsen, 178 Ga. 255, 173 S.E. 125 (1934); Stevens v. Worrill, 137 Ga. 255, 73 S.E. 366 (1911); and Polhill v. Brown, 84 Ga. 338, 10 S.E. 921 (1890). The Court opined that, even where an assignment is termed "absolute" or "unconditional," a grantee out of possession would not be entitled to the rents without additional action on his part.
Rent assignments in security deeds, or separate rent assignments given in connection with security deeds, are sometimes characterized as absolute or irrevocable. Common sense suggests that if an absolute conveyance by security deed does not convey an absolute estate as to title, an absolute conveyance by assignment of rents arising from the same property does not convey an absolute estate in the rents. In both situations, the grantor retains a right of possession and of redemption which comprise a part of the grantor's equitable estate. Further, a rent assignment conveyed as security for a debt, where the grantor is entitled to the rents until default, is conditional. As with the title conveyed by a security deed, additional affirmative action by the grantee is required before the interest conveyed by the rent assignment can become absolute.
Polo Club Apartments at 850.
The same result was reached under the former Bankruptcy Act in the case of Acacia Mut. Life Ins. Co. v. Perimeter Park Inv. Assocs. (In re Perimeter Park Inv. Assocs.), 1 B.R. 473 (Bankr.N.D.Ga.1979). In Perimeter Park, the plaintiff argued that it had an absolute assignment of rents and that, without any action on its part, it was entitled to all rents accruing after the debtor's default. The Court rejected this contention holding that, in Georgia, a grantee out of possession is not entitled to receive the rents upon default without taking further action to invoke its rights in the rents.
The assignment of rents in a deed to secure debt in Georgia is thus treated as expressing in contractual terms the mortgagee's interest in the rents and profits as additional security.
The lender can attain the rights to the rentals by gaining actual possession, or "he may assume the possessory right to receive rents by notice to occupants or tenants. Thereafter, all rents must be paid to the lender or his agent, and are credited against the secured debt after deducting the costs of collection."
Id. at 477 (quoting Pindar, Georgia Real Estate Law, § 21-14.2).
Movants rely upon the cases of Padgett v. Butler, 84 Ga.App. 297, 66 S.E.2d 194 (1951) and Jones v. United States (In re Jones), 77 B.R. 981 (Bankr.M.D.Ga.1987). In Padgett, the grantor had executed a security deed which contained the following provision: ". . . as further security and [sic] Borrower hereby (in the event of any default hereunder) assigns to the Lender all rents, issues and profits from said property." Id., 84 Ga.App. at 298, 66 S.E.2d 194. This language is almost identical to the provision in the security agreements under consideration in this proceeding.[5] However, after careful consideration of Padgett, this Court is unable to find, as Movants have asserted, that it is dispositive of the issue at hand.
In Padgett, the debt remained unpaid and in default at the time of the grantor's death. The grantor's widow, who was living apart from the grantor in a state of marital separation at the time of the grantor's death, continued to collect the rents from the property. The Court found that a complaint which alleged that 1) there was a written assignment of rents in the event of a default under the security agreement, 2) the debt secured remained unpaid, and 3) *839 the defendant, the grantor's widow, had constructive knowledge of the assignment of rents was sufficient to set out a cause of action. Id. at 299-300, 66 S.E.2d 194.
The Padgett opinion does not reveal the grounds upon which the grantor's widow based her claim to the rents. Furthermore, the Padgett opinion was a Georgia Court of Appeals case. It failed to even cite the Supreme Court of Georgia case of Penn Mutual, 178 Ga. 255, 173 S.E. 125, which held that a grantor out of possession was not entitled to rents. Therefore, the Court declines to find that Padgett is controlling on the issue of the entitlement to rents, and must consequently reject the reasoning of Jones, 77 B.R. 981, which found Padgett to be determinative.
Thus, persuaded by the reasoning of Polo Club Apartments, this Court finds that, as long as the grantor retains possession of the property, he is entitled to collect and freely use the rents. Even after default, the grantor is entitled to collect and use the rents until some affirmative action is taken by the grantee to invoke his right to the rents. In the proceeding sub judice, Movants had perfected security interests in the Rents upon the recording of their deeds to secure debt from the Debtor.[6] However, their rights to the Rents were inchoate rights which could be made choate upon 1) default by the Debtor under the deeds to secure debt[7]and 2) the taking of some affirmative action to displace the Debtor (or his bankruptcy trustee) from collecting the Rents. Therefore, the Court finds that Movants' rights in the Rents became choate upon the filing of their respective motions for relief from stay.
This conclusion, however, does not resolve the issue before the Court; to wit: Who is entitled to the Rents collected by the Trustee postpetition through November 1991? The Trustee contends that he is entitled to the Rents on two grounds. First, he claims he is entitled to the Rents because, until Movants took action to activate their rights in the Rents, he, as successor to the rights of the Debtor, had the right to retain the Rents for the benefit of the bankruptcy estate.
This issue was addressed by the Court in Polo Club Apartments. The Court found that, although no Georgia case authority could be located addressing this situation, it was convinced that a Georgia state court would award to the grantee any accrued rents which had not been spent by the grantor at the time the grantee invokes his rights to the rents. Id. at 854. With the mandate from Butner that a federal court should reach the same result regarding state-created property rights as a state court would reach, the Court was compelled to award the accrued rents to the grantee. This Court finds the reasoning in Polo Club Apartments to be sound. While a grantor may have free use of rents prior to action by a grantee to invoke his rights in those rents, once such action is taken, the grantee has a choate interest in all rents on hand and going forward. Thus, as between the Movants and the Trustee, the Court finds that the Movants have a superior interest in the Rents.
The Trustee also argues that the Consent Orders entered on November 14, 1991 require that the Trustee prevail. See Trustee's Trial Exhibits 1-5. The Consent Orders provide, inter alia, the following:
4. The trustee is entitled to collect November, 1991 rent, and rent accruing prior to one of the following events:
(a) Consummation of a judicial sale or foreclosure sale of the property, resulting in transfer of the estate's *840 title or equity of redemption to another entity;
(b) Agreement in writing between the holders of all valid assignments of rent, specifying who is to receive rent; or
(c) Entry of an unappealable order by a court of competent jurisdiction determining the entity to whom the rents should be paid.
On the occurrence of one of these events, the trustee shall direct the tenants to pay rent in accordance therewith.
Trustee's Trial Exhibits 1-5, ¶ 4. After consideration of argument of counsel, the Court finds that the above provision found in the five Consent Orders only permitted the Trustee to collect rents and was not intended to determine the ultimate rights of the Parties to those rents.
Having found that Movants have a superior right to the Rents over the Trustee, the Court must consider two other factors before turning the Rents over to Movants. First, it is probable that the Trustee may make a claim for administrative expenses against the Rents pursuant to 11 U.S.C. § 506(c). Thus, the Court will provide the Trustee the opportunity to file such a request. Second, it appears that there are other entities which may claim an interest in the Rents. Litigation is pending in the state court system to determine the validity and priority of liens on the Properties. Therefore, the Court deems it appropriate that, after the § 506(c) costs, if any, are determined, the Trustee pay into the appropriate state court forum the remaining Rents. The rights to the Rents among the various claimants may then be determined by the state court.
Pursuant to Fed.R.Civ.P. 54(a) made applicable to this proceeding by Fed. R.Bankr.P. 9014, an appropriate Order is entered contemporaneously herewith in accordance with the reasoning above.
NOTES
[1] At the hearing on September 15, 1992, attorney for the Movants orally withdrew the Motion for turnover as to A.L. Bramlett, Willene Thomason, and C.L. Holmes as it appeared that none of the rents collected by the Trustee were generated from the properties in which they had an interest.
[2] Movants have security deeds upon the following properties:
Velma Bloss/Linda Olsein 7119 Church Street, Riverdale
J.C. Blackmon, Jr. 4752 Mitchell Street, Forest Park
Don R. Henderson 3300 Burk Drive, Chamblee
Clinton and Virginia Muth 3241 Beaver Drive, Douglasville
Beverly McDonald Rasmussen Clark, James Rasmussen, and
Daniel A. Rasmussen 4063 Evelyn Drive, Powder Springs
[3] "Trial Exhibits" refers to exhibits introduced at the hearing on Movants' Motion for Order Requiring Turnover of Rents Received by Trustee held on September 15, 1992.
[4] For the convenience of the Parties, a copy of Polo Club Apartments is attached hereto as Exhibit "A." [Editor's note see Polo Club Apartments at 150 B.R. 840.]
[5] The provision in the Movants' security agreements provides "As further security the Borrower hereby (in the event of any default hereunder) assigns to the Lender all rents, issues and profits from said property." In addition, the security agreements provide that "if said indebtedness be not paid when due, whether by acceleration or otherwise, the Lender may enter upon said premises, take possession, and collect the rents and profits thereof. . . ." This clearly indicates that affirmative action on the part of Movants was required to invoke their rights in the Rents.
[6] This finding that Movants had perfected security interests in the Rents is intended to be a finding vis a vis the Trustee only. During the hearing held on September 15, 1992, the Trustee suggested that other lienholders may have superior rights to the Rents over the Movants. He also suggested that the security deeds of the other lienholders may have had clauses prohibiting further assignment of rents. The other lienholders are not before the Court, and the Court makes no findings on the validity of the Movants' assignments vis a vis other lienholders.
[7] Although no evidence was presented on the existence of defaults on the debts underlying the security deeds in question, it appears that the Parties concur that the debts were in default. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1881748/ | 90 B.R. 399 (1988)
In re Minnie Ella PORTER, Debtor.
FEDERAL LAND BANK, Appellant,
v.
Harry R. TERPSTRA, Trustee, Appellee.
No. C 87-0063, Bankruptcy No. 85-01180C.
United States District Court, N.D. Iowa, Cedar Rapids Division.
May 26, 1988.
John M. Titler, Cedar Rapids, Iowa, for Federal Land Bank of Omaha.
Gregory J. Epping, Cedar Rapids, Iowa, for trustee.
William A. Long, Eagle Grove, Iowa, for debtor.
Robert Schell, Des Moines, Iowa, for FDIC.
ORDER ON APPEAL
HANSEN, District Judge.
This matter is before the court on appellant Federal Land Bank's appeal, filed April 8, 1987, from a decision of the bankruptcy court entered February 27, 1987, holding that rent receipts held by the Trustee are free and clear of the lien claim of the Federal Land Bank. The Trustee resists the appeal and urges this court to affirm the bankruptcy court. Both sides *400 have filed briefs outlining their arguments, and oral argument has been heard.
The facts are not in dispute, having been stipulated to by the parties and can be briefly summarized as follows:
The debtor mortgaged her Hardin County farm to the Federal Land Bank on June 23, 1980, to secure a $200,000 promissory note she executed in the Land Bank's favor at the same time. The granting clause in that mortgage not only mortgaged and conveyed the real estate but also mortgaged and conveyed "all the right, title and interest (now owned or hereafter acquired) of the Mortgagors in said property . . . and the rents, issues, crops and profits arising from said lands." The mortgage was duly recorded on June 25, 1980, in Book 549, pages 415-416, Office of the Hardin County, Iowa Recorder.
On April 4, 1984, debtor entered into an Agricultural Security Agreement with Citizens State Bank of Iowa Falls, Iowa (the FDIC's predecessor in interest). That agreement granted the Citizens State Bank a security interest in debtor's "contract rights." The Citizens State Bank filed a financing statement with the Iowa Secretary of State.
On April 2, 1985, the debtor borrowed $6,700 from the Citizens State Bank and gave her note. On April 23, 1985, she borrowed an additional $35,309.90 from the Citizens State Bank and gave her note. The next day, April 24, 1985, she leased the mortgaged farmland to a tenant for cash rent of $125.00 per acre with the rent to be paid in advance. The lease was recorded on April 29, 1985, with the Hardin County Recorder. The debtor deposited $9,375 of the rent money in a bank account without comingling the funds with any others.
On May 23, 1985, the debtor filed a petition in bankruptcy and turned over the account containing the lease proceeds to the Trustee. When the Trustee deposited those same funds in the trusteeship account on August 22, 1985, accrued interest in the amount of $179.36 had increased the amount to $9,554.36.
At all relevant times, the mortgage to the Federal Land Bank covered the land rented out under the April 24, 1985 lease.
On August 6, 1985, the bankruptcy court lifted the automatic stay to allow Federal Land Bank to institute a mortgage foreclosure action. In March of 1986, the debtor delivered a deed in lieu of foreclosure following discharge of the Land Bank debt. The unsatisfied balance of the Land Bank's indebtedness exceeds the amount at stake in these proceedings. The Land Bank had not filed a foreclosure proceeding or requested the appointment of a receiver prior to the filing of the bankruptcy proceeding.
The bankruptcy court below relied on In re Winzenburg, 61 B.R. 141 (Bankr.N.D. Iowa 1986), aff'd, No. C86-2062 (N.D.Iowa Dec. 17, 1987) [available on WESTLAW, 1986 WL 21352], and held that because the Federal Land Bank had not instituted its mortgage foreclosure action or requested the appointment of a receiver pre-petition, it had no enforceable lien on the rent proceeds as against the Trustee. Because this court believes Winzenburg to be both factually distinguishable and inapposite here, and because this court concludes that a mortgatee's lien on the cash rents received from mortgaged real property under the terms of a mortgage where the rents are conveyed in the granting clause as primary security for the debt is created under Iowa law upon the execution of the mortgage and is perfected upon filing of the mortgage for record in the county recorder's office, the decision of the bankruptcy court must be reversed.
The bankruptcy court's reliance on Winzenburg is misplaced in this case. The narrow issue now raised was not contested in Winzenburg. In Winzenburg, the Federal Land Bank conceded that a mortgage pledge of rents and profits does not create a lien on the rents and profits until a foreclosure action is commenced and appointment of a receiver is requested.
Indeed, Land Bank does not dispute that this is the state of the law in Iowa (Brief p. 2).
In re Winzenburg, 61 B.R. at 143.
Even in its brief on appeal in Winzenburg, the Land Bank did not attack the point now raised.
*401 It should be noted from the outset that the Land Bank is not seeking the rents and profits in the debtors hands at the date of the filing. . . .
Brief on appeal, p. 4.
The Land Bank is not seeking rents and profits which have been paid to the debtors prior to the time of filing.
Id. at 14.
The closest the Land Bank came to raising the present issue was in an oblique tangential parenthetical query:
(Query whether a pledge of rents and profits in the granting clause of a mortgage creates a primary security interest in the rents and profits. See Equitable Life Insurance Co. v. Brown, 220 Iowa 585, 262 N.W. 124 (1935) and Soehren v. Hein, 214 Iowa 1060, 243 N.W. 330 (1932).)
Id. at 5-6. Continuing to concede the point as it did before the bankruptcy court, Land Bank said:
Since Iowa is a "lien theory" state, until such a receiver is appointed, the mortgagee has no presently perfected lien on the rents and profits.
Id. at 6.
The Supreme Court of Iowa recently decided that where the granting clause of a mortgage conveys the rents as a part of the property securing the debt, the granting clause controls and the rents are thereby pledged as primary security for the indebtedness, and the lien of the mortgage upon those rents, as between mortgagor and mortgagee, is effective from the date of the execution of the mortgage and not from the date on which a receiver is requested. Federal Land Bank v. Lower, 421 N.W.2d 126 (Iowa 1988). Relying on Equitable Life Ins. Co. v. Brown, 220 Iowa 585, 262 N.W. 124 (1935), the Supreme Court of Iowa in Lower ordered the mortgagors to account to the mortgagee for cash rents received before the appointment of a receiver under the terms of a mortgage's granting clause which is identical in all respects to the granting clause in the case at bar. Compare Exhibit No. 1, p. 5 of the designated record on appeal with the language of the Lower mortgage at p. 4 of the Iowa District Court's trial judge's decision found as Exhibit A to the appellant's brief (docket no. 5). Accordingly, based upon Lower, this court concludes that the granting clause of the Federal Land Bank's mortgage in this case conveyed the rents as primary security for the debt and that the Federal Land Bank had a valid present lien upon the $9,375 rent money held by the debtor at the time of the filing of the debtor's petition in bankruptcy.
The Supreme Court of Iowa in Lower, supra, also concluded that the bankruptcy court in Winzenburg was incorrect when it characterized the Equitable Life Ins. Co. v. Brown, supra, line of cases as being no longer valid. So to the extent that Winzenburg is relied upon by the Trustee in this case as an exposition of authoritative Iowa law on the effective date of a mortgage lien on rents, it has been severely undercut by Lower, providing an additional basis for reversal in this case.
Having determined that the Land Bank had a valid present lien on the rent money at the time the debtor filed for bankruptcy, the court must next determine whether the lien was perfected as against the Trustee. Here, Lower is of little help because the Supreme Court of Iowa specifically did not reach the perfection issue.
We need not reach the question here of how a lien on real estate rents should be perfected. . . . In the present case, we are deciding the validity of an instrument as between the parties to it, without any third party being involved. . . . The Lowers' contention that changes in lien perfection methods have invalidated that line of cases [Brown and its progeny] has no application when, as here, perfection is not at issue.
Lower, 421 N.W.2d at 129.
The "changes in lien perfection methods" mentioned by the Supreme Court of Iowa in Lower requires some historical background. Before the adoption of the Uniform Commercial Code in Iowa in 1965, real estate mortgages were indexed in the real estate mortgage index in the county recorder's office, and chattel mortgages *402 were indexed in the chattel mortgage index. Iowa Code § 556.9 (1962). The legislature, in 1921, provided that if a real estate mortgage also created an incumbrance on personal property or provided for a receivership in the event of foreclosure, the person offering the mortgage for recording "may have the same recorded at length and also indexed in the chattel mortgage index book. . . ." 1921 Iowa Acts Ch. 246 § 1 (emphasis added). Such a provision was necessary because:
Prior to the provision of our statute relating to the indexing of real estate mortgages embracing chattel mortgage clauses in the chattel mortgage index, which was enacted by the Thirty-Ninth General Assembly, chapter 246, and is now embraced in Code section 10032 of the 1931 Code of Iowa, the practice on the part of mortgagors in distress of leasing the premises and assigning the lease prior to the commencement of foreclosure proceedings became quite prevalent throughout the state, which called for the enactment of the statutory provision above referred to, and it is now the settled rule in this state that the lien on the rents and profits created by the chattel mortgage clause in real estate mortgages such as we have under consideration in the instant case, when held to be sufficient in form and substance, is effective from the date of the execution of the mortgage and not from the date of the filing of the petition of foreclosure in which the appointment of a receiver is asked, as formerly.
Brown, 262 N.W. at 127-28.
The permissive cross-indexing of a real estate mortgage which also encumbered personal property in the chattel mortgage index (thus perfecting both the mortgage's lien on the land and upon the pledged personal property) was made mandatory six years later in 1927, when the 42nd General Assembly amended § 10032 of the 1924 Code to provide that:
Real estate mortgages which create an incumbrance on personal property or which provide for a receivership shall, after being recorded at length, be indexed in the chattel mortgage index book.
1927 Iowa Acts Ch. 212 § 1 (emphasis added) (codified at Iowa Code § 10032 (1927)).
Section 10032, providing for mandatory cross-indexing in the chattel mortgage book, remained the law of this state (as Iowa Code § 556.21 (1962)) until it was repealed as a part of the adoption of the Uniform Commercial Code in 1965. See 35B Iowa Code Ann. Appendix: Laws Repealed by the Uniform Commercial Code (West 1967).
When Iowa adopted the UCC, it specifically provided that the UCC's lien creation and perfection requirements (Article 9 Secured Transactions) did not apply to "the creation . . . of an interest in or lien on real estate, including a lease or rents thereunder. . . ." Iowa Code § 554.9104(j) (1966). Hence, both parties agree that the UCC's perfection requirements have no application to the Federal Land Bank's lien on the rent proceeds in this case. (Brief of appellant, p. 4; brief of appellee, p. 6.) Accord Lower, 421 N.W.2d at 129 ("To begin, Iowa Code section 554.9104(j) (1985) says very plainly that the secured transaction article of the UCC does not apply `to the creation . . . of . . . [a] lien on real estate, including . . . rents thereunder.' (Emphasis added.). . . . The bank was not required to perfect its lien under the UCC.")
While Lower establishes that the UCC's perfection requirements are not applicable to a lien on rents from real estate, it leaves unanswered the question as to what perfection method is available to a lender who has taken a security interest in those rents as primary security for the debt. Land Bank argues that the initial recording of the mortgage itself is all that is required to give notice to third parties that the rents are pledged to the lender. If that be the case, then here the Bank's lien would have been perfected pre-petition, and the Trustee would have been on notice of the Bank's security interest in the rent monies. On the other hand, the Trustee says the rule ought to be that the Bank has no perfected lien in rents until a foreclosure action is started and a request for a receiver is *403 made, relying on Kooistra v. Gibford, 201 Iowa 275, 207 N.W. 399 (1926). Kooistra is of limited validity here because in the Kooistra line of cases the security interest was not created in the granting clause (as in Lower and in the case at bar) but was physically located in the default or defeasance clause where the grant itself was not effective until default had occurred. But see Swan v. Mitchell, 82 Iowa 307, 311-12, 47 N.W. 1042, 1044 (1891) (where the granting clause of the mortgage clearly conveyed the rents along with the real property, the court said that such a grant "must be construed with the defeasance of the instrument; and, where so construed, the instrument plainly provides that the rents and profits are only pledged in case possession is taken by the mortgagee.").
The Trustee also argues that under the case of Soehren v. Hein, 214 Iowa 1060, 243 N.W. 330 (1932), the Bankruptcy Trustee's position is superior because the Trustee is essentially in the position of a bona fide purchaser for value without notice because the Land Bank's lien on the rents was "unindexed." The Trustee's argument would be persuasive if Iowa still had the dual indexing system; under the present Iowa statutes, the separate "indexing" which could have been used to perfect Soehren's chattel mortgage interest in the rents involved no longer exists, so the basic reason for the decision in Soehren is not applicable in the case at bar.
When Iowa adopted the UCC in 1965, it abolished the statutory basis for recording the grant of a security interest in rents. The chattel mortgage index ceased to exist. In its place was the UCC's filing and perfection provisions which, as noted, excluded a lien on rents from their scope. If a lien on rents is not within the ambit of the UCC (Lower, 421 N.W.2d at 129), then one must look to other provisions of Iowa law to see if and where such a lien may be recorded and notice of its existence imparted. While the fact that the drafters of the UCC considered a lien on rents to be an interest or lien on real estate sufficient to exclude such a lien from the UCC's broad scope of encumbrances on personal property may be some evidence that a grant of a lien on rents is an instrument affecting real estate, it is not conclusive.
Iowa Code § 558.1 defines instruments affecting real estate as "all instruments . . . in any manner relating to real estate. . . ." Iowa Code § 558.41 provides that
No instrument affecting real estate is of any validity against subsequent purchasers for a valuable consideration, without notice, unless filed in the office of the recorder of the county in which the same lies, as hereinafter provided.
Iowa Code § 558.41 (1987).
Is an instrument granting a lien on future rents an "instrument . . . in any manner relating to real estate" so that it is entitled on its own strength to be filed in the county recorder's office? Based on the case of Weyrauch v. Johnson, 201 Iowa 1197, 208 N.W. 706 (1926), this court concludes that it is.
In Weyrauch, a chattel mortgage granted a security interest in future crops to be raised on particularly described farmland. The mortgage was duly filed for record as a chattel mortgage. The mortgagee then sought to record it in the real estate mortgage records as well. The county recorder refused to do so, and the mortgagee brought a mandamus action to compel the recording. The trial court granted the writ compelling the recording of the chattel mortgage in the real estate mortgage records, and the Supreme Court affirmed. In doing so, the Supreme Court determined that such a chattel mortgage on future crops is an instrument "in any manner relating to real estate" because of the possibility that a future growing but not yet mature crop would pass to a future vendee with the real estate. Under then Iowa law, a chattel mortgage on future crops was valid but did not attach until the future crops came into existence. Accord Iowa Code § 554.9204(2)(a) (1987). So too as to rents with a mortgage whose granting clause conveyed the right to future rents. Equitable Life Assurance Soc'y v. Hastings, 223 Iowa 808, 273 N.W. 908 (1937). The right to receive future rents from real *404 estate is also something that passes to a vendee with the real estate. Hence, for the same reason that the chattel mortgage on future crops in Weyrauch, supra, was entitled to be recorded as an instrument "relating to real estate," so too a present day grant of a security interest in future rents in particularly described real property is entitled to recording under Iowa Code § 558.1 as an instrument "relating to real estate," and when so recorded and filed is valid as against subsequent purchasers. The filing and recording of the Land Bank's mortgage in this case, conveying to it the future rents as primary security, did everything that a separate written assignment of future rents as additional security for the debt, if duly acknowledged and recorded, could have accomplished. Moreover, it did the same thing, i.e., the imparting of notice to the whole world, that recording and indexing of a chattel mortgage in the chattel mortgage index did prior to 1965 under the Brown line of cases. Either one would have put the Trustee on notice of a pre-existing grant of a security interest in the rents held by the debtors.
It is the universal rule of law that the recording of an instrument in the recorder's office is notice to all the world of its contents.
Bristow v. Lange, 221 Iowa 904, 912, 266 N.W. 808, 812 (1936).
When such requirements of the Iowa law for recording have been complied with the record is constructive notice to all the world of the contents of the instrument creating the lien and of the rights of the parties thereto.
Ginsberg v. Lindel, 107 F.2d 721, 727 (8th Cir.1939) (citing cases).
Notice is the essence of perfection. Here, where the security interest in rents was not entitled to be filed and perfected as a UCC interest in personal property (because it was for UCC purposes a lien on or interest in real estate), but was entitled to filing in the county recorder's office as an instrument "relating to real estate," such filing in the real estate records results in the same type of notice that perfection under the UCC gives to personal property security interests that is notice to the world of the existence of the lien.
It follows therefore that when the Land Bank recorded its mortgage, which conveyed the rents as primary security for the debt, it perfected its lien on those cash rents involved in this case, and the debtor (and the Trustee thereafter) held those cash rent receipts subject to the Land Bank's preexisting lien.
This decision is limited by and to the particular facts of this case. Because the UCC has very carefully crafted provisions concerning the granting and perfecting of security interests in all other items of personal property (see § 554.9102 for the broad scope of Article 9), including crops (which provisions are not implicated by the holding in this case), this decision is of necessity quite narrow in its reach.
ORDER:
Accordingly, It Is Ordered:
1. The decision of the bankruptcy court entered on February 27, 1987, is REVERSED.
2. The Federal Land Bank's perfected security interest in the $9,375 of rent receipts held by the debtor at the time of the filing of her petition in bankruptcy is superior to the claim of the Trustee. The Trustee is directed to pay those funds over to the Federal Land Bank.[1]
NOTES
[1] The order was later amended so as to strike the final sentence and add the following language: "This cause is remanded to the Bankruptcy Court for the purpose of further administration of the Bankruptcy estate consistent with the foregoing judgment." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1032529/ | conviction in their respective districts and has not completed the sentence
imposed pursuant to the judgment of conviction"). Accordingly, we
ORDER the judgment of the district court AFFIRMED.
J.
J.
cc: Hon. Jerome Polaha, District Judge
James Corey McGee
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
SUPREME COURT
OF
NEVADA
(0) 1947A
MESE | 01-03-2023 | 07-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2487634/ | 74 So.3d 220 (2011)
Patrick JOUVE and Elizabeth Jouve
v.
STATE FARM FIRE AND CASUALTY COMPANY, Carl W. Mixon and Michail Whittle.
No. 2010-CA-1522.
Court of Appeal of Louisiana, Fourth Circuit.
August 17, 2011.
Rehearing Denied September 13, 2011.
*222 Joseph S. Piacun, Reid S. Uzee, Gennusa Piacun & Ruli, Metairie, LA, for Plaintiffs/Appellants.
Wm. Ryan Acomb, Michele L. Trowbridge, Porteous Hainkel & Johnson, LLP, New Orleans, LA, for Defendant/Appellee, State Farm Fire and Casualty Company.
(Court composed of Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD, Judge DANIEL L. DYSART).
MICHAEL E. KIRBY, Judge.
This matter involves a disputed claim under a homeowners insurance policy for property damage that occurred during Hurricane Katrina. Plaintiffs, Patrick and Elizabeth Jouve ("plaintiffs"), appeal the parts of the April 7, 2010 trial court judgment in favor of defendant, State Farm Fire and Casualty Company ("State Farm"), which granted a motion in limine to exclude the testimony and report of plaintiffs' expert, A. Vincent Caracci; summarily dismissed plaintiffs' bad faith claims against State Farm; and limited plaintiffs' recovery to the actual cash value at the time of the loss of the wind damaged part of their property. Plaintiffs also appeal from the June 30, 2010 trial court judgment that denied their motion for new trial. For the reasons that follow, we affirm.
In August 2005, plaintiffs owned a house located at 3822 Octavia Street in New Orleans, which was insured under two separate insurance policies: (1) a flood insurance policy issued under the National Flood Insurance Program ("NFIP"); and, (2) a homeowners policy issued by State Farm, which provided coverage in the amount of $151,400.00 for dwelling; $15,140.00 for dwelling extension; $113,550.00 for contents; and actual loss sustained for loss of use. On August 29, 2005, Hurricane Katrina hit Louisiana, causing levee breaches that resulted in flooding throughout the New Orleans area. As a result, plaintiffs' Octavia Street home sustained catastrophic damages.
Plaintiffs filed a flood claim with the NFIP, and were paid $145,000.00 for building loss under the flood policy.[1] They also filed a property damage claim with State Farm under their homeowners policy. After adjusting the claim, State Farm paid plaintiffs $41,346.89 for windrelated damages under the homeowners policy.
On August 26, 2006, plaintiffs filed a petition in the district court alleging that State Farm arbitrarily and capriciously failed to properly adjust their claim and pay the full amount due under their homeowners policy.[2] They allege that State *223 Farm acted in bad faith and failed to timely satisfy the claim after receiving satisfactory proof of loss, entitling them to statutory penalties and attorney fees and costs pursuant to La. R.S. 22:658[3] and La. R.S. 22:1220[4]. State Farm answered the petition, and discovery commenced.
On December 7, 2009, State Farm filed several pre-trial motions, including the three at issue in this appeal: (i) Motion in Limine to Exclude Plaintiffs' Expert Witness A. Vincent Caracci; (ii) Motion for Partial Summary Judgment as to Plaintiffs' Bad Faith Claims; and, (iii) Motion for Partial Summary Judgment as to Plaintiffs' Dwelling Claims.
Following a hearing, the trial court rendered a judgment on April 7, 2010, on the motions at issue as follows: (i) granted Stated Farm's Motion in Limine to Exclude the testimony and estimate of A. Vincent Caracci; (ii) granted State Farm's Motion for Partial Summary Judgment dismissing with prejudice plaintiffs' bad faith claims; and, (iii) granted, in part, State Farm's Motion for Partial Summary Judgment as to Plaintiffs' Dwelling Claims, limiting plaintiffs' claim to actual cash value minus depreciation[5], and dismissing with prejudice the dwelling claim for replacement cost with full value. The April 7, 2010 judgment specifically designated the partial summary judgments as final judgments and expressly determined there was no just reason for delay pursuant to La. C.C.P. art. 1915(B)(1).
On April 16, 2010, plaintiffs filed motion for new trial based on newly discovered evidence, citing La. C.C.P. art. 1972(2). Following a hearing, the trial court rendered a judgment on June 30, 2010, denying the motion. Plaintiffs timely appealed.[6]
Plaintiffs raised five assignments of error in this appeal.
1. The trial court erred in considering the availability of a legal malpractice remedy as an alternative to a new trial, necessitating a de novo review of the trial court's decision.
2. The trial court abused its discretion by not granting plaintiffs a new trial and allowing Mr. Caracci to testify as an expert witness at trial.
3. The trial court abused its discretion by not granting plaintiffs a new trial and allowing the introduction of the expert report (estimate) prepared by Mr. Caracci.
4. The trial court erred in granting partial summary judgment on the *224 issue of penalties and attorney fees and denying the motion for new trial on this issue.
5. The trial court erred in granting partial summary judgment limiting the plaintiffs' property damage recovery to actual cash value rather than replacement cost and denying the motion for new trial on this issue.
We will consider the assignments of error by addressing the trial court's rulings on the underlying motions and then its judgment denying the plaintiffs' motion for new trial.
Motion in Limine to Exclude Plaintiffs' Expert Witness A. Vincent Caracci
Following the Hurricane, the plaintiffs hired Mr. Caracci, owner of Gulf Coast Construction, to inspect their home for both wind and flood damage and to give them an estimate to repair the damages. Based on Mr. Caracci's estimate, the plaintiffs claimed State Farm underpaid their wind damages by $70,000.00. The plaintiffs listed Mr. Caracci as a witness on their pre-trial witness list. After deposing Mr. Caracci, State Farm sought to exclude him from testifying as an expert, arguing that his opinion failed to meet the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).[7] Specifically, State Farm argued that Mr. Caracci was not qualified to testify as an expert because he was not a licensed engineer, contractor or insurance adjuster. State Farm also emphasized that Mr. Caracci never prepared the actual wind and flood damage estimates on the Jouve property, but rather A. Vincent Caracci, IV[8], Mr. Caracci's grandson, prepared the estimates using "Xactimate," a computer program, while assisting his grandfather at the inspection.
The Louisiana Code of Evidence allows a witness to qualify as an expert witness by knowledge, skill, experience, training or education. La. C.E. art. 702. The admissibility of expert testimony turns upon whether the trier of fact will be assisted in understanding the evidence or determining a fact in issue. Comment (a) to La. C.E. art. 702.
In Cheairs v. State ex rel. Dept. of Transp. And Dev., 2003-0680, pp. 1-2 (La.12/3/03), 861 So.2d 536, 538, the Louisiana Supreme Court recognized that Daubert addressed only the issue of the reliability of an expert's methodology and not whether an expert possessed the proper qualifications to testify. The Court, therefore, adopted three-part inquiry set forth in City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548 (11th Cir.1998), concluding it "provides more comprehensive guidance to district courts determining the admissibility of expert testimony." Id., 2003-0680 at 10, 861 So.2d at 543. Thus, the admission of expert testimony is proper only if all three of the following *225 guidelines are met: (1) the expert is qualified to testify competently regarding the matters he intends to address, (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert, and (3) the testimony assists the trier of fact through the application of scientific, technical or specialized expertise, to understand the evidence or to determine a fact in issue. Id., 2003-0680 at 9, 861 So.2d at 542, citing Harcros Chemicals, 158 F.3d at 562.
"A trial court is accorded broad discretion in determining whether expert testimony should be admissible and who should or should not be permitted to testify as an expert." Everhardt v. Louisiana Department of Transportation and Development, 2007-0981, p. 15 (La.App. 4 Cir. 2/20/08), 978 So.2d 1036, 1048 (citations omitted). Whether an expert meets the qualifications of an expert witness and the competency of the expert witness to testify in a specialized area is within the sound discretion of the trial court. Id. A trial court's decision to qualify an expert will not be overturned absent an abuse of discretion. Id.
In support of its motion in limine, State Farm submitted the deposition testimony of Mr. Caracci, who testified that he was neither a licensed engineer nor licensed insurance adjuster. Although he referred to himself as a contractor, Mr. Caracci acknowledged that he had not held a valid contractor's license in fifteen years. Mr. Caracci testified that he had never taken any insurance adjusting classes to determine wind versus flood damage, but rather relied on his past experience evaluating property damage following Hurricane Betsy in 1965 to prepare his Hurricane Katrina related estimates.
Regarding the inspection of the Jouve property, Mr. Caracci recalled that his son (grandson) and Jose Terwought, a roofer, accompanied him on the inspection. According to Mr. Caracci, they walked throughout the house and his son (grandson) prepared the actual damage estimates using the Xactimate computer program. Mr. Caracci admitted that due to his poor health he was unable to complete the inspection. He acknowledged that he never inspected the attic or the roof. Mr. Caracci also verified that he had no knowledge of the condition of the Jouve property prior to Hurricane Katrina.
Plaintiffs opposed the motion, arguing that Mr. Caracci qualified as an expert because he had extensive experience estimating property damage. They pointed out that he had been in the contracting business since 1965 and had prepared property damage estimates for both homeowners and insurance companies over the years.
Following the motion hearing, the trial court concluded that Mr. Caracci did not qualify as an expert because he lacked a viable methodology for his opinion, failed to properly inspect the Jouve property, and never prepared the damage estimate at issue. After reviewing Mr. Caracci's deposition and other evidence in the record, we cannot say the trial court abused its discretion by granting State Farm's motion in limine to exclude the testimony and damage estimate of Mr. Caracci from the trial.
Motion for Partial Summary Judgment as to Plaintiffs' Bad Faith Claims
Plaintiffs alleged that were entitled to penalties and attorney fees because State Farm acted in bad faith and failed to timely satisfy their claim after having received satisfactory proof of loss. Plaintiffs characterized State Farm's failure to properly adjust their claim and pay the full amount under their homeowners policy, as *226 arbitrary, capricious and without probable cause.
Both La. R.S. 22:658 and La. R.S. 22:1220 provided for penalties and attorney fees for the insurer's failure to timely pay a claim after receiving satisfactory proof of loss when that failure to pay is arbitrary, capricious, or without probable cause. Sher v. Lafayette Insurance Company, 2007-2441, p. 26 (La.4/8/08), 988 So.2d 186, 206. The primary difference is the time periods allowed for payment; La. R.S. 22:658(B)(1) requires payment to be made within thirty (30) days after receipt of satisfactory proof of loss while La. R.S. 22:1220(B)(5) requires payment to be made within sixty (60) days. Id.
One who claims entitlement to penalties and attorney fees has the burden of proving: (1) the insurer received satisfactory proof of loss; (2) the insurer failed to pay the claim within the applicable statutory period; and, (3) the insurer's failure to pay was arbitrary, capricious and without probable. See Louisiana Bag Company, Inc. v. Audubon Indemnity Company, 2008-0453, pp. 11-12 (La.12/2/08), 999 So.2d 1104, 1112-13; Sher, 2007-2441, pp. 26-27, 988 So.2d at 206.
The phrase "`arbitrary, capricious, or without probable cause,' ... is synonymous with `vexatious' [and] `a vexatious refusal to pay' means unjustified, without reasonable or probable cause or excuse. Both phrases describe an insurer whose willful refusal of a claim is not based on good-faith." Sher, 2007-2441, p. 27, 988 So.2d at 206-07, quoting Reed v. State Farm Mut. Auto. Ins. Co., 2003-0107 (La.10/21/03), 857 So.2d 1012, 1020-21. When "there are substantial, reasonable and legitimate questions as to the extent of an insurer's liability or an insured's loss, [the insurer's] failure to pay within the statutory time period is not arbitrary, capricious or without probable cause." Louisiana Bag Company, Inc., 2008-0453, pp. 14-15, 999 So.2d at 1114. Whether an insurer's action was arbitrary, capricious or without probable cause is essentially a fact issue to be determined by the trial court and not to be disturbed on appeal absent manifest error. Id., 2008-0453, p. 25, 999 So.2d at 1120.
Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate: whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Samaha v. Rau, 07-1726, p. 3 (La.2/26/08), 977 So.2d 880, 882-83. A motion for summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law." La. C.C.P. art. 966 B. "Favored in Louisiana, the summary judgment procedure `is designed to secure the just, speedy, and inexpensive determination of every action' and shall be construed to accomplish these ends." King v. Parish Nat'l Bank, 2004-0337, p. 7 (La.10/19/04), 885 So.2d 540, 545 (quoting La. C.C.P. art. 966 A(2)). When, as in the instant case, the party bringing the motion is not the party that will bear the burden of proof at trial, "the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of *227 proof at trial, there is no genuine issue of material fact." La. C.C.P. art. 966 C(2).
The evidence submitted by State Farm in support of its motion for partial summary judgment indicates that the plaintiffs notified State Farm of a loss under their homeowners policy on September 14, 2005. On September 18, 2005, State Farm paid the plaintiffs $2,500.00 for prohibited use. On October 26, 2005, Charles Bradley, a State Farm claims representative, spoke to Mrs. Jouve, who informed him that plaintiffs' flood claim had been handled. At that time, Mr. Bradley scheduled an appointment to inspect the plaintiffs' home for the purposes of adjusting the homeowners claim. State Farm inspected the property on November 5, 2005, and issued a check to plaintiffs on November 14, 2005, for wind damage to their home. On December 9, 2005, State Farm received a letter with enclosed documentation from Mrs. Jouve, evidencing additional prohibited use expenses incurred by Mr. Jouve during emergency evacuation. On January 10, 2006, State Farm paid plaintiffs an additional $491.35 for prohibited use.
On May 25, 2006, plaintiffs submitted to State Farm an estimate of $111,535.45 prepared by Mr. Caracci, reflecting the wind damage to the plaintiffs' property. In response, State Farm arranged a joint inspection of the property with the plaintiffs' contractor (Mr. Caracci). On June 15, 2006, a State Farm adjuster and Mr. Caracci re-inspected the property. Based on the re-inspection, State Farm paid plaintiffs an additional $35,076.72 on July 7, 2006.
In August 2006, plaintiffs retained counsel to represent them in filing a suit against State Farm. On August 25, 2006, State Farm contacted plaintiffs' counsel and scheduled yet another inspection of the property for the following day. Several hours later, plaintiffs' counsel contacted State Farm again to cancel the scheduled re-inspection because the plaintiffs' had sold the house. State Farm eventually re-inspected the property and, on October 4, 2006, paid plaintiffs an additional $6,207.63 for wind damage.
Plaintiffs also made a claim under the State Farm homeowner's policy for damaged contents, but did not provide State Farm's counsel with a list of the purported damaged contents until October 27, 2009, more than three years after filing suit. State Farm disputed that these items were covered losses under the policy.[9]
The evidence submitted indicates State Farm timely initiated the loss adjustment of plaintiffs' property and made an unconditional tender based on the first inspection within the statutory time period. When plaintiffs' counsel submitted Mr. Caracci's estimate to State Farm, State Farm arranged for a re-inspection of the property with Mr. Caracci. Based on the re-inspection, State Farm made a second timely unconditional tender.
Plaintiffs offered no evidence in opposition to State Farm's motion for partial summary judgment that shows State Farm acted arbitrarily, capriciously or without cause in adjusting their homeowners claim. Given that plaintiffs will have the burden of proof at trial, and thus far have offered no evidence of bad faith on the part of State Farm to create a genuine issue of material fact, we find no error in the trial court's granting a partial summary judgment *228 dismissing the bad faith claims against State Farm.
Motion for Partial Summary Judgment as to Plaintiffs' Dwelling Claims
Plaintiffs alleged that State Farm's payment of $41,346.89 under the homeowners policy for wind damage to their dwelling was insufficient, in part, because Mr. Caracci's estimate of replacement costs was higher. State Farm filed a motion for partial summary judgment arguing that plaintiffs are not entitled to replacements costs under the terms of their policy because they sold their home to a third party in 2006 in "as is" condition without effecting any repairs. Thus, State Farm contends plaintiffs are only entitled to the actual cash value as of August 28, 2005 of the damaged part of the property.
In support of the motion for partial summary judgment on the dwelling claims, State Farm submitted a copy of plaintiffs' homeowners policy, which provided, in pertinent part:
SECTION ILOSS SETTLEMENT
Only the Loss Settlement provisions shown in the Declarations apply. We will settle covered property losses according to the following:
COVERAGE ADWELLING
1. A1Replacement Cost Loss SettlementSimilar Construction
a. We will pay the cost to repair or replace with similar construction and for the same use on the premises shown in the Declarations, the damaged part of the property covered in Section ICOVERAGES, COVERAGE ADWELLING, except for wood fences, subject to the following:
(1) until actual repair or replacement is completed, we will pay only the actual cash value at the time of the loss of the damaged part of the property, up to the applicable limit of liability shown in the Declarations, not to exceed the cost to repair or replace the damaged part of the property;
(2) when the repair or replacement is actually completed, we will pay the covered additional amount you actually and necessarily spend to repair or replace the damaged part of the property, or an amount up to the applicable limit of liability shown in the Declarations, whichever is less;
(3) to receive any additional payments on a replacement cost basis, you must complete the actual repair or replacement of the damaged part of the property within two years after the date of loss, and notify us within 30 days after the work has been completed. ...
An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in articles 2045 to 2057 of the Louisiana Civil Code. Sims v. Mulhearn Funeral Home, Inc., 2007-0054, p. 7 (La.5/22/07), 956 So.2d 583, 588-89. The responsibility of the court in interpreting insurance contracts is to determine the parties' common intent. See, La. C.C. art. 2045; Sims, 2007-0054, p. 7, 956 So.2d at 589. "The words of a contract must be given their generally prevailing meaning." La. C.C. art. 2047. When the words of an insurance contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent and courts must enforce the contract as written. See, La. C.C. art. 2046; Sims, 2007-0054, p. 8, 956 So.2d at 589.
It is undisputed that after Hurricane Katrina plaintiffs never repaired or replaced the dwelling before selling to it to *229 a third party in 2006. Thus, under the clear and unambiguous terms of plaintiffs' homeowners policy, plaintiffs' recovery was limited to the actual cash value on August 28, 2005 of the independent wind damaged part of the property. Under Louisiana law, actual cash value is equal to replacement cost value less depreciation. See, e.g. Real Asset Management. Inc. v. Lloyd's of London, 61 F.3d 1223, 1228 n. 7 (5th Cir.1995).
Considering the appellate standard of review for summary judgment, we find the trial court properly granted State Farm's motion for partial summary judgment as to the plaintiffs' dwelling claims. The April 7, 2010 judgment, however, must be amended to delete the words "minus depreciation." See n. 5, supra.
Plaintiffs' Motion for New Trial
After the trial court rendered the April 7, 2010 judgment, plaintiffs retained a new attorney who filed a written motion for new trial based on newly discovered evidence pursuant to La. C.C.P. art. 1972(2)[10]. At the June 18, 2010 hearing on the motion, plaintiffs, for the first time, also requested a new trial based on La. C.C.P. art. 1973[11].
Specifically, plaintiffs argued they are entitled to a new trial because their former attorney failed to inform them of State Farm's pre-trial motions and the scheduled hearing date. They claimed that they were unable to present evidence in opposition to State Farm's Daubert motion, and had they known, would have submitted the affidavits of Ms. Jouve, Donald Coco (a licensed general contractor), and Clinton Bowen (a licensed public adjuster).[12] Plaintiffs also claimed that A. Vincent Caracci, IV, (grandson) would have appeared at the hearing to testify that he had assisted Mr. Caracci in preparing the property damage estimate.
The applicable standard of review in ruling on a motion for new trial is whether the trial court abused its discretion. Guillory v. Lee, 2009-0075, p. 38 (La.6/26/09), 16 So.3d 1104, 1131. A party seeking a new trial on the basis of newly discovered evidence must demonstrate that it has done all that is reasonable to lead to timely discovery of the evidence. McGhee v. Wallace Drennan, Inc., 2004-0950, p. 10 (La.App. 4 Cir. 4/20/05), 904 So.2d 3, 9, citing Barker v. Rust Engineering Co., 428 So.2d 391 (La. 1983). Newly discovered evidence justifies a new trial only if evidence: (1) is discovered after trial; (2) could not, with due diligence, have been discovered before or during the trial; and (3) is not merely cumulative, but instead would tend to change the result of the case. Turner v. Dameron-Pierson Co., Ltd., 95-0143, p. 2 (La.App. 4 Cir. 11/16/95), 664 So.2d 739, 740.
After reviewing the aforementioned affidavits, we find no abuse of the trial court's discretion in denying plaintiff's motion for new trial. Plaintiffs have not demonstrated any of the four criteria required for the granting of a motion for new trial based on newly discovered evidence.
*230 The submitted affidavits indicate they were generated after the initial hearing and before the hearing on the motion for new trial. However, nothing in the affidavits contain "new evidence" that was discovered after the initial hearing. In fact, the affiants reviewed Mr. Caracci's report and provided opinions regarding the accuracy and the methodology that was used to generate the report. However, none of the information appears to be "newly discovered evidence." The alleged new evidence is cumulative, because it includes nearly identical evidence that is included in Mr. Caracci's deposition testimony, and would not change the result of this case. Lastly, the alleged new evidence certainly could have been discovered, with due diligence, before the trial was completed.
Furthermore, we find plaintiffs have not offered any new evidence that would support the granting of a new trial on the issues of bad faith penalties and attorney fees or dwelling claim damages.
Finally, we find no merit to plaintiffs' argument that they should be granted a new trial pursuant to La. C.C.P. art. 1973, because the trial court "erred in giving weight to the availability of a malpractice remedy (against plaintiffs' former attorney) as an alternative to a new trial."[13] Nothing in the record indicates the trial court suggested that plaintiffs pursue a legal malpractice claim against their former attorney rather than seek a new trial. In fact, at the hearing on the motion for new trial, the trial court responded to plaintiffs' contention that their former attorney was ineffective by pointing out that the attorney had filed written oppositions to State Farm's pre-trial motions and appeared at the hearing to argue against them. The trial court also stated that the result could have been the same even if the attorney had notified plaintiffs of the pre-trial motions and the hearing.
For the foregoing reasons, the April 7, 2010 judgment is amended to delete the words "minus depreciation" and, as amended, is affirmed. The June 30, 2010 judgment of the trial court is affirmed.
AMENDED AND AFFIRMED
NOTES
[1] Plaintiffs' received two checks from the NFIP for their building loss: the first dated December 12, 2005 in the amount of $113,761.30 and the second dated June 12, 20006 in the amount of $31, 238.70. In addition to their building loss, plaintiffs received two payments, totaling $15,000.00, for contents loss under their flood policy.
[2] In addition to State Farm, the plaintiffs sued Carl Mixon, their State Farm agent, and Michael Whittle, the State Farm claims adjuster, but subsequently dismissed their claims against them.
[3] The version of La. R.S. 22:658 in effect at the time that plaintiffs' property was damaged and when the claim was filed with State Farm provided for a twenty-five percent (25%) penalty in cases involving an insurer's failure to make payment within thirty days of receiving satisfactory written proof of loss. The statute was amended by Acts 2006, No. 813, § 1, effective August 15, 2006, to mandate a fifty percent (50%) penalty in such cases, as well as attorney fees and costs. La. R.S. 22:658 was renumbered as La. R.S. 22:1892 by Acts 2008, No. 415, § 1, effective January 1, 2009.
[4] La. R.S. 22:1220 was renumbered as La. R.S. 22:1973 by Acts 2008, No. 415, § 1, effective January 1, 2009.
[5] The April 7, 2010 judgment reads, in pertinent part, "The Motion for Partial Summary Judgment as to Plaintiffs' claims for Dwelling is GRANTED IN PART, limiting the Plaintiffs' claim to actual cash value minus depreciation," which State Farm concedes in its appeal brief is incorrect. The words "minus depreciation" should have been omitted.
[6] Plaintiffs also filed an application for supervisory writs on July 30, 2010, which this court denied on September 21, 2010. See Jouve v. State Farm Fire and Casualty Co., 2010-C-1104 (La.App. 4 Cir. 9/21/10) unpub.
[7] In Daubert, the U.S. Supreme Court established factors for evaluating the methodology employed by expert witnesses, including (1) the "testability" of the scientific theory or technique; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; and (3) whether the methodology is generally accepted in the scientific community. Daubert, 509 U.S. at 592-94, 113 S.Ct. 2786, 125 L.Ed.2d 469. The Louisiana Supreme Court, in State v. Foret, 628 So.2d 1116, 1123 (La. 1993), characterized the Daubert factors as "observations" which provide a helpful guide for lower courts in considering the admissibility of expert testimony.
[8] A. Vincent Caracci, IV, is Mr. Caracci's grandson by birth and son by adoption and, in some places in the record, is referred to as A. Vincent Caracci, III. Mr. Caracci also has a son, A Vincent Caracci, Jr., who worked with him in the construction business.
[9] State Farm filed a motion for partial summary judgment on plaintiffs' claims for contents and additional living expenses. In the April 7, 2010 judgment, the trial court granted the motion, in part, dismissing with prejudice the additional living expenses claim, and denied the motion, in part, as to the contents claim. The trial court's rulings on those claims are not at issue in this appeal.
[10] La. C.C.P. art. 1972(2), provides: A new trial shall be granted, upon contradictory motion of any party, in the following cases:
* * *
(2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.
[11] La. C.C.P. art. 1973 provides, "A new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law."
[12] The affidavits along with the affidavit of A. Vincent Caracci, IV, were submitted with the motion for new trial.
[13] See Assignment of Error No. 1, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610287/ | 485 P.2d 229 (1971)
William J. DE MIK, Plaintiff in Error,
v.
O.A. CARGILL et al., Defendants in Error.
No. 42797.
Supreme Court of Oklahoma.
May 11, 1971.
Bishop & Wantland, Seminole, for plaintiff in error.
Marvin Shilling, Ardmore, Mickey James, Oklahoma City, James A. Clark, Ardmore, for H.R. Shine and W.P. Burch.
Johns, Howell & Webber, by Charles Hills Johns, Midwest City, for O.A. Cargill and O.A. Cargill, Jr., defendants in error.
*230 BERRY, Chief Justice:
The sole question presented concerns propriety of the trial court's action sustaining *231 defendants' demurrer to plaintiff's petition, which sought partition of defendants' overriding royalty interest in an oil and gas leasehold. The precise question appears to be of first impression. Summarized hereafter is the substance of pleadings pertinent to the issue. Neither surface owners nor royalty owners were parties to this action.
Plaintiff alleged ownership of the working interest, plus additional overriding royalty interest, underlying two described quarter sections in Oklahoma County, and defendants' ownership of undivided overriding royalty interest in the producing leasehold. Several other defendants also owned overriding royalty interests created by defendants Cargill while owners of entire lease. Because plaintiff and defendants were cotenants, plaintiff was entitled to partition the producing leasehold estate as a matter of right, which could not be partitioned in kind because of production. The amended petition alternatively asked relief in equity for partition upon the ground defendants' overriding royalty interest overburdened the working interest to the extent further production, development, or sale of the premises no longer was economically feasible.
The trial court sustained defendants' demurrer and dismissed the action as to defendants' overriding royalty interests, but allowed plaintiff to proceed with partition of the working interest.
Two propositions are presented on appeal. Plaintiff first contends an overriding royalty interest is subject to partition as a matter of right, under 12 Ohio St. 1961 § 1501:
"When the object of the action is to effect a partition of real property, the petition must describe the property and the respective interests of the owners thereof, if known."
Summarized, plaintiff advances the following argument in support of this claim. An oil and gas lease is subject to partition under authority of Sweeney v. Bay State Oil & Gas Co., 192 Okl. 28, 133 P.2d 538. Owners of undivided interests in the working interest in an oil and gas lease are tenants in common Britton v. Green et al., (10th Cir.) 325 F.2d 377. Although severed from realty, oil and gas rights may be partitioned. Wolfe v. Stanford, 179 Okl. 27, 64 P.2d 335. An overriding royalty interest generally is held to be an interest in real property and may be impressed with statutory materialmen's liens. McInnes v. Robinson, Okl., 341 P.2d 577; Meeker v. Ambassador Oil, (10th Cir.) 308 F.2d 875. Based upon this decisional law plaintiff asserts overriding royalty is real property in this state, owners of such interests being tenants in common with owners of the working interest, hence the overriding royalty is subject to partition as a matter of right. We find no fault with the rules expressed in the cited cases as determinative of the issues considered in each case. We disagree, however, that overriding royalty is real estate and subject to partition as a matter of right, being of the opinion these cited cases cannot be construed as supporting the conclusion stated.
Disposition of this appeal, requires determination whether allegations of the petition are sufficient to show existence of a right to partition. In substance, defendants' answer asserts they are not tenants in common, cotenants, or coparceners, have neither joint ownership nor right of possession and, therefore, have no interest which can be subjected to partition. In this connection, this Court consistently has declared partition of real property can be allowed only when held in cotenancy. In Prusa v. Cermak, Okl., 414 P.2d 297, this rule is stated:
"Partition of real property may be had only when it is held in cotenancy, either as tenants in common, joint tenants or coparceners."
The record does not disclose the instrument by which the involved overriding interests were created. Apparently the parties have no disagreement as to definition of such interest, but disagree only as to the nature thereof as concerns the issue *232 relating to right of partition. The term has become so commonplace as scarcely to require restatement. "Overriding royalty", as generally understood and accepted within the industry, is a percentage carved out of the lessee's working interest, free and clear of any expense incident to production and sale of oil and gas produced from the leasehold. Thornburg v. Cole, 201 Okl. 609, 207 P.2d 1096; Cities Service Oil Co. v. Geolograph Co., 208 Okl. 179, 254 P.2d 775. Manual of Oil and Gas Terms (Williams & Meyers) at p. 173.
At the outset, we observe some difficulty is engendered as a result of undefinitive language, inappropriately used in many prior decisions. Decided cases are too numerous to cite and compare. Examination of many of these cases reveals imprecise use of words when speaking of ownership in property. Often the intention is to refer to an interest in real property, but the words "estate in real property" are inaptly used. The instant situation may have such foundation, in view of plaintiff's argument an overriding royalty interest constitutes an estate in cotenancy sufficient to support partition.
Historically, partition of land came into being when persons owning land as coparceners were involved in an unpleasant situation. The law developed procedures by which difficulty was resolved simply by dividing the land into separate tracts. Powell on Real Property, V. 4 § 609. Eventually the right of partition was extended by statute, but the jurisdiction conferred upon courts allowed partition only in instances where land was held in cotenancy. In Pomeroy's Equity Jurisprudence (4th Ed.) V. 5 § 2126, dealing with partition, that text states:
"Following the analogies of the law, equity will grant partition only of property held in co-tenancy and in which the parties have a community of interest, either as co-tenants, tenants in common, or co-parceners; and this rule has not been materially affected by the statutory remedy of partition provided in all the states. Several persons may be owners of the same property without being cotenants, and the severance of their interests may be desirable or even essential to the enjoyment of such property, but this constitutes no ground for equitable interference by way of partition. If the requisite of co-tenancy be present, all kinds of property are subject in equity to partition, whether it be corporeal or incorporeal, real or personal, and whether it be held by legal or equitable title."
First National Bank v. Dunlap, 122 Okl. 288, 254 P. 729, involved whether a judgment creditor's lien would attach to a judgment debtor's interest in a producing oil and gas lease. The contention was that the term "real property" included every interest, estate and right in land, tenements and hereditaments. In affirming a judgment quashing execution levied against the oil and gas interest, this Court stated no statute provides every estate in real property shall be considered real property. Thus, in the character of property created by an oil and gas lease, there is a recognizable distinction between real estate and an estate in real property. Not every kind of estate recognized in law as an interest in real property is real estate. Although an oil and gas lease creates an interest or estate in realty, such interest is not per se real estate. In Pauline Oil & Gas Co. v. Fischer, 185 Okl. 108, 90 P.2d 411, syllabus 2 states:
"While an oil and gas lease which grants, leases, and lets' certain land for oil and gas mining purposes, conveys to the lessee an estate in the realty described therein, such interest is not real estate within the meaning of section 690, C.O.S. 1921, 12 Okl.St.Ann. § 706, which gives a judgment creditor a lien upon the `real estate' belonging to the judgment debtor."
In Tiffany, The Law of Real Property (3rd ed.) V. 2 § 475, dealing with who may demand partition, although recognizing this *233 right depends upon construction and effect of particular statutes, the text states:
"* * * Ordinarily, one seeking partition must have an estate in possession, entitling him to enjoy the present rents or possession of the property as a cotenant thereof, and must be the owner of a vested undivided interest in the premises jointly, as a tenant in common, or in co-parcenary with those against whom he seeks partition. * * *"
Recognition of the text rule appears in North v. Coffey, 200 Okl. 44, 191 P.2d 220, and Prusa v. Cermak, supra.
A tenancy in common has been defined as a joint interest in which there is unity of possession, but separate and distinct titles. The relationship exists where property is held by several distinct titles by unity of possession, and is not an estate but a relation between persons, the only essential being a possessory right, as to which all are entitled to equal use and possession. Thompson On Real Property (Perm.Ed.) V. 4 § 1793; Taylor v. Brindley (10th Cir.) 164 F.2d 235; American Bank & Trust Co. v. Continental Inv. Corp., 202 Okl. 341, 213 P.2d 861, 863.
Our inquiry then is narrowed to determination of the nature of the interest acquired in a leasehold by an owner of overriding royalty, whose percentage interest is carved out of the lessee's working interest. The right, or interest, acquired in a lessor's land by lessee, has been denominated a qualified right to enter upon the premises:
"* * * to erect structures on the surface of their land, and explore therefor by drilling wells through the underlying strata, and to take therefrom and reduce to possession, and thus acquire absolute title as personal property to such as might be found and obtained thereby. * * * The right so granted or reserved, and held separate and apart from the possession of the land itself, is an incorporeal hereditament; or more specifically, as designated in the ancient French, a profit a prendre, analogous to a profit to hunt and fish on the land of another. * * *" Rich v. Doneghey, 71 Okl. 204, 177 P. 86, 3 A.L.R. 352.
Owners of undivided interests in oil and gas in and under real estate are tenants in common. Earp v. Mid-Continent Pet. Corp., 167 Okl. 86, 27 P.2d 855, 91 A.L.R. 188. Grant of a lease is conveyance of an interest in realty sufficient to establish cotenancy with the lessor. This interest may be terminated, and the cotenancy destroyed, upon a lessee's failure to enter and drill. However, a lessee acquires no title to oil and gas until reduced to possession. But, when reduced to possession oil and gas become personality. Replogle v. Indian Territory Illuminating Oil Co., 193 Okl. 361, 143 P.2d 1002.
The nature of overriding royalty is such that only when oil and gas are reduced to possession does the interest attach. Prior to this event an owner of an overriding interest has no assertable right in the leasehold. Thus, overriding royalty may be lost entirely by expiration of the primary lease since, absent fraud or breach of fiduciary relationship, the interest does not continue and attach to a subsequent lease secured, in good faith, by the lessee. Thomas v. Whyte, 5 Mich. App. 281, 146 N.W.2d 721; K & E Drilling Co. v. Warren, 185 Kan. 29, 340 P.2d 919. Neither does an overriding royalty survive cancellation, surrender, abandonment resulting from diminution of production beyond economic feasibility, nor total failure to secure production in paying quantities. See Summers, Law of Oil and Gas (Perm.Ed.) § 554; Smith v. Drake, 134 Cal. App. 700, 26 P.2d 313; La Laguna Ranch Co. v. Dodge, 18 Cal. 2d 132, 114 P.2d 351, 135 A.L.R. 546. Thus the coming into being of an overriding royalty owner's rights are dependent upon happening of a future event or condition.
The foregoing is of value in defining the nature of interest acquired by owner of overriding royalty, by showing the limited, conditional status of that interest. No authorities cited by plaintiff support *234 the claimed right to partition. Neither do we find cases which allow partition of real property where the plaintiff's interest is not coupled with some right of possession. In Choteau v. Choteau, 49 Okl. 105, 152 P. 373, syllabus 1 states:
"A joint tenant out of possession cannot maintain a suit for partition against his cotenant, who holds adversely to him, without joining with the demand for partition a cause of action for possession of the land."
Since that time we have recognized that possession is a prerequisite of the right of partition. Plaintiff relies upon Meeker v. Ambassador Oil Co. (10th Cir.) 308 F.2d 875, and Britton v. Green (10th Cir.) 325 F.2d 377, to support the claim of cotenancy. These decisions do not support plaintiff's argument. In Meeker, that court declared an overriding royalty interest did not create tenancy in common with the lessee, for the reason an overriding interest has neither corporeal nor possessory interest in land which could be subject of an action in ejectment. Likewise, an Oklahoma lessee holds no estate which can be subjected to ejectment. Kolachny v. Galbreath, 26 Okl. 772, 110 P. 902, 38 L.R.A., N.S., 451.
In Britton the controversy involved parties who owned undivided shares in the working interest, some of which were subject to overriding royalty interests. The opinion declared all fractional interest holders cotenants in the leasehold estate. However, in the body of the opinion there is separate reference to undivided shares in the working interest which were subject to overriding interests. Despite the broad reference to cotenancy of all fractional interest holders, we cannot construe the language used as intended to indicate overriding interests were included in the declared cotenancy. Our conclusion as to meaning of the language in this respect results, in part, from consideration of the special concurring opinion. There is cited (325 F.2d p. 387) Skelly Oil Co. v. Wickham (10th Cir.) 202 F.2d 442, as authority for the rule of cotenancy between owners of undivided portions of the working interest in a leasehold. Examination of Wickham discloses the controversy involved working interest only, without adjudication as to overriding interest. Thus we necessarily conclude the language used neither was intended, nor is to be construed, holding that an overriding royalty interest creates a cotenancy in the leasehold.
Summers, Law of Oil and Gas (Perm. Ed. V. 3 § 537, states:
"* * * an overriding royalty or oil payment created out of the lessee's working interest, is usually not held to be a partitionable interest because the owner thereof is not entitled to possession and is not a tenant in common with the owners of the mineral fee or of the leasehold. * * *"
Also see Kuntz, Oil and Gas, V. 1, at p. 153.
This text quotation is supported by footnote citation of Belgam Oil Co. v. Wirt Franklin Pet. Corp. (Tex.Civ.App.) 209 S.W.2d 376, and Hardin v. Eubank (Tex. Civ.App.) 245 S.W.2d 554. In Belgam partition was sought between tenants in common of a lease. That court held overriding royalties created out of a lessee's working interest had no possessory interest in oil and gas in place and were not tenants in common in the lease. In Hardin partition of both surface and minerals was held valid against an owner of royalty in an undivided one-fifth of the land.
Partition proceedings in Texas are brought under Vernon's Ann.Civ.Stat., Art. 6082, which allows partition of any interest in real estate, mineral, coal, or gas lands by any judgment owner or claimant. The latitude extended partition actions under this statute far surpasses the "partition of real property" specified in our own statute. We do not deem either cited case definitive of the issue in this appeal because of difference in the statutes. It may be noted, however, that necessary requisites for partition of any estate are joint ownership of the interest sought to be partitioned, *235 and an equal right, of the party seeking partition, to possession with other joint owners.
Our own decisions establish the essential element for decreeing existence of a tenancy in common, sufficient to support partition, is the right to possession. Under decisional law, and other persuasive authority, we hold defendants in error through their overriding royalty interests had no possessory rights in the leasehold and are not tenants in common. For this reason, we conclude the trial court correctly sustained defendant's demurrer for failure of the pleadings to show a right to partition of defendants' overriding interest.
Plaintiff also contends partition should be granted as a matter of equity. It is urged the overriding royalty, "one-fourth of eight-eights working interest" places an undue burden upon the working interest and creates an intolerable economic condition which precludes further development. Cited in support of this argument are Harper v. Ford, Okl., 317 P.2d 210; Sweeney v. Bay State Oil and Gas Co., supra; Komarek v. Perrine, Okl., 382 P.2d 748, and Diehl v. Hieronymous, Okl., 426 P.2d 368. The cases cited are not controlling by reason of lack of a cotenancy relationship in the present case. So far as disclosed by pleadings the present contract was entered into fairly and willingly, no claim of fraud or bad faith having been asserted.
Partition is an equitable proceeding, whether brought under the statute, supra, or in equity. In analyzing plaintiff's contention it appears plaintiff is urging that equity should grant relief in this contractual situation, regardless of whether the matter falls within the statute. We are cognizant that partition falls within jurisdiction of a court of equity even as to personal property. Julian v. Yeoman, 25 Okl. 448, 106 P. 956. Plaintiff presents no authority showing a court of equity will enlarge its jurisdiction to partition property, not subject to partition under the statute, because the contract is burdensome. Where a contract is valid and fairly entered into plaintiff must abide by its terms, and cannot maintain an action for partition, or rely upon a court of equity to negotiate a new or better contract. McInteer v. Gillespie, 31 Okl. 644, 122 P. 184. Inequitable hardship and oppression are not elements which bestow jurisdiction upon a court of equity in a partition action. These issues are defensive issues to be pleaded and proved. Wolfe v. Stanford, supra. In Hassell v. Workman, Okl., 260 P.2d 1081, we recognized the absolute right to partition by cotenants with possessory rights, but denied partition sought solely because of equitable hardship and oppression.
For the reasons stated we conclude the overriding royalty interests lacked possessory rights in the leasehold and defendants were not tenants in common in an estate in real property. Not being tenant in common they were not proper parties, and the trial court correctly sustained the demurrer and dismissed the action as to defendants.
Judgment affirmed.
All Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2908754/ | Heather Marie Murphy v. State
IN THE
TENTH COURT OF APPEALS
No. 10-99-076-CR
     HEATHER MARIE MURPHY,
                                                                              Appellant
     v.
     THE STATE OF TEXAS,
                                                                              Appellee
From the 220th District Court
Bosque County, Texas
Trial Court # 99-02-13071-BCCR
                                                                                                              Â
MEMORANDUM OPINION
                                                                                                              Â
      Appellant Heather Marie Murphy was convicted by the trial court of the offense of forgery.
See Tex. Pen. Code Ann. § 32.21 (Vernon 1994). Murphyâs punishment was assessed at two
yearsâ confinement in a state jail facility. Murphy has filed a motion to dismiss her appeal. In
relevant portion, Rule 42.2 of the Texas Rules of Appellate Procedure states:
(a) At any time before the appellate courtâs decision, the appellate court may dismiss the
appeal if the appellant withdraws his or her notice of appeal. The appellant and his or
her attorney must sign the written withdrawal and file it in duplicate with the appellate
clerk, who must immediately send the duplicate copy to the trial court clerk.
Tex. R. App. P. 42.2(a).
      We have not issued a decision in this appeal. The motion is signed by both Murphy and her
attorney. Thus, the motion meets the requirements of the rules and is granted.
      Murphyâs appeal is dismissed.
                                                                         PER CURIAM
Before Chief Justice Davis,
      Justice Vance, and
      Justice Gray
Dismissed on appellant's motion
Opinion delivered and filed April 28, 1999
Do not publish
e,
224 S.W.3d 182, 185 (Tex.2007) (orig.proceeding); In re Tex. Dept of Family
& Protective Servs., 210 S.W.3d 609, 612 (Tex.2006) (orig.proceeding).Â
However, if the order being challenged in a mandamus proceeding is void, the
relator need not show that he or she has no adequate remedy by appeal. In
re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (per curiam); In re
Keeling, 227 S.W.3d 391, 395 (Tex. App.ÂWaco 2007, orig. proceeding).
Effect of Recusal Motion
           Ceole contends among other things that
RespondentÂs stay and restraining order is void because Respondent issued it
while the recusal motion was pending.[2]Â
This contention is governed by Rule of Civil Procedure 18a(d), which provides
in pertinent part:
           If the judge declines to recuse
himself, he shall forward to the presiding judge of the administrative judicial
district, in either original form or certified copy, an order of referral, the
motion, and all opposing and concurring statements. Except for good cause
stated in the order in which further action is taken, the judge shall make no
further orders and shall take no further action in the case after filing of the
motion and prior to a hearing on the motion.
Â
Tex. R. Civ. P. Â 18a(d).
           Once a recusal motion is filed, a
trial judge generally has two options: (1) recuse himself/herself; or (2)
forward the motion to the presiding judge and request the assignment of another
judge to hear the motion. See id. 18a(c), (d); Tex. GovÂt Code Ann. § 74.059(c)(3) (Vernon 2005); In re
A.R., 236 S.W.3d 460, 477 (Tex. App.ÂDallas 2007, no pet.); In re Norman, 191 S.W.3d 858, 860 (Tex. App.ÂHouston [14th Dist.] 2006, orig. proceeding).Â
However, the judge may make Âfurther orders while the recusal motion is
pending Âfor good cause stated in the order.ÂÂ Tex. R. Civ. P. 18a(d).
           Our research has disclosed no
decisions providing any extensive analysis or discussion regarding the quantum
of Âgood cause required to be Âstated in an order made after the filing of a
recusal motion. Nevertheless, we observe that Rule 18aÂs good-cause requirement
is similar to that of Rule 141, which provides that a trial court Âmay, for
good cause, to be stated on the record tax costs of court otherwise than
provided by law. Id. 141. As the Supreme Court has explained, Rule 141
requires a trial court to Âstate its reasons Âon the recordÂÂ for taxing costs
against a prevailing party. Roberts v. Williamson, 111 S.W.3d 113, 124
(Tex. 2003). Or as explained by the Dallas Court, a bare finding Âthat good
cause exists is not sufficient. See Dover Elevator Co. v. Servellon,
812 S.W.2d 366, 367 (Tex. App.ÂDallas 1991, no writ). Rather, the trial court
must Âset[ ] out the basis for that finding.ÂÂ Id.; accord Guerra v.
Perez & Assocs., 885 S.W.2d 531, 533 (Tex. App.ÂEl Paso 1994, no writ).
           Here, Respondent made the following
statements regarding Âgood cause in the stay and restraining order:
·                  Â
ÂThe Court examined the
pleadings and affidavit and finds that Petitioner is entitled to a restraining
order and a stay, based on the clear existence of good cause to grant such
order until the issue or recusal and subsequently, jurisdiction, of this Court
may be decided.Â
Â
·                  Â
ÂThe Court finds that there is
good cause to issue this order.Â
Â
RespondentÂs order does not state any basis for
these good-cause findings.
           Respondent states in his response to
the mandamus petition that he Âfound good cause to grant extraordinary relief,Â
but he does not state what that good cause is. To the extent RespondentÂs stay
and restraining order refers to JustinÂs application and counselÂs supporting
affidavit as a basis for good cause, the application asserts that good cause
exists because the recusal motion Âwas filed simply to have the matter heard in
Walker County, Texas, prior to this Court being able to have the presiding
judge decide if recusal is proper.Â[3]Â
However, it is not for a trial judge to decide whether an otherwise proper recusal
motion is groundless, filed in bad faith, or filed for some other improper
purpose. See Johnson v. Pumjani, 56 S.W.3d 670, 672-73 (Tex. App.ÂHouston [14th Dist.] 2001, no pet.); Carson v. McAdams, 908 S.W.2d 228,
228-29 (Tex. App.ÂHouston [1st Dist.] 1993, orig. proceeding) (per curiam). But
cf. In re Union Pac. Res. Co., 969 S.W.2d 427, 428 (Tex. 1998) (orig.
proceeding) (recusal issue Âcan be waived if not raised by proper motionÂ);
In re Marriage of Samford, 173 S.W.3d 887, 890 (Tex. App.ÂTexarkana 2005,
pet. denied) (party who fails to follow Rule 18a waives right to complain of
judgeÂs failure to recuse); Spigener v. Wallis, 80 S.W.3d 174, 180 (Tex.
App.ÂWaco 2002, no pet.) (same).[4]
           The stay and restraining order
contains only a bare finding of Âgood cause without stating the basis for that
finding. Thus, Respondent abused his discretion by issuing this order while
the recusal motion was pending against him. Â See Carson, 908 S.W.2d at
228-29; see also Riga v. CommÂn for Lawyer Discipline, 227 S.W.3d 795,
797-98 (Tex. App.ÂHouston [1st Dist.] 2007, pet. denied). Because Respondent
issued this order while the recusal motion was pending, the order is void.[5]
 A.R., 236 S.W.3d at 477; Riga, 227 S.W.3d at 798; Johnson,
56 S.W.3d at 672.
           Because the order is void, Ceole is
entitled to mandamus relief without showing that she has no adequate remedy by
appeal. Sw. Bell Tel., 35 S.W.3d at 605; Keeling, 227 S.W.3d at
395. Â Therefore, we conditionally
grant the requested writ. The writ will issue only if Respondent fails to
advise this Court in writing within fourteen days after the date of this
opinion that he has vacated the stay and restraining order.
Â
FELIPE REYNA
Justice
Â
Before Chief Justice
Gray,
Justice
Vance, and
Justice
Reyna
(Chief Justice Gray does not join the CourtÂs
opinion or judgment but a separate opinion will not issue. He notes, however,
that the opinion does not fairly recite the good cause asserted in the motion
and the trial courtÂs reliance on that basis for good cause. As stated by the
trial court in his response to the mandamus: ÂIt appears to this Court that Mr.
Bays is attempting to exploit the procedural delay obtained by his Motion to
Recuse, and thereby manipulate these circumstances to his clientÂs advantage.Â)
Petition conditionally
granted
Opinion delivered and
filed April 30, 2008
[OT06]
[1]
             Respondent declined to recuse
himself and forwarded the recusal motion to the presiding judge for his
administrative judicial region, who assigned another judge to hear the matter
on March 19. See Tex. R. Civ. P.
18a(d).
Â
[2]
             Ceole also contends: (1) the
order is void because it does not satisfy many of the requisites for temporary
restraining orders set forth in Rules of Civil Procedure 680 and 683; (2) the
order is improper because the application was not supported by JustinÂs
affidavit as required by Rule 682 and counselÂs supporting affidavit does not
provide sufficient evidentiary support for issuance of a TRO; (3) because of
her status as a part-time associate judge for Respondent, JustinÂs counsel was
not authorized to seek further relief in the underlying proceeding until the
recusal issue was resolved; (4) Respondent has no authority to enjoin a court
of co-extensive jurisdiction; (5) the stay and restraining order is
impermissibly overbroad; and (6) the order impermissibly grants, in effect,
Âthe ultimate relief sought by Justin, namely the determination of which court
has jurisdiction to adjudicate the parties divorce.
[3]
             CounselÂs supporting affidavit
is less helpful, stating, ÂI believe that good cause exists for the court to
grant the requested relief.Â
Â
[4]
             CeoleÂs recusal motion is
arguably procedurally defective because it was filed less than 10 days before
the rescheduled hearing on JustinÂs request for temporary orders. See Tex. R. Civ. P. 18a(a). However, this
10-day requirement is not absolute and does not contemplate the situation (like
that presented in CeoleÂs case) in which a party becomes aware of a basis for
recusal less than 10 days before the trial or hearing is set. See Metzger
v. Sebek, 892 S.W.2d 20, 49 (Tex. App.ÂHouston [1st Dist.] 1994, writ
denied); Martin v. State, 876 S.W.2d 396, 397 (Tex. App.ÂFort Worth 1994,
no pet.).
Â
[5]
             Having found the order void on
this basis, we do not reach CeoleÂs other challenges to the validity of the
order. | 01-03-2023 | 09-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2984238/ | Motion Denied; Appeal Dismissed and Memorandum Opinion filed April 22,
2014.
In The
Fourteenth Court of Appeals
NO. 14-14-00153-CV
FIDEL PIZANO AND MARIA SANCHEZ AND ALL OTHER
OCCUPANTS, Appellants
V.
HREAL COMPANY, LLC, Appellee
On Appeal from the Co Civil Ct at Law No 2
Harris County, Texas
Trial Court Cause No. 1041050
MEMORANDUM OPINION
This is an appeal from a judgment signed January 27, 2014. The notice of
appeal was filed on February 13, 2014. To date, our records show that appellants
have neither established indigence nor paid the $195.00 appellate filing fee. See
Tex. R. App. P. 5 (requiring payment of fees in civil cases unless indigent); Tex. R.
App. P. 20.1 (listing requirements for establishing indigence).
On March 21, 2014, this court ordered appellants to pay the appellate filing
fee on or before March 31, 2014, or the appeal would be dismissed. No response
has been filed. Accordingly, the appeal is ordered dismissed. See Tex. R. App. P.
42.3(c) (allowing involuntary dismissal of case because appellant has failed to
comply with notice from clerk requiring response or other action within specified
time).
Appellee has filed a motion to dismiss on the grounds the judgment was an
agreed judgment. Appellant further requests sanctions against appellants for filing
a groundless appeal. Appellee’s motion to dismiss is denied as moot and
appellee’s request for sanctions is denied.
PER CURIAM
Panel consists of Justices Boyce, Busby and Wise.
2 | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2610240/ | 485 P.2d 754 (1971)
AMERICAN EMPLOYERS' INSURANCE COMPANY, Plaintiff in Error,
v.
J.F. McGEEHEE, Defendant in Error.
No. 42629.
Supreme Court of Oklahoma.
March 23, 1971.
Rehearing Denied June 15, 1971.
Cook & O'Toole, Oklahoma City, for plaintiff in error.
Schwoerke & Schwoerke and William R. Davis, Oklahoma City, for defendant in error.
*755 McINERNEY, Justice.
American Employers' Insurance Company (Garnishee) issued an automobile liability policy to Jimmy Odus Vessell. J.F. McGeehee (Plaintiff) secured a default judgment against Vessell for personal injuries sustained while assisting Vessell in cleaning out or emptying the feed bed of Vessell's truck. Vessell owned a feed mill in which Plaintiff was employed. The accident occurred on a Saturday on the general premises of the mill. Plaintiff testified that his regular work week was Monday through Friday. Plaintiff, as a judgment creditor of Vessell, proceeded in garnishment against Garnishee to collect under Vessell's policy. Garnishee denied coverage for the accident, alleging Plaintiff was an employee within the meaning of its policy clause excluding from coverage injuries to "any employee" of the insured.
*756 A jury was empaneled to determine the factual question, and only issue involved in the controversy, of whether Plaintiff was employed by and working for Vessell on the day at the time of the accident. At the conclusion of the evidence and the instructions, the jury returned an interrogatory answering affirmatively the question of whether or not Plaintiff was so employed. The trial judge later set aside the verdict on the grounds that it was advisory only and that he could not conscientiously approve the conclusion reached by the jury. A judgment non obstante veredicto was then entered in favor of Plaintiff. Plaintiff withdrew his motion for a new trial; thus no predicate exists for urging asserted error in one of the instructions. The interrogatory submitted to the jury contained the only issue of fact to be determined, and its answer is equivalent to a general verdict. Edwards v. Rutland Savings Bank, 181 Okl. 643, 75 P.2d 1152 (1938); First National Bank of Oklahoma v. Jones, 111 Okl. 116, 238 P. 488 (1925).
We reverse on the grounds that Garnishee is entitled to a trial by jury when the issue of its indebtedness to a judgment debtor, as later explained, is in factual dispute and there is competent, though weak, evidence to support the verdict of the jury. We construe 12 O.S. Supp. 1970, § 1177 (as amended in 1965), which provides, in part, "* * * the issue shall stand for trial as a civil action" in conjunction with Article 2, § 19, Constitution of Oklahoma, relating to trial by jury, in reaching our conclusion.
The question of a garnishee's right to trial by jury has never been directly resolved in Oklahoma, Employers Mutual Casualty Co. v. Hart, Okl., 422 P.2d 422, 425 (1967). There is some authority for either view; Jarecki Mfg. Co. v. Fleming, 170 Okl. 70, 38 P.2d 925, 927 and Moral Ins. Co. v. Steves, 208 Okl. 529, 257 P.2d 836, 840 (1953). We settle the question in this case, and disapprove those cases announcing a contrary view.
Let us first briefly consider what is actually happening in garnishment. A judgment creditor, in effect, is simply enforcing his judgment debtor's cause of action against a third party; it might be said that the judgment creditor, with respect to this third party (the garnishee), does no more than "stand in the shoes" of his judgment debtor, Jacobs v. Colcord, 136 Okl. 158, 275 P. 649, Syl. 2 (1929), or, stated otherwise, in garnishment the judgment debtor's cause against the third party (garnishee), such as it may be, is merely "assigned" to the judgment creditor. Bell-Wayland Co. v. Nixon, 57 Okl. 138, 156 P. 1195, Syl. 1 (1916).
If, therefore, the judgment debtor himself would have to contend with a jury in a direct action against this outside party, on the cause of the latter's indebtedness to the judgment debtor, as Vessell would here, there seems no logical reason why the judgment creditor, in merely enforcing his judgment debtor's rights, should not likewise also have to overcome before a similar jury the garnishee's same interposed defenses. In other words, the garnishee's right to a jury depends, logically, only on whether the alleged debt is triable to a jury, and should not fail merely because of a purely procedural substitution of parties in enforcing what still remains the one and the same debt.
We do not mean to imply, of course, that all contested debts allegedly owed by third parties to judgment debtors are necessarily triable as of right by a jury upon garnishment by judgment creditors. The right to trial by jury has long been held applicable only to actions "at law," Keeter v. State, 82 Okl. 89, 198 P. 866 (1921); Mathews v. Sniggs, 75 Okl. 108, 182 P. 703 (1919), rather than to such things as "equity" debts (owing, for example, by former spouses, trustees, or the like). Since in such a latter case the trial of an "equity" debt between the judgment debtor himself and the third party would not be by jury, then also would such a debt not be tried by a jury when pursued by a *757 judgment creditor on garnishment. And even in the case of a "law" debt, moreover, it still might happen that the facts would not be in dispute, but only the legal consequences flowing therefrom; under 12 Ohio St. 1961, § 556, a jury would not appear necessary. However, a suit to recover a judgment for the amount due on an insurance policy is a law action triable to a jury. Oklahoma Union Ins. Co. v. Morgan, 168 Okl. 228, 229, 32 P.2d 285, 289 (1934); Nat'l Aid Life Assn. v. Morgan, 168 Okl. 226, 227, 32 P.2d 288, 289 (1934).
Our conclusion expresses the majority View on the issue presented. Argonaut Ins. Co. v. Ketchen, 243 Or. 376, 413 P.2d 613, 19 A.L.R. 3d 1386 (1966), and the annotation following the reported case commencing on page 1393.
We now turn to the question of the sufficiency of the evidence. It is the jury's exclusive province in a law action to resolve conflicts in competent evidence on the testimony submitted, Young v. Darter, Okl., 363 P.2d 829, 835 and Syl. 3 (1961). The Supreme Court will not invade the province of the jury to weigh the evidence on appeal. Illinois Bankers Life Ass'n v. Hardy, 174 Okl. 326, 51 P.2d 292 (1935); Oklahoma Union Ins. Co. v. Morgan, supra. The sufficiency of the evidence to sustain a judgment in an action of legal cognizance will be determined in the light of evidence tending to support the judgment, together with every reasonable inference deducible therefrom, rejecting all evidence adduced by the adverse party which conflicts with the direct evidence or the reasonable inference. Smith v. Davis, Okl., 430 P.2d 799 (1967). Where the facts bearing on Plaintiff's status in relation to Vessell are disputed, or conflicting inferences may reasonably be drawn from the known facts, the issue of whether Plaintiff was an employee or not at the time of the accident should be submitted to the jury. Flick v. Crouch, Okl., 434 P.2d 256 (1967).
Plaintiff was regularly employed by Vessell at the mill. The accident occurred while Plaintiff and Vessell were engaged in activities relating to Vessell's truck in near vicinity to the mill. Plaintiff told the nurse at the hospital that "he was injured at work when he was working on the feed truck." Vessell permitted a default judgment in the full amount sought by Plaintiff to be entered against him. Plaintiff is assured collection of this amount if successful in the garnishment action; Vessell will likewise be relieved of a present liability.
There is competent evidence in the record, together with reasonable determinations of credibility and permissible inferences of ultimate fact, to sustain the verdict of the jury when measured by the standard applicable for appellate review in matters of legal cognizance. Shell Pipe Line Corp. v. Curtis, Okl., 287 P.2d 681 (1955). The trial court therefore erred in setting aside the jury's verdict.
Reversed and remanded with directions to enter judgment for Garnishee in accord with the jury's verdict.
All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610266/ | 485 P.2d 927 (1971)
George ROMERO, Petitioner,
v.
STANDARD METALS CORPORATION et al., Respondents.
No. 70-623.
Colorado Court of Appeals, Div. I.
May 25, 1971.
Hamilton, Hamilton & Shand, E. B. Hamilton, Jr., Durango, for petitioner.
Alious Rockett, Francis L. Bury, Feay Burton Smith, Jr., Denver, for respondents, Standard Metals Corp. and State Compensation Insurance Fund.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for respondent, The Industrial Comm. of the State of Colorado.
Selected for Official Publication.
PIERCE, Judge.
This case is an appeal by the claimant, Romero, from a Colorado Industrial Commission order denying benefits claimed under the Colorado Occupational Disease Disability Act, C.R.S.1963, 81-18-1 et seq. The claimant, a miner, incurred a mild case of silicosis while working for respondent Standard Metals Corporation. He was first told by his physician that he was suffering from a heart strain produced by silicosis, but later the diagnosis indicated that his disability was produced by neurosis. Further evidence indicated that the neurosis developed as an emotional reaction to the discovery that he had silicosis, rather than the purely physical result of that disease. *928 Testimony is clear that claimant was physically able to work and that the best method of treating his neurosis would require his return to his occupation as a miner in conjunction with psychiatric treatment, even though there was a possibility that the silicosis might become more pronounced.
The referee denied compensation, finding that claimant "has a neurosis preventing him from working but said neurosis is not directly related to a disabling occupational disease as defined by Colorado law." The referee further found: (1) that claimant had a minimal amount of silicosis; (2) that he was not industrially disabled because of silicosis or a heart condition; and (3) that he was physically able to return to mining, but should he do so there might be some risk of an increasing amount of silicosis. Claimant here appeals from the Industrial Commission's order affirming the referee's denial of benefits.
Claimant contends that the Industrial Commission erred in determining that he could not recover as he maintains that the neurosis was caused by a statutorily defined physically disabling occupational disease.
Under the Colorado Occupational Disease Disability Act, however, compensation does not flow from the mere contraction of a disease listed under the Act. Compensation flows from a disablement resulting from such a disease. Under C.R.S. 1963, 81-18-4(2), "disablement" is defined as "the event of becoming physically incapacitated by reason of an occupational disease as defined in this article." In this case, the evidence did not show that the silicosis "physically" incapacitated the claimant. Furthermore, it is clear that under C.R.S. 1963, 81-18-9, "neurosis" is not listed as one of the occupational diseases compensable under the Act.
Claimant's further alleged errors are found to be without merit.
The order of the Commission is affirmed.
SILVERSTEIN, C. J., and COYTE, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610305/ | 5 Wash. App. 121 (1971)
485 P.2d 1000
RAY WAECHTER et al., Respondents,
v.
CARNATION CO., et al., Appellants.
No. 271-3.
The Court of Appeals of Washington, Division Three.
June 10, 1971.
H.W. Felstad (of Olson & Olson), for appellants.
Richard H. Bennett, for respondents.
GREEN, J.
Plaintiffs, Ray Waechter, Roger Freeland and Cecil Henderson, d/b/a Superior Dairy, commenced a defamation action against defendants, Carnation Co., Wayne Harris, Gary Allen, Clifford Lucas, and their respective *122 wives. Defendants Harris and Lucas were dismissed from the case. A jury awarded plaintiffs $25,000. Defendants appeal.
Carnation Co. operates a retail residential route, delivering dairy products to about 1,900 residents of the Tri-Cities. Allen is a driver-salesman for Carnation. Plaintiffs Waechter and Freeland were employed by Carnation as driver route-salesmen until about 1965. At that time these plaintiffs left Carnation. They formed a partnership with plaintiff Henderson called "Superior Dairy" and entered into competition with Carnation in the retail route delivery of dairy products. Plaintiffs purchase their milk and other dairy products from a source in Walla Walla from where it is transported five times a week to a refrigerated storage truck in Richland. The milk is kept in the storage truck at 40 degrees Fahrenheit. Delivery to customers is made by each of plaintiffs in insulated but not refrigerated delivery trucks. The jury could have found that by the end of September 1969, plaintiffs had about 1,650 customers 50 less than at the end of September 1968.
It is customary for the driver route-salesman to solicit residents who may be customers of a competitor in an effort to increase their number of route patrons. This was a practice engaged in by both plaintiffs and defendants. Defendant Allen testified he made 10 to 15 solicitations a day using a standard sales presentation. It is because of the alleged words and representations of defendants in the solicitation of new business that this action arises. Plaintiffs' complaint alleged that in an effort to injure them in their personal and business reputation, defendants made the following representations:
You use Superior Dairy milk?!! They have no refrigerator in their trucks. They give you warm milk. Haven't you noticed your milk going rotten?! A lot of people have been picking up and noticing their milk has been going rotten! There is no refrigerator in the Superior Dairy trucks, hence they are delivering rotten milk it sours.
Milk from the Superior Dairy is not delivered until *123 [after] 12 o'clock midnight. So it is put on the porch all night long and since there is no refrigerator in the truck, this causes more bacteria in the milk. You know if it has too much bacteria it will make your baby sick. When you bring the Superior milk in, it's warm, and full of bacteria. Carnation trucks are refrigerated.
Plaintiffs' witnesses testified that representations substantially as alleged in the complaint were made by defendants. Additionally, after allowance of a trial amendment to the complaint, one witness testified:
He [Gary Allen] said that there had been people that had quit Superior Milk Company because they felt they were being cheated, ...
He just asked me if I was very happy with the way that Superior Dairy billed their customers, what I thought of their statement, and I said, well, my husband didn't care for their statement, and he said, there are a lot of other people in the area that feel that they are being cheated.
This was the only witness to testify to this representation. She never revealed the statement to anyone until she got on the witness stand. While delivery was discontinued for a few days, she resumed and continued taking milk and other dairy products from plaintiffs.
Defendants denied the allegations of the complaint and pleaded truth as a defense. The evidence is in conflict on all points. Defendants produced some testimony that because of the early delivery and lack of refrigeration in the delivery trucks, plaintiffs' customers received warm and spoiled milk when they took it from their porches; that the refrigerated storage truck was not shaded and by reason thereof they questioned the maintenance of a temperature of 40 degrees Fahrenheit; and while they raised questions about the bacteria count in plaintiffs' milk, there was evidence the milk met the standards of the state health department. Defendant Allen denied he ever accused plaintiffs of cheating or made the statements attributed to him about the milk.
[1] First, defendants contend the trial court erred in allowing over objection testimony that "people quit Superior *124 because they were being cheated" and the granting of a subsequent motion to permit the pleadings to be amended to conform to the evidence. Trial of this case began in December 1969, but was interrupted by the declaration of a mistrial for reasons not reflected in the present record. During that trial, one of plaintiffs' witnesses for the first time testified concerning the representation as to cheating. In the retrial that began in March 1970, the same witness testified as to the cheating statement. Defendants objected on the ground the complaint did not allege the cheating statement. The objection was overruled. At the conclusion of plaintiffs' case, the court allowed the pleadings to be amended to conform to the evidence. Defendants did not claim surprise nor move for a continuance for the purpose of meeting this issue. We do not believe the trial court erred in overruling the objection and allowing the testimony. Defendants were aware of the existence of the testimony and the likelihood of its use. The overruling of defendants' objection is akin to the allowance of a trial amendment and lies within the sound discretion of the trial court. CR 15(b). Defendants could have been amply protected by a motion for continuance. We find no abuse of discretion in the circumstances of this case.
Several errors urged by defendants may best be considered in light of the conflicting theories presented to the trial court. Defendants throughout the trial took the position that all of the statements alleged to have been made concerning the milk impugned only the quality of plaintiffs' product and therefore were not actionable without pleading and proof of special damages. (Citing 3 Restatement of Torts at 323 (1938); Wilson v. Sun Publishing Co., 85 Wash. 503, 148 P. 774 (1915); and 57 A.L.R. 2d 837 (1958).) Further, it was urged that where only the quality of the product is impugned, the burden is upon the plaintiff to prove the falsity of the statements. 3 Restatement of Torts at 322, 354, 374, 376 (1938). With respect to the statement as to cheating, defendants argued the issue should not be injected into the case, but if it was, plaintiffs' *125 proof revealed no repetition of this statement to anyone except in open court and this witness was not affected by it since she was a customer at time of trial; therefore, damages were de minimus and the issue should not have been presented to the jury.
On the other hand, plaintiffs contended throughout the trial the statements concerning the milk and cheating were actionable per se since they were in derogation of plaintiffs' services to customers, defamed their business reputation and related directly to their business practices; therefore, they were entitled to recover a substantial award without proof of special damage.
In the background of these conflicting positions, the trial court gave the following instructions to which defendants assign error:
Instruction No. 7:
You are instructed that defamatory words spoken of a person or a corporation, which, in themselves, prejudice him in his profession, trade, vocation or office are slanderous and actionable in themselves unless they are either true or privileged.
Instruction No. 8:
You are instructed that defamatory words are presumed to be false until proven to be true. The burden of such proof rests with the defendant.
Instruction No. 11:
You are instructed that you need not find that the defendants acted maliciously; that malice is immaterial in a civil action for libel when the publication injures any person or corporation in his or its business.
Instruction No. 13:
If you find that statements were made which only disparaged or impugned the quality of the plaintiffs' merchandise, then the plaintiffs cannot recover for these statements unless they prove special damages such as loss of profits. In this case special damage has not been proven. I have determined as a matter of law that the words alleged in plaintiffs' complaint regarding customers having quit Superior because they were being cheated constitute slander per se. This means that if you *126 find that said words were in fact spoken by the defendant Carnation Company, acting by and through the defendant Gary Allen, of and concerning the plaintiffs, to some third person, and that they were untrue, then plaintiffs are not required to prove special damages with respect to such words, and may recover such damages as you, in your sound discretion, deem just and reasonable.
Instruction No. 15:
You are instructed that if you find in favor of the plaintiffs, you are to assess the amount of damages that the plaintiffs have incurred as a result of the conduct of the defendants. With regard to the amount of such damages, the plaintiffs have the burden of proving by the fair preponderance of the evidence that they have been damaged. However, the plaintiffs need not prove his [sic] exact amount of damages in order to recover substantial damages from the defendants by reason of their conduct. The case, by its nature, may be difficult for the plaintiffs to prove with exactitude. The defendants cannot escape liability and damages to the plaintiffs simply by reason of such difficulty in the ascertainment of the amount of the damages. In the event you find in favor of the plaintiffs, it will be your duty to assess such amount as damages as in your judgment is proper under the evidence presented.
[2] It is the rule that where a statement only disparages the quality of plaintiff's goods, the statement is actionable if special damages are pleaded and proved. Restatement of Torts § 624, at 325 (1938) et seq.; 57 A.L.R. 2d 839 (1958); 50 Am.Jur.2d Libel and Slander § 542, at 1061 (1970). On the other hand, it is the rule that defamatory words spoken of a person, which in themselves prejudice him in his profession, trade, vocation, or office, are slanderous and actionable per se unless they are either true or privileged. Spangler v. Glover, 50 Wash. 2d 473, 478, 313 P.2d 354 (1957); 50 Am.Jur.2d Libel and Slander § 102, at 602 (1970); Restatement of Torts §§ 570, 573 (1938). A statement may be published in circumstances that violate both of the just cited rules, i.e., it may disparage the quality of the product and at the same time imply the owner or vendor is dishonest, fraudulent, or incompetent, thus affecting *127 the owner or vendor's business reputation. In such circumstances, an action may be brought for defamation as well as for disparagement. Restatement of Torts § 573, at 182 (1938); 57 A.L.R. 2d 839 (1958). The circumstances under which only disparagement is involved and the circumstances under which disparagement and a defamation of the plaintiff's business reputation has occurred has been the subject of litigation, Olympia Water Works v. Mottman, 88 Wash. 694, 696, 153 P. 1074 (1915); Wilson v. Sun Publishing Co., supra; 57 A.L.R. 2d 839 (1958), text and law review discussion. W. Prosser, Torts § 122, at 940-41 (3d ed. 1964); Harry Hibschman, Defamation or Disparagement, 24 Minn. L. Rev. 625 (1940).
Under the instructions given by the court, if the jury found the statements impugned only the quality of the milk, plaintiffs could not recover because special damages had not been proved; however, if the jury found the statements injured plaintiffs' reputation in their trade or business, then under instructions No. 7, 8 and 11 plaintiffs were entitled to recover. We find no error in the giving of these instructions. They are accurate statements of the law. Spangler v. Glover, supra; Ecuyer v. New York Life Ins. Co., 101 Wash. 247, 172 P. 359 (1918). There was substantial evidence to support a jury's finding that the statements made concerning milk not only disparaged the quality of the milk, but also prejudiced the plaintiffs in their trade or business; it is clear this was the intended effect of such statements.
[3] Defendants urge error in the giving of instruction No. 8, contending that in a disparagement case the burden of proving the statements false is upon the plaintiff. This contention would be correct if this were only a disparagement case. However, instruction No. 13 ruled out disparagement of product, leaving only the question of whether the statements concerning the milk injured plaintiffs' reputation in their trade or business, in which event the words were actionable per se. In this situation the defamatory words are presumed false until their truth is proved by the *128 defendants. Spangler v. Glover, supra; Ecuyer v. New York Life Ins. Co., supra.
[4] Next, defendants assign error to the jury award of $25,000 as being excessive and the result of passion and prejudice. This position is based upon the assumption the statements concerning the milk were not libelous per se and since no special damage was proved in support of an action for disparagement these statements were out of the case, leaving only the statement concerning cheating. It is then argued that because the statement as to cheating was made to only one person who never repeated the statement until she was in court and at that time was continuing her patronage of the plaintiffs, the statement would support a verdict of nominal damages but not a verdict of $25,000. From our review of the record it seems evident the jury's award included damages not only for the statement as to cheating, but also for the statements made with respect to the delivery of milk. In view of our holding that the statements concerning milk were properly submitted to the jury under the instructions given and were actionable per se without proof of special damage, we find there is no evidence indicating the verdict was the result of passion or prejudice. Likewise, we are not shocked by the amount of the verdict and therefore it must stand. Johnson v. Marshall Field & Co., 78 Wash. 2d 609, 617, 478 P.2d 735 (1970).
[5] Error is assigned to that portion of instruction No. 13 that relates to damages and also to instruction No. 15 upon the ground that the instructions fail to set forth adequate standards for determining damages. It is the rule that where the defamation is actionable per se and neither truth nor privilege is established as a defense, the defamed person is entitled to substantial damages without proving actual damages. Michielli v. U.S. Mortgage Co., 58 Wash. 2d 221, 361 P.2d 758 (1961); Arnold v. National Union of Marine Cooks & Stewards, 44 Wash. 2d 183, 265 P.2d 1051 *129 (1954).[1] We find no error in the giving of these two instructions.
In view of our previous comments, it is unnecessary to discuss the other assignments of error raised by defendants.
Judgment affirmed.
MUNSON, C.J., and EVANS, J., concur.
NOTES
[1] The early cases of Olympia Water Works v. Mottman, 88 Wash. 694, 153 P. 1074 (1915), and Wilson v. Sun Publishing Co., 85 Wash. 503, 148 P. 774 (1915), are at variance with the trend of decisions represented by the cited cases to award substantial damages where the words used are actionable per se. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610315/ | 485 P.2d 948 (1971)
State of Montana ex rel. Ed CONRAD et al., Relators,
v.
Ray MANAGHAN, Assessor of Flathead County, Montana et al., C.W. Reynolds, as Assessor of Lake County, Montana et al., Kay Ruth Baenen, as Assessor of Lincoln County, Montana et al., Mary K. Noonan, as Assessor of Mineral County, Montana et al., Paul J. Farlan, as Assessor of Sanders County, Montana et al., John C. Alley, J. Morley Cooper and Ray J. Wayrynen as Members of Board of Equalization et al., Respondents.
No. 12072.
Supreme Court of Montana.
Submitted June 2, 1971.
Decided June 7, 1971.
Risken & Scribner, A. William Scribner, argued, Helena, Robert N. Helding, argued, Missoula, for relators.
William A. Douglas, County Atty., argued, Libby, M. Dean Jellison, argued, Kalispell, E. Jene Bell argued, State Bd. of Equalization, Helena, James Oleson, County Atty., Kalispell, Richard P. Heinz, *949 County Atty., Polson, Walter T. Murphy, County Atty., Superior, Alex C. Morrison, County Atty., Thompson Falls, for respondents.
PER CURIAM:
This is an original proceeding seeking a declaratory judgment and ancillary relief by injunction or other appropriate writ to compel valuation and assessment of timberlands for taxation in five counties of northwestern Montana as directed by the State Board of Equalization and to prohibit county tax officials from employing a different valuation and assessment.
Relators are ten owners of timberlands located in one or more of the five counties involved. They have brought the instant class action on behalf of themselves and all other owners of timberlands in the five counties. Respondents are the respective county assessors and boards of county commissioners in Flathead, Lake, Lincoln, Mineral, and Sanders counties. Also named as respondent is the State Board of Equalization.
The basic occurrences forming the background of the present suit are not in dispute. On October 9, 1967, the State Board of Equalization issued a directive setting forth a comprehensive formula for the computation of values of timberlands and prescribing the use of such formula as a basis for assessment of such lands for ensuing taxable years. This formula applied to all counties except Flathead which adopted a different system with the approval of the State Board of Equalization; this separate system resulted in assessments substantially in line with those obtained by the Board formula. In our view, the position of Flathead County in this appeal is no different from the other counties involved.
On or about September 5, 1969, the State Board of Equalization held a hearing in Missoula for the purpose of considering an increase in the assessment of timberlands. Thereafter on November 19, 1970, the State Board of Equalization issued a directive authorizing the counties to increase the values of timberlands by the addition of land values according to accessibility and topography classification as follows: favorable classification an authorized increase of $1.65 per acre; average classification an authorized increase of $1.00 per acre; difficult classification an authorized increase of 40¢ per acre. Under the provisions of the directive, the increases are authorized to be added to the assessed valuations computed by the previous formula and are to be applied for the tax year 1971.
The commissioners of the five northwestern Montana counties involved in the present action expressed their disapproval and rejection of this directive and have indicated their intention to increase the assessments at rates far higher than those authorized by the State Board of Equalization, to wit: favorable classification an increase of $7.50 per acre; average classification an increase of $4.50 per acre; and difficult classification an increase of $1.50 per acre.
The crux of the counties' contention is that the November 19, 1970 directive of the State Board of Equalization authorizing the increases in valuations of timberland therein contained is not supported by the evidence adduced at the hearing of September 5, 1969 in Missoula; that the authorized increases are accordingly arbitrary and invalid; and therefore the counties are not required to conform to it. Additionally the counties claim that they are empowered by the provisions of sections 84-429.11 and 84-602, R.C.M. 1947, to establish their own higher assessed valuations.
The foregoing facts are undisputed and control the disposition of the present controversy as a matter of law. The underlying legal issue posed by these facts is simply this: What are the respective powers and duties of the State Board of Equalization, on the one hand, and the boards of county commissioners of the affected counties, on the other hand, concerning the assessment of timberlands for taxation?
*950 Before proceeding to decision of this ultimate legal issue, some preliminary procedural matters must be resolved. First, we hold that this Court should accept original jurisdiction of this proceeding because of the urgency of the situation and the need for speedy determination of the controversy. We cite the following cases as authority for the assumption of original jurisdiction under such circumstances: Forty-Second Legislative Assembly v. Lennon, Mont., 481 P.2d 330; State ex rel. Schultz-Lindsay v. Bd. of Equal., 145 Mont. 380, 403 P.2d 635; State ex rel. Livingstone v. Murray, 137 Mont. 557, 354 P.2d 552; Sawyer Stores, Inc. v. Mitchell, 103 Mont. 148, 62 P.2d 342.
Secondly, we hold that relators, as affected taxpayers, have standing to bring a declaratory judgment action concerning a tax controversy, and are not confined exclusively to payment of taxes under protest and a suit for recovery. Brophy Coal Co. v. Matthews, 125 Mont. 212, 233 P.2d 397; N.W. Imp. Co. v. Rosebud Co., 129 Mont. 412, 288 P.2d 657; State ex rel. Fulton v. District Court, 139 Mont. 573, 366 P.2d 435. A true class action for this purpose is authorized by Rule 23, M.R.Civ.P.
The powers and duties of the State Board of Equalization in the present controversy are defined in broad terms in Article XII, Sec. 15 of the Montana Constitution. There the State Board of Equalization is commanded to "adjust and equalize the valuation of taxable property among the several counties, and the different classes of taxable property in any county and in the several counties and between individual taxpayers; supervise and review the acts of the county assessors and the county boards of equalization; change, increase, or decrease valuations made by county assessors or equalized by county boards of equalization; and exercise such authority and do all things necessary to secure a fair, just and equitable valuation of all taxable property among counties, between the different classes of property, and between individual taxpayers * * *."
These broad powers have been refined by the legislature in the Classification and Appraisal Act of 1957 to include the establishment of a specific method or formula for appraising timberlands. Section 84-429.12, R.C.M. 1947 provides in pertinent part:
"It is hereby made the duty of the state board of equalization to implement the provisions of this act by providing:
* * * * * *
"4. For a general and uniform method of appraising timberlands."
Pursuant thereto, the State Board of Equalization has adopted what it considers to be a general and uniform method of appraising timberlands throughout the state. These are encompassed within its 1967 directives, its approval of a separate system providing similar results for portions of Flathead County, and its directive authorizing increases in valuations dated November 19, 1970. This Court has repeatedly upheld the authority of the State Board of Equalization to issue and enforce such directives, and has denied individual counties the right to depart therefrom. State ex rel. Board of Equalization v. Price, Mont., 483 P.2d 284 (requiring Chouteau County to follow the statewide method established by the Board for appraising urban land and urban and rural improvements); State ex rel. Bd. Equal. v. Koch, 145 Mont. 474, 401 P.2d 765 (requiring Yellowstone County to comply with a Board directive concerning valuation of grades of irrigated farm land); State ex rel. Board of Equal. v. Vanderwood, 146 Mont. 276, 405 P.2d 652 (requiring Lincoln County to comply with a Board directive concerning valuation of urban land and improvements).
However, here the counties contend that the directive of the State Board of Equalization dated November 19, 1970 is invalid because the evidence adduced at the Missoula hearing of September 5, 1969 does not support it. Therefore, they argue, the counties are not required to comply with it and may set up their own *951 valuation increases on timberlands, citing State ex rel. Bd. of Equalization v. Kovich, 142 Mont. 201, 383 P.2d 818, in support.
This contention fails for two reasons. First, although the Kovich case indicated that "due process" must be observed in the hearings forming the basis of such directives and that if it is not the State Board's directives are illegal and unenforceable, it does not hold that such directives can be ignored without prior adjudication of their invalidity. If counties were free to ignore such directives on the basis of claimed invalidity without adjudication thereof, utter chaos in the state's taxation system would be the inevitable result, and a premium would be placed on defiance during the process of litigation. Even in the case of spurious claims of invalidity of such directives, taxes would be forever lost to the counties if their claims were not finally upheld, and other taxpayers would have to shoulder a disproportionate share of the cost of government during the period of such litigation. Surely, this is not the constitutional and statutory taxation system in Montana.
Secondly, and perhaps more importantly, the counties are not granted the powers of increasing valuations and appraisals on timberlands that they seek to exercise here. Sections 84-429.11 and 84-602, R.C.M. 1947 do not grant them such power. Section 84-429.11 simply provides for mailing notice of classification and appraisal of improvements and sets up an appeal procedure to county boards of equalization. Section 84-602 simply provides for equalization of taxes by county boards of equalization; thereunder the county must comply with State Board of Equalization directives. State ex rel. State Board of Equalization v. Koch, supra.
H.B. 345 introduced in the last session of the legislature would have added the duty of appraising taxable timberlands to the powers of the boards of county commissioners, but it failed to pass. Thus, irrespective of what the powers of the State Board of Equalization may be, the boards of county commissioners of the various counties simply have no authority to increase the appraisals of taxable timberlands in their respective counties on their own volition and authority as against State Board directives.
Thus, the absence of authority in the boards of county commissioners to proceed with their intended increases furnishes the basis for the issuance of a writ of prohibition. Additionally, until adjudication of the invalidity of the State Board's order of November 19, 1970, the declaratory relief sought by relators must be granted. As the respective counties wish to utilize extensive discovery procedures on this issue, the district court is clearly the proper forum for pursuit of such adjudication.
Relators are hereby granted a declaratory judgment that the directive of the State Board of Equalization dated November 19, 1970 is valid and enforceable until such time as the final judgment of a court of competent jurisdiction decides otherwise, all without prejudice to adjudication of this issue in the district courts of this state. Additionally, let a writ of prohibition issue forthwith commanding the assessors and boards of county commissioners of Flathead, Lake, Lincoln, Mineral and Sanders counties to value and assess timberlands in their respective counties for the taxable year 1971 in accordance with the directive of the State Board of Equalization dated November 19, 1970.
The award of costs being discretionary, each party shall bear its own cost. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610276/ | 485 P.2d 1195 (1971)
Janice LEECH, by and through Her Guardian Ad Litem, Glenda A. McLarney, Appellant,
v.
GEORGIA-PACIFIC CORPORATION, a Georgia Corporation, Respondent.
Supreme Court of Oregon, In Banc.
Argued and Submitted February 5, 1971.
Decided June 16, 1971.
*1196 Raymond J. Conboy, Portland, argued the cause for appellant. With him on the briefs were Pozzi, Wilson & Atchison and John J. Haugh, Portland.
Jack L. Mattison, Eugene, argued the cause for respondent. With him on the brief was John E. Jaqua, Eugene.
McALLISTER, Justice.
Plaintiff appeals from a judgment for defendant, entered after the trial court sustained a demurrer to plaintiff's complaint on the ground that it failed to state a cause of action.
According to the complaint, plaintiff Janice Leech has been since birth an incompetent person by reason of mental retardation. In 1966, her father, Willis Leech, was killed in an industrial accident while employed by defendant Georgia-Pacific Corporation. The complaint charges that Willis Leech's death was caused by defendant's negligence in several particulars and prays for damages. In addition to the allegations of the complaint, which were admitted by the demurrer, the parties have agreed that the facts set forth in our opinion in Leech v. Georgia-Pacific Corp., 254 Or. 351, 458 P.2d 438, 460 P.2d 359 (1969) are assumed to be true for purposes of this litigation. From that opinion we learn that Janice Leech, who was 28 years old at the time of her father's death, was totally dependent upon him for support, and that her father also left a widow, plaintiff's mother, surviving. Mrs. Leech applied for and was granted workmen's compensation benefits on account of Willis Leech's death, but we held that she was not entitled to an additional compensation allowance of $25 a month for a dependent child because Janice was over 18 at the time of her father's death.[1]
The questions before us in the present case are whether the compensation statutes bar plaintiff's negligence action and, if so, whether they are constitutional.
The first question is governed by ORS 656.018, which provides:
"(1) Every employer who satisfies the duty required by subsection (1) of ORS 656.016 [to provide compensation coverage for subject workmen] is relieved of all other liability for compensable injuries to his subject workmen, the workmen's beneficiaries and anyone otherwise entitled to recover damages from the employer on account of such injuries, except as specifically provided otherwise in ORS 656.001 to 656.794.
"(2) The rights given to a subject workman and his beneficiaries for compensable injuries under ORS 656.001 to 656.794 are in lieu of any remedies they might otherwise have for such injuries against the workman's employer under ORS 654.305 to 654.335 or other laws, common law or statute, except to the extent the workman is expressly given the right under ORS 656.001 to 656.794 to bring suit against his employer for an injury."
Plaintiff contends that in spite of the explicit language of subsection (1), the statute should be construed to permit her to bring a negligence action for her father's death because no statutory death benefits were provided on her account. She argues that a dependent who receives no compensation *1197 benefits should not be barred from bringing a negligence action.
This court considered a similar question, under slightly different statutory language, in Bigby v. Pelican Bay Lbr. Co., 173 Or. 682, 147 P.2d 199 (1944). In Bigby the non-dependent mother of a deceased workman brought an action under the Employers' Liability Act. Although the workman had been covered by workmen's compensation, and had received temporary benefits between the injury and his death, his mother claimed that because she was not a "beneficiary" as defined by the compensation statutes, and thus not entitled to death benefits on account of her son's death, she was not precluded from bringing a negligence action. At that time OCLA § 102-1752 provided that a covered workman or his beneficiaries were entitled to receive compensation and that
"* * * the right to receive such sum or sums shall be in lieu of all claims against his employer on account of such injury or death, except as hereinafter specifically provided. * * *"
The court held that the mother could not maintain a negligence action even though she was entitled to nothing under the compensation scheme:
"The purpose in adopting the Oregon Compensation Law was to protect the employer as well as the employee and his beneficiaries, and to avoid the expense and delay incident to litigation. * * * In our opinion, an employer who is subject to the provisions of the Workmen's Compensation Act and has fully complied with them is not personally liable to a workman who is injured in the course of his employment or, in case of his death, to the beneficiaries named in that act, or to the beneficiaries mentioned in the Employers' Liability Act, or to any one else. The rights and remedies provided by the Workmen's Compensation Act are exclusive." 173 Or. at 692, 147 P.2d at 203.
This holding was approved and relied on in Ellis v. Fallert et al., 209 Or. 406, 411-414, 307 P.2d 283 (1957).
The statute has been amended since the decisions in Bigby and Ellis. In Bigby we pointed out that it provided that compensation was in lieu of "all claims," not merely claims by named beneficiaries under the compensation act. Subsection (2) of ORS 656.018 now provides that the compensation benefits to the injured workman and his beneficiaries are "in lieu of any remedies they might otherwise have." Subsection (1), however, makes it clear that the legislature did not intend by this language to overrule the rationale of the Bigby case; it provides for the employer's immunity from actions by workmen, their beneficiaries, "and anyone otherwise entitled to recover damages from the employer on account of such injuries, * * *." This provision indicates, even more clearly than those in force at the time of the Bigby decision, that the legislature intended the remedy provided by compensation to be exclusive and that complying employers are not to be subject to negligence actions by persons omitted from the compensation benefit schedules. The construction urged by plaintiff, on the other hand, involves the possibility of various incongruous results which have been aptly described by Pound, J., in Shanahan v. Monarch Engineering Co., 219 N.Y. 469, 114 N.E. 795, 798 (1916).
Plaintiff relies on language in Reynolds et al. v. Harbert et al., 232 Or. 586, 591, 375 P.2d 245 (1962) to the effect that if there is no right to receive compensation, there is nothing upon which the "exclusive remedy" provisions of the statute can operate. That language must be read in the setting of the Reynolds case, in which it was held that the injured employee was not a "workman" within the compensation act.[2]*1198 The present situation is entirely different. There is no question but that defendant complied with its duties under the compensation laws, and that Willis Leech was a subject workman and his death was compensable. The Reynolds case is not in point, ORS 656.018(1) as construed in Bigby is controlling.
Plaintiff next contends that the compensation statutes, as we construe them, are unconstitutional. She argues that a statutory scheme which fails entirely to provide compensation benefits for a totally dependent child who happens to be over the age of 18 years at the time of her father's death, and at the same time deprives her of any other remedy, denies her the equal protection of the laws.[3] We interpret her argument to be that the line drawn by the legislature between dependent children under the age of 18 and those over 18, with the provision of the compensation remedy for the former and no remedy for the latter, does not have a rational basis.[4]
The legislature is not constitutionally required to enact laws which operate to solve perfectly every aspect of the problem to which they are directed. Williamson v. Lee Optical of Okla. Inc., 348 U.S. 483, 489, 75 S. Ct. 461, 99 L. Ed. 563 (1955). In Plummer v. Donald M. Drake Co., 212 Or. 430, 437, 320 P.2d 245 (1958), in which the constitutionality of the employer's immunity under ORS 656.154 in "joint supervision and control" cases was challenged, we said:
"The controlling principles which guide the courts in determining questions of alleged unconstitutional discrimination or class legislation are the same whether it is the equal protection clause of the Fourteenth Amendment of the Constitution of the United States which is invoked, or the privileges and immunities provision in Art. I, § 20 of the Oregon Constitution. Fundamentally, classification is a matter committed to the discretion of the legislature and the courts will not interfere with the legislative judgment unless it is palpably arbitrary. * * *"
In the present case, whether the omission of benefits on behalf of persons like Janice Leech was deliberate or merely the result of a flaw in draftsmanship, as plaintiff suggests, we cannot hold that it was "palpably arbitrary." It is apparent from an examination of the death benefit provisions of ORS 656.204 that the legislature made no attempt to provide compensation for all persons who might suffer actual pecuniary damage from the death of a workman or for all who would have had a cause of action under the Employers' Liability Act or the wrongful death statutes. Instead, primary provision was made for those who, as a class, are most likely to suffer financially from a workman's death his surviving spouse and young children. *1199 If a spouse survives, he or she is the sole beneficiary. Although the monthly payments to the surviving spouse are increased if there are children under 18, the children collect no benefits in their own right so long as the spouse survives. These primary provisions apply regardless of need or actual dependency and they operate to exclude other persons who might have been dependent on the deceased workman for support. Among those excluded are dependent adult children, like this plaintiff, and dependent parents.
At the same time, the employer is given complete immunity from negligence actions. This immunity may well be necessary, and is certainly a reasonable provision, in order to make the compensation scheme workable. Neither the benefit scheme nor the immunity provision is arbitrary merely because the legislature failed to make provision for every possible contingency.
In Dandridge v. Williams, 397 U.S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970) the plaintiffs challenged a Maryland welfare department regulation which set an absolute maximum on the payments to any one family under the Aid to Families with Dependent Children program. The plaintiffs, members of large families, contended that this regulation infringed their equal protection rights because it resulted in lower per capita payments to large families than to small families, and discriminated against some needy children simply because they had more brothers and sisters than did other recipients of AFDC funds. The Supreme Court held that the regulation was valid; language from that opinion is appropriate here:
"In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some `reasonable basis,' it does not offend the Constitution simply because the classification `is not made with mathematical nicety or because in practice it results in some inequality.' Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S. Ct. 337, 340, 55 L. Ed. 369, 377. `The problems of government are practical ones and may justify, if they do not require, rough accommodations illogical, it may be, and unscientific.' Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70, 33 S. Ct. 441, 57 L. Ed. 730, 734. `A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.' McGowan v. Maryland, 366 U.S. 420, 426, 81 S. Ct. 1101, 6 L. Ed. 2d 393, 399." 397 U.S. at 485, 90 S.Ct. at 1161, 25 L. Ed. 2d at 501-502.
Faced with the task of allocating the available compensation funds, our legislature omitted from the death benefit schedule the other relatives of a deceased workman who is survived by a spouse or children under 18. We are not called upon to decide whether these omissions were wise; it is enough that they were not unreasonable and that they may have been justified by the need to make benefits available to the primary class of spouses and young children.
Although barred from bringing an action for her father's death, plaintiff is in the same position as all other persons who, having received no compensation benefits, are nevertheless without a right to bring a damage action outside the compensation scheme. Her equal protection claim must fail.
The judgment of the circuit court is affirmed.
NOTES
[1] At the time of Willis Leech's death, ORS 656.204 and 656.002 made no provision for additional benefits on behalf of a child in Janice's situation. In 1969 ORS 656.002(4) was amended to provide that an invalid dependent child that is, one who is physically or mentally unable to earn a living is to be considered to be a child under 18 years of age for the purpose of computing benefits. 1969 Oregon Laws, ch. 125, § 1.
[2] See, also, Carlston v. Greenstein, Or., 471 P.2d 806 (1970) where we held that an injured employee's negligence action was not barred because his employer had rejected compensation coverage and the workman was "not a party" to the compensation scheme.
[3] Plaintiff's brief also contains an argument that to deprive her of an action under the Employers' Liability Law or the wrongful death statute is a taking without due process and a violation of Art. I, § 10 of the Oregon Constitution which guarantees that
"* * * every man shall have remedy by due course of law for injury done him in his person, property, or reputation."
This contention was not pressed on oral argument, and we think it requires no comment here.
[4] Strictly speaking, children under 18 years of age have no compensation remedy for the death of a parent if there is a surviving spouse because they receive no benefits in their own right. Instead, the death benefits to the spouse are augmented on their account. At the time of Willis Leech's death, the statute provided for up to $25 a month for each child; at present the maximum for each child is $40. ORS 656.204(2).
Regardless of her age, then, plaintiff could not have received compensation benefits directly, because her mother was still living. However, we have considered plaintiff's equal protection claim on the theory that children under 18 do have a remedy of a sort under the compensation laws because the total family death benefit is increased on their account. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8326482/ | Brassard, Raymond J., J.
The plaintiff Christine M. Alexander (“Alexander”) commenced this action against the defendants Harold W. Clarke (“Clarke”), Terre K. Marshall (“Marshall”), Thomas Groblewski (“Groblewski”), James A. Bellow (“Bellow”), and Jeffrey A. Kidder (“Kidder”) (collectively, “Defendants”) seeking to recover under G.L.c. 6, §§177 & 178 (Count I), G.L.c. 214, §1B (Count II), G.L.c. 258, §4 (Count III), and 42 U.S.C. §1983 (Count IV). This matter is before the court on the Defendants’ motions to dismiss the claims against them. For the reasons set forth below, the motions brought by the Defendants are ALLOWED in part and DENIED in part.2
BACKGROUND
The following is taken from Alexander’s complaint.
Inmate Jorge Blanco (“Blanco”), a pro se litigant, brought a lawsuit against the University of Massachusetts Medical Health Program (“UMCH”). Bellow and Kidder, of Morrison Mahoney, LLP, represented UMCH against Blanco.
Pursuant to a discovery request, Bellow and Kidder sent several documents to Blanco on March 24, 2009. Within these documents was the following information about Alexander:3
CHRISTINE ALEXANDER [W#####]: Request for Propecia for hair loss. In grievance response, you told her to put in sick slip. Has she put in any sick slips since June? Has she been seen for her hair loss problem and if so, were her hair issues set-tied?4,5
Upon noticing the reference to Alexander, Blanco immediately notified her of the disclosure.
On April 8, 2009, Alexander wrote Bellow and Kidder regarding her concerns arising from the disclosure. A month later, she submitted a demand letter, pursuant to G.L.c. 258, §4, to the Attorney General’s office.
On April 6,2009, Alexander filed a UMCH grievance concerning the release of the information. Unsatisfied with the response she received, on May 7, 2009, she filed a first tier grievance appeal, which was denied. On May 21, 2009, Alexander filed a second tier grievance appeal. Marshall, the Assistant Deputy Commissioner of Clinical Services at the Department of Correction (“DOC”), denied this appeal on June 9, 2009, noting that “the purpose of the Department of Correction’s medical grievance and appeal process is solely to address and resolve current health care concerns.”
In December of 2009, Alexander filed suit against Bellow, Kidder, Groblewski,6 Clarke,7 and Marshall under G.L.c. 6, §§177 & 178 (Count I), G.L.c. 214, §1B (Count II), G.L.c. 258, §4 (Count III), and 42 U.S.C. § 1983 (Count IV), for their allegedly negligent actions. Groblewski, Clarke and Marshall are being sued in both their official and personal capacities. Alexander seeks both monetary damages and injunctive relief. The Defendants have filed 12(b)(6) motions to dismiss all counts.
DISCUSSION
Although it is unnecessary for a complaint to describe detailed factual allegations, it must set forth more than labels and conclusions and should “raise a *292right to relief above the speculative level . . . [based] on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Iannachino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) (internal quotes omitted). At the pleading stage, the claimant must present “allegations plausibly suggesting (not merely consistent with) an entitlement to relief . . .’’ Id., quoting Bell Atl. Corp., 127 S.Ct. at 1966 (internal quotes omitted).
Public Defendants
A. Alexander cannot maintain her G.L.c. 214, §1B and c. 6 claims against Marshall, Clarke, and Groblewski for monetary damages but can maintain the claims to the extent she seeks injunctive relief.
Under G.L.c. 258, §2, public employees are immune from liability for negligent or wrongful acts committed within the scope of their office or employment. See Schenker v. Binns, 18 Mass.App.Ct. 404, 404 (1984) (observing that structure of G.L.c. 258 imposes liability on public employer for public employee’s negligent act performed within scope of his employment but relieves public employees from liability); Parker v. Chief Justice, 67 Mass.App.Ct. 174, 180 (2006) (“where only ordinary negligence is alleged, claims may not be asserted against the public employee but may be brought against the employer"). This immunity, however, does not prevent a plaintiff from suing supervisory officials for injunctive relief. See Lane v. Commonwealth, 401 Mass. 549, 553 (1988).
Here, nothing in the complaint suggests that Marshall, Clarke, or Groblewski were acting outside the scope of their employment when they committed the alleged negligent conduct. Consequently, they cannot be sued under G.L.c. 214 and 6 for damages.8 However, because they are supervisory officials, these claims can be maintained against them to the extent Alexander seeks injunctive relief.
B. Alexander can maintain her 42 U.S.C. §1983 claim against Marshall, Clarke, and Groblewski.9
To state a claim under 42 U.S.C. §1983, a plaintiff must allege: (1) a violation of a right protected by the United States Constitution or laws of the United States; and (2) that the perpetrator of the violation was acting under the color of law. Gutierrez v. Massachusetts Bay Transp. Auth., 437 Mass. 396, 401 (2002). The statute itself is not a source of substantive rights, but rather a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes. Baker v. McColland, 443 U.S. 137, 145 n.3 (1979).
Marshall, Clarke, and Groblewski argue that Alexander has failed to identify which of her constitutional rights they violated. They claim that her complaint only establishes their alleged violation of her right to privacy under state statutes. See Baker v. Gray, 57 Mass.App.Ct. 618, 624 (2003) (observing that §1983 does not protect against the violation of state statutes unless the statutory violation is also a violation of a federal right). This, however, does not appear to be the case. It seems that Alexander is also alleging that these defendants’ actions violated a federal constitutional right of privacy.
It has longed been recognized that individuals have a constitutionally derived right of privacy, which protects an “interest in avoiding disclosure of personal matters.” Whalen v. Roe, 429 U.S. 589, 599 (1977); see also Griswold v. Connecticut, 381 U.S. 479, 485 (1965). A majority of the federal circuit courts of appeals have concluded that this interest is implicated by the unauthorized disclosure of medical information or records. E.g., Herring v. Keenan, 218 F.3d 1171, 1175 (10th Cir. 2000); Doe v. Southeastern Penn. Transp. Auth., 72 F.3d 1133, 1137 (3d Cir. 1995); Anderson v. Romero, 72 F.3d 518, 522 (7th Cir. 1995); Doe v. New York, 15 F.3d 264, 267 (2d Cir. 1994); Doe v. Attorney Gen. of the U.S., 941 F.2d 780, 795-96 (9th Cir. 1991), vacated on other grounds sub nom Reno v. Doe, 518 U.S. 1014 (1996); but see American Fed’n of Gov’t Emps. v. HUD, 118 F.3d 786, 791-93 (D.C.Cir. 1997) (questioning existence of constitutional right to confidentiality); Jarvis v. Wellman, 52 F.3d 125, 126 (6th Cir. 1995) (indicating that right of privacy does not apply to medical records).10
Of the circuit courts acknowledging a right to privacy in one’s medical information, only the Second and Third Circuit have definitively concluded that the protection also exists for prisoners, albeit subject to the state’s legitimate penological interests. Doe v. Delie, 257 F.3d 309, 311 (3d Cir. 2001); Powell v. Schriver, 175 F.3d 107, 112 (2d Cir. 1999); see also Moore v. Prevo, 379 Fed.Appx. 425, 427-28 (6th Cir. 2010) (distinguishing between disclosures of sensitive medical information to prison officials, which cannot implicate an inmate’s right to privacy, and disclosures to other inmates, which can implicate the right); Anderson, 72 F.3d at 522-23 (expressing doubt over whether a prisoner could bring such a claim under the Fourth Amendment’s right to privacy, but suggesting that the Eighth Amendment’s cruel and unusual punishment clause might give rise to such a claim); Harris v. Thigpen, 941 F.2d 1495, 1513 (11th Cir. 1991) (assuming arguendo that prisoners “enjoy some significant constitutionally-protected privacy interest in preventing the non-consensual disclosure of their HIV-positive diagnoses to other inmates . . .”).
The First Circuit has yet to address whether individuals, let alone prisoners, have privacy rights in connection with the disclosure of medical information. In Borucki v. Ryan, the court declined to decide whether a constitutional right to privacy regarding medical records exists. 827 F.2d 836, 840-49 (1st Cir. 1987). Massachusetts appellate courts have similarly *293remained silent on the subject. Nevertheless, some Massachusetts federal district court decisions have recognized the existence of a right to privacy in one’s medical information. See Doe v. Town of Plymouth 825 F.Sup. 1102, 1107 (D.Mass. 1993) (concluding that the right to privacy includes the right to the nondisclosure of one’s HIV status); Marchand v. Town of Hamilton, 2009 U.S.Dist. LEXIS 92934 at *22-23 (D.Mass. 2009) (holding plaintiff had “a constitutional right to privacy in the non-disclosure of confidential mental health information allegedly disclosed for no legitimate public purpose”).
Only one Massachusetts decision has dealt with prisoners’ right to privacy. In Klein v. MHM Corr. Servs., Inc., a federal district court judge assumed prisoners enjoy a constitutional right of privacy with respect to medical information but nonetheless dismissed a prisoner’s §1983 claim because the medical information disclosed was not “intensely personal” and therefore could not be considered a constitutional violation. 2010 U.S.Dist. LEXIS 83818 at *14-15 (D.Mass. 2010).
Developments since the Borucki decision suggests that a constitutional right to privacy in the non-disclosure of confidential medical information does exist. See Herring, 218 F.3d at 1175; Southeastern Penn. Transp. Auth., 72 F.3d at 1137; Anderson, 72 F.3d at 522; New York, 15 F.3d at 267; Attorney Gen. of the U.S., 941 F.2d at 795-96; see also Town of Plymouth, 825 F.Sup. at 1107; Marchand, 2009 U.S.Dist. LEXIS 92934 at *22-23.
Moreover, it would appear that the right, although subject to legitimate penological interests, extends to prisoners. See Delie, 257 F.3d at 311; Powell, 175 F.3d at 112. “(I]mprisonment carries with it the circumscription or loss of many significant rights.” Hudson v. Palmer, 468 U.S. 517, 524 (1984). However, prisoners “do not forfeit all constitutional protections by reason of their conviction and confinement in prison.” Bell v. Wolfish, 441 U.S. 520, 545 (1979). “Inmates in jails, prisons, or mental institutions retain certain fundamental rights of privacy!.]” Houchins v. KQED, Inc., 438 U.S. 1, 5 n.2 (1978).
Here, Alexander sufficiently alleges that her right to privacy was violated. The information disclosed was personal in nature, there was apparently no countervailing penological reason for the disclosure, and the disclosure was made to another inmate rather than to prison employees. See Powell, 175 F.3d at 112; Moore, 379 Fed.Appx. at 427-28.
There is certainly a question as to whether the information disclosed is sufficiently sensitive to implicate Alexander’s constitutional protections. Compare Delie, 257 F.3d at 311 (prisoner’s right to privacy infringed by disclosure of information regarding HIV status); Powell, 175 F.3d at 112 (transsexual, HIV-positive prisoner’s right to privacy was violated by disclosure of medical information), with Klein, 2010 U.S.Dist. LEXIS 83818 at *14-15 (disclosure of report did not violate right to privacy because it did not contain information relating to therapeutic treatment, but rather information obtained during an institutional safety assessment). However, the resolution of that issue depends on the overall context of the disclosure not merely the particular item of information disclosed. The record currently does not contain enough information to provide such context.11
II. Private Defendants
A. Alexander has alleged sufficient facts to maintain her G.L.c. 214, §1B claim against Bellow and Kidder.
In order to establish a prima facie case under G.L.c. 214, §1B, a plaintiff must allege: (1) that the defendant unreasonably, substantially and seriously interfered with her right to privacy by disclosing facts of a highly personal or intimate nature; and (2) that the defendant had no legitimate reason for doing so. Martinez v. New England Med. Ctr. Hosps., Inc., 307 F.Sup.2d 257, 267 (D.Mass. 2004); see also Schlesinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 409 Mass. 514, 517-19 (1991).12 In analyzing the severity and substantiality of a disclosure, courts have looked at the degree of intrusion into a plaintiffs privacy. See Cort v. Bristol-Meyers Co., 385 Mass. 300, 308 (1982).
Bellow and Kidder argue that Alexander’s claim must fail because the disclosure was neither substantial nor serious.13 This, however, is arguably not the case. “[T]he success of such a cause of action is not dependent on communication of the personal matters disclosed to the public at large.” Tower v. Hirschhorn, 397 Mass. 581, 586 (1986). Even though here the release of information was not extensive and may have been done without malice, ongoing or malicious acts are not required to violate G.L.c. 214, §1B. See Tower, 397 Mass. at 586-87 (“disclosure without the consent of the patient, of confidential medical information to two individuals, as alleged by the plaintiff, would be sufficient to warrant a finding of invasion of privacy”).
Furthermore, the subject of hair loss, for both men and women, is a personal and sensitive topic. For Alexander, the subject is likely even more sensitive given her asserted GID. The disclosure at issue here would appear to be the type of personal and intimate information contemplated by G.L.c. 214, §1B. See Tower, 397 Mass. at 586-87; Bratt v. International Bus. Machs. Corp., 392 Mass. 508, 522 (1985) (recognizing “a patient’s valid interest in preserving the confidentiality of medical facts relayed to a physician”).14
B. Alexander can maintain her G.L.c. 6 claim against Bellow and Kidder.
General Laws c. 6, §177 states that “(a]ny aggrieved person may institute a civil action in superior court for damages or to restrain any violation of sections one hundred and sixty-eight to one hundred and seventy-five, inclusive.” Bellow and Kidder argue that *294Alexander’s G.L.c. 6 claim must be dismissed because her inmate identification number is not protected criminal offender record information (“CORI”).
General Laws c. 6, §167 defines CORI as: “records and data in any communicable form compiled by a criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, sentencing, incarceration, rehabilitation, or release.” (Emphasis added.) An inmate’s commitment number is established when he or she is committed to a prison. Therefore, an inmate’s commitment number would seem to be protected CORI material because it is information compiled by a criminal justice agency that relates to her incarceration. See Kordis v. Superintendent, Souza Baranowski Corr. Ctr., 58 Mass.App.Ct. 902, 903 (2003) (assuming without deciding that pursuant to the definition of CORI, an inmate account statement may be said to relate to incarceration because the account would not exist but for the petitioner’s status as a prisoner).
Nonetheless, such a conclusion runs contrary to the thrust of the CORI statute. The purpose of the statute is to protect the privacy and the security of individuals with a criminal record. New Bedford Standard-Times Publ. Co. v. Clerk of the Third Dist. Court of Bristol, 377 Mass. 404, 413-14 (1979). It is concerned with protecting substantive information regarding the offender. See Kordis, 58 Mass.App.Ct. at 903 (noting that the purpose of the CORI statute is in part, to protect the offender’s rehabilitation by shielding from public view his prior convictions as well as records that aggregate information concerning his criminal histoiy). An identification number reveals no personal information regarding the inmate. Thus, it appears that the identification number is not CORI.15
Such a conclusion, however, does not mean that Alexander’s claim should be dismissed. Significantly, Kidder and Bellow’s argument fails to take into account the full extent of Alexander’s claim. She appears to allege that both the identification number and her medical information are protected CORI. Support for the proposition that medical information is CORI is found in the statute. General Laws c. 6, §172, prohibits the disclosure of “information .. . that identifies ... medical or psychological histoiy.”
C. Alexander cannot maintain her G.L.c. 258 claim against Bellow and Kidder.
In Count III of her complaint, Alexander alleges that each defendant, including Bellow and Kidder, have violated her “rights as secured by c. 258, §4.” However, G.L.c. 258 is only applicable to lawsuits against public employees and employers as defined by §1 of the statute. See G.L.c. 258, §§2-9. Bellow and Kidder argue that G.L.c. 258 does not apply to them because they are private employees of a private law firm.16 They appear to be correct. They are likely best characterized as employees of an independent contractor. Cf. Nestlenook, Inc. v. Atlantic Design Eng’rs, 17 Mass. L. Rptr. 25, 2-3 (Mass. Super. 2003) (holding that an engineering service company that performed services for town was an independent contractor).
D. Alexander cannot maintain her 42 U.S.C. §1983 claim against Bellow and Kidder.
As discussed above to recover under § 1983 a plaintiff must prove that a defendant was acting under color of law. Gutierrez, 437 Mass. at 401. It is evident, however, that Kidder and Bellow did not engage in state action. Although their alleged wrongful acts occurred in the course of their representation of UMCH, their association with the hospital alone is insufficient to establish that they are state actors for the purposes of a §1983 action. See Rendell-Baker v. Kohn, 457 U.S. 830, 841 (1982) (indicating that a private contractor’s mere performance of services for the government does not create the type of symbiotic relationship with the state which would warrant liability under §1983).
ORDER
For the foregoing reasons:
Clarke, Marshall, and Groblewski’s motions to dismiss Counts I, II, and III are ALLOWED to the extent Alexander is suing them for monetary damages but DENIED to the extent she is suing them for injunctive relief. Their motions to dismiss Count IV are DENIED.
Bellow and Kidder’s motion to dismiss is ALLOWED as to Counts III and IV and DENIED as to Counts I and II.
After review of all materials submitted, the court finds, pursuant to Superior Court Rule 9A(b)(2), that a hearing would not assist the Court in evaluating the motions. Accordingly, the court has decided the motions on the papers.
Alexander is a prisoner confined at MCI-Norfolk.
The foregoing is taken from a document not attached to the complaint. Alexander, however, had notice of and relied upon the document in framing her complaint. On a Mass.R.Civ.P. 12(b)(6) motion the court may take such documents into consideration. Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 45 n.4 (2004).
Alexander claims she suffers from Gender Identity Disorder (“GID”). She appears to suggest that the request for the hair loss medication was related to this condition.
he Program Medical Director of UMCH.
The Commissioner of the DOC.
The public employers of these individuals (i.e. the DOC and UMCH) can be held liable for their actions, subject to the exceptions detailed in G.L.c. 258. See Schenker, 18 Mass.App.Ct. at 404; Parker, 67 Mass.App.Ct. at 180. Alexander is currently seeking to amend her complaint, specifically adding the DOC as a defendant. She may wish to seek further leave to amend to add UMCH or the Commonwealth as a defendant. See Pruner v. Clerk of Superior Court, 382 Mass. 209, 309, 314 (1981) (noting that Norfolk County, as the employer of the defendant county court clerk and assistant clerk, should have been named as a defendant).
Alexander is suing Marshall, Clarke, and Groblewski in their individual and official capacities for injunctive relief and monetary damages. To the extent she is suing these defendants in their official capacity she cannot recover monetary damages against them. While a plaintiff can sue a state agency or state official for injunctive relief under §1983, she cannot utilize the statute to sue them for damages. See Johnson v. Rodriquez, 943 F.2d 104, 108 (1st Cir. 1991) (“It is settled beyond peradventure, however, that neither a state agency nor a state official acting in his official capacity may be sued for damages in a section 1983 action”); Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 n.10 (1989) (holding that neither a State nor its officials acting in their official capacities are persons under §1983 but noting that “(o]f course a state official in his or her official capacity, when sued for injunctive relief, would be a person under §1983”).
The Jarvis decision and other similar Sixth Circuit decisions have been called into doubt by Moore v. Prevo, 379 Fed.Appx. 425, 427-28 (6th Cir. 2010), which apparently concluded that such a right does exist.
In the alternative, Marshall, Clarke, and Groblewski argue that they are entitled to qualified immunity. However, there is insufficient information in the record to decide the issue at this time.
Alexander’s complaint appears to allege that the Defendants, including Bellow and Kidder, violated G.L.c. 214, §1B as a result of their negligence. It is unclear whether § IB allows a plaintiff to recover for a negligent violation given that the statute is more or less rooted in the common-law intentional tort of invasion of privacy. See Zereski v. American Postal Workers Union, WOCV1998-971567, Slip Op. at 9 (Mass.Super. August 14, 1998) (Fecteau, J.) [9 Mass. L. Rptr. 55]. No Massachusetts appellate court has apparently ruled on the issue. Nevertheless, the language of the statute would appear to encompass a negligent disclosure of personal information because such disclosure could arguably be unreasonable, substantial, and seriously interfere with a plaintiffs right to privacy.
Bellow and Kidder do not claim they had a legitimate reason for releasing information regarding Alexander.
The right to privacy under G.L.c. 214, §1B can be surrendered by public display. Broderick v. Police Comm’r of Boston, 368 Mass. 33, 44 (1975). Bellow and Kidder allege that the information disclosed is not protected as Alexander put the information in the public domain when she filed her complaint in Alexander v. University of Mass. Med Sch. (USDC CA No. 09-10776). The complaint details her hair loss problem. However, the Defendants cite to no case where the filing of a lawsuit constituted the kind of public display envisioned by Broderick. But see Tower, 397 Mass. at 589 n.9 (suggesting, but not resolving, possibility that plaintiff, by commencing tort action, may have waived a statutory right to privacy as to medical records). Moreover, it appears that Alexander’s U.S. District Court lawsuit was filed following the release of her information to Blanco and, therefore, after it was made public.
That the identification number is not CORI is also supported by the fact that anyone can obtain the prisoner’s commitment number through the Executive Office of Public Safety and Security’s website.
In her brief opposing their motion to dismiss, Alexander does not contend otherwise. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/840285/ | 744 N.W.2d 141 (2008)
Ghaus MALIK and Sahib Malik, Plaintiffs/Counter-Defendants-Appellants,
v.
Shakeeb SALAMY and D.E.S. Building Company, Inc., Defendants/Counter-Plaintiffs, and
Dana Emergency Services, Defendant, and
Perfect Marble & Granite, Inc., Macomb Stairs, Inc., Elvin Construction Company, and Philip F. Greco Title Company, Defendants/Counter-Plaintiffs-Appellees, and
Stock Building Supply, LLC, Defendant/Counter-Plaintiff/Cross-Plaintiff/Third-Party Plaintiff, and
Taylor Door, Defendant, and
Sam Vagnetti and Linda Vagnetti, Third-Party Defendants.
Docket No. 134979. COA No. 264780.
Supreme Court of Michigan.
February 19, 2008.
On order of the Court, the motion for miscellaneous relief is GRANTED. The application for leave to appeal the April 26, 2007 judgment of the Court of Appeals is considered, and it is DENIED, because we *142 are not persuaded that the questions presented should be reviewed by this Court. | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1029311/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6593
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARIO M. PEGRAM,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:03-cr-00407-REP-1)
Submitted: June 22, 2009 Decided: July 1, 2009
Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mario M. Pegram, Appellant Pro Se. John Staige Davis, V,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mario M. Pegram appeals the district court’s order
denying his motion for a reduction of sentence pursuant to 18
U.S.C. § 3582(c) (2006). We have reviewed the record and find
no reversible error. Accordingly, we affirm for the reasons
stated by the district court. United States v. Pegram, No.
3:03-cr-00407-REP-1 (E.D. Va. Mar. 12, 2009). 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 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610071/ | 12 Ariz. App. 9 (1970)
467 P.2d 84
STATE COMPENSATION FUND and City Products Corporation, (Crystal Ice & Cold Storage, Division of City Products Corporation), Petitioners,
v.
Tiburcio GARCIA AND INDUSTRIAL COMMISSION of Arizona, Respondents.
No. 1 CA-IC 321.
Court of Appeals of Arizona, Division 1, Department A.
March 18, 1970.
Robert K. Park, Chief Counsel, by Courtney L. Varner, Phoenix, for petitioner State Compensation Fund.
Donald L. Cross, Chief Counsel, by William C. Wahl, Jr., Phoenix, for respondent Industrial Commission of Arizona.
Gorey & Ely, Phoenix, for respondent Tiburcio Garcia.
DONOFRIO, Presiding Judge.
This case is before the Court by writ of certiorari brought by the petitioner, State Compensation Fund to test the lawfulness of an award and findings of the Industrial Commission issued June 30, 1969, awarding unscheduled permanent partial disability compensation to the respondent Tiburcio Garcia.
On October 22, 1963 Mr. Garcia, a then fifty-five-year-old male, suffered a back injury while employed as a laborer for Crystal Ice and Cold Storage Company. This claim was ultimately closed with the entry of a findings and award for unscheduled permanent partial disability. The award stated that Mr. Garcia had a five percent general physical functional disability, but no loss of earnings.
*10 On October 16, 1965 Mr. Garcia sustained a second industrial back injury while employed by Crystal Ice & Cold Storage Company.
On November 11, 1965 back surgery was performed by Dr. James D. Alway, consisting of a hemilaminectomy.
On January 20, 1967 the second claim (BC 43006) was closed by entry of a findings and award for temporary disability which became final. On November 1, 1967 a petition to reopen for new, additional, and previously undiscovered disability was filed pertaining to Claim No. BC 43006 by claimant in propria persona. On November 10, 1967 a findings and award allowing reopening of claim was entered pertaining to BC 43006. On March 4, 1968 a findings and award pending determination of earning capacity was entered, which was not protested. On February 20, 1969 a loss of earning capacity hearing was held pursuant to the March 4, 1968 findings and award. On May 12, 1969 a decision upon hearing and additional findings and award for unscheduled permanent partial disability was entered, which decision is the subject of the instant writ. Specifically, the petitioner (State Compensation Fund) objects to two areas covered by the findings and award of May 12, 1969. The first is the finding number one which refers back to findings one through five in the previous award issued on March 4, 1968. Of these numbered findings, number four is pertinent, and reads as follows:
"4. That said applicant suffered a prior industrial injury on October 22, 1963, Claim No. AY 44333, which resulted in a 5% general physical functional disability, with no loss of earning capacity; that as the result of the above injury of October 16, 1965, said applicant required spinal surgery, and there is no greater disability than that previously awarded on Claim No. AY 44333, however, said applicant is unable to return to his previous occupation."
In the May 12, 1969 award the other area complained of by the petitioner is contained in findings No. 3 and No. 4 which read as follows:
"3. That the applicant has sustained an 80.74% reduction in earning capacity and is therefore entitled to an award of $172.88 per month until further order of the Commission, pursuant to the provisions of A.R.S. § 23-1044.
"4. That the aforesaid determination that the applicant has sustained an 80.74% reduction in earning capacity is based upon the following facts:
"(a) Applicant is 61 years of age.
"(b) Applicant has no formal education but has had special training as a carpenter.
"(c) Applicant has worked as a laborer for most of his adult life.
"(d) Applicant had a prior back injury resulting in a 5% general disability prior to the accident of October 16, 1965.
"(e) Applicant's average monthly wage was established at $389.32.
"(f) The industrial episode of October 16, 1965 prevents applicant from returning to his usual occupation as a laborer.
"(g) Applicant has undergone back surgery and cannot do work which involves repetitive bending, heavy lifting or walking long distances.
"(h) Applicant has not been awarded benefits for disability from the Social Security Administration.
"(i) Applicant has the physical and mental ability to perform the services of a carpenter doing light carpentery work on a free lance basis, and in such capacity can reasonably be expected to earn the sum of $75.00 per month."
The petitioner contends that the Commission is without jurisdiction to issue an award finding a loss of earning capacity in a claim which has been closed with a finding that the claimant suffered no loss *11 of earning capacity over and above a 5% general physical functional disability awarded in a previous claim; and, that the finding that the claimant suffered an 80.74% reduction in earning capacity as the result of his industrial injuries was not reasonably supported by the evidence.
We first consider whether the Commission was without jurisdiction to enter an award in the second claim granting the petitioner compensation for loss of earning capacity. While we are in agreement with the Fund that the Commission cannot make an award of loss of earning capacity entitling a workman to compensation without a previous finding of a general physical functional disability, it is our opinion that in the instant case this is not jurisdictional. As we stated in Lugar v. Industrial Commission, 9 Ariz. App. 44, 449 P.2d 61 (1968):
"The intention of the Legislature, and the long line of case law interpretation by the Court, has been that the interpretation of the Workmen's Compensation Law is to be a liberal one. Jones v. Industrial Commission, 1 Ariz. App. 218, 401 P.2d 172 (1965). We believe that the corollary of this is that the procedure should be simplified. The Supreme Court in Allen v. Industrial Commission, 87 Ariz. 56, 347 P.2d 710 (1959) admonished the Commission that proceedings before it are not adversary proceedings and that it is as much the duty of the Commission to encourage and evaluate proper claims fairly as it is to expose and reject improper claims. The intention of the Workmen's Compensation Act was to provide benefits for workmen injured in the course and scope of their employment, and to do so by a relatively informal administrative procedure which would be less cumbersome and time consuming than formal court action."
Rule No. 5, General Rules of the Industrial Commission of Arizona, states:
"Forms Supplied: In order to assist the parties in presenting their claims before the Commission (without the necessity of employing an attorney) certain forms have been prepared and will be supplied free of charge. No other forms are either necessary or advisable for the above purpose." (Emphasis supplied.)
Relying upon this, the respondent Tiburcio Garcia at all times appeared in propria persona. His petition to reopen the claim carries a typewritten caption and a typewritten claim number, giving the claim number of the second injury. All other information on the form is handwritten. It was signed November 1, 1967, and stamped received by the Industrial Commission on that same date. Subsequently, on November 6, 1967, the following memorandum appears in the file:
"DATE: November 6, 1967
Re: Tiburcio Garcia (BC 43006
To: Medical Director
From: Myrtle Jenkins, Claims Examiner Supervisor
"This claimant has petitioned to have his case reopened and reports have been submitted by Dr. Alway. The injury in question was sustained on 10-16-65. Laminectomy was performed on 11-11-65. Claimant was released for work on 5-1-66. He returned to work with no loss in earnings. Group consultation was held on 12-6-66 at which time the doctors reported the claimant has sustained no additional permanent over and above the 5% general physical functional disability which had been rated previously in February 1965 in Claim AY 44333, therefore, this case was closed with a temporary award on 1-20-67.
"We ask that you review Dr. Alway's report of 10-20-67 and report of 10-31-67 advise if the condition described is related to the injury of 10-16-65 or to the previous injury of 10-22-63 and requires further treatment. IL:JBS"
In handwriting at the bottom of this memorandum appears the following notation: "Probably related to 10-16-65 (initialed) PJW (date) 11-7-67." In the lower lefthand *12 corner is the following notation: "Approve reopening M. Jenkins 11-8-67", also in handwriting. There is an award granting reopening for new, additional or previously undiscovered disability dated November 10, 1967. This is followed by the award of March 4, 1968 which carries the finding complained of, finding that petitioner suffered no general physical functional disability over and above the 5% previously awarded to him, but the award continues and grants the petitioner temporary compensation pending a determination of his earning capacity.
At this point, the attorneys for both the State Compensation Fund and the Commission were, or should have been, advised that the award for compensation had been issued in the wrong claim file. While the injured workman has the burden of proof in relation to establishing that he is entitled to compensation, Garrard v. Industrial Commission, 6 Ariz. App. 373, 432 P.2d 921 (1967), the Commission by its Rule No. 5 has undertaken to guide him through the morass of procedural details necessary to establish his claim. There was a similar situation in Strong v. Industrial Commission, 11 Ariz. App. 499, 466 P.2d 50 (filed March 12, 1970), in which a workman suffered an industrial injury which resulted in a disability to his left leg, called the leg claim, and subsequently suffered an injury to his back, called the back claim. The injured workman urged this Court to set the award of the Commission aside because it had erroneously paid compensation for the back injury from the leg-claim file. In that instance, we stated:
"This Court has in the past urged the Commission to consolidate cases when it is apparent that the injuries and the symptoms and disabilities flowing therefrom are difficult, if not impossible, to separate and where the same employer-employee relationship exists in both claims. Although in the instant case it appears that this was done inadvertently, still it is the procedure which meets with our approval, and we will not set the award aside on this basis."
It is our opinion that in the instant case either the Commission on its own motion, or the State Compensation Fund, should have moved to consolidate the two claims.
This case is distinguishable from Sims v. Industrial Commission, 10 Ariz. App. 574, 460 P.2d 1003 (1970), in that in this case it was determined that petitioner had suffered a 5% general physical functional disability, albeit in a different claim, and had been erroneously directed by the Commission to proceed in the claim in which it had been determined that he had no disability, while in SIMS the Commission had not established that he suffered a physical disability.
This brings us to the second area complained of by the petitioner, State Compensation Fund. The Fund alleges that the finding that the claimant suffered an 80.74% reduction in earning capacity as the result of his industrial injuries was not reasonably supported by the evidence. We are in agreement with this contention, however it is the opinion of the Court that there was no evidence before the Commission at the time the award was issued to indicate that the injured workman had the physical and mental ability to perform the services of a carpenter doing light carpentry work on a free-lance basis, and in such capacity could reasonably be expected to earn the sum of $75.00 per month. In determining the future earning capacity of a disabled man the objective is to determine as nearly as possible whether in a competitive labor market the subject in his disabled condition can probably sell his services, and if so, for how much. Womack v. Industrial Commission, 3 Ariz. App. 74, 412 P.2d 71 (1966); Magma Copper Company v. Industrial Commission, 96 Ariz. 341, 395 P.2d 616 (1964); Sproul v. Industrial Commission, 91 Ariz. 128, 370 P.2d 279 (1962). In the instant case, a hearing was held on the subject of the injured workman's loss *13 of earning capacity. At this hearing the injured workman was the only witness who testified, and he was adamant in his testimony that because of the pain and limitation of motion in his back he was unable to sell his services in the competitive labor market. A careful examination of the record reveals no testimony or report to the effect that work is available for the injured workman as a free-lance carpenter, and no testimony or report which even touches upon the wage scale for such employment.
For these reasons, it is the opinion of the Court that this award must be set aside, and that when returned to the Industrial Commission for further processing the two claims should be consolidated.
Award set aside.
STEVENS and CAMERON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610077/ | 467 P.2d 1005 (1970)
81 N.M. 433
Joe BARELA, Petitioner-Appellant,
v.
STATE of New Mexico, Respondent-Appellee.
No. 467.
Court of Appeals of New Mexico.
March 27, 1970.
*1007 Snyder H. Downs, Santa Fe, for petitioner-appellant.
James A. Maloney, Atty. Gen., Santa Fe, F. Stephen Boone, Asst. Atty. Gen., for respondent-appellee.
OPINION
WOOD, Judge.
Denied post-conviction relief after an evidentiary hearing, Barela appeals. We consider seven issues, affirming as to all but one. On one issue, the question of a direct appeal, we remand to the trial court for a ruling on the question of indigency.
1. Delay in being taken before a magistrate.
The trial court found that defendant was not taken before a magistrate for two and one-half days after his arrest. This finding is not attacked; it is a fact in this appeal. State v. Reid, 79 N.M. 213, 441 P.2d 742 (1968). The trial court correctly concluded that this fact provided no legal basis for relief. There is no showing, in fact no claim, that the delay deprived Barela of a fair trial or that he was prejudiced in any way. State v. Helm, 79 N.M. 305, 442 P.2d 795 (1968); State v. Henry, 78 N.M. 573, 434 P.2d 692 (1967).
2. Witnesses at trial who did not testify at the preliminary hearing.
The trial court found the State used certain witnesses at the trial who had not testified at the preliminary hearing. This fact provides no legal basis for relief. Pena v. State, 466 P.2d 897 (Ct.App.), decided February 20, 1970. The reason this fact provides no basis for relief is explained in State v. Selgado, 78 N.M. 165, 429 P.2d 363 (1967).
3. Prejudicial publicity.
Defendant claims he was unable to obtain a fair trial in Santa Fe County as a result of newspaper and radio publicity. The trial court found to the contrary. It could not have done otherwise on the evidence presented. There is no evidence of radio publicity. Barela testified: "According to the newspaper reports, I was charged with a violent crime, and I was directly put in such a way in the newspapers that I believe the people of Santa Fe County would have found me guilty, no matter what, with such hurting remarks to me by the newspapers." The newspaper articles are not in evidence.
The record does not identify the precise charge on which Barela was convicted, but it does disclose Barela committed a violent crime he beat up a woman. Without the newspaper articles or evidence as to their contents, the trial court could not have found that the newspaper articles deprived Barela of a fair trial. Barela had the burden of proof. He did not meet this burden. State v. Gorton, 79 N.M. 775, 449 P.2d 791 (Ct.App. 1969). See State v. Lindsey, 464 P.2d 903 (Ct.App.), decided December 5, 1969.
4. District Attorney's remarks to the jury.
The trial court found the District Attorney told the jury "`this might have been a murder case,'" or used words to that *1008 effect. It also found the remark was not prejudicial to Barela. The findings as to the remarks made and as to the lack of prejudice are not attacked. Since, as a fact, the remarks were not prejudicial, State v. Reid, supra, the remarks present no appellate issue.
5. Attorney's conflict of interest.
Barela claimed that his attorney at trial represented another defendant and this other defendant testified against Barela. See State v. Tapia, 75 N.M. 757, 411 P.2d 234 (1966). This claimed conflict of interest was not established as a fact. The finding, not attacked, is that the attorney represented "* * * Defendant only at the trial." There is no factual basis for the claim. Patterson v. State, 465 P.2d 93 (Ct. App.), decided January 9, 1970.
6. Incompetency of counsel.
This involves several claims. The claims, and our answers, follow.
(a) His counsel at trial was court appointed. Although the trial court made no finding on this claim, the only evidence is that his attorney was retained counsel.
(b) His counsel was grossly incompetent. This is too vague to provide a basis for relief. Pena v. State, supra, and cases therein cited.
(c) Counsel did not adequately cross-examine witnesses for the State. This provides no basis for relief. State v. Ramirez, 464 P.2d 569 (Ct.App.), decided January 16, 1970 and cases therein cited.
(d) Counsel advised Barela to take the witness stand at his trial. This is asserted to demonstrate incompetency because by doing so Barela waived his privilege against self-incrimination. Further, it is contended that Barela's taking the stand "* * * made a difference to the trial jury." The unattacked finding of the trial court is: "That waiver of his right not to testify was not prejudicial to Defendant's interests." Even if we did not have the fact that no prejudice resulted from taking the stand, the claim nonetheless provides no basis for relief. Advice to testify does not raise an issue as to whether the proceedings were a sham or mockery. See State v. Selgado, supra.
(e) Counsel did not perfect an appeal from Barela's conviction. The trial court's finding, unattacked, is that the attorney was not employed to perfect the appeal because of lack of funds. This raises no issue as to incompetency.
(f) Counsel did not advise defendant he could appeal as an indigent. This provides no basis for relief. State v. Raines, 78 N.M. 579, 434 P.2d 698 (Ct.App. 1967).
7. Lack of a direct appeal.
An appeal from a judgment and sentence in a criminal case is a matter of right. Morales v. Cox, 75 N.M. 468, 406 P.2d 177 (1965); State v. Gorton, supra. Barela seeks post-conviction relief because there was no direct appeal.
Barela claims he was denied his right to an appeal by his attorney and by the courts.
(a) Denial of right to appeal by attorney. This claim is to be distinguished from issues 6(e) and (f). There the question of an appeal was considered only in connection with the asserted incompetency of counsel. Here, the issue is whether counsel deprived Barela of his right to appeal.
State v. Gorton, supra holds that if a defendant in a criminal action requests court appointed counsel to appeal his conviction, and counsel refuses to do so, such a refusal is State action entitling the defendant to post-conviction relief. Gorton is not applicable because Barela's counsel was employed counsel. The unattacked finding of the trial court is that counsel was not employed to perfect an appeal. There is no factual basis for the claim that counsel deprived Barela of his right to appeal.
(b) Denial of right to appeal by the courts. This claim has two parts.
*1009 (1) Barela claims the District Court and the Supreme Court denied him his right to an appeal because they failed to advise him of that right. How the Supreme Court became a part of this claim is explained in the following paragraph. This claim is not a legal basis for relief because the courts have no such duty. State v. Gorton, supra; Morales v. Cox, supra.
(2) Although not specifically stated, the hearing on the post-conviction motion fairly raised the question whether court officials deprived Barela of an appeal. Barela wrote to the "Supreme Court Justice" stating that he wanted to appeal. This letter was sent to and, according to the trial judge, filed with the District Court Clerk within the time required for taking an appeal. The notice was brought to the attention of the trial judge. The judge gave instructions that Barela's trial attorney be notified "* * * so that he may proceed. * * *" Apparently, this was not done. The attorney testified he received no notice from court officials, or from Barela, "* * * that he wanted to appeal."
The trial court was concerned about the failure to perfect the direct appeal but denied post-conviction relief because: (1) Barela was represented by employed counsel at trial; (2) Barela, taking his own appeal, failed to take any steps, such as filing a praecipe, to perfect the appeal; and (3) the trial judge was of the opinion there were no grounds for reversal of the conviction.
These reasons do not provide a basis for denying post-conviction relief because: (1) when Barela took his appeal, he did not have counsel; (2) if Barela was entitled to court appointed counsel, he is not to be penalized because of his failure to carry out procedural steps which would have been performed by counsel; and (3) under Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and Eskridge v. Washington State Board, 357 U.S. 214, 78 S. Ct. 1061, 2 L. Ed. 2d 1269 (1958) an appeal is not to be denied on the basis of the trial court's opinion that no error occurred at the trial.
Here, Barela had filed a timely notice of an appeal. If in fact he was indigent at that time, he was entitled to be represented by court appointed counsel on his appeal. The trial court stated: "* * He mentions in his letter he can't pay costs. * * *" This, in our opinion, is a sufficient claim of indigency.
Knowing of the appeal, and the claim of indigency, the trial court failed to determine whether Barela was in fact indigent and entitled to court appointed counsel for the appeal. Barela is to be given a hearing to determine whether, at the time of his notice of appeal, he in fact was indigent. If indigent, he is entitled to post-conviction relief. What relief? The appeal which has not been perfected because of absence of counsel. See State v. Gorton, supra; compare State v. Barefield, 80 N.M. 265, 454 P.2d 279 (Ct.App. 1969).
The cause is remanded with instructions to conduct a hearing on Barela's indigency when he took his appeal. If the trial court determines that Barela was not indigent at the time, then the order denying post-conviction relief will stand affirmed. If Barela was indigent, then counsel is to be appointed to perfect the direct appeal. State v. Anaya, 76 N.M. 572, 417 P.2d 58 (1966).
It is so ordered.
OMAN and HENDLEY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1954468/ | 854 F. Supp. 165 (1994)
Timoteo Leite HILARIO, Petitioner,
v.
UNITED STATES of America, Respondent.
No. CV 94-1525 (RR).
United States District Court, E.D. New York.
June 6, 1994.
*166 The Legal Aid Society Federal Defender Div. E.D.N.Y. by Abraham L. Clott, Brooklyn, NY, for petitioner.
Zachary W. Carter, U.S. Atty., E.D.N.Y. by Raymond Granger, Asst. U.S. Atty., Brooklyn, NY, for respondent.
MEMORANDUM AND ORDER
RAGGI, District Judge:
By order dated March 29, 1994, Magistrate Judge John L. Caden certified to the Secretary of State that Timoteo Leite Hilario was extraditable to Portugal, a country from which he had fled in 1988 while serving a sentence for murder and attempted murder. Because certifications of extradition are not subject to direct appeal, Hilario pursues a writ of habeas corpus to challenge the magistrate judge's order. See Jhirad v. Ferrandina, 536 F.2d 478, 482 (2d Cir.), cert. denied, 429 U.S. 833, 97 S. Ct. 97, 50 L. Ed. 2d 98 (1976); Shapiro v. Ferrandina, 478 F.2d 894, 901 (2d Cir.), cert. dismissed, 414 U.S. 884, 94 S. Ct. 204, 38 L. Ed. 2d 133 (1973).
The focus of Hilario's challenge is narrow. He does not dispute this court's personal jurisdiction over him. Neither does he challenge the effectiveness of the Extradition Convention of 1908 between the United States and Portugal ("the Convention"). See Extradition Convention and Exchange of Notes Concerning the Death Penalty, May 7, 1908, U.S.-Port., 35 Stat. 2071. He concedes that the crimes of murder and attempted murder are covered by this Convention and he cites no deficiency in the evidence produced by Portugal to establish his conviction for such crimes. His single challenge to extradition is that the Secretary of State lacks legal authority to surrender him to Portugal because he is a United States citizen.
Having carefully considered the written submissions of the parties and having heard oral argument, this court rejects petitioner's challenge. Although the Convention does not, by its own terms, empower the Secretary of State to surrender a United States citizen to Portugal, such power is clearly *167 conferred by 18 U.S.C. § 3196 (Supp.1994). Petitioner's constitutional and legal challenges to that statute are without merit. His petition for a writ of habeas corpus is, therefore, denied.
Factual Background
1. Hilario's Murder Conviction in Portugal
In late 1982, while in Boticas, Portugal, Timoteo Leite Hilario quarrelled with his seventeen-year old son, Antonio. The boy left his father's home and took up residence nearby with his paternal grandmother. On January 3, 1983, petitioner, in the presence of his mother and brothers, confronted his son and ordered him to return home. When the son refused, petitioner began shooting, killing his brother Jaime, and injuring both his son and brother Ramiro.
On December 7, 1983, petitioner was convicted in the Judicial Court of Boticas of one count of murder and two counts of attempted murder. He was sentenced to a fourteen-year term of incarceration. On intermediate appeal, petitioner's conviction was affirmed, but his sentence was increased to sixteen years. In 1984, Portugal's Supreme Court of Justice also affirmed the conviction, but suspended two years of the sixteen-year sentence.
2. Petitioner's Flight from Portugal and Arrest in the United States
On August 13, 1988, Portuguese authorities granted Hilario a furlough from prison. While on furlough, petitioner apparently fled Portugal. Some time thereafter, he entered the United States, where he had become a citizen in 1977.
In July 1993, federal authorities learned that Hilario was being detained in Nassau County, New York on unspecified state charges. After communicating with Portuguese officials, the United States, on July 15, 1993, sought and obtained a provisional warrant for Hilario's arrest in anticipation of extradition. See 18 U.S.C. § 3184 (Supp. 1994). Hilario was arrested on this warrant on August 24, 1993, and has been in federal custody since that time.
3. The Magistrate Judge's Certification of Extradition
On November 4, 1993, the United States filed with Magistrate Judge Caden the certified submissions of Portugal in support of the request for Hilario's extradition. Hilario did not challenge the adequacy of the filing. But he did urge dismissal of the extradition complaint on the grounds that, as a United States citizen, he could not be extradited to Portugal. Specifically, Hilario argued: (1) that the Convention does not authorize the surrender of United States citizens to Portugal; (2) that such authority can only be conferred by treaty; (3) that Congress's attempt to confer such power to the Secretary of State in 18 U.S.C. § 3196 is unconstitutional; and (4) that even if § 3196 were constitutional, it should not apply to criminal conduct, such as petitioner's, that predates its enactment. Although petitioner's first point is undisputed, Magistrate Judge Caden rejected his other arguments. Accordingly, on March 29, 1994, Magistrate Judge Caden certified Hilario's extraditability to the Secretary of State. See 18 U.S.C. § 3184.
Discussion
I. The Constitutionality of 18 U.S.C. § 3196
The power to provide for extradition unquestionably belongs to the federal government. Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 8, 57 S. Ct. 100, 102, 81 L. Ed. 5 (1936). But the exercise of such sovereign power "must finds its sanction in our law." Id. Because the Constitution does not itself vest authority in any government department "`to seize a fugitive criminal and surrender him to a foreign power,'" id. at 9, 57 S. Ct. at 102 (quoting 1 John Basset Moore, Moore on Extradition 21), a court must look elsewhere for evidence of legal empowerment to extradite. The government submits that 18 U.S.C. § 3196 statutorily empowers the Secretary of State to extradite petitioner in this case. Hilario challenges the constitutionality of this statute. He insists that the power to extradite can only be conferred by treaty. This court disagrees.
*168 A. The Lack of Executive Power to Extradite in the Convention between the United States and Portugal
No one disputes petitioner's contention that the Extradition Convention between the United States and Portugal does not itself confer power on any government official to extradite American citizens to Portugal. This conclusion is, in fact, mandated by the Supreme Court's decision in Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 57 S. Ct. 100, 81 L. Ed. 5 (1936). A preliminary review of the Convention and the Valentine holding is useful to this court's assessment of petitioner's challenge.
Article I of the Convention provides for the reciprocal surrender of persons charged with or convicted of specified crimes in either the United States or Portugal. It states:
It is agreed that the Government of the United States of America and the Government of His Most Faithful Majesty the King of Portugal and of the Algarves shall, upon mutual requisition duly made as herein provided, deliver up to justice any person who may be charged with or may have been convicted of any of the crimes specified in Article II of this Convention committed within the jurisdiction of one of the Contracting Parties while said person was actually within such jurisdiction when the crime was committed, and who shall seek an asylum or shall be found within the territories of the other, provided that such surrender shall take place only upon such evidence of criminality, as according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial if the crime or offence had been there committed.
This broad mutual obligation is, however, significantly modified by Article VIII:
Under the stipulations of this Convention, neither of the Contracting Parties shall be bound to deliver up its own citizens or subjects.
Such citizen exception clauses are not unusual. Virtually identical ones are to be found in thirty-three other extradition treaties signed by the United States. Gouveia v. Vokes, 800 F. Supp. 241, 244 (E.D.Pa.1992).
One of these other treaties between the United States and France was the focus of Supreme Court attention in Valentine. At issue was the power of the United States to extradite American citizens when such surrender was not required by treaty. The government in Valentine argued that the executive branch was implicitly empowered to extradite American citizens to France because the citizen exception clause reserved to each sovereign the discretion to surrender its own nationals. The Supreme Court was unpersuaded. Certainly, if a treaty obliged the United States to surrender all persons who came within its terms, then a court could assume that ratification of the treaty necessarily conveyed the power to meet that obligation, even as to United States citizens. Valentine v. United States ex rel. Neidecker, 299 U.S. at 7, 57 S. Ct. at 101; see Charlton v. Kelly, 229 U.S. 447, 467-68, 475-76, 33 S. Ct. 945, 951-52, 954-55, 57 L. Ed. 1274 (1913) (where treaty provides for extradition of "all persons," the United States is obliged to surrender its own nationals even if other country refuses to do so). But a treaty exception clause "denying an obligation" to surrender nationals could not fairly be translated into "a grant of power" to surrender citizens "in the discretion of the Executive." Valentine v. United States ex rel. Neidecker, 299 U.S. at 10, 57 S. Ct. at 103. Thus, the Supreme Court ruled that an express "treaty or legislative provision" conferring such power was required. Id. at 8, 57 S. Ct. at 102.
The decision in Valentine was influenced by the fact that the United States had begun to include empowerment language in certain treaties with citizen exception clauses. For example, the 1886 extradition treaty between the United States and Japan, while providing that "[n]either of the contracting parties shall be bound to deliver up its own citizens or subjects under the stipulations of this convention," continued by noting "but they shall have the power to deliver them up if in their discretion it be deemed proper to do so." Id. at 12, 57 S. Ct. at 104. Since Valentine, virtually every extradition treaty entered into by the United States reserving discretion as to the extradition of nationals has included similar language ensuring domestic *169 empowerment. See Section-by-Section Analysis of the National Drug Control Strategy Implementation Act of 1990, 136 Cong.Rec. S6598 (daily ed. May 18, 1990).
B. The Enactment of 18 U.S.C. § 3196
It was not until 1990, over fifty years after the Valentine ruling, that Congress focused its attention on those treaties, such as the Convention with Portugal, that lacked any language empowering the executive branch to extradite United States citizens. Section 11 of the International Narcotics Control Act of 1990 (originally introduced as the National Drug Control Strategy Implementation Act of 1990) sought to cure the empowerment problem through a single piece of legislation. Now codified at 18 U.S.C. § 3196, the relevant law provides:
If the applicable treaty or convention does not obligate the United States to extradite its citizens to a foreign country, the Secretary of State may, nevertheless, order the surrender to that country of a United States citizen whose extradition has been requested by that country if the other requirements of that treaty or convention are met.
Despite the plain language of § 3196, Hilario insists that the Secretary of State is without power to extradite him. He asserts that the statute is an unconstitutional "attempt to override a treaty." (Petitioner's Mem. at 4.) He submits that just as a treaty can only be made by the President with the advice and consent of two-thirds of the Senate, U.S. Const., art. II, § 2, cl. 2, so a treaty can only be amended by the same constitutional process. The fatal flaw in petitioner's argument is that § 3196 does not override, alter, or amend any provision in the Convention between the United States and Portugal.
C. The Relationship Between Article VIII and § 3196
This court's analysis necessarily begins with the plain language of Article VIII of the Convention. Treaties, like statutes, must be construed by giving their terms their ordinary meaning consistent with the object and purpose of the signatories. See United States v. Stuart, 489 U.S. 353, 365-66, 109 S. Ct. 1183, 1190-91, 103 L. Ed. 2d 388 (1989); Sumitomo Shoji American, Inc. v. Avagliano, 457 U.S. 176, 180, 102 S. Ct. 2374, 2377, 72 L. Ed. 2d 765 (1982); see also Vienna Convention on the Law of Treaties, Jan. 27, 1980, art. 31(1), 1155 U.N.T.S. 331, 8 I.L.M. 679 (1969).[1]
The language of Article VIII reveals a clear but limited purpose. The signatories simply note that their mutual obligation to extradite, undertaken pursuant to Article I, will not apply to requests for the surrender of their own citizens. See Valentine v. United States ex rel. Neidecker, 299 U.S. at 11, 57 S. Ct. at 103 (interpreting similar clause in extradition treaty with France to mean that the two governments "mutually agree to deliver up persons except [their] own citizens or subjects"). On this point the surrender of nationals each signatory retains full sovereign discretion without any risk of breach.
Clauses such as Article VIII derive from a need to accommodate differences in domestic laws, particularly between common law countries, which have generally been willing to extradite their own citizens, and certain civil law countries, which, at least since the 18th century, have prohibited such surrenders. See 2 M. Cherif Bassiouni, International Extradition, ch. VIII, § 3-1 (1983); Charlton v. Kelly, 229 U.S. at 467, 33 S. Ct. at 951-52 ("Owing to the existence in the municipal law of many nations of provisions prohibiting the extradition of citizens, the United States has in several of its extradition treaties clauses exempting citizens from their obligation."). But an exception clause intended simply to accommodate a signatory's domestic laws cannot be read as the equivalent of a treaty prohibition on a signatory changing its laws to facilitate the extradition of its own nationals. *170 Such an interpretation would be odd indeed, for while it is easy to understand why a country would wish to reserve to itself the discretion not to extradite its nationals, it is difficult to imagine what interest that same country would have in limiting another sovereign's ability to do so.
In sum, the plain language of Article VIII does not obligate either signatory to extradite its own nationals. But nothing in the language prohibits either sovereign from exercising discretion to extradite nationals consistent with its own domestic laws and policies.
Once Article VIII is thus understood, it necessarily follows that 18 U.S.C. § 3196 does not amend any international obligation of the United States pursuant to the Convention. What the statute does is fill a gap in our domestic law. The Secretary of State is now empowered by Congress to exercise this country's sovereign discretion to extradite American citizens as the national interest dictates. But this empowerment is discretionary: "the Secretary of State may ... order the surrender ... of a United States citizen." 18 U.S.C. § 3196. He is not required to do so. Thus, the statute in no way diminishes the rights reserved to the signatories in Article VIII. Both before and after the enactment of § 3196, the United States retains complete discretion under the Convention to refuse a request for the extradition of its citizens.
The conclusion this court draws from the plain language of Article VIII and § 3196 that the statute does not amend the treaty is further recommended by the general principle that "the intention to abrogate or modify a treaty is not to be lightly imputed to the Congress." Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U.S. 138, 160, 54 S. Ct. 361, 367, 78 L. Ed. 695 (1934). Instead, whenever possible, courts must "endeavor to construe" treaties and statutes "so as to give effect to both, if that can be done without violating the language of either." Whitney v. Robertson, 124 U.S. 190, 194, 8 S. Ct. 456, 458, 31 L. Ed. 386 (1888); accord Baker v. Carr, 369 U.S. 186, 212, 82 S. Ct. 691, 707, 7 L. Ed. 2d 663 (1962) (a court "will not undertake to construe a treaty in a manner inconsistent with a subsequent federal statute").
Thus, in Grin v. Shine, 187 U.S. 181, 23 S. Ct. 98, 47 L. Ed. 130 (1902), the Supreme Court held that, although the extradition treaty between the United States and Russia seemed to demand the production of an arrest warrant or equivalent document issued by a magistrate of the Russian Empire before an extradition request would be entertained, Congress could dispense with this requirement, as it had apparently done by enacting Rev.Stat. § 5270, a predecessor to 18 U.S.C. § 3184. Id. at 191, 23 S. Ct. at 102. The Court drew a distinction between statutes prescribing "additional formalities" for extradition beyond those required by treaty, and the United States' voluntary waiver of treaty requirements. While the former might well become the subject of complaint by the co-signatory to the treaty, the latter was of no international import and, therefore, not at odds with our treaty obligations. Id.
In Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., the Supreme Court found no inconsistency between a 1901 statute authorizing the plaintiff to improve the Pigeon River and to collect a fee for all timber passing thereon and an 1842 treaty with Canada declaring that all portages along the international boundary, including portions of the Pigeon River, "shall be free and open to the use of the citizens and subjects of both countries." 291 U.S. at 148, 54 S.Ct. at 362. At the time the treaty was passed, natural obstructions precluded using the river for logging. Under such circumstances, the Court deemed it essential to read the treaty and subsequent statute practically.
[W]e are not convinced that it was the intention [of the signatories to the treaty] either to preclude an improvement which would make a stream along the boundary available for use theretofore impossible, or to prevent a reasonable and non-discriminatory charge for the use of such an improvement. In the terms of the treaty we find no compelling clarity of prohibition.
Id. at 157-58, 54 S. Ct. at 366.
Similarly, in Moser v. United States, 341 U.S. 41, 71 S. Ct. 553, 95 L. Ed. 729 (1951), the *171 Supreme Court found that Section 3(a) of the Selective Training and Service Act of 1940 was not in conflict with an earlier United States treaty with Switzerland. The statute exempted neutral aliens from United States military service, but then barred those who claimed the exemption from obtaining American citizenship. The Swiss treaty, however, had long guaranteed that "[t]he citizens of one of the two countries, residing or established in the other, shall be free from personal military service." Id. at 42, 71 S. Ct. at 554. Switzerland protested the application of Section 3(a) to its nationals. It insisted that, under the treaty, Swiss residents of the United States were entitled to unconditional release from military service with no limitation on their right to apply for United States citizenship. But the Supreme Court did not agree.
That the statute unquestionably imposed a condition on exemption not found in the Treaty does not mean they are inconsistent. ... The treaty makes no provision respecting citizenship. On the contrary, it expressly provides that the privileges guaranteed by each country to resident citizens of the other "shall not extend to the exercise of political rights." The qualifications for and limitations on the acquisition of United States citizenship are a political matter which the Treaty did not presume to cover.
Id. at 45-46, 71 S. Ct. at 555 (citations omitted).
Section 3196 and Article VIII of the Convention are as easily reconciled as any of the laws and treaties at issue in these cases. Certainly, § 3196 does not prescribe any "additional formalities" for extradition beyond those agreed to by the signatories. See Grin v. Shine, 187 U.S. at 191, 23 S. Ct. at 102. It simply empowers the Secretary of State to exercise the discretion reserved by Article VIII to each sovereign. In short, its legal scope is domestic, not international. Similarly, the fact that the Convention contains "no provision" dealing with the domestic issue of empowerment does not render subsequent legislation on the issue inconsistent with the treaty. See Moser v. United States, 341 U.S. at 45, 71 S. Ct. at 555. The Convention is concerned only with ensuring that neither signatory be obliged to extradite its nationals. It does "not presume to cover" the domestic circumstances under which each country might voluntarily surrender a citizen. Id. Most important, the Convention contains no "compelling clarity of prohibition" on the United States' enactment of legislation authorizing the extradition of its nationals. See Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U.S. at 158, 54 S. Ct. at 366. Indeed, there would be no reason for such a prohibition since domestic legislation such as § 3196 does not alter the absolute right guaranteed to each signatory under Article VIII to deny a request for the extradition of its citizens.
D. The Contrary View in Gouveia v. Vokes
This court's conclusion that § 3196 does not alter or amend Article VIII of the Convention differs from that reached in Gouveia v. Vokes, 800 F. Supp. 241 (E.D.Pa.1992), the only other case to address the relationship between this particular statute and convention. Citing extensively to an analysis of the legislation filed in the Congressional Record at the time the National Drug Control Strategy Implementation Act was introduced, Gouveia concluded that "the explicit words and purpose of what became § 3196 was to amend, at a minimum, Article VIII of the 1908 Treaty [with Portugal] and the similar language of the other thirty-three treaties like it." Id. at 250 (emphasis added). The court thought that to "countenance such overt, explicit Congressional amendment [of a treaty] would ignore the "allocation of responsibility" for treaty making established by the Framers in the Constitution. Id. at 259 (emphasis added).[2]
This court's own review of the analysis of the legislation placed in the Congressional *172 Record does not permit it to join in Gouveia's conclusion as to Congress's intent. The pertinent passage of the analysis states:
This amendment deals with a problem that arises under some of our older extradition treaties that fail to include specific authority to extradite United States nationals who are charged with crimes in the country seeking extradition. Under prevailing case law, the United States may extradite its nationals in the absence of any limiting language in a bilateral treaty. Charlton v. Kelly, 229 U.S. 447 [33 S. Ct. 945, 57 L. Ed. 1274] (1913). However, if an extradition treaty contains language which limits that authority, e.g., "neither party shall be bound to deliver up its own citizens", the Supreme Court has held that United States nationals may not be extradited unless the treaty also contains a positive grant of authority to surrender United States citizens. Valentine v. United States ex rel. Neidecker, [299] U.S. 5, 7-12 [57 S. Ct. 100, 101-04, 81 L. Ed. 5] (1936). Post-Valentine extradition treaties of the United States uniformly contain language such as "[N]either of the contracting Parties shall be bound to deliver up its own citizen under the stipulations of this convention, but the executive authority of each shall have the power to deliver them up, if, in its discretion, it is deemed proper to do so." [emphasis in original] Such a clause contains the necessary positive grant of authority to the Executive to extradite United States citizens.
However, the United States still has several pre-Valentine treaties in force that contain the limitation but lack a requisite grant of authority. In those instances, the United States must refuse to extradite based on the nationality of the offender. ...
The proposed amendment would remedy the problem caused by some pre-Valentine treaties by expressly permitting the surrender of United States nationals notwithstanding the language of limitation in those treaties. This provision is consistent with the general policy of the United States favoring extradition of nationals to the country where the greatest harm has been suffered because of the commission of criminal acts, and against creating "universal" extraterritorial jurisdiction. It also recognizes the reality that it is not feasible to address this situation on a piecemeal basis by renegotiating all the pre-Valentine treaties that contain this flaw.
Section-by-Section Analysis of the National Drug Control Strategy Implementation Act of 1990, 136 Cong.Rec. S6598 (daily ed. May 18, 1990).[3]
Only two statements in this analysis possibly support Gouveia's conclusion that Congress's intent in enacting § 3196 was to amend treaties: (1) the language suggesting that citizen exception clauses somehow "limit" executive authority to extradite United States citizens, and (2) the characterization of § 3196 as an "amendment."
The first statement may, in fact, be nothing more than a shorthand acknowledgement of Valentine's holding that, absent other authority, United States officials are "limited" in their ability to extradite American citizens pursuant to extradition treaties containing citizen exception clauses. To interpret it more broadly as a statement that such clauses themselves limit executive authority to extradite simply misreads Valentine. As the Supreme Court made plain in its ruling, the constitutional problem with citizen exception clauses is not that they limit the exercise of sovereign authority to extradite nationals. The problem is that such clauses cannot fairly be read to confer such authority, and such conferral is constitutionally required before an American citizen can be surrendered to a foreign country.
As to the use of the word "amendment" in the analysis, it is elsewhere made plain that *173 what the proposed legislation amended was not any extradition treaty, but Chapter 209 of Title 18, United States Code, dealing with domestic extradition procedures. When the statute was introduced into the record on May 18, 1990, it specifically stated:
Chapter 209 of title 18, United States Code, is amended by adding at the end thereof the following new section:
"Sec. 3196. Extradition of United States Citizens
The Secretary of State shall have the discretion to order the surrender to a foreign country of a United States citizen whose extradition has been requested by the foreign country, even if the terms of the applicable treaty or convention do not obligate the United States to extradite its citizens, if the other requirements of the applicable treaty or convention are met."
136 Cong.Rec. S6589 (daily ed. May 18, 1990).
Unquestionably, Congress's intent in enacting § 3196 was to empower the Secretary of State to extradite American citizens when requests were made under extradition treaties that themselves conferred no such authority. But such intent does not reflect a deliberate and impermissible attempt to override or amend these treaties. It is not, after all, any treaty that demands conferral of power before the executive branch surrenders an American national. It is our own constitutional system. In Valentine, the Supreme Court expressly stated that, under that system, the power to extradite can be conferred either by legislation or by treaty amendment. Valentine v. United States ex rel. Neidecker, 299 U.S. at 18, 57 S. Ct. at 106 ("[T]he remedy lies with the Congress, or with the treaty making power...."). Congress simply chose the former option. Gouveia does not address the Supreme Court's endorsement of these alternatives, but the rationale for the Court's ruling is clear. Both statutes and treaties are the supreme law of the land. U.S. Const., art. VI, § 2, cl. 2; Whitney v. Robertson, 124 U.S. at 194, 8 S. Ct. at 458. Neither is superior to the other. Whitney v. Robertson, 124 U.S. at 194, 8 S. Ct. at 458. Thus, either can serve the Constitution's requirement for a specific legal conferral of the power to extradite.
E. Petitioner's Contention that Valentine's Endorsement of Statutory Empowerment Constitutes Dictum
Hilario submits that, even if empowerment to extradite United States citizens only implicates domestic law, and even if there is no direct conflict between the statute and Article VIII of the Convention, because extradition from the United States is generally conducted only pursuant to treaty, any power to extradite must be conferred in accordance with the treaty making provisions of art. II, § 2, cl. 2 of the Constitution. This argument is, of course, at odds with the repeated statements by the Supreme Court in Valentine that the power to extradite United States citizens may be conferred on the executive either by statute or by treaty. Hilario dismisses these statements as dicta.
Before addressing petitioner's reading of Valentine, the court notes a more fundamental problem with his thesis: there is no authority to support it. Indeed, its foundation will not bear it. The reason the United States grants foreign extradition requests only pursuant to treaty is that Congress has so provided by statute. See 18 U.S.C. § 3181 (1985 & Supp.1994); Gallina v. Fraser, 177 F. Supp. 856, 862-63 (D.Conn.1959), aff'd, 278 F.2d 77 (2d Cir.), and cert. denied, 364 U.S. 851, 81 S. Ct. 97, 5 L. Ed. 2d 74 (1960). Otherwise, it has long been recognized that "Congress has a perfect right to provide for the extradition of criminals in its own way, with or without a treaty to that effect." Grin v. Shine, 187 U.S. at 191, 23 S. Ct. at 102.
In any event, this court cannot ignore the Supreme Court's plain endorsement of statutory empowerment to extradite in Valentine. Petitioner labels this part of the opinion dictum, asserting that the only issue actually decided by the Court in Valentine was that the extradition treaty with France did not empower any United States official to surrender American citizens. This, however, ignores the fact that the Supreme Court did not begin its search for legal empowerment with the treaty. It first reviewed various federal statutes relating to extradition. Valentine *174 v. United States ex rel. Neidecker, 299 U.S. at 9-10, 57 S. Ct. at 102-03. Only upon finding no statutory conferral of power did the Court state that its focus would necessarily narrow to the extradition treaty. Id. at 10, 57 S. Ct. at 103.
There is, in short, no reason in law or logic to disregard that part of the Valentine decision authorizing empowerment by statute. Indeed, even if this were dictum, when a unanimous Supreme Court repeats it five times in a single opinion, a district court must pay heed.
[T]he power to provide for extradition is a national power.... But, albeit a national power, it is not confided to the Executive in the absence of treaty or legislative provision.
Id. at 8, 57 S. Ct. at 102 (emphasis added) (citation omitted).
"[I]n the absence of a conventional or legislative provision, there is no authority vested in any department of the government to seize a fugitive criminal and surrender him to a foreign power."
Id. at 9, 57 S. Ct. at 102 (quoting Moore, supra) (emphasis added).
There is no executive discretion to surrender [a person] to a foreign government, unless that discretion is granted by law. It necessarily follows that as the legal authority does not exist save as it is given by act of Congress or by the terms of a treaty, it is not enough that statute or treaty does not deny the power to surrender. It must be found that statute or treaty confers the power.
Id. (emphasis added).
[W]e are constrained to hold that [the President's power to extradite] in the absence of statute conferring an independent power, must be found in the terms of the treaty.
Id. at 18, 57 S. Ct. at 106 (emphasis added).
However regrettable such a lack of authority may be, the remedy lies with the Congress, or with the treaty-making power.
Id. (emphasis added).
Because this court finds the enactment of § 3196 consistent with the ruling in Valentine, and because it finds that the plain language of 18 U.S.C. § 3196 in no way alters or amends Article VIII of the Convention, Hilario's constitutional challenge to the statute must be rejected.
F. Petitioner's Challenge to the "Last in Time" Principle of Statutory Construction
Much of petitioner's brief is devoted to attacking the long line of cases holding that, when a treaty and federal statute are so inconsistent as to preclude reconciliation, "the one last in date will control the other." Whitney v. Robertson, 124 U.S. at 194, 8 S. Ct. at 458; accord Moser v. United States, 341 U.S. at 45, 71 S. Ct. at 555 ("[A] treaty may be modified by a subsequent act of Congress."); Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U.S. at 160, 54 S. Ct. at 555 (a federal statute in conflict with an earlier treaty "would control in our courts as the later expression of our municipal law"); Chae Chan Ping v. United States (the "Chinese Exclusion Case"), 130 U.S. 581, 600, 9 S. Ct. 623, 627, 32 L. Ed. 1068 (1889) (as between a treaty and a federal statute "the last expression of the sovereign will must control"); Edye v. Robertson (the "Head Money Cases"), 112 U.S. 580, 599, 5 S. Ct. 247, 254, 28 L. Ed. 798 (1884) ("The Constitution gives [a treaty] no superiority over an act of Congress. ... [A treaty] is subject to such acts as Congress may pass for its enforcement, modification, or repeal."). Application of the rule to this case would, of course, give preference to § 3196 over any conflicting provision in the Convention.
In support of this argument, petitioner questions the assumption underlying the "last in time" principle, namely that treaties and statutes are equal expressions of law. See Louis Henkin, Foreign Affairs and the Constitution 164 (2d ed. 1972) ("[O]ne might well have argued ... that a treaty should prevail even in the face of a subsequent statute.... Congress ... probably has a constitutional obligation to implement the treaties which the President and Senate make; it is anomalous to accord it power to disregard a treaty obligation."). He further *175 endeavors to parse those cases in which the Supreme Court endorses the principle so as to label the rule dictum. The fact remains, however, that the Supreme Court has yet to disavow the "last in time" principle. Indeed, legal commentators view the principle as settled: "Whatever the arguments, the equality of statutes and treaties in domestic law seems established, and acts of Congress inconsistent with earlier treaty obligations are regularly given effect by the courts." Id.;[4]accord Lawrence H. Tribe, American Constitutional Law § 4-5, at 226 (2d ed. 1988).
This case does not require this body of law to be revisited for, as already discussed, there simply is no conflict between § 3196 and the Convention. The United States retains the same authority to refuse a request from Portugal for the surrender of an American citizen as it had before enactment of the statute.
II. The "Retrospective" Application of Section 3196
In a letter submitted to the court shortly before oral argument, petitioner somewhat obliquely challenges the application of 18 U.S.C. § 3196 to persons such as himself, whose alleged criminal conduct and conviction predate the enactment of the statute. Not insignificantly, this challenge does not invoke the Ex Post Facto Clause, or any other constitutional protection. See United States ex rel. Oppenheim v. Hecht, 16 F.2d 955, 956 (2d Cir.) ("Extradition proceedings are not in their nature criminal ... therefore all talk of ex post facto legislation ... is quite beside the mark."), cert. denied, 273 U.S. 769, 47 S. Ct. 572, 71 L. Ed. 883 (1927); In re Extradition of McMullen, 769 F. Supp. 1278, 1290-93 (S.D.N.Y.1991) (rejecting ex post facto challenge to extradition, but granting writ of habeas corpus on bill of attainder grounds), aff'd, McMullen v. United States, 953 F.2d 761 (2d Cir.1992), and aff'd in part, rev'd in part, In re Extradition of McMullen, 989 F.2d 603 (2d Cir.) (en banc) (reversal pertains to bill of attainder ruling), and cert. denied, ___ U.S. ___, 114 S. Ct. 301, 126 L. Ed. 2d 249 (1993).
Neither does it take exception to the "long established rule that `extradition treaties, unless they contain a clause to the contrary, cover offenses committed prior to their conclusion.'" Galanis v. Pallanck, 568 F.2d 234, 237 (2d Cir.1977) (quoting Gallina v. Fraser, 177 F.Supp. at 864). Indeed, counsel concedes that if the Secretary of State had been granted power to extradite pursuant to treaty rather than statute, Hilario would not challenge his extradition on this ground.
Instead, in a single sentence in the letter, petitioner submits that "while it is clear ... that a treaty may be applied retroactively, there is no authority suggesting that a statute may be applied retroactively in this context." (Petitioner's Letter of 5/6/94 at 2.) In fact, petitioner errs in thinking that either an extradition treaty or a statute pertaining to extradition applies retroactively to crimes committed before their enactment.
As the Supreme Court recently stated in Landgraf v. USI Film Products, ___ U.S. ___, ___, 114 S. Ct. 1483, 1499, 128 L. Ed. 2d 229 (1994), "[a] statute does not operate `retrospectively' merely because it is applied in a case arising from conduct antedating the statute's enactment." The key inquiry is whether the law "attaches new legal consequences to events completed before its enactment." Id.
Section 3196 attaches no "new legal consequences" to Hilario's 1983 murder of his brother and attempted murder of his son and other brother. These consequences were determined by the courts of Portugal, which ordered Hilario to serve fourteen years in jail for his crimes. All § 3196 does is empower the Secretary of State to surrender Hilario to Portugal so that he may complete this sentence.
*176 Neither can petitioner claim that § 3196 attaches new legal consequences to his status in the United States as a fugitive from Portuguese justice. Although it is unclear when such status began, it was not "completed" before the enactment of § 3196. Rather, it continued until 1993, some three years after the statute went into effect.
In any event, over a century ago, Judge (eventually Justice) Blatchford in In re De Giacomo, 7 F. Cas. 366 (C.C.S.D.N.Y.1874) (No. 3747), rejected the claim
that a person who has committed a crime abroad and fled to this country has acquired a right of asylum here, as a personal right, so that, under a subsequent law, whether treaty or statute, he cannot be delivered up as a fugitive from justice. If there be any want of power to deliver him up, it must be found in a constitutional restriction upon the power to make a treaty, or to pass a statute, covering extradition for a crime previously committed.
Id. at 369-70 (emphasis added). In fact, the Constitution does not prohibit laws for the extradition of fugitives from foreign justice, even when such fugitives are United States citizens. E.g., Charlton v. Kelly, 229 U.S. at 468, 33 S. Ct. at 952.
De Giacomo was relied on by Gallina v. Fraser, 177 F.Supp. at 864, the leading case holding that the law relevant to an extradition proceeding is determined with reference to "the time of the demand" for the surrender, not "the time of the commission of the offense." The "law" at issue in Gallina was an extradition treaty. But, as the highlighted sections of De Giacomo indicate, there is no real distinction to be drawn between treaties and statutes pertaining to extraditions. This is because both serve the same purpose: ensuring that a nation's territory is not "made a place of refuge for criminals." In re De Giacomo, 7 F.Cas. at 369. This concern is activated "by the mere fact of finding the fugitive in such territory ... without reference to the particular time when the crime was committed." Id. The asylum country does not, after all, determine the guilt or innocence of the fugitive. Neither does it fix his punishment. Its sole focus is on the propriety of his surrender. Thus, the law pertinent to this inquiry, whether reflected in treaty or statute, is determined solely with reference to the time surrender is demanded.
Once again, Hilario cites Gouveia v. Vokes to support his retroactivity claim. In Gouveia, the court declined to apply § 3196 to a second extradition request because the earlier request, made prior to the statute's enactment, had been denied for lack of executive power to extradite. 800 F. Supp. at 247-49, 259-60. This court expresses no opinion as to the merits of this conclusion on the facts present in Gouveia. But certainly this case involves no successive demand for extradition such as was crucial to the Gouveia holding.
Because Hilario's surrender was first sought well after the enactment of § 3196, there is no issue of retroactivity in this case.
Conclusion
Because the Secretary of State is lawfully empowered by 18 U.S.C. § 3196 to extradite United States citizens even absent treaty obligation to do so, and because Hilario raises no other objection to his extradition, this court concludes that petitioner's habeas corpus challenge to Magistrate Judge Caden's order certifying his extraditability is without merit. The petition for a writ of habeas corpus is denied. A certificate of probable cause to appeal is granted.
SO ORDERED.
NOTES
[1] Although the United States has not ratified the Vienna Convention, it is a signatory. Moreover, the Second Circuit has looked to its terms in interpreting treaties. E.g., Haitian Ctrs. Council, Inc. v. McNary, 969 F.2d 1350, 1362 (2d Cir. 1992), rev'd on other grounds sub nom., Sale v. Haitian Ctrs. Council, Inc., ___ U.S. ___, 113 S. Ct. 2549, 125 L. Ed. 2d 128 (1993); Day v. Trans World Airlines, Inc., 528 F.2d 31, 36 (2d Cir. 1975), cert. denied, 429 U.S. 890, 97 S. Ct. 246, 50 L. Ed. 2d 172 (1976).
[2] Ultimately, Gouveia avoided declaring § 3196 unconstitutional, holding simply that the statute could not be applied retroactively to a person whose extradition had already been denied once prior to enactment of § 3196. 800 F. Supp. at 259-60. The decision was never reviewed by the Third Circuit since an agreement was apparently worked out between the parties for Gouveia's return to Portugal. (See Respondent's Mem. at 6 n. 8.)
[3] Not insignificantly, it was not a congressional committee that drafted this analysis, but rather the Office of National Drug Control Policy, the executive agency that apparently drafted the National Drug Control Strategy Implementation Act of 1990. (See Letter from William J. Bennett, Director of National Drug Control Policy, to [Vice President] J. Danforth Quayle of 5/6/90, reprinted in id. at S6609.) Such a draftsman's views must be considered cautiously in light of the earlier-discussed principle that intent to amend a treaty may not be lightly imputed to Congress.
[4] As Professor Henkin explains: "That is not to say, as is often erroneously said, that Congress can `repeal' a treaty: Congress is not acting upon the treaty, but, exercising one of its legislative powers, it legislates without regard to the international obligations of the United States." Henkin, supra; see Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U.S. at 160, 54 S. Ct. at 367 (a statute inconsistent with an earlier treaty "would control in our courts as the later expression of our municipal law, even though it conflicted with the provisions of the treaty and the international obligation remained unaffected") (emphasis added). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1032532/ | district court by April 3, 2013. The notice of appeal, however, was not filed
until April 5, 2013, two days after the expiration of the appeal period
prescribed by NRAP 4(b)(1). Because the notice of appeal was not timely
filed, we lack jurisdiction and we
ORDER this appeal DISMISSED.
Hardesty
ParraguirrC
eXt-i---
cc: Hon. Steve L. Dobrescu, District Judge
Elko County Public Defender
Attorney General/Ely
White Pine County Clerk
SUPREME COURT
OF
NEVADA
2
(0) 1947A
:*---WATAWAREMSVI I ['Wt., Utzi4N Wag c•I'15.14kr | 01-03-2023 | 07-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3095499/ | COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00622-CR
Randy Keith Seibel § From Criminal District Court No. 4
§ of Tarrant County (1195090D)
v. § January 23, 2014
§ Opinion by Justice Gabriel
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
/s/ Lee Gabriel
By _________________________________
Justice Lee Gabriel | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3095500/ | IN THE
TENTH COURT OF APPEALS
No. 10-11-00028-CR
IN RE SCOTT EDWARD MAY
Original Proceeding
MEMORANDUM OPINION
Scott Edward May requests this Court by petition for writ of mandamus to
compel the trial court to rule on May’s Motion Nunc Pro Tunc. There are procedural
problems with May’s petition, most notably that the petition is not certified and the
record is not certified or sworn. See TEX. R. APP. P. 52.3(j), (k); 52.7(a). However, we use
Rule 2 to look beyond the procedural problems and deny the petition on its merits
because May has presented no evidence that he properly brought the motion nunc pro
tunc to the trial court’s attention and that the trial court refused to rule. TEX. R. APP. P.
2; In re Hearn, 137 S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig. proceeding).
May’s petition for writ of mandamus is denied. Further, his motion for leave to
file the petition for writ of mandamus is dismissed as moot.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Petition denied
Opinion delivered and filed February 9, 2011
Do not publish
[OT06]
In re May Page 2 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2391012/ | (2008)
Yoko Ono LENNON, Sean Ono Lennon, Julian Lennon, and EMI Blackwood Music, Inc, Plaintiffs,
v.
PREMISE MEDIA CORP., L.P., C & S Production L.P. d/b/a Rampant Films, Premise Media Distribution, L.P., and Rocky Mountain Pictures, Inc., Defendants.
No. 08 Civ. 3813(SHS).
United States District Court, S.D. New York.
June 2, 2008.
OPINION & ORDER
SIDNEY H. STEIN, District Judge.
The widow and children of John Lennon bring this action against the producers of a current movie that plays fifteen seconds of the song "Imagine" without permission of the plaintiffs, who own the copyright to the song. The Lennons have moved for a preliminary injunction prohibiting the continued distribution of the movie in its present form and a recall of the existing copies. That motion is denied because plaintiffs have failed to meet the standard required for a court to grant a preliminary injunction. They have not shown a clear likelihood of success on the merits because, on the basis of the current record, defendants are likely to prevail on their affirmative defense of fair use. That doctrine provides that the fair use of a copyrighted work for purposes of criticism and commentary is not an infringement of copyright.
More specifically, plaintiffs seek a preliminary injunction pursuant to Federal Rule of Civil Procedure 65 enjoining defendants Premise Media Corp., L.P., C & S Production L.P. d/b/a Rampant Films, Premise Media Distribution, L.P., and Rocky Mountain Pictures, Inc., from further distributing their movie, "EXPELLED: No Intelligence Allowed" (the "movie"), in its present form and to recall the copies of the movie that are currently being exhibited.
Yoko Ono Lennon, Sean Lennon, and Julian Lennon are, respectively, the widow and sons of the late John Lennon, the composer of "Imagine," and the renewal claimants for the copyright registration to the music and lyrics of "Imagine" (the "song"). EMI Blackwood Music, Inc. is the song's publishing administrator. (Compl.¶¶ 1-4.) Defendants are the producers and distributors of "Expelled," a recently commercially released movie that concerns the theory of "intelligent design." Plaintiffs allege that defendants' use of an approximately fifteen-second excerpt of "Imagine" in "Expelled" without plaintiffs' permission infringes their copyright in "Imagine."
I. HISTORY OF THIS ACTION
Plaintiffs filed the complaint in this action in late April 2008, alleging claims of copyright infringement pursuant to 17 U.S.C. § 501 and trademark infringement pursuant to Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). Plaintiffs subsequently brought the present motion by order to show cause dated April 30, 2008. That same day, after an initial conference and on consent of the parties, the Court entered a temporary restraining order ("TRO") enjoining defendants from distributing any additional copies of "Expelled" for theatrical release, or producing or distributing any DVDs of the movie, pending a hearing on the motion for a preliminary injunction. On May 19, 2008, the Court heard oral argument on the motion for a preliminary injunction. At the conclusion of that hearing, the Court continued the TRO pending its determination of the motion for a preliminary injunction and directed plaintiffs to post security pursuant to Fed.R.Civ.P. 65(c). Now, after considering the arguments and submissions of the parties, as well as having viewed the movie, including the excerpt at issue, the Court makes the following findings of facts and conclusions of law.
II. FINDINGS OF FACT
"Expelled" is a feature-length (one hour, thirty-nine minute long) nationally released theatrical movie that addresses what it characterizes as a debate between proponents of intelligent design and the scientific theory of evolution. (Decl. of A. Logan Craft dated May 13, 2008 ("Craft Decl") ¶ 7.) One of the executive producers of "Expelled" contends that the movie "examines the scientific community's academic suppression of those who ask provocative questions about the origin and development of life." (Id. ¶ 7.) According to that same producer, "the film undertakes to inspire viewers to participate in the scientific, political, cultural, and religious debates surrounding this issue, to urge the scientific community to consider views that differ from those held by many members of that community, and to take action to assure that candidates for public office and elected officials take positions and action to accord free speech rights to critics of the adequacy of Darwinian evolution." (Id. ¶ 8.) The filmmakers also candidly concede that "Expelled" was "produced and distributed for the purpose of earning a financial return for the investors." (Id. ¶ 13.)
The movie is narrated by Ben Stein, a well-known actor and writer (id. ¶ 9) and consists principally of Stein's interviews with various proponents of intelligent design and defenders of Darwinian evolution, interspersed with segments of historical stock footage (Decl. of Ronald C. Rodgers dated May 14, 2008 ("Rodgers Decl.") ¶ 11). As another of the producers of "Expelled" explains it, the use of archival footage serves "to create metaphors and analogies to enhance the message [the filmmakers] are trying to convey." (Id.) The movie also features several other well known songs. Defendants obtained permission to include every one of those songs in the movie, with the exception of "Imagine." (Transcript of Preliminary Injunction Hearing dated May 19, 2008 ("Hearing Tr.") at 8.) Defendants have not used "Imagine" in promoting the movie. (Craft Decl. ¶ 20.)
John Lennon, the world-famous songwriter and former member of the Beatles, wrote the words and music of "Imagine." Plaintiffs claim, most likely without exaggeration, that Lennon is a "musical icon of the twentieth century" (Aff. of Yoko Ono Lennon dated April 29, 2008 ("Ono Aff.") ¶ 2) and that "Imagine" is one of the most recognizable songs in the world (Compl.¶ 14). Since John Lennon's death in 1980, Yoko Ono Lennon has worked actively with EMI Blackwood Music, Inc. to control the manner in which Lennon's music is licensed and used. (Ono Aff. ¶ 3.) "Imagine" has been licensed and featured in numerous contexts, including the 1984 film "The Killing Fields," the opening ceremony of the 2006 Winter Olympics, and the New Year's Eve festivities in New York City's Times Square. (Id. ¶ 4.) In addition, the Recording Industry Association of America has included the song in its ranking of the most historically significant recordings. (Id.)
The fifteen-second excerpt of "Imagine" used in "Expelled" comes approximately one hour and five minutes into the movie and includes ten words from the song. While the fifteen seconds of music play, the lyrics appear on screen in subtitles, as follows:
Nothing to kill or die for/ And no religion too.
(Decl. of John Sullivan dated May 13, 2008 ("Sullivan Decl.") ¶ 15.) Behind the subtitles, four brief sequences of black and white archival footage run. The first sequence features a group of children in a circle; the second is a sequence of a young girl spinning and dancing; the third sequence is of a military parade, which gives way to a close up of Joseph Stalin waving. (Id. ¶ 18.) The four sequences constitute 0.27 percent of the total movie's running time. (Id. ¶ 17.)
Immediately preceding the excerpt in the movie are short segments in which several speakers express negative views of religion and the hope that science will eventually diminish religion's role in society. (Id.) The last of these interviews, with Dr. P.Z. Myers, proceeds as follows:
P.Z. Myers: Religion is an, is an idea that gives some people comfort, and we don't want to take it away from them. It's like, it's like knitting. People like to knit. You know, we're not going to take their knitting needles away, we're not going to take away their churches. Uh, but what we have to do is, is get it to a place where religion is treated at the level it should be treated, that is, something fun that people get together and do on the weekend and really doesn't affect their life as much as it has been so far.
Ben Stein: So what would the world look like if Dr. Myers got his wish?
P.Z. Myers: Greater science literacy, which is going to lead to the erosion of religion, and then we'll get this positive feedback mechanism going where, as religion slowly fades away we'll get more and more science to replace it, and that will displace more and more religion, which will allow more and more science in, and we'll eventually get to that point where religion has taken that appropriate place as, as, as side dish rather than the main course.
(Transcript of "Imagine" Clip in "Expelled," Ex. B. to Sullivan Decl.) In a voiceover, Ben Stein then intones, "Dr. Myers would like you to think he's being original but he's merely lifting a page out of John Lennon's songbook." (Id.) The excerpt of "Imagine"virtually "a page out of John Lennon's songbook"then plays. Following it, the movie cuts to a portion of an interview with David Berlinski that begins with Berlinski saying, "In part, I think Matthew Arnold put his hands on it when he spoke about ... the withdrawal of faith. There is a connection between a society that has at least a minimal commitment to certain kinds of transcendental values and what human beings permit themselves to do one to the other." (Id. ¶ 19.)
"Expelled" was released in theaters in the United States on April 18, 2008. (Craft Decl. ¶ 16.) Defendants timed the release, in part, to coincide with pending so-called "Academic Freedom" bills in several state legislatures, which would permit teachers to offer their students information critical of the theory of evolution. (Id. ¶¶ 16, 18.) The movie has also been screened for lawmakers and government officials in Florida, Missouri, and Louisiana, and for members of the United States Congress. (Id. ¶ 18.) "Expelled" premiered in 1,052 movie theaters and generated approximately $3 million in revenue in its opening weekend. (Id. ¶ 23.) Defendants claim it has since been viewed by more than one million people (id.), and generated approximately $7,250,000 in box office ticket sales as of May 11, 2008 (Rodgers Decl. at ¶7). The number of theaters screening the movie is declining, however, and defendants have stated that by Friday, May 23, 2008, it would be playing in approximately one hundred theaters. (Hearing Tr. at 14; Rodgers Decl. ¶ 8.)
III. CONCLUSIONS OF LAW
In most cases, a party seeking a preliminary injunction must demonstrate (1) that it will be irreparably harmed in the absence of an injunction, and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in its favor. Forest City Daly Hous., Inc. v. Town of N. Hempstead, 175 F.3d 144, 149-150 (2d Cir.1999). A more rigorous standard that requires a "clear" or "substantial" showing of likelihood of success, rather than simply a likelihood of success, applies where an injunction will alter, rather than maintain, the status quo. Id. (quoting Tom Doherty Assocs. v. Saban Entm't, Inc., 60 F.3d 27, 33-34 (2d Cir.1995)). That is, the "typical" preliminary injunction is prohibitory and seeks only to maintain the status quo. Tom Doherty, 60 F.3d at 34. In contrast, a mandatory injunction "is said to alter the status quo by commanding some positive act." Id.
Plaintiffs acknowledge that the injunction they seek has both mandatory and prohibitory aspects, in that they ask this Court both to order a recall of copies of the movie that have already been distributed (mandatory) and to prohibit further distribution of "Expelled" (prohibitory). (Hearing Tr. at 15-16.) Plaintiffs' motion is thus subject to the more stringent standard applicable to mandatory injunctions of establishing a "clear" or "substantial" likelihood of success, and plaintiffs do not disagree. See id. at 35 (heightened standard must be met if one provision of the challenged injunction is mandatory).
A. Irreparable Harm
It is well-established in this circuit that "`generally when a copyright plaintiff makes out a prima facie showing of infringement, irreparable harm may be presumed.'" Merkos L'Inycmei Chinuch, Inc. v. Otsar Sifrei Lubavitch, Inc., 312 F.3d 94, 96 (2d Cir.2002) (per curiam) (quoting ABKCO Music, Inc. v. Stellar Records, Inc., 96 F.3d 60, 64 (2d Cir. 1996)); see also Hasbro Bradley, Inc. v. Sparkle Toys, Inc., 780 F.2d 189, 192 (2d Cir.1985). Because, as discussed below, plaintiffs have made out a prima facie case of copyright infringement, there is a presumption that they will be irreparably harmed absent the injunction.[1]Random House, Inc. v. Rosetta Books LLC, 283 F.3d 490, 491 (2d Cir.2002) ("[B]ecause a prima facie case of copyright infringement gives rise to a presumption of irreparable harm, the requirement of proof of irreparable harm can in such a case effectively be met by proof of a likelihood of success on the merits."). Defendants have adduced no evidence to rebut that presumption; accordingly, the Court finds that irreparable harm exists absent an injunction.
B. Likelihood of Success on the Merits
On a motion for a preliminary injunction, the burdens of proof "track the burdens at trial." Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429, 126 S. Ct. 1211, 163 L. Ed. 2d 1017 (2006). Accordingly, in this action, plaintiffs bear the burden of establishing a prima facie case of copyright infringement. See, e.g., Castle Rock Entm't, Inc. v. Carol Pub. Group, Inc., 150 F.3d 132, 137 (2d Cir.1998). Defendants, in turn, bear the burden of establishing fair use, which is an affirmative defense to a claim of copyright infringement. Infinity Broadcast Corp. v. Kirkwood, 150 F.3d 104,107 (2d Cir.1998).
1. Plaintiffs' Prima Facie Case of Copyright Infringement.
Section 106 of the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq., "grants copyright owners a bundle of exclusive rights, including the rights to `reproduce the copyrighted work in copies.'" Castle Rock, 150 F.3d at 137 (quoting 17 U.S.C. § 106). "In the absence of defenses, these exclusive rights normally give a copyright owner the right to seek royalties from others who wish to use the copyrighted work." Ringgold v. Black Entm't Television, Inc., 126 F.3d 70, 73 (2d Cir.1997). To establish a claim of copyright infringement, a plaintiff must show (1) ownership of a valid copyright and (2) unauthorized copying or a violation of one of the other exclusive rights afforded copyright owners pursuant to the Copyright Act. Hasbro Bradley, 780 F.2d at 192.
Here, the parties agree that "Expelled" copies an approximately fifteen-second excerpt of "Imagine" and defendants did not obtain permission before including the excerpt in the movie. Thus, the second prong of plaintiffs' claim of copyright infringementunauthorized copyingis satisfied.
Whether plaintiffs have satisfied the first requirement by showing ownership of the copyright to "Imagine" is disputed. Plaintiffs assert that because John Lennon, the song's author, die d prior to the copyright's twenty-eight year renewal period, his widow and children were entitled to renew the copyright. See 17 U.S.C. § 304(a)(1)(C)(ii). Defendants note, however, that although Yoko Ono Lennon, Sean Lennon, and Julian Lennon renewed the copyright in 1998, the owner of the original copyright was Northern Songs, Limited. (Ex. A, B to Compl.) Northern Songs assigned its copyright to Ono Music in 1984, and Ono Music in turn assigned its copyright to Lenono Music in 1985. (Ex. B to Decl. of Dorothy M. Weber dated May 16, 2008 ("Weber Decl.").) Defendants contend that because the song was originally copyrighted by Northern Songs, Limited, which was a corporate body, Lenono Music, rather than plaintiffs, is the proper party to have renewed the copyright at the end of its initial twenty-eight-year term, unless Northern Songs, Limited originally obtained the copyright from John Lennon by means of assignment or license. See 17 U.S.C. § 304(a)(1)(B)(ii). Because the record contains no evidence as to the circumstances under which Northern Songs, Limited obtained the copyright, defendants assert that plaintiffs have failed to meet their burden of showing a clear likelihood of success on their claim of copyright infringement.
This Court disagrees. A renewal registration is prima facie evidence of the validity of a copyright. 17 U.S.C. § 304(a)(4)(B). Certainly, the presumption of validity is rebuttable. See Hamil Am. Inc. v. GFI, 193 F.3d 92, 98 (2d Cir.1999). The party challenging the validity of the copyright, however, bears the burden of rebutting the presumption. Id. Here, defendants raise doubts concerning the validity of the renewal copyright by arguing that plaintiffs have failed to explain gaps in the chain of ownership. Without any evidence of invalidity whatsoever, however, defendants cannot rebut the statutory presumption. Accordingly, plaintiffs have established a prima facie case of copyright infringement.
2. Defendants' Fair Use Defense
The doctrine of fair use, as codified by the Copyright Act of 1976, is as follows: "[T]he fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching ..., scholarship, or research, is not an infringement of copyright." 17 U.S.C. § 107. "From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright's very purpose, `[t]o promote the Progress of Science and useful Arts. ...'" Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575, 114 S. Ct. 1164, 127 L. Ed. 2d 500 (1994) (quoting U.S. Const, art. I, § 8, cl. 8). The fair use doctrine "`permits and requires courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.'" Id. at 577,114 S. Ct. 1164 (quoting Stewart v. Abend, 495 U.S. 207, 236, 110 S. Ct. 1750, 109 L. Ed. 2d 184 (1990) (brackets omitted)).
In determining whether the use made of a work in any particular case is a fair use, the factors to be considered include: "(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work." 17 U.S.C. § 107. The four statutory factors, which are nonexclusive, must be "weighed together, in light of the purposes of copyright." Campbell, 510 U.S. at 578, 114 S. Ct. 1164. Moreover, "the determination of fair use is an open-ended and context-sensitive inquiry." Blanch v. Koons, 467 F.3d 244, 251 (2d Cir.2006). "The ultimate test of fair use ... is whether the copyright law's goal of promoting the Progress of Science and useful Arts... would be better served by allowing the use than by preventing it." Id. (internal quotation marks omitted).
The Court now turns to each of the four statutory fair use factors.
a. "The Purpose and Character of the Use"
The first statutory factor is "[t]he purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." 17 U.S.C. § 107(1). This factor, "the heart of the fair use inquiry," comprises principally two considerations: whether the use is "commercial" and whether it is "transformative." Blanch, 467 F.3d at 251-53 (internal quotation marks omitted).
i. Commercial Use
Whether the use in question is "of a commercial nature or is for nonprofit educational purposes" is an explicit part of the first fair use factor. Id. at 253; see 17 U.S.C. § 107(1). The "crux of the profit/nonprofit distinction," however, "is not whether the sole motive for the use is monetary gain but whether the' user stands to profit from exploitation of the copyrighted material without paying the customary price." Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 612 (2d Cir.2006). "[C]ourts are more willing to find a secondary use fair when it produces a value that benefits the broader public interest. The greater the private economic rewards reaped by the secondary user (to the exclusion of broader public benefits), the more likely the first factor will favor the copyright holder and the less likely the use will be considered fair." Blanch, 467 F.3d at 253. Moreover, "the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use." Campbell, 510 U.S. at 579,114 S. Ct. 1164.
Defendants in this case concede that "Expelled" is a commercial film from which they seek to profit. (Craft Decl. ¶ 13.) As discussed in what follows, however, the movie's use of "Imagine" is highly transformative, and not merely exploitative, and accordingly, the fact that the use is also commercial receives less weight in the analysis. Moreover, defendants have established for purposes of this motion that the movie contributes to the broader public interest by stimulating debate on an issue of current political concern. (Craft Decl. ¶¶ 16, 18.) Therefore, the commercial purpose of "Expelled" weighs only weakly against a finding of fair use.
ii. Transformative Use
A work is transformative if it does not "merely supersede[ ] the objects of the original creation" but "instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." Id. (internal quotation marks omitted). Although transformative use "is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works." Id. (citation omitted). Thus, transformative works "lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright." Id. There is a strong presumption that this factor favors a finding of fair use where the allegedly infringing work can be characterized as involving one of the purposes enumerated in 17 U.S.C. § 107: "criticism, comment, news reporting, teaching ..., scholarship, or research." See NXIVM Corp. v. Ross Inst, 364 F.3d 471, 477 (2d Cir.2004).
Defendants' use is transformative because the movie incorporates an excerpt of "Imagine" for purposes of criticism and commentary. The filmmakers selected two lines of the song that they believe envision a world without religion: "Nothing to kill or die for/ And no religion too." ("Imagine" lyrics, Ex. D to Weber Decl.) As one of the producers of "Expelled" explains, the filmmakers paired these lyrics and the accompanying music to a sequence of images that "provide a layered criticism and commentary of the song."[2] (Sullivan Decl. ¶ 18.) The Cold War-era images of marching soldiers, followed by the image of Stalin, express the filmmakers' view that the song's secular Utopian vision "cannot be maintained without realization in a politicized form" and that the form it will ultimately take is dictatorship. (Id.) The movie thus uses the excerpt of "Imagine" to criticize what the filmmakers see as the naivete of John Lennon's views. (Sullivan Decl. ¶ 14.)
The excerpt's location within the movie supports defendants' assertions. It appears immediately after several scenes of speakers criticizing the role of religion in public life. In his voiceover, Ben Stein then connects these sentiments to the song by stating that they are merely "a page out of John Lennon's songbook." (Transcript of "Imagine" Clip in "Expelled," Ex. B. to Sullivan Decl.) In defendants' view, "Imagine" "is a secular anthem caught in a loop of history recycling the same arguments from years past through to the present. We remind our audience that the ideas they just heard expressed from modern interviews and clips that religion is bad are not new and have been tried before with disastrous results." (Sullivan Decl. ¶ 21.) The filmmakers "purposefully positioned the clip ... between interviews of those who suggest that the world would be better off without religion and an interview suggesting that religion's commitment to transcendental values place limits on human behavior.... mak[ing] the point that societies that permit Darwinism to trump all other authorities, including religion, pose a greater threat to human values than religious belief." (Id. If 20.)
Defendants' use of "Imagine" is similar to the use at issue in a recent decision of the United States Court of Appeals for the Second Circuit in which fair use was found, Blanch v. Koons. There, the visual artist Jeff Koons copied photographer Andrea Blanch's photograph from a fashion magazine without permission and incorporated a portion of it into one of his paintings. 467 F.3d at 247. Blanch's photograph featured the legs and feet of a woman wearing expensive sandals, resting in a man's lap in what appeared to be an airplane cabin. Id. at 248. Koons included the legs and feet in his painting, inverting their orientation, adding a heel to one of the sandals, and placing them, along with images of several other pairs of legs and feet, against a background including a grassy field and Niagara Falls. Id. at 247. The legs appeared to dangle over images of confections. Id.
The Second Circuit panel found Koons's use of Blanch's photograph transformative. Id. at 253. The court noted that Koons used the image for "sharply different" purposes than Blanch, in that he used it "as fodder for his commentary on the social and aesthetic consequences of mass media." Id. at 252. As Koons had explained, by juxtaposing women's legs against a backdrop of food and landscape, "he intended to comment on the ways in which some of our most basic appetitesfor food, play, and sexare mediated by popular images." Id. at 247 (internal quotation marks omitted). Moreover, Koons altered the colors, background, medium, size, and details of the image in incorporating it into his painting. Id.; see also Bill Graham Archives, 448 F.3d at 611 (finding the defendants' inclusion of the plaintiffs images in a book to be transformative where the defendants significantly reduced the images' size and "combin[ed] them with a prominent timeline, textual material, and original graphical artwork, to create a collage of text and images on each page").
As in Blanch, defendants here use a portion of "Imagine" as "fodder" for social commentary, altering it to further their distinct purpose. Just as Koons placed a portion of Blanch's photograph against a new background, defendants here play the excerpt of the song over carefully selected archival footage that implicitly comments on the song's lyrics. They also pair the excerpt of the song with the views of contemporary defenders of the theory of evolution and juxtapose it with an interview regarding the importance of transcendental values in public life.
Plaintiffs contend that defendants' use of "Imagine" is not transformative because defendants did not alter the song, but simply "cut and paste[d]" it into "Expelled." As the foregoing discussion illustrates, however, this argument draws the transformative use inquiry too narrowly. To be transformative, it is not necessary that defendants alter the music or lyrics of the song. Indeed, defendants assert that the recognizability of "Imagine" is important to their use of it. (Sullivan Decl. 1116.) Defendants' use is nonetheless transformative because they put the song to a different purpose, selected an excerpt containing the ideas they wished to critique, paired the music and lyrics with images that contrast with the song's Utopian expression, and placed the excerpt in the context of a debate regarding the role of religion in public life.
Plaintiffs also contend that defendants' use of "Imagine" is not transformative because it was unnecessary to use it in order to further the purposes defendants have articulated. Determining whether a use is transformative, however, does not require courts to decide whether it was strictly necessary that it be used. In Blanch, although certainly Koons did not need to use Blanch's copyrighted photo, as opposed to some other image of a woman's feet, in his painting, the Second Circuit did not suggest that this lack of necessity weighed against a finding of fair use. Similarly, in Bill Graham Archives, the Second Circuit found a transformative use in the defendants' unauthorized inclusion of several of the plaintiffs imagesprincipally concert photosin a coffee-table book about the musical group the Grateful Dead. 448 F.3d at 607, 608-12. Although the defendants manifestly could have proceeded without the plaintiffs images, which constituted only a small part of the book, this posed no obstacle to a finding of fair use.
Moreover, defendants contend that it was important that they use "Imagine," rather than some other song expressing similar views, because it is the "paradigm example" that "has the most cultural force to it because it represents the most popular and persuasive embodiment of th[e] viewpoint that the world is better off without religion." (Hearing Tr. at 23.) Defendants also assert that their purpose in using the excerpt of the song was in part to critique the emotional impact the song has on listeners. (Id. at 23-24.)
Finally, although a minor factor, it weighs in favor of a finding of transformative use that the excerpt of "Imagine" in "Expelled" constitutes only 0.27 percent of the movie's total running time. See id. at 611 (noting that the plaintiffs images constituted less than 0.20 percent of the defendants' book and stating, "we are aware of no case where such an insignificant taking was found to be an unfair use of original materials"). (Sullivan Decl. ¶ 17.)
In sum, defendants' use of "Imagine" is transformative because it does not "merely supersede[ ] the objects of the original creation" but rather "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." Campbell, 510 U.S. at 579, 114 S. Ct. 1164. This consideration thus weighs strongly in favor of fair use.
iii. The Propriety of Defendants' Actions
Plaintiffs note that defendants obtained permission for all the other music used in the movie and contend that defendants' failure similarly to seek permission to use "Imagine" evinces bad faith. The Second Circuit, however, has rejected this proposition. See Blanch, 467 F.3d at 256 ("We are aware of no controlling authority to the effect that the failure to seek permission for copying, in itself, constitutes bad faith."). Indeed, the Second Circuit, in Blanch, approvingly quoted the dictum in Campbell that "`[i]f the use is otherwise fair, then no permission need be sought or granted.'" Id. (quoting Campbell, 510 U.S. at 585 n. 18, 114 S. Ct. 1164). The fact that defendants here obtained permission to use the other music in the movie does not alter this conclusion.
b. "The Nature of the Copyrighted Work"
The second fair use factor considers "the nature of the copyrighted work." 17 U.S.C. § 107(2). This factor "`calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.'" Blanch, 467 F.3d at 256 (quoting Campbell, 510 U.S. at 586, 114 S. Ct. 1164). Two distinctions are relevant to this analysis: (1) "whether the work is expressive or creative, such as a work of fiction, or more factual, with a greater leeway being allowed to a claim of fair use where the work is factual or informational," and (2) "whether the work is published or unpublished, with the scope of fair use involving unpublished works being considerably narrower." Id. (quoting 2 Howard B. Abrams, The Law of Copyright § 15:52 (2006)).
Defendants here concede, as they must, that "Imagine" is a creative work and, as such, is at the "core" of copyright protection. They note, however, that the work is widely published, which weighs a bit in favor of fair use. Moreover, this second statutory factor "may be of limited usefulness where the creative work of art is being used for a transformative purpose." Bill Graham Archives, 448 F.3d at 612. Indeed, where, as here, the secondary work comments on the "social and aesthetic meaning" of the original, rather than "exploiting] its creative virtues," the second fair use factor has "limited weight." Blanch, 467 F.3d at 257. It thus weighs against a finding of fair use, but not strongly.
c. "The Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole"
The third statutory fair use factor is "the amount and substantiality of the portion used in relation to the copyrighted work as a whole." 17 U.S.C. § 107(3). The inquiry under this factor focuses on the copyrighted work, not the allegedly infringing one, Bill Graham Archives, 448 F.3d at 613, and considers whether "the quantity and value of the materials used are reasonable in relation to the purpose of the copying," Blanch, 467 F.3d at 244 (internal quotation marks omitted). This factor has both "a quantitative and a qualitative component," in that "[t]he factor favors copyright holders where the portion used by the alleged infringer is a significant percentage of the copyrighted work, or where the portion used is essentially the heart of the copyrighted work." NXTVM, 364 F.3d at 480.
The quantitative component of this inquiry clearly favors defendants. Defendants use only a fifteen-second excerpt of "Imagine," a song that runs three minutes in total. (Decl. of Dr. Lawrence Ferrara dated May 14, 2008 ("Ferrara Deck") ¶ 5.) Moreover, they selected a portion of the song ("Nothing to kill or die for/ And no religion too") that expresses the idea they specifically wished to critique that an ideal society would be entirely secularwithout copying other portions of the song that do not express that idea. (Sullivan Decl. ¶ 17.) Thus, quantitatively, defendants' use was reasonable in light of their purpose in copying.
Assessing the qualitative aspect of the inquiry is appropriately somewhat more complicated. Plaintiffs' expert musicologist, Dr. Lawrence Ferrara, analyzed the music and concluded that "the portion of `Imagine' that appears in `Expelled' represents a substantial and memorable part of the overall `Imagine' musical composition." (Ferrara Decl. ¶ 2.) In other words, Dr. Ferrara's opinion is that the fifteen-second excerpt at issue contains the "heart" of "Imagine." Specifically, he found that the excerpt of "Imagine" in "Expelled" includes musical phrases that appear in nearly 50 percent of the song. (Id.) The fifteen-second excerpt consists of two iterations of (1) a two-bar vocal phrase, (2) two phrases of lyrics, (3) a two-bar piano phrase, and (4) a two-bar variant piano phrase. (Id. ¶ 6.) Although the lyrics in the excerpt appear only once in the song, the two-bar vocal phrase in the excerpt is repeated twelve times in the song, the two-bar piano phrase occurs nine times in the verses and twice in the introduction, and the two-bar variant piano phrase occurs three times in the song. (Id. ¶¶ 8-10.) Thus, Dr. Ferrara concludes, although only a fifteen-second portion of the sound recording of "Imagine" appears in "Expelled," the musical phrases heard in those fifteen seconds are repeated during a full 87 seconds of the song, or 48.8 percent of its total duration. (Id. ¶ 12.) He also concludes that the portion of the song defendants use is immediately recognizable as being from "Imagine." (Id. ¶ 17.)
Assuming Dr. Ferrara's analysis is correct, and that, as a result, defendants' excerpt constitutes the heart of plaintiffs' copyrighted work, it is not dispositive of the issue for two reasons. First, as Dr. Ferrara makes patent, "Imagine" is musically repetitive, and it is not clear that defendants could have used any portion of the song without ending up with an excerpt that referenced a significant part of the overall composition. For this reason alone, the Court could not conclude that defendants' use was unreasonable in light of their purpose.
Second, the Supreme Court explained in Campbell that "[c]opying does not become excessive in relation to parodic purpose merely because the portion taken was the original's heart." 510 U.S. at 588, 114 S. Ct. 1164. In Campbell, the Court considered whether the rap group 2 Live Crew's use of a portion of Roy Orbison's song "Oh, Pretty Woman" constituted fair use. Id. at 571-72, 114 S. Ct. 1164. In considering the third fair use factor, the Court assumed for purposes of analysis that the defendants' quotation of the original's opening musical phrase and first line of lyrics went to the heart of the original song. Id. at 588, 114 S. Ct. 1164. The Court concluded, however, that "[i]f 2 Live Crew had copied a significantly less memorable part of the original, it is difficult to see how its parodic character would have come through." Id: at 588-89, 114 S. Ct. 1164. Although the Supreme Court's analysis was specifically directed at parody, this Court is aware of no reason not to apply it equally to copying for purposes of criticism and commentary. Using an easily recognizable portion of "Imagine" was relevant to defendants' commentary because they wished to demonstrate that the negative views of religion expressed by their interview subjects were not new. (Sullivan Decl. ¶¶ 17, 21.)
Accordingly, both quantitatively and qualitatively, the portion of "Imagine" that defendants copy is reasonable in light of their purpose for doing so. This third factor therefore weighs in favor of fair use.
d. "The Effect of the Use Upon the Potential Market for or Value of the Copyrighted Work"
The fourth factor is "the effect of the use upon the potential market for or value of the copyrighted work." 17 U.S.C. § 107(4). "In considering the fourth factor, [the] concern is not whether the secondary use suppresses or even destroys the market for the original work or its potential derivatives, but whether the secondary use usurps the market of the original work. The market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop." Blanch, 467 F.3d at 258. In this analysis, "[t]he court looks to not only the market harm caused by the particular infringement, but also to whether, if the challenged use becomes widespread, it will adversely affect the potential market for the copyrighted work." Bill Graham Archives, 448 F.3d at 614.
Plaintiffs understandably contend that if unauthorized use of "Imagine" were to become widespread, it would harm the marketplace for licensing the song. In Bill Graham Archives, however, on a full record developed on a motion for summary judgment, the Second Circuit rejected a similar argument regarding lost licensing revenue. 448 F.3d at 614-15. That court explained that although the plaintiff had established a market for licensing its concert posters, the defendants' use of the posters in their biographical book "f[ell] within a transformative market," and therefore the plaintiff "d[id] not suffer market harm due to the loss of licensing fees." Id. at 615. Here, similarly, defendants copied plaintiffs' work for a transformative purpose, and plaintiffs have proffered no evidence to date that permitting defendants to use a fifteen-second portion of the song for a transformative purpose will usurp the market for licensing the song for traditional uses. Accordingly, this factor does not weigh strongly, if at all, against fair use.
e. Conclusion Regarding Fair Use
The balance of factors clearly favors a finding of fair use. Defendants' use of "Imagine" is transformative because their purpose is to criticize the song's message. Moreover, the amount and substantiality of the portion used is reasonable in light of defendants' purpose. Although "Imagine," as a creative work, is at the core of copyright protection, and defendants' use of the song is at least partially commercial in nature, the weight of these factors against a finding of fair use is limited given that defendants' use is transformative. Finally, plaintiffs have not shown that defendants' use will usurp the market for licensing the song for nontransformative purposes. In sum, allowing defendants' use would better serve "the copyright law's goal of promoting the Progress of Science and useful Arts ... than [would] preventing it." Blanch, 467 F.3d at 251 (internal quotation marks omitted). Defendants have established that they are likely to prevail on their fair use defense, and accordingly plaintiffs have not shown that they are clearly likely to succeed on the merits of their copyright infringement claim.
C. Balance of Hardships
Although plaintiffs have failed to establish a clear likelihood of success on the merits, they are still entitled to a preliminary injunction if they can show "sufficiently serious questions going to the merits of the case to make them a fair ground for litigation, and a balance of hardships tipping decidedly in [their] favor." Tom Doherty, 60 F.3d at 33. On this record, plaintiffs have not shown that the balance of hardships decidedly favors them.
Defendants claim that an injunction barring them from further distributing "Expelled" with the excerpt of "Imagine" and requiring the recall of extant prints would require them to reedit the movie to insert substitute footage making the same point. (Supplemental Decl. of John Sullivan dated May 19, 2008 ("Sullivan Supplemental Decl") ¶ 15.) They estimate that selecting appropriate alternative footage and integrating it into the movie would require weeks of work. (Id. ¶¶ 16-10.) Indeed, defendants estimate that "the cost of recutting the film would be several hundred thousand dollars." (Craft Decl. 1135.) In addition, they anticipate that transferring the new footage to 35 millimeter film for theatrical screening, including the movie's upcoming Canadian theatrical release, would cost tens of thousands of dollars. (Id. ¶ 37.) Defendants also claim that an injunction at this time would jeopardize the imminent Canadian theatrical release (it is currently scheduled for "early June") and delay the contract for the movie's release on DVD. (Id. ¶¶ 33, 37.)
Plaintiffs challenge a number of these assertions. In particular, they contend that the costs of reediting the movie and reprinting the affected portions onto 35 millimeter film stock would be substantially lower than defendants claim. (Decl. of Walter "Chip" Cronkite III dated May 16, 2008 ("Cronkite Decl.") at ¶¶ 17-18.)
This Court need not decide whether the hardship to defendants would be as extensive as they claim, because the balance of hardships would not in any event tip decidedly in plaintiffs' favor. An injunction would require defendants to bear some degree of financial hardship: even plaintiffs' expert concedes that reprinting the movie would cost defendants at least $56,000. (Id. ¶ 18.) Defendants face additional costs associated with any delay in the Canadian theatrical and DVD releases occasioned by any required editing.
Plaintiffs, on the other hand, assert that the hardship they would face if an injunction does not issue is that the lack of an injunction would engender the perception that it is not necessary to seek permission to copy, with attendant loss of licensing fees. (Decl. of Nancy Weshkoff, Ex. C to Weber Deck, ¶¶ 21-22.) Although these claims are plausible, they are intangible at best, and are answered by the fact that fair use is a defense to copyright infringement. Without some showing that plaintiffs will face substantial lost licensing revenue absent an injunction, this Court cannot conclude that the balance of hardships tips decidedly in plaintiffs' favor.
IV. CONCLUSION
Because defendants are likely to prevail on their fair use defense, plaintiffs have failed to show, on the basis of the record developed to date, a clear likelihood of success or even a simple likelihood of success on the merits of their copyright infringement claim. Plaintiffs have also not shown that the balance of hardships tips decidedly in their favor. Accordingly, plaintiffs' motion for a preliminary injunction is denied.
SO ORDERED.
NOTES
[1] Defendants contend that the extensive Second Circuit precedent holding that a presumption of irreparable harm exists in copyright infringement actions where a prima facie showing of infringement has been made was abrogated by the United States Supreme Court decision in eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 126 S. Ct. 1837, 164 L. Ed. 2d 641 (2006). eBay cannot be read in that manner. In eBay, the Supreme Court vacated the determination of the Federal Circuit that applied that circuit's "`general rule that courts will issue permanent injunctions against patent infringement absent exceptional circumstances.'" 547 U.S. at 391, 126 S. Ct. 1837 (quoting MercExchange, L.L.C. v. eBay, Inc., 401 F.3d 1323, 1339 (Fed.Cir.2005)). The Supreme Court held that that rule violated the Patent Act's instruction to courts to decide motions for injunctive relief "in accordance with principles of equity." 35 U.S.C. § 283.
The presumption of irreparable harm in copyright infringement actions, unlike the rule addressed in eBay, does not require courts to impose an injunction following a determination of infringement. See id. at 392-93, 126 S. Ct. 1837 ("[A]s in our decision today, this Court has consistently rejected invitations to replace traditional equitable considerations with a rule that an injunction automatically follows a determination that a copyright has been infringed."). Notwithstanding the presumption of irreparable harm, the decision whether to impose a preliminary injunction in a copyright infringement action remains within the sound discretion of the district courts. See, e.g., Merkos L'Inyonei Chinuch, 312 F.3d at 96. Moreover, since eBay, the Second Circuit has applied a presumption of irreparable harm in the context of a preliminary injunction sought pursuant to a false advertising claim. See Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144, 162 (2d Cir.2007).
eBay is also distinguishable in that it involved a permanent injunction rather than a preliminary injunction. Whereas a court deciding whether to impose a permanent injunction has before it the full record after judgment on the merits, the record on a motion for a preliminary injunction is to some degree incomplete. A presumption temporarily removing the need to prove irreparable harm may serve the ends of equity at this early stage of the litigation even if it would be inappropriate where the record is complete. See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 518 F. Supp. 2d 1197, 1212 (C.D.Cal.2007).
[2] Although defendants' reasons for using "Imagine" in the movie and their ability to articulate those reasons ease the analysis, neither "is sine qua non for a finding of fair use." Blanch, 467 F.3d at 255 n. 5. Indeed, much of defendants' asserted purpose for excerpting the song is apparent from a viewing of the movie. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8326483/ | Lauriat, Peter M., J.
William McLaughlin (“McLaughlin”) brought this action against J-PAC, LLC (“J-PAC”), his former employer, JPDM Holdings, LLC (“JPDM Holdings”), with which he is involved as an investor and lender, and JPDM, LLC. McLaughlin alleges that he was terminated without cause from his position as Chief Executive Officer of J-PAC. He has sued to enforce his Employment Agreement and rights that he asserts he holds as an investor in and lender to JPDM Holdings. The defendants have now moved to dismiss six counts of the Amended Complaint for failure to state a claim upon which relief may be granted. For the following reasons, the defendants’ motion is allowed in part and denied in part.
BACKGROUND
The following facts are drawn from the Amended Complaint and taken as true for purposes of this motion. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 625 n.7 (2008). McLaughlin is the former Chief Executive Officer (“CEO”) of J-PAC. On JanuaRy 4, 2007, McLaughlin and JPDM Holdings entered into an Equity Units and Assets Purchasing Agreement (“Purchasing Agreement”). Under the Purchasing Agreement, McLaughlin contributed $2,000,000 in units of J-PAC in exchange for 2,000,000 common units of JPDM Holdings, with an initial capital account of $2,000,000. McLaughlin also received a Subordinated Promissory Note (“Promissory Note”) from JPDM Holdings in the amount of $666,667. The principal of that Promissory Note remains unpaid.
On or about July 31, 2008, McLaughlin was terminated without cause from his position as CEO. Under *296an Employment Agreement he had entered into with J-PAC, McLaughlin was entitled to severance in the form of twelve months’ payment of (1) his base salary as of the date of termination, and (2) J-PAC’s share of his medical and dental insurance premiums, pursuant to company benefit plans. The defendants have not paid McLaughlin’s base salary as required, and since December 1, 2008, they have refused to pay his insurance premiums. The defendants refuse to comply with the severance provision unless McLaughlin provides a general release of any and all claims that he may have under the Employment Agreement and as an investor in, and lender to, JPDM Holdings. McLaughlin is willing to provide a general release in connection with his employment by J-PAC, but he is unwilling to release potential claims stemming from his relationships with JPDM Holdings.
On August 21, 2008, approximately three weeks after McLaughlin’s termination, JPDM, LLC was created for the purpose of being the transferee of JPDM Holdings’ assets. Thereafter, all of JPDM Holdings’ assets were transferred to JPDM, LLC. McLaughlin did not consent to this transfer of assets.
DISCUSSION
The defendants have now moved to dismiss Counts III, IV, VI, VII, VIII, and IX of the amended complaint for their failure to state a claim upon which relief may be granted. See Mass.R.Civ.P. 12(b)(6). Counts III and IV are against only JPDM Holdings and JPDM, LLC, and Counts VI through IX are against all three defendants. “While a complaint attacked by a motion to dismiss does not need detailed factual allegations . . . a plaintiffs obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires more than labels and conclusions . . . Factual allegations must be enough to raise a right to relief above the speculative level...” Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted). Under this heightened standard, the plaintiff must make factual allegations that possess enough heft to show that the he or she is entitled to relief. Id.
A.Aiding and Abetting, and Procuring, Breach of the Implied Covenant of Good Faith and Fair Dealing (Count III)
In Count II, which is not the subject of the present motion, McLaughlin alleges that J-PAC breached the implied covenant of good faith and fair dealing by refusing to comply with the severance provision unless he provided a general release of all potential claims against it and JPDM Holdings. In Count III, McLaughlin alleges that JPDM Holdings and JPDM, LLC aided, abetted and procured J-PAC’s breach of the implied covenant by “causing, authorizing, and directing” J-PAC to make that ultimatum. He alleges that the defendants hoped to avoid payment on the severance provision and the Promissory Note, and to force McLaughlin to forfeit his equity interest in JPDM Holdings.
“Civil claims for aiding and abetting . . . are a form of civil conspiracy, and therefore require an underlying tort by a third party.” Whalen v. Commonwealth, 2006 Mass.Super. LEXIS 293, *7 n.8 (Mass.Super. 2006) [21 Mass. L. Rptr. 193), citing Norman v. Brown, Todd & Heyburn, 693 F.Sup. 1259, 1264 (D.Mass. 1988) (“Aiding and abetting is one variation of joint tort liability”). For the reasons set forth infra regarding Count VI, the defendants’ motion to dismiss is allowed as to Count III.
B.Aiding and Abetting, and Procuring, Breach of Contract (Count IV)
McLaughlin alleges that JPDM Holdings and JPDM, LLC aided, abetted and procured J-PAC’s breach of the Employment Agreement’s severance provision. As noted regarding Count III, supra, civil claims for aiding and abetting are a form of civil conspiracy. Whalen, 2006 Mass.Super. LEXIS at *7 n.8. For the reasons set forth infra regarding Count VI, the defendants’ motion to dismiss is allowed as to Count IV.
C.Civil Conspiracy (Count VI)
McLaughlin alleges that the defendants conspired and acted jointly to refuse to comply with the Employment Agreement’s severance provision, to demand that McLaughlin forfeit his rights with respect to JPDM Holdings, and to avoid liability on the Promissory Note. The defendants argue that Counts III, IV, and VI must be dismissed because McLaughlin fails to allege an underlying tort, which is a required element of civil conspiracy.
Massachusetts courts recognize two different theories of civil conspiracy. First, there is a “very limited cause of action” for a coercive type of civil conspiracy. Aetna Cas. Sur. Co. v. P&B Autobody, 43 F.3d 1546, 1563 (1st Cir. 1994). To state a claim for civil conspiracy by coercion, a “plaintiff must allege that defendants, acting in unison, had some peculiar power of coercion over plaintiff that they would not have had if they had been acting independently.” Id. (internal quotations omitted); see also Kurker v. Hill, 44 Mass.App.Ct. 184, 188 (1998). McLaughlin has not alleged that the defendants held unique coercive power over him, so he cannot succeed under this theory.
“Th[e] second type of civil conspiracy is more akin to a theory of common law joint liability in tort.” Aetna Cas. Sur. Co., 43 F.3d at 1564. This form of civil conspiracy requires “a common design or an agreement, although not necessarily express, between two or more persons to do a wrongful act and, second, proof of some tortious act in furtherance of the agreement.” Id., see, e.g., Kurker, 44 Mass.App.Ct. at 189-90 (holding plaintiffs stated a claim for civil conspiracy based on underlying tort of breach of fiduciary duty). In this case, McLaughlin’s allegations of conspiracy *297hinge on breach of contract. He does not ascribe any tortious conduct to the defendants, so his claim for civil conspiracy cannot survive.1 For these reasons, the defendants’ motion to dismiss is allowed as to Count VI.
D.Chapter 93A (Count VII)
McLaughlin alleges that the defendants refused to comply with the severance provision unless he provided a general release to both J-PAC and JPDM Holdings, and forfeited his rights as an investor in, and lender to, JPDM Holdings. If shown to be true, this would amount to unfair and deceptive conduct in violation of G.L.c. 93A, §2. The defendants argue that the dispute in this case is, at bottom, a simple contract dispute, so there can be no c. 93A violation. See Pepsi-Cola Metro. Bottling Co. v. Checkers, Inc., 754 F.2d 10, 18 (1st Cir. 1985) (“Mere breaches of contract, without more, do not violate Chapter 93A”).
The court need not address the defendants’ argument at this stage in the proceedings because it has already ruled on this issue. Prior to the filing of the Amended Complaint, the court (Hinkle, J.) denied the defendants’ motion to dismiss the original Complaint, “particularly in light of the filing of the (A)mended [C]omplaint and the nature of the allegations regarding [c.] 93A, [which] are sufficient to withstand a motion to dismiss.” As the allegations in Count VII are substantially identical2 to those in McLaughlin’s original c. 93A claim, the defendants’ motion to dismiss Count VII is denied.
E.Fraud (Count VIII)
McLaughlin alleges that JPDM, LLC was created soon after his termination, for the purpose of transferring JPDM Holdings’ assets to it; that this transfer was completed; and that the transfer was fraudulent given his role as an investor in, and lender to, JPDM Holdings. The defendants argue that even if McLaughlin pled fraud with sufficient particularity, see Mass.R.Civ.P. 9(b), which they dispute, he still cannot succeed because he has failed to state a claim for common-law fraud.
Two types of common-law fraud are recognized in Massachusetts. The first is fraud based on coercion or undue influence, which is commonly seen in will contests. See, e.g., Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 464 (1997) (stating the elements of fraud based on undue influence). The second is fraud based on deceit, which requires the plaintiff to show that the defendant “made a false representation of a material fact with knowledge of its falsity for the purpose of inducing the plaintiff to act thereon, and that the plaintiff relied upon the representation as true and acted upon it to [his] damage.” Totalizing Sys. v. PepsiCo, Inc., 29 Mass.App.Ct. 424, 431 (1990). McLaughlin’s allegations do not support a claim for either type of fraud. See Iannacchino, 451 Mass. at 636 (holding that “a plaintiffs obligation to provide the grounds of his entitlement] to relief requires more than labels and conclusions”) (internal quotations omitted).
McLaughlin attempts to argue that he has sufficiently alleged a claim for breach of the demanding fiduciary duty associated with close corporations. See Donahue v. Rodd Electrotype Co. of New England, Inc., 367 Mass. 578, 593-94 (1975). This fiduciary duty argument is inapplicable to the allegations contained in Count VIII, and appears to be a tacit admission that he has not made out a claim for fraud. For these reasons, the defendants’ motion to dismiss Count VIII is allowed.
F.Chapter 109A (Count IX)
Finally, McLaughlin alleges that the defendants violated the Uniform Fraudulent Transfer Act, G.L.c. 109A, §§5-6, by transferring JPDM Holdings’ assets to JPDM, LLC without consideration. The defendants argue that because McLaughlin failed to allege violations of specific elements of c. 109A, §§5-6, his allegations do not satisfy the particularity requirements of Mass.RCiv.P. 9(b).
Chapter 109A, §2 defines “transfer” as “every mode ... of disposing of or parting with an asset or an interest of an asset.” Under c. 109A, §5, “[a] transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation ... (2) without receiving a reasonably equivalent value in exchange for the transfer or obligation . . .” G.L.c. 109A, §§5(a), 5(a)(2). McLaughlin alleges that after he became JPDM Holdings’ creditor on the Promissory Note, defendants transferred JPDM Holdings’ assets to JPDM, LLC for no consideration. As such, he has alleged all elements sufficient to state a claim under G.L.c. 109A, §5 against JPDM Holdings and JPDM, LLC.
Chapter 109A, §6 provides a cause of action for a creditor with an obligation that arose before a transfer, “if the debtor made the transfer .. . without receiving a reasonably equivalent value in exchange for the transfer . . . and . . . the debtor became insolvent as a result of the transfer . . ." G.L.c. 109A, §6(a). McLaughlin became a creditor when he took the Promissory Note from JPDM Holdings. He alleges that JPDM Holdings transferred all of its assets to JPDM, LLC for no consideration and was left without any assets. He has stated a claim under G.L.c. 109A, §6 against JPDM Holdings and JPDM, LLC. McLaughlin has not alleged any conduct on the part of J-PAC that would allow a c. 109A claim to proceed against it. For these reasons, JPDM Holdings and JPDM, LLC’s motions to dismiss Count IX are denied, and J-PAC’s motion to dismiss that claim is allowed.
*298ORDER
For the foregoing reasons, the Partial Motion of Defendants, J-PAC, LLC, JPDM Holdings, LLC, and JPDM, LLC, to Dismiss the Amended Complaint is ALLOWED in part and DENIED in part. Defendant J-PAC, LLC’s motion is ALLOWED as to Counts VI, VIII, and IX, and DENIED as to Count VII. Defendants JPDM Holdings, LLC, and JPDM, LLC’s motions are ALLOWED as to Counts III, IV, VI, and VIII, and DENIED as to Counts VII and IX.
McLaughlin contends that the second form of civil conspiracy need not involve a tort. He argues as much by selectively quoting cases that allege a breach of fiduciary duty, which is a tort. Ray-Tek Servs. v. Parker, 64 Mass.App.Ct. 165, 177 (2005). This argument betrays an effort to mislead the court and cannot succeed.
Any slight differences between the Complaint and Amended Complaint merely reflect changes regarding McLaughlin’s other claims and do not bear on the substance of McLaughlin’s c. 93A claim. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1876308/ | 247 S.W.3d 100 (2008)
STATE of Missouri, Respondent,
v.
Marvin M. BARNETT, Appellant.
No. ED 89541.
Missouri Court of Appeals, Eastern District, Division Four.
March 11, 2008.
Rosalynn Koch, Columbia, MO, for appellant.
Shaun J. Mackelprang, Mary Highland Moore, Jefferson City, MO, for respondent.
Before MARY K. HOFF, P.J., SHERRI B. SULLIVAN, J., and GEORGE W. DRAPER III, J.
ORDER
PER CURIAM;
Marvin M. Barnett (hereinafter, "Defendant") appeals from the trial court's judgment after a jury found him guilty of third degree assault of a law enforcement officer, *101 Section 565.082 RSMo (2000), and driving while intoxicated, Section 577.010 RSMo (2000). Defendant was sentenced to one year of imprisonment for assault of a law enforcement officer and four years' imprisonment for driving while intoxicated, to be served consecutively. Defendant raises three points on appeal, claiming die trial court erroneously admitted two hearsay statements and evidence of uncharged misconduct.
We have reviewed the briefs of the parties and the record on appeal. No error of law appears. No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. We have, however, provided a memorandum opinion for the use of the parties only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 30.25(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610290/ | 207 Kan. 360 (1971)
485 P.2d 195
SANDRA S. GIFFORD, Appellee,
v.
SANDRA K. SAUNDERS, Appellant.
No. 46,003
Supreme Court of Kansas.
Opinion filed May 15, 1971.
Ronald G. Hinkle, of the firm of Haskin, Noonan, McGee and Hinkle, of Olathe, argued the cause and was on the brief of appellant.
Lawrence G. Zukel, of Overland Park, argued the cause and was on the brief for the appellee.
The opinion of the court was delivered by
KAUL, J.:
This is an interlocutory appeal from an order denying defendant's motion for summary judgment based on the grounds that plaintiff-appellee failed to bring her tort action within the time allowed by the applicable statute of limitations.
On August 9, 1964, plaintiff-appellee (Sandra S. Gifford, then Sandra S. Crotchett) was injured in an accident while occupying an automobile driven by defendant-appellant (Sandra K. Saunders, then Sandra K. Brownlee).
Plaintiff at the time of the accident was a single, minor, female. She was born on October 22, 1947. She filed this action on October 15, 1969, seven days before attaining the age of twenty-two years.
In her answer defendant alleged that plaintiff was married on January 22, 1966, and attained the age of majority on that date. *361 Defendant alleged that since plaintiff failed to file her cause of action within two years after the date of her marriage her cause was barred under the applicable provision of K.S.A. 60-513 [now 1970 Supp.].
Defendant filed a motion for summary judgment on the ground that plaintiff's action was barred by the statute of limitations and attached an affidavit setting out the date of plaintiff's marriage, with a certified copy of plaintiff's marriage certificate attached.
The trial court denied defendant's motion, ruling that the marriage of plaintiff after her cause of action arose and prior to her attaining the age of twenty-one years did not affect the running of the statute of limitations and thus plaintiff was not required to bring her action within one year of the date of her marriage, or within two years from the time the cause of action arose, whichever is longer.
The issue on appeal is accurately stated by the trial court in its certification of the question as a proper subject to be resolved by interlocutory appeal:
"Does the marriage of Plaintiff after a cause of action arises and prior to Plaintiff's attaining the age of 21 affect the running of the statutes of limitations so as to require Plaintiff to bring her cause of action within 1 year from the date of marriage or within 2 years from the time the cause of action arose, which ever is longer?"
The two year limitation in which the actions enumerated in 60-513 may be brought is tolled by the provisions of K.S.A. 1970 Supp. 60-515 (a) which read:
"If any person entitled to bring an action, other than for the recovery of real property or a penalty or a forfeiture, at the time the cause of action accrued, or at any time during the period the statute of limitations is running, be within the age of twenty-one (21) years, or an incapacitated person, or imprisoned for a term less than his natural life, such person shall be entitled to bring such action within one (1) year after such disability shall be removed, but no such action shall be maintained by or on behalf of any person under the disabilities specified after twenty-two (22) years from the time the cause of action shall have accrued." (Emphasis supplied.)
Notwithstanding the express provision of 60-515 (a), that the running of the statute is tolled with respect to any person "within the age of twenty-one years," defendant claims the tolling of the statute was terminated under the provisions of K.S.A. 1970 Supp. 38-101 by the marriage of plaintiff.
K.S.A. 1970 Supp. 38-101 reads:
"The period of minority extends in males and females to the age of twenty-one *362 (21) years: Provided, That every person eighteen (18) years of age or over who is or has been married, shall be considered of the age of majority in all matters relating to contracts, property rights and liabilities, and the capacity to sue and be sued."
We cannot agree with the position taken by defendant.
K.S.A. 1970 Supp. 60-515 is a part of Article 5 Limitations of Actions of our Code of Civil Procedure. The scope of the article is unequivocally set forth in K.S.A. 60-501 which reads:
"The provisions of this article govern the limitation of time for commencing civil actions, except where a different limitation is specifically provided by statute."
It is readily seen that the limitation of time for commencing civil actions is exclusively governed by the provisions of Article 5, except where a different limitation is specifically provided by a statute. By no stretch of the imagination can 38-101 be considered a statute specifically providing for a different limitation.
K.S.A. 1970 Supp. 38-101 is the initial section of Chapter 38 dealing with infants. It defines the period of minority and the effect of marriage on a person eighteen years of age. It confers the capacity to sue and be sued on such a person. It does not specifically or otherwise prescribe a limitation of time for commencing any civil action.
The notes of the Advisory Committee in Gard, Kansas Code of Civil Procedure Annotated, § 60-501, read:
"This article is intended to be complete in scope, but it must be recognized, without enumeration, that there are, scattered through other statutes covering substantive law, specified limitations which are not to be disturbed." (p. 516).
See, also, 5 Vernon's Kansas Statutes Annotated, Code of Civil Procedure, § 60-501, p. 2.
The scope of Article 5 was considered by this court in the recent case of In re Estate of Wood, 198 Kan. 313, 424 P.2d 528, wherein the nonclaim statute of the Probate Code (K.S.A. 59-2239) was held to be a statute of limitation and within the purview of the exception expressed in 60-501, supra. In that case it was said:
"Article 5 of the code of civil procedure dealing with limitations of actions contains twenty-one separate sections relating to various types of claims and special groups of individuals such as those under legal disability. The first section of the article, K.S.A. 60-501, provides that the article shall govern the limitation of time for commencing civil actions, except where a different limitation is specifically provided by statute. This leads us to the question of whether the nonclaim statute, K.S.A. 59-2239, is a statute of limitations as contemplated in the above exception. We believe it is...." (p. 316.)
*363 Applying the rationale of In re Estate of Wood, supra, to the instant case, the import of 38-101 is to confer rights of majority and capacity to sue upon certain conditions. It is not a statute of limitation and thus is not within the purview of the exception expressed in 60-501.
As an integral part of Article 5, and under the declaration of scope in 60-501, section 60-515, supra, exclusively governs the tolling of the statute with respect to persons under legal disability. The specifically declared disability of being within the age of twenty-one years, under the literal meaning of the statute, can be removed only by attaining the age of twenty-one years. Marriage, under the terms of 38-101, may bestow rights of majority on a person but it does not alter his age. K.S.A. 1970 Supp. 60-515 speaks only to the disability of being within twenty-one years of age, no reference is made to either minority or majority.
K.S.A. 60-515 [now 1970 Supp.], was enacted as a part of the new Code of Civil Procedure and became effective January 1, 1964. It replaced G.S. 1949, 60-307, the prior tolling statute. Relative to the issue here, the only change of importance was that legal disabilities were specifically spelled out; whereas only the phrase "any legal disability" appeared in 60-307. In 1965 K.S.A. 60-515 was again before the legislature when the present phrase "an incapacitated person" was substituted for the word "insane" in order to conform the section to new terminology in another act relating to mentally ill persons.
We think it worthy to note that the tolling statute has twice been subjected to legislative scrutiny in recent years and no proviso or exception has been made with respect to the effect of the condition of marriage on the disability of being within the age of twenty-one years. Other states have seen fit to insert an exception of marriage in their tolling statutes. As an example see Hicks v. Steele, 309 Ky. 833, 219 S.W.2d 35.
While, as we have noted, this court was called upon to consider the scope of Article 5 in In re Estate of Wood, supra, the precise question presented here is one of first impression. This fact was recognized by United States District Judge Templar, when confronted by the identical question, in Edmonds v. Union Pacific Railroad Company, 294 F. Supp. 1311. Judge Templar ruled that insofar as 60-515 (a), supra, is concerned "a person in Kansas remains a minor as long as she is within the age of 21 years" and correctly *364 forecast that should the proposition be submitted to this court, we would follow what appears to be the majority rule and reach the same conclusion.
In his memorandum decision, Judge Templar notes that he has examined cases contained in the annotation in 91 A.L.R.2d p. 1272, and finds that other jurisdictions have adopted conflicting rules on the issue. He concludes, however, that by far the greater number support the conclusion that the disability is not terminated by marriage. Defendant's counsel takes issue with Judge Templar on this point. He asserts that most of the cases referred to deal primarily with the proposition of merging or tacking the disability of coverture or marriage upon the disability of infancy and extending the tolling of limitations throughout the course of both disabilities. It is true that most of the cases listed in the pertinent section of the annotation (91 A.L.R.2d, § 2, p. 1273) deal with double disability, but our examination reveals that, even though the second disability of coverture, when appended to a disability age was usually stricken, the disability of infancy was either by implication or express ruling held not to be terminated by a marriage. We believe Judge Templar correctly characterized the rule followed as the majority rule.
We believe the reported case preceding the annotation mentioned, Tavernier v. Weyerhaeuser Company, (9th Cir.1962), 309 F.2d 87, 91 A.L.R.2d p. 1268, is squarely in point. It is one of the few recent cases dealing with the subject. In that case the United States Circuit Court of Appeals, Ninth Circuit, was confronted with the identical question with respect to the effect of the Oregon statutes which substantially parallel our own. The identical language "within the age of 21 years" is found in the Oregon tolling statute (ORS 12.110) with respect to the effect of marriage. ORS 109.520 provides in pertinent part:
"... all persons shall be deemed to have arrived at the age of majority upon their being married according to law."
The court held the statutory tolling of the statute of limitations, against the cause of action of a person within the age of 21 years, is not affected by the marriage of such person before reaching the age of 21, notwithstanding the other statutory provision. While a considerable portion of the opinion is devoted to a discussion of Oregon statutes dealing with age of minority, with respect to the tolling statute (ORS 12.110) the court concludes:
*365 "... In the case before us, appellant does fall within its `plain import.' He is `within the age of 21 years.' When the tolling statute says, with no exceptions, `within the age of 21 years,' we think that all persons within that age should be entitled to rely upon its plain import, rather than required to read it as if it said `within the age of majority.' ..." (p. 90.)
The trial court correctly ruled that plaintiff's cause of action is not barred by the applicable statute of limitations. The order denying defendant's motion for summary judgment is affirmed. The case is remanded for further proceedings.
It is so ordered.
SCHROEDER, J., dissenting:
The provisions of K.S.A. 1970 Supp. 38-101 are clear and unambiguous. The section reads:
"The period of minority extends in males and females to the age of twenty-one (21) years: Provided, That every person eighteen (18) years of age or over who is or has been married, shall be considered of the age of majority in all matters relating to contracts, property rights and liabilities, and the capacity to sue and be sued." (Emphasis added.)
It specifically declares persons eighteen years of age or over who are or have been married shall be considered of the age of majority in matters relating to the capacity to sue and be sued.
The extended discussion undertaken by this court to explain away this language is not convincing.
It is respectfully submitted a statute such as 38-101, supra, cannot so lightly be written out of the statute books. In my opinion the defendant's motion for summary judgment should have been sustained.
FONTRON, J., joins in the foregoing dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1745285/ | 732 S.W.2d 320 (1982)
Benny AGUIRRE, Appellant,
v.
The STATE of Texas, Appellee.
No. 62033.
Court of Criminal Appeals of Texas, Panel No. 1.
July 14, 1982.
On Rehearing July 1, 1987.
*321 Leonard M. Roth, Houston, for appellant.
Carol S. Vance, Dist. Atty., John B. Holmes, Jr., Dist. Atty., Alvin M. Titus, and John S. Holleman, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before ODEN, TOM G. DAVIS and CLINTON, JJ.
OPINION
CLINTON, Judge.
Appeal is taken from a conviction for murder. After finding appellant guilty, the jury assessed punishment at 99 years.
The indictment in the instant cause contains three paragraphs charging the same offense. See Article 21.24(b), V.A.C.C.P. The State ultimately abandoned one of the paragraphs and proceeded to trial with the two remaining paragraphs. In its charge to the jury, the court authorized a conviction for murder if the jury found that appellant committed the offense in either of the two manners alleged in the two paragraphs. The indictment in the instant cause alleges in pertinent part that on February 11, 1978, appellant:
"Did then and there unlawfully, intentionally and knowingly cause the death of Elizabeth Aguirre by shooting her with a gun....
And the defendant on or about February 11, 1978, did unlawfully, intentionally and knowingly attempt to commit and did commit a felony, to wit: criminal mischief and in the course of and in furtherance of the said felony did then and there attempt to commit and did commit an act which was clearly dangerous to human life, to wit: shooting a gun into an occupied dwelling which said act caused the death of Elizabeth Aguirre."
Esther Aguirre testified that she is appellant's ex-wife. Appellant and Aguirre were divorced in 1975 after 15 years of marriage. During the course of that marriage, the couple had four children including the deceased, Elizabeth Aguirre. On February 11, 1978, appellant went to Aguirre's home and demanded that she let him inside. She related that she refused to open the door and ran to the kitchen with Elizabeth. While standing in the kitchen, Aguirre heard a shotgun blast and saw that Elizabeth had sustained a gunshot wound. Aguirre related that the child died within 48 hours of reaching the hospital.
Appellant testified that he had gone to Aguirre's home on February 11 to speak to her about leaving the children alone at night. He testified that when his ex-wife refused to let him into the house, he went to his truck and retrieved a shotgun. He testified that he shot at the door in order to open it and did not consider the fact that someone could have been behind the door. Finally, appellant testified that he knew that three of his four children were probably in the house at the time he fired at the door with his shotgun.
*322 Authorized by the charge of the court to find appellant guilty of either murder as alleged in the first paragraph pursuant to V.T.C.A. Penal Code, § 19.02(a)(1) or murder as alleged in the next paragraph pursuant to id., § (a)(3), the jury returned a general verdict finding appellant "guilty of the offense of murder, as charged in the indictment." Thus, because of the way the State structured its case and the manner the jury was charged we are unable to determine which theory of alleged criminal responsibility prevailed in the jury room.[1]
Such is the complaint of appellant under his ground of error five, assailing the verdict of the jury as being so vague and indefinite that "there is no way of ascertaining which of two alternatives ... created the basis for the jury's verdict." The point is determinative for if the jury opted for the felony-murder theory alleged in the second remaining paragraph of the indictment, its verdict could not be sustained for the reasons set forth in Garrett v. State, 573 S.W.2d 543, 545 (Tex.Cr.App.1978). See Kuykendall v. State, 609 S.W.2d 791, 794-795 (Tex.Cr.App.1980).
In Garrett v. State, supra, it was said that the felony murder rule dispenses with any inquiry into mens rea accompanying the homicide itself, for the underlying felony supplies the necessary culpable mental state. But, where, as there, the legal theory is that the intent with which the act of aggravated assault was committed is transferred to the act which caused death, the State does not sustain its theory by using "the very act which caused the homicide, committing an aggravated assault by use of a deadly weapon, as the felony which boosts the homicide itself into the murder category," id., at 545. The Court observed that "application of the felony murder doctrine to situations such as this is an attempt to split into unrelated parts an indivisible transaction," id., at 546. Accordingly, it was held that "the State improperly prosecuted appellant under the felony murder doctrine."
When, in Ex parte Easter, 615 S.W.2d 719 (Tex.Cr.App.1981), the Court revisited it, the lesson of Garrett was said to be inapplicable to a felony murder indictment for causing the death of a child when the underlying felony alleged is injury to a child, and concluded the indictment was not fundamentally defective. Id., at 721. On the evidentiary point argued in Easterthe matter with which we are more concerned in the instant casethe Court simply rejected an effort to attack collaterally the sufficiency of the evidence to support the conviction. Ibid. Nothing held in Easter militates against our application of the principles enunciated in Garrett to the case at bar.[2]
Since the general verdict of the jury may well have rested upon the felony murder theory which we have held untenable in the circumstances of this case, the conviction *323 cannot be upheld. Stromberg v. California, 283 U.S. 359, 367-370, 51 S. Ct. 532, 535-36, 75 L. Ed. 1117 (1931).
The judgment of conviction is reversed and the cause is remanded.[3]
TOM G. DAVIS, Judge, dissenting.
Appeal is taken from a conviction for murder. After finding appellant guilty, the jury assessed punishment at 99 years.
The majority reversed appellant's conviction on the basis that the felony murder allegation cannot be sustained for the reasons set forth in Garrett v. State, 573 S.W.2d 543. The majority therefore holds that because appellant's conviction may have rested upon the felony murder paragraph of the indictment, the judgment must be reversed.
Garrett was a prosecution for murder under the felony murder rule as set forth in V.T.C.A., Sec. 19.02(a)(3). There, the defendant pointed a weapon at the victim. The State prosecuted the defendant under the felony murder rule and alleged that while he was in the course of committing the offense of aggravated assault with a deadly weapon and in the furtherance of the commission of that offense he committed an act clearly dangerous to human life, namely, pulling a loaded pistol out of his pocket which in turn caused the death of the victim.
The judgment in Garrett was reversed. This Court noted that the felony murder rule calls for the transfer of intent from one criminal act to another. It was found that the defendant's conviction could not stand because the aggravated assault and the act resulting in the homicide were one and the same. It was therefore held that in order for the evidence to be sufficient to support a conviction under the felony murder rule, there must be a showing of felonious criminal conduct other than the assault which causes the homicide.
In the instant cause, the indictment alleges and the proof shows that appellant was engaged in felonious criminal conduct, namely, felony criminal mischief at the time the deceased was killed. Therefore, as required in Garrett, there was a showing of felonious criminal conduct other than the assault which caused the homicide. Unlike Garrett, appellant's act of felony criminal mischief in shooting at the house and the resulting homicide of his daughter were not one in the same. In this case, appellant attempted to blow open a door with a shotgun, a property offense, and in the furtherance of such offense, the deceased was killed. I cannot agree that Garrett requires the reversal of appellant's conviction and therefore must dissent.
Before the court en banc.
OPINION ON STATE'S MOTION FOR REHEARING
McCORMICK, Judge.
Appellant was tried for the murder of his thirteen year old daughter. The evidence showed that appellant and the child's mother were married for a strife-ridden fifteen year period. After their divorce in 1975, the trouble continued. Testimony at trial alluded to several instances in the intervening years during which appellant threatened to kill his wife. During the evening of February 10, 1978, the appellant went to his ex-wife's home. Upon discovering that she was gone and had left his three daughters, ages fifteen, thirteen and seven alone, appellant became enraged. He began berating his ex-wife's conduct to his daughters. *324 When his eldest daughter objected to his characterizations of her mother, appellant replied that he was going to kill his ex-wife. The next afternoon, appellant drove to his ex-wife's house and parked his truck in front of the house. When his ex-wife came to the front door, he demanded that she come out and talk to him. She told him to go away and then went back inside the house. At that point, appellant got his shotgun out of the truck, walked up on the porch and fired a blast through the front door. Pellets from this blast passed through the door, through the house and into the kitchen, striking appellant's thirteen year old daughter. Next appellant went to his ex-wife's car, raised the hood and fired another shotgun blast into the car's engine. Then he walked to the back of the house and fired a final shotgun blast into the back door. Appellant then kicked in the back door and found his daughter lying wounded on the kitchen floor. Appellant testified at trial that he shot at the door only in order to open it and had no intent to kill anyone.
Frank Salazar, appellant's ex-brother-in-law testified that appellant phoned him during the afternoon of February 11, 1978 and told him that he (appellant) had just shot his daughter. He asked Salazar to summon the police and an ambulance. Salazar testified that appellant said he was trying to shoot his ex-wife and instead shot his daughter.
Finally, testimony showed that the victim lived for approximately forty-eight hours after being shot. Cause of death was a shotgun wound to the head.
On original submission, appellant argued in his fifth point of error that the jury's verdict on guilt-innocence was void in that it did not apprise him of the actual statute under which he was convicted. A review of the record shows that the indictment contained three paragraphs charging the same offense. The State abandoned one of the paragraphs and proceeded to trial on the two remaining paragraphs. In its charge to the jury the court authorized a conviction for murder if the jury found that appellant committed the offense in either of the two manners alleged in the two paragraphs. The indictment alleged in pertinent part that the appellant:
"did then and there unlawfully intentionally or knowingly cause the death of Elizabeth Aguirre by shooting her with a gun.
"And the Defendant did ... unlawfully intentionally and knowingly attempt to commit and did commit a felony, to wit: Criminal Mischief and in the course of and in furtherance of the said felony did then and there attempt to commit and did commit an act which was clearly dangerous to human life, to wit: shooting a gun into an occupied dwelling which said act caused the death of Elizabeth Aguirre."
The verdict form signed by the foreman of the jury reads as follows:
"We, the Jury, find the defendant, Benny Aguirre, guilty of the offense of murder, as charged in the indictment."
After reviewing appellant's contention, a panel of this court reversed appellant's conviction after determining that the general verdict from the jury made it impossible to determine upon which theory, either V.T. C.A., Penal Code, Section 19.02(a)(1) or Section 19.02(a)(3)the felony murder rule, appellant was convicted. The panel, relying on this Court's opinion in Garrett v. State, 573 S.W.2d 543 (Tex.Cr.App.1978), went on to hold that if indeed appellant was convicted under Section 19.02(a)(3) the appellant's conviction could not stand because in the allegations made under V.T.C.A., Penal Code, Section 19.02(a)(3), the State relied on the same act which constituted the underlying felony as the act causing the homicide.
We find the panel opinion untenable in light of our decision in Murphy v. State, 665 S.W.2d 116 (Tex.Cr.App.1983). In Murphy v. State, supra, the application paragraph of the court's charge read as follows:
"Therefore, if you believe from the evidence beyond a reasonable doubt that the defendant, Clyde Clifton Murphy, did ... commit the felony offense of Arson by then and there starting a fire in a habitation located in Angelina County, Texas, owned by Clyde Clifton Murphy, with *325 intent to damage and destroy said habitation and to collect insurance for such damage and destruction, and while in the course of and furtherance of the commission of said offense did then and there commit an act clearly dangerous to human life, to wit: did start a fire in a habitation, and did thereby cause the death of an individual, John Thomas Johnson, you will find the defendant guilty."
Because we believe Murphy v. State, supra, clearly controls the case at bar, we quote extensively from that opinion:
"Appellant further maintains the merger doctrine operates as a bar to his prosecution for felony murder. He argues, `the conduct that allegedly constituted the gist of the underlying felony, namely, "starting a fire," was the exact same act alleged to have been clearly dangerous to human life and thus was `inherent in the homicide.'
"Sec. 19.02(a)(3), supra, the `felony murder rule', provides that a person commits an offense if he:
`commits or attempts to commit a felony, other than voluntary or involuntary manslaughter, and in the course of and in furtherance of the commission or attempt ... he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.'
"In Garrett v. State, 573 S.W.2d 543 (Tex.Cr.App.1978), however, we held that the felony murder doctrine does not apply where the precedent felony is an assault inherent in the homicide. Garrett's conviction could not stand because the underlying aggravated assault and the act resulting in the homicide were one and the same. This limitation on the felony-murder rule is known as the merger doctrine.
"In the instant cause, the indictment alleges and the proof shows that appellant was engaged in felonious criminal conduct, namely, arson at the time the deceased was killed. Therefore, as required in Garrett, there was a showing of felonious criminal conduct other than the assault which caused the homicide. Unlike Garrett, appellant's act of arson in setting a habitation on fire and the resulting homicide of the victim were not one in the same. In this case, appellant attempted to set fire to a house in order to destroy it and collect insurance money, a property offense, and in the furtherance of such offense, the deceased was killed.
. . . . .
"Appellant is incorrect in his assertion that Garrett requires the reversal of his conviction."
The same reasoning is applicable in the case at bar. The appellant testified at trial that on the day of the offense he had gone to his ex-wife's home to speak to her about leaving the children alone at night. When his ex-wife refused to let him into the house, appellant went to his truck and retrieved his shotgun. He testified that he shot at the door in order to open it and did not consider the fact that someone could have been behind the door. Unbeknownst to appellant, one of his children was standing behind the door and was killed by the blast fired from appellant's shotgun.
If indeed, the appellant was engaged in felonious criminal conduct, that is committing felony criminal mischief by attempting to blow open a door with a shotgun, this conduct was clearly a property offense. In the furtherance of this offense, the deceased was shot and killed. Unlike the situation in Garrett v. State, supra, the appellant's act of criminal mischief and the deceased's resulting homicide were not one in the same. Garrett v. State, supra, does not mandate the reversal of this case.
Next we determine if the submission of a general verdict form constitutes reversible error. Article 21.24(b) V.A.C. C.P., provides that each separate count in an indictment may contain as many separate paragraphs charging the same offense as necessary. The one count indictment in the instant case contained two paragraphs charging two different theories as to the victim's murder. In McArthur v. State, *326 132 Tex. Crim. 447, 105 S.W.2d 227, 230 (1937) (Opinion on Rehearing), this Court wrote:
"... The rule seems well settled that, if but one transaction is involved, and the offense be one which may have been committed in any one of several ways, the pleader may charge in the indictment in one count that such offense had been committed by doing this, and that, and the other, and there will be no duplicity, and need be but a verdict of guilty; or the pleader may set out in separate counts each one of the various ways in which it is claimed the offense might have been committed, in which event also there need be but a verdict of guilty." 105 S.W.2d at 230.
Because appellant's indictment did not allege different offenses but only alleged different ways of committing the same offense, the court properly furnished the jury with a general verdict form. Riley v. State, 658 S.W.2d 818 (Tex.App.-Ft. Worth 1983, no petition); Bailey v. State, 532 S.W.2d 316, 322 (Tex.Cr.App.1975); Floyd v. State, 164 Tex. Crim. 50, 296 S.W.2d 523, 528 (1956).
In his first point of error, appellant contends that there is no evidence to show that he "intentionally and knowingly" caused the death of his daughter. The State argues that when he fired through the door appellant intended to kill his former wife and that felonious intent transferred over to the killing of the child. We agree.
V.T.C.A., Penal Code, Section 6.04(b)(2), provides as follows:
"(b) A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that:
(2) a different person or property was injured, harmed, or otherwise affected."
The jury was charged on the law of transferred intent.
Viewing the evidence in the light most favorable to the verdict of guilty, we find the evidence sufficient to show that appellant was acting with the intent to kill his wife. This is especially true in light of appellant's statements to his daughters the evening before the offense and appellant's statements to Salazar immediately after the offense. Under Section 6.04(b)(2), this intent carried over to the death of the victim. Appellant's first point of error is overruled.
In his second point of error, appellant argues that fundamental error occurred when the trial court included in its charge on guilt-innocence the unproven allegation of murder under V.T.C.A., Penal Code, Section 19.02(a)(1). Because we have found the evidence sufficient to support a conviction for Section 19.02(a)(1) murder in point of error one, we find this point of error to be without merit.
In his third and fourth points of error, appellant argues that the evidence is insufficient to support a conviction for murder under V.T.C.A., Penal Code, Section 19.02(a)(3) and the underlying offense of criminal mischief. As noted above one of the paragraphs of the indictment alleged that appellant committed murder by virtue of the felony-murder doctrine. In this instance the underlying felony was criminal mischief. Appellant specifically alleges that the evidence was insufficient to show the fair market value of the damaged property and destroyed property.
Where a general verdict is returned, and the evidence is sufficient to support a finding under any of the counts submitted, the verdict will be applied to the offense finding support in the facts. Adair v. State, 155 S.W.2d 170, 235 S.W.2d 170, 172 (1950) (Opinion on Rehearing). See also: Bailey v. State, 532 S.W.2d 316 (Tex.Cr. App.1975); Cavazos v. State, 365 S.W.2d 178 (Tex.Cr.App.1963). Since we have already found the evidence sufficient to support a conviction under Section 19.02(a)(1) murder, we will not review the sufficiency of the evidence to show a Section 19.02(a)(3) murder. These points of error are overruled.
In his final point of error, appellant argues that the judgment and the sentence *327 are void in that they state specific findings not made by the jury. As shown above, the jury verdict reads that the appellant was found "guilty of the offense of murder, as charged in the indictment." The judgment quotes the jury verdict and then continues with the following:
"It is therefore considered, ordered, and adjudged by the Court that the Defendant is guilty of the offense of a felony, murder as charged in the first and third paragraphs of the indictment...."
The sentence contains similar language.
At the time of appellant's trial, Article 42.01, V.A.C.C.P., provided in pertinent part:
"Sec. 1. A `judgment' is the declaration of the court entered of record, showing:
. . . . .
8. The verdict;
9. In the case of a conviction, that it is considered by the court that the defendant is adjudged to be guilty of the offense as found by the jury; ..."
Article 42.02, V.A.C.C.P., provided:
"A `sentence' is the order of the court in a felony or misdemeanor case made in the presence of the defendant, ... and entered of record, pronouncing the judgment, and ordering the same to be carried into execution in the manner prescribed by law."
Although not a model of draftsmanship, we find that the language set out in the judgment and sentence properly describes the findings of the jury. It is suggested that in the future, in a similar situation, the language merely set out that the accused "is guilty of the offense of murder."
Moreover, even if we found that the judgment and sentence improperly reflected the findings of the jury, the proper remedy would not be reversal of appellant's case, but reformation of the judgment and sentence. Article 44.24(b), V.A. C.C.P.
We find no error here. This point of error is overruled.
The judgment is affirmed.
CLINTON, J., dissents, adhering to the opinion on original submission.
TEAGUE, Judge, dissenting.
Because I find that the majority panel opinion in this cause correctly held that the facts of this cause will not support a conviction for murder pursuant to the provisions of V.T.C.A., Penal Code, § 19.02(a)(3), and the majority of this Court refuses to adhere to that decision, I respectfully dissent.
I also dissent to the majority of this Court relying upon this Court's terribly reasoned opinion of Murphy v. State, 665 S.W.2d 116 (Tex.Cr.App.1983).
The record in this cause reflects that Benny Aguirre, appellant, was convicted by a jury of the offense of murder, "as charged in the indictment." The jury was instructed that if it found beyond a reasonable doubt that appellant "intentionally and knowingly cause[d] the death of Elizabeth Aguirre, (who was then thirteen years of age and was appellant's natural daughter), by shooting her with a gun," see V.T. C.A., Penal Code, Section 19.02(a)(1), or if they found that he did "intentionally or knowingly attempt to commit and did commit a felony, to-wit: criminal mischief, and in the course of and in furtherance of the said felony did then and there attempt to commit and did commit an act which was clearly dangerous to human life, to wit: shooting a gun into an occupied dwelling which said act caused the death of Elizabeth Aguirre," see V.T.C.A., Penal Code, Section 19.02(a)(3), supra, the felony murder statute, it could find him guilty of the offense of murder. Because the jury's verdict does not specify under which theory appellant was found guilty, I am unable to state "which theory of alleged criminal responsibility prevailed in the jury room."
On original submission, a majority of a panel of this Court ordered the conviction of appellant reversed, after holding that "... [I]f the jury opted for the felony-murder *328 theory alleged in the second remaining paragraph of the indictment, its verdict could not be sustained for the reasons set forth in Garrett v. State, 573 S.W.2d 543, 545 (Tex.Cr.App.1978). See Kuykendall v. State, 609 S.W.2d 791, 794-795 (Tex.Cr. App.1980)."
I pause to point out that where there is but one offense charged in two counts of an indictment, which is permissible pleading, see Art. 21.24, V.A.C.C.P., and the evidence is found to be sufficient to support a finding of guilt under either theory, a general verdict of guilt may be applied to either theory, and it is not necessary for the jury to designate under which theory it found the defendant guilty. Bailey State, 532 S.W.2d 316 (Tex.Cr.App.1976); Hintz v. State, 396 S.W.2d 411 (Tex.Cr.App.1965).[1] However, when the general verdict of the jury might rest upon an "untenable" theory of the way the offense was committed, i.e., if one of the counts authorizes conviction on facts which do not constitute an offense, and the jury's verdict might be based upon that count, then a general verdict of guilt cannot be sustained. Martin v. State, 142 Tex. Crim. 623, 156 S.W.2d 144 (1941).
The facts of this cause reflect that Elizabeth met her death while inside of her mother's, the appellant's ex-wife's, residence. Appellant and his ex-wife previously had sustained what appears to have been an unhappy marriage, which had ended in divorce approximately three (3) years before Elizabeth met her untimely death. By appellant's own testimony, on the occasion in question, after confronting his ex-wife outside of her residence, with his ex-wife thereafter going inside of her residence and shutting the front door, appellant, who was then upset and mad at his wife, and possibly intoxicated, intentionally fired at least two shotgun blasts from a sawed-off shot gun at the residence; first at the front door of the residence and then at the rear door of the residence, which part of the residence housed the kitchen. Elizabeth's death resulted when her body, which was found in the kitchen area of the residence, was struck by shots fired from the shotgun. The record is not completely clear whether it was shot from the first blast or shot from the second blast that caused Elizabeth's death.
The State's expert witness on what it would cost to repair the damages appellant inflicted on the residence testified that the total repair cost to the residence was in excess of $600. The expert was not asked, nor did he state, what it would cost to repair the damage that was inflicted to the front door area of the residence versus what it would cost to repair the damage that was inflicted to the rear door area of the residence, or vice versa. He simply gave a total repair cost figure for the necessary repair work for the damages appellant's shotgun blasts inflicted. This becomes important. See post.
I find from the above facts that the jury could have inferred from the facts that each time appellant fired his shotgun he intended to commit the offense of felony criminal mischief to the residence of his former spouse. See post.
In this instance, the jury was instructed on the provisions of V.T.C.A., Penal Code, Sec. 6.04(b)(2), which provides that a person is criminally responsible for causing a result if the only difference between what actually occurred and what that person desired, contemplated or risked is that a different offense was committed or a different person or property was injured, harmed or otherwise affected. The jury was clearly warranted in finding appellant guilty of the offense of murder, by "unlawfully, intentionally and knowingly caus[ing] the death of Elizabeth Aguirre by shooting her with a gun."
Notwithstanding this finding, I must still make the determination whether the majority panel opinion was correct in holding that the facts of this cause do not support the felony murder allegation of the indictment, as contained in paragraph three of the indictment. After having carefully reviewed the facts of the case, and having found that it is possible that the jury might *329 have based its verdict upon the instruction that incorporated the provisions of Section 19.02(a)(3), supra, the felony murder statute, I must next decide whether the facts are sufficient to support the felony murder count of the indictment. I find that they are insufficient.
Before a violation of Section 19.02(a)(3), supra, may occur, it must be established that the defendant "committed or attempted to commit a felony, other than voluntary or involuntary manslaughter, and in the course of and in furtherance of the commission or attempt ... of that felony he committed or attempted to commit an act clearly dangerous to human life that caused the death of an individual."
At the time of the alleged offense, the offense of felony criminal mischief could be committed if a person, without the effective consent of the owner, intentionally or knowingly damaged tangible property of the owner and the amount of the pecuniary loss was $200 or more but less than $10,000. See V.T.C.A., Penal Code, Section 28.03, prior to amendment. In this instance, I find that the evidence is more than sufficient to reflect that appellant twice intended to commit the offense of felony criminal mischief to the residence.
The majority panel opinion primarily relied upon Garrett v. State, supra, as its principal authority for holding that the facts of this cause would not support the felony murder allegation of the indictment. Although I find that the majority panel opinion reached the correct result, I also find its authority of Garrett v. State, supra, was wrongly decided.
The facts set out in Garrett v. State, supra, reflect that the defendant went inside of a Ben Franklin store, got into an altercation with a clerk, pulled a gun, intending to scare the clerk, but shot the clerk instead, as a result of which the clerk died.[2] The State alleged that the defendant violated the felony murder statute, see Sec. 19.02(a)(3), supra, alleging that the predicate offense was aggravated assault. On appeal, the defendant raised the issue "whether the felony-murder doctrine, as codified in Sec. 19.02(a)(3), supra, should apply where the precedent felony is an assault and is inherent in the homicide." A panel of this Court found that the State, by its allegations, was attempting to use the very act, aggravated assault, which caused the murder, as the felony which boosted the homicide itself into the murder category, and held that "[t]o allow this would make murder out of every aggravated assault that results in a death. It would relieve the State of the burden of proving an intentionally or knowingly caused death in most murder cases because murder is usually the result of some form of assault." The panel quoted the following, which I find states the common law rule of felony murder, from the opinion that then Chief Justice Cardozo had authored for the New York Court of Appeals, see People v. Moran, 246 N.Y. 100, 158 N.E. 35 (1927):
"... The felony that eliminates the quality of the intent must be one that is independent of the homicide and of the assault merged therein, as, e.g., robbery or larceny or burglary or rape," and held that under the facts of the case the alleged aggravated assault and the act resulting in the homicide were one in the same. It held: "The application of the felony murder doctrine to situations such as this is an attempt to split into unrelated parts an indivisible transaction. [Before the felony murder statute can be invoked and applied] [t]here must be a showing of felonious criminal conduct other than the assault causing the homicide. Any other result in this case would allow circumvention of the statutory limits of the felony murder statute... The legislative prohibition against resting a Sec. 19.02(a)(3) prosecution on voluntary manslaughter necessarily includes a prohibition against resting such *330 a prosecution on offenses statutorily includable in voluntary [or involuntary] manslaughter. To hold to the contrary would render the statute meaningless and its effect nil." (My Emphasis.) The majority panel opinion thereafter held that the facts of the case did not support the allegations of the indictment, and ordered the indictment dismissed. I find that the panel opinion of Garrett v. State, supra, erroneously interpreted Section 19.02(a)(3), supra. We should expressly overrule Garrett v. State, supra.
Section 19.02(a)(3), supra, expressly provides that the offense of felony murder cannot be sustained if the underlying felony is voluntary or involuntary manslaughter. It, however, does not make reference to lesser included offenses. Had the Legislature wanted to exclude lesser included offenses, in addition to the offenses of voluntary and involuntary manslaughter, it could have easily so stated. It, however, did not so state and it is not the function of this Court to act legislatively. Garrett, supra, erroneously held that any lesser includable offenses of voluntary manslaughter, and implicitly also any lesser included offenses of involuntary manslaughter, were excluded from the statute. They are not.
I also find that Garrett, supra, erroneously held that the word "act" means "an indivisible transaction." The word "act", however, is defined in the Penal Code, see V.T.C.A., Section 1.07(a)(1), to mean, not an indivisible transaction, but, instead, "a bodily movement, whether voluntary or involuntary, and includes speech." Under the facts in Garrett, supra, the defendant's pointing his pistol at the store clerk constituted the offense of aggravated assault, see V.T.C.A., Penal Code, Section 22.02(a)(4), and under Section 19.02(a)(3), supra, his pulling of the trigger constituted bodily movement, and was thus an independent "act." Thus, the defendant in Garrett v. State, supra, was properly charged and convicted of the offense of felony murder. Thus, in Garrett, supra, there were two separate and independent acts.
The panel decision of Garrett, supra, gains no strength by this Court's later decision of Ex parte Easter, 615 S.W.2d 719 (Tex.Cr.App.1981), in which this Court expressly held that "an indictment alleging felony murder was not fundamentally defective so as to be susceptible to challenge for the first time in a post-conviction writ of habeas corpus ..." It also expressly held that "[p]etitioner may not, in this habeas corpus proceeding, collaterally attack the sufficiency of the evidence to support the conviction ..." Beyond these two express holdings, whatever else might have been stated in Ex parte Easter, supra, is dicta and should not be considered as binding precedent.
As previously pointed out, the jury could have inferred from the facts of this case that appellant was criminally responsible for causing the death of his daughter, because under Section 6.04(b)(1), "[a] person is criminally responsible for causing a result if the only difference between what actually occurred (Elizabeth's untimely death) and what [appellant] desired, contemplated, or risked (intending to commit the offense of felony criminal mischief, when he twice fired his shotgun at the residence, knowing that one or more individuals were inside, which showed an utter disregard for human life) was that a different offense (murder of Elizabeth) was committed."
Section 6.04(b)(1), supra, is patterned after former penal code Article 42, which provided: "One intending to commit a felony and who in the act of preparing for or executing the same shall through mistake or accident do another act which, if voluntarily done, would be a felony, shall receive the punishment affixed to the felony actually commited." See Richards v. State, 35 Tex. Crim. 38, 30 S.W. 805 (Tex.Cr.App. 1895), for further discussion of the statute. The main difference in the statutes is that present Section 6.04(b)(1), supra, does not require that the predicate offense must be a felony, whereas former Art. 42 did. Further, former Art. 42 was a punishment statute, whereas Sec. 19.02(a)(3), supra, is an offense within itself. Thus, Section 6.04(b)(1), supra, is an extremely general *331 statute. It can, however, be applied to a Section 19.02(a)(3), supra, offense. Williams v. State, 567 S.W.2d 507, 509 (Tex.Cr.App.1978). However, Section 19.02(a)(3), supra, the felony murder statute, so denominated because the murder results from the commission or attempted commission of another felony offense, though it has many similarities to Section 6.04(b)(1), supra, it is a very specific statute. As the "Practice Commentary" points out, "Under it the mere attempt or commission of a felony no longer suffices to construct intent or knowledge: the actor must kill while intending or committing an act clearly dangerous to human life in the course or furtherance of the felony ..." (My Emphasis.)
I also find that this Court's decision of Murphy v. State, 665 S.W.2d 116 (Tex.Cr. App.1983), which erroneously relied upon Garrett v. State, supra, is misinterpreted in light of the provisions of Section 19.02(a)(3), supra. The facts in Murphy v. State, supra, clearly reflect that the State could have easily prosecuted the defendant under Section 6.04(b)(1), supra. Instead, it chose to prosecute the defendant under Section 19.02(a)(3), supra. However, the facts as set out in Murphy v. State, supra, do not reflect what independent act the defendant committed in the course of and in furtherance of his commission of the offense of arson, which act had to have been clearly dangerous to human life that caused the death of the deceased in that case. The opinion, however, expressly states: "... appellant's act of arson in setting a habitation on fire and the resulting homicide of the victim were not one in the same [act]."
I do find in Murphy v. State, supra, that this Court erroneously held that the felony murder statute does not apply where the precedent felony is an assault inherent in the homicide. As previously observed, Section 19.02(a)(3), supra, provides for no such limiting feature. The only limiting feature in Section 19.02(a)(3), supra, as far as offenses go, is that the predicate or original felony offense cannot be either voluntary or involuntary manslaughter.
I now return to the case at Bar. Will the facts that were presented to the jury support the allegation of the indictment that appellant committed the offense of felony criminal mischief and in the course of and in furtherance of that offense he also committed an act clearly dangerous to human life that caused the death of Elizabeth? I am compelled to answer the question in the negative.
In this cause, appellant was shown to have intended to commit the offense of felony criminal mischief, not once but twice. A result of his firing his shotgun at his ex-wife's residence was his daughter's death. These facts clearly bring the case within the provisions of Section 6.04(b)(1), supra. However, do they also establish a violation of Section 19.02(a)(3), supra? To answer this question in the affirmative requires that the evidence reflects that in the course of and in furtherance of the commission of either felony criminal mischief appellant committed or attempted to commit an act clearly dangerous to human life that caused the death of Elizabeth. What intervening, independent act did the State establish that appellant committed or attempted to commit after he had committed the felony criminal mischiefs? I have carefully searched the record for evidence of an intervening, independent act and conclude that I must answer the question in the negative. By the very terms of Section 19.02(a)(3), supra, the death causing act must be in addition to the predicate felony offense, in order to elevate the degree of culpability to that accorded the offense of first degree murder. As previously noted, Section 19.02(a)(3), supra, is not merely a statute providing for a greater punishment for unlawfully causing the death of another, cf. former Art. 42, supra, but actually states the criminal offense of murder.
Because the facts will not support either the allegation contained in the third paragraph of the indictment or a finding of guilt, appellant's conviction should be reversed.
Given the above, the majority opinion's reliance upon Murphy v. State, supra, is clearly erroneous.
*332 Appellant's conviction should be reversed and not affirmed and the State should be barred from retrying appellant on the third paragraph of the indictment.
NOTES
[1] The judgment of the trial court adjudicates appellant guilty of the offense of murder "as charged in the first and third paragraphs of the indictment...," and the sentence contains a like recitation. In his sixth ground of error appellant asserts the quoted finding by the trial court renders the judgment and sentence void. The recitation is erroneous in that it does not conform to the verdict rendered by the jury, Article 42.01, § 1, paras. 8 and 9, V.A.C.C.P., and when we have the necessary data and evidence in the record the Court is authorized by Article 44.24, id., to reform a judgment and sentence in a proper case so as to conform them with the verdict of the jury. Knight v. State, 581 S.W.2d 692, 694 (Tex.Cr.App.1979). However, since we must sustain one of appellant's grounds of error and reverse the judgment, this is not a proper case for reformation.
[2] Easter did observe that "the crime of injury to a child is not a lesser included offense to the crime of murder," whereas in Garrett "the aggravated assault was a lesser included offense in the homicide." When testing fundamental sufficiency of a felony murder indictment to allege an offense, however, that perceived difference is of little moment. So long as the underlying offense is a felony other than voluntary or involuntary manslaughter, the crux of felony murder under § 19.02(a)(3) is killing by committing or attempting to commit "an act clearly dangerous to human life" in the course of furtherance of the underlying felony or in immediate flight therefrom. Of course, as in Garrett, it will often be the case that the homicide is committed "while the felon is engaged in highly dangerous conduct," Practice Commentary following § 19.02, but nothing in the statute requires that the conduct constitute a lesser offense included in homicide.
[3] In his first and second grounds of error appellant challenges sufficiency of evidence to support a conviction under the first paragraph of the indictment, contending there is no evidence that he "intentionally and knowingly" caused the death of his daughter. The State argues that when he fired through the door appellant intended to kill his former wife and that felonious intent in law transferred over to the actual slaying of the child. The trial court charged the jury on causation pursuant to V.T.C.A. Penal Code, § 6.04(b)(2). For present purposes we are unable to say the evidence is not sufficient to support that theory of criminal responsibility.
In his third and fourth grounds of error appellant challenges sufficiency of the evidence to support his conviction under the second paragraph of the indictment. Given our disposition of his fifth ground of error and the likelihood of retrial we need not determine whether the evidence was sufficient to show the fair market value of the damaged property.
[1] Also see Art. 37.07, Sec. 1(c), V.A.C.C.P.
[2] Though not stated in the opinion of Garrett, supra, the record of appeal in that cause reflects that the State's witness Adrian Meeks, who was five years old when the defendant's trial occurred, testified that when the shooting occurred he was standing directly behind the defendant. Meeks testified that "he [the defendant] took it [the pistol] out and he [the defendant] shot[then] he pointed it [the pistol] and shot the white man [the deceased] ... and [then he, the defendant,] ran out the door [of the store]. (My emphasis.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1763897/ | 872 So. 2d 1 (2004)
Jan Michael BRAWNER, Jr.
v.
STATE of Mississippi.
No. 2002-DP-00615-SCT.
Supreme Court of Mississippi.
April 29, 2004.
*3 David L. Walker, Batesville, Tommy Wayne Defer, attorneys for appellant.
Office of the Attorney General by Judy T. Martin, Marvin L. White, Jr., attorneys for appellee.
EN BANC.
COBB, Presiding Justice, for the Court.
¶ 1. Jan Michael Brawner, Jr. was indicted on four counts of capital murder. Count one was for the willful murder of his three-year-old daughter, Candice Paige Brawner, while engaged in the commission of the crime of felonious abuse and/or battery of the child. Counts two, three, and four were identical: willful murder while engaged in the commission of the crime of robbery of his ex-mother-in-law, Martha Jane Craft; his ex-wife, Barbara Faye Brawner; and his ex-father-in-law, Carl Albert Craft.
¶ 2. Brawner was tried before a jury in the Circuit Court of Tate County, Mississippi, and was found guilty on all four counts of capital murder. In a separate sentencing hearing, the jury returned the death penalty on all four counts. Brawner's Motion for Judgment Notwithstanding the Verdict or in the Alternative, for a New Trial was denied, and he then timely appealed to this Court.
FACTS
¶ 3. Brawner was 24 years old at the time of the murders. He was raised by his *4 stepfather in Southaven, Mississippi. Brawner finished the ninth grade, but failed an attempt to obtain a GED, and he had worked mostly as a forklift operator in warehouses. In December, 1997, he married Barbara Craft, and in March of 1998, their daughter, Paige, was born. Brawner and Barbara were divorced in March of 2001, and she was awarded custody of Paige. Thereafter, Barbara and Paige lived with Barbara's parents, Carl and Jane Craft, in their home in Tate County. Brawner had also lived with the Crafts off and on during his marriage to Barbara.
¶ 4. At the time of the murders, Brawner was living with June Fillyaw, whom he met in 2000 through a "date line" on a local radio station. They lived in an apartment in Southaven, and according to Brawner, were having financial difficulties. Brawner had also been told by Barbara that she did not want him around Paige, and he testified that pressure on him was building because nothing was going right.
¶ 5. On the day before the murders, Brawner left his apartment in Southaven at 3:00 a.m. and headed toward the Craft house, about an hour away. He testified that he thought he might be able to borrow money from Carl Craft, although in his prior statement he said he had planned to rob Carl. Brawner parked the U-haul truck he was driving some distance from the house and walked the rest of the way to the house, where he sat on the front steps from approximately 4:00 a.m. until 7:00 a.m. During this time, he took a 7 mm Ruger rifle out of Carl's truck and emptied the bullets from it, because "he didn't want to get shot." When he heard Carl coming out, he hid behind Carl's truck. A dog started barking, and Carl started looking around for the cause of the dog's barking. When Carl went back inside, Brawner ran away, thinking Carl might be getting a gun. He then drove back to his apartment.
¶ 6. The following day, April 25, 2001, Brawner again drove the U-haul to the Craft house, this time around noon. He knocked on the door, but no one was home. He went to the truck to get some rubber gloves that he had purchased earlier in the day, then using the gloves, "took the slats out of the back door," entered the house, and took a .22 rifle. He left the same way he came in, putting the slats back into the door. He then went to Carl's place of work and talked to him, asking if it would be OK for him to go out to the house to wait for Barbara and Paige so that he could see his daughter. Carl said yes.
¶ 7. Brawner went back to the Craft house and waited. When Barbara and Paige did not return, he decided to write a note and leave. About that time Barbara, Paige, and Jane Craft pulled into the drive. Jane asked Brawner if he had been to their house the previous day, and he lied, saying "no." Barbara informed him that there was a restraining order against him, and he was not supposed to be there. He said he had a book to give Paige, then went to the truck and retrieved the book. At some point when they had all gone into the house, Jane again asked Brawner if he had been at the house the previous day. At this point Brawner became agitated and went to the truck and brought back the rifle that he had taken from the Craft house earlier that day.
¶ 8. When Barbara asked him "what is that," he said it was her dad's gun. He then told Barbara that she was not going to take Paige away from him. At that moment he saw Jane walking toward the bedroom and shot her with the rifle. He said he then saw Barbara coming toward him, and shot her. He then went to where Jane had fallen and "put her out of her misery." After this, he went back to *5 where Barbara had fallen onto the couch and shot her again. Brawner recalled Paige looking up at him and holding up her left arm, which was sprayed with blood, and saying "Daddy you hurt me." Brawner then took her to her bedroom and told her to watch TV, and he went back to the living room and paced. After Brawner determined that Paige would be able to identify him, and in his words, he "was just bent on killing," he went back into the bedroom and shot his daughter twice, killing her. He then waited in the house until Carl came home from work, and when Carl walked through the door, Brawner shot and killed him.
¶ 9. Brawner stole approximately $300 from Carl's wallet, stole Jane's wedding ring from her finger, and stole food stamps out of Barbara's purse. He took Windex from the kitchen and attempted to wipe away any fingerprints he may have left. Brawner then returned to his apartment in Southaven, where he gave the stolen wedding ring to June Fillyaw, asked her to marry him, and told her that he bought the ring at a pawn shop. June testified at trial that Brawner was not acting unusual that evening, but he seemed tired.
¶ 10. David Craft, Barbara Brawner's brother, found the bodies the following morning. He told police that he suspected Brawner and told them where Brawner lived. When they arrested Brawner, they searched the U-haul and June's car and found the .22 rifle and latex gloves. June also told police that Brawner had given her the ring.
¶ 11. While he was being held in the Tate County jail, Brawner admitted the shootings in a statement made to the Chief Deputy of the Tate County Sheriff's Department, on November 15, 2001, approximately six months after the murders. Brawner completed a jail inmate request form asking to "speak with [chief deputy] Brad Lance whenever possible." Lance gave Brawner Miranda warnings, after which Brawner gave a taped statement detailing the events of April 24-25, 2001. Brawner's motion to suppress this statement was denied by the trial court and is not an issue on appeal. Brawner also testified on his own behalf at trial and gave essentially the same account of the events as described above.
¶ 12. Brawner raised the insanity defense at trial, although he testified that he knew at the time of the shootings that the shootings were wrong. The trial judge found Brawner competent based on information furnished by the Mississippi State Hospital, which certified Brawner competent to stand trial, and mentally responsible for the acts at the time they were committed. Additionally, a court-appointed psychiatrist, chosen by defense counsel, reported that Brawner was neither insane nor incompetent to stand trial.
DISCUSSION
¶ 13. Convictions of capital murder and sentences of death, when appealed to this Court, are subject to heightened scrutiny. Under this method of review, all bona fide doubts are to be resolved in favor of the accused because "what may be harmless error in a case with less at stake becomes reversible error when the penalty is death." Balfour v. State, 598 So. 2d 731, 739 (Miss.1992). In this case, there are no bona fide doubts. We affirm on all issues.
¶ 14. Brawner raises eight assignments of error on appeal.
I. WHETHER THE TRIAL COURT ERRED IN DENYING BRAWNER'S MOTION TO SEVER COUNT ONE OF THE INDICTMENT.
¶ 15. Brawner filed a motion to sever count one, the willful murder of *6 Candice Paige Brawner while engaged in the commission of the crime of felonious abuse and/or battery of a child. Brawner argues that he did not kill Paige while in the commission of the crime of felonious abuse and/or battery of a child, but simply shot her, killing her, which would constitute simple murder. Brawner argues that counts two, three, and four involve the underlying felony of robbery, which is not found in count one, and thus count one is not based upon the same acts or transactions connected together or constituting parts of a common scheme or plan as required by Miss.Code Ann. § 99-7-2 (Rev.2000). Brawner also asserts that failure to sever count one violated his right to due process and a fair trial pursuant to the Fifth and Sixth Amendments to the United States Constitution and Article 3, Sections 14 and 26 of the Mississippi Constitution of 1890, but he offers no case law that supports this assertion. Additionally, Brawner concedes that capital murder may be charged in a multi-count indictment per Woodward v. State, 533 So. 2d 418, 421-23 (Miss.1988).
¶ 16. The State argues that all four murders occurred in the same location and at nearly the same time, and that such murders constitute a common scheme under § 99-7-2. The State also claims that it would be impossible to separate evidence concerning the death of Paige Brawner from the deaths of the others, thus making it impractical to try the cases separately.
¶ 17. The statute that controls multi-count indictments states:
(1) Two (2) or more offenses which are triable in the same court may be charged in the same indictment with a separate count for each offense if: (a) the offenses are based on the same act or transaction; or (b) the offenses are based on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan.
(2) Where two (2) or more offenses are properly charged in separate counts of a single indictment, all such charges may be tried in a single proceeding.
...
Miss.Code Ann. § 99-7-2 (Rev.2000). In Corley v. State, 584 So. 2d 769, 772 (Miss. 1991), this Court identified a procedure by which a multi-count indictment may be challenged:
When a defendant raises the issue of severance, we recommend that a trial court hold a hearing on the issue. The State, then, has the burden of making a prima facie case showing that the offenses charged fall within the language of the statute allowing multi-count indictments. If the State meets its burden, a defendant may rebut by showing that the offenses were separate and distinct acts or transactions. In making its determination regarding severance, the trial court should pay particular attention to whether the time period between the occurrences is insignificant, whether the evidence proving each count would be admissible to prove each of the other counts, and whether the crimes are interwoven. See Allman v. State, 571 So. 2d 244, 248 (Miss.1990); McCarty v. State, 554 So. 2d 909, 914-16 (Miss.1989).
Corley, 584 So.2d at 772. Additionally, this Court instructed that if this procedure were followed, the Court would review the trial court's decision under the abuse of discretion standard, giving due deference to the trial court's findings. In Corley, the defendant was charged with two counts of attempting to intimidate witnesses. There were two incidents, on the same day, where Corley allegedly almost ran down different men who were to testify against him in an upcoming trial. Although this Court stated that this was a close call, it *7 held that the trial court did not abuse its discretion in denying the motion for severance.
¶ 18. In the present case, the trial court held a full hearing on the issue. The killings occurred within a few hours and were all part of the common scheme to rob Carl Craft and eliminate any witnesses. Additionally, the murders are interwoven, and the evidence of each murder would be admissible to prove the other murders since all murders occurred at the same place and closely in time. Brawner did not rebut these arguments but simply stated that the killing of the child was not part of any plan or scheme to rob any of the individuals in the Craft home. However, this statement is at odds with Brawner's trial testimony that he killed the child because she could identify him.
¶ 19. In Stevens v. State, 806 So. 2d 1031 (Miss.2001), a case similar to the present one, this Court held that four killings which took place in the same home at about the same time, were the result of a common scheme or plan. In Stevens, the defendant was indicted on four counts of capital murder and one count of aggravated assault. The defendant was upset with his ex-wife over the custody and support of their daughter and appeared one day at her home with the alleged intent to kill her. The defendant shot and killed his ex-wife, her husband and 11-year-old son, and the son's 12-year-old friend, who were all in the home at the time. The defendant also shot his daughter in the back with a shotgun, although she was able to escape the home through a window and survived. This Court held that all charges were properly included in a multi-count indictment, as the crimes undisputedly constituted a common scheme or plan.
¶ 20. In Williams v. State, 794 So. 2d 1019 (Miss.2001), defendants robbed one woman at gunpoint, then later that evening, robbed and killed another woman, who had no relationship to the first woman. Defendants were charged in a three count indictment with conspiracy, robbery, and capital murder. This Court held that the trial court did not err in trying count two (armed robbery of first woman) and count three (capital murder of second woman) together. "The crimes constituted a common scheme or plan to rob individuals that evening." Id. at 1025. Based on these cases, it is clear that in the present case, there was a common scheme or plan to rob at least one of the individuals and kill anyone who might be in the home at the time. Thus, the trial court did not abuse its discretion in denying the motion to sever.
II. WHETHER THE TRIAL COURT ERRED IN OVERRULING BRAWNER'S OBJECTIONS TO THE STATE'S EXERCISE OF CERTAIN PEREMPTORY CHALLENGES.
¶ 21. According to Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and its progeny, parties may not exercise peremptory strikes for unconstitutionally discriminatory reasons. In this case, the jury was composed of nine women and three men. Nevertheless, Brawner asserted a gender-based objection to the State's peremptory challenges of female jurors during the jury selection process. Similarly, the State objected to Brawner's use of peremptory strikes against males. The selection process and peremptory challenges from the record are depicted in the table below:
*8
Juror # State Defense Jurors Selected or
and Sex Strike Strike Reason for Challenge
# 7-female D1
# 14-male D2 Knows David Craft, a family member of deceased
victims
# 32-male S1
# 37-male Juror # 1
# 38-female S2 Juror pregnant. The previous week a pregnant
juror had problems with the lack of air
conditioning in the courtroom.
# 65-male D3 Crime victim, family members are in law
enforcement
# 68-female S3 Juror stated "four deaths are enough"
# 79-female Juror # 2
# 81-female Juror # 3
# 86-female Juror # 4
# 91-female Juror # 5
# 105-male D4 Previously a juror and found a defendant guilty
# 107-female D5 Previously a juror and found a defendant guilty
# 108-female S4 Juror's brother was convicted of murder
# 111-male D6 Crime victim
# 112-female Juror # 6
# 120-female S5 Stated she thinks life w/o parole is worse than
death
# 122-female S6 Information from outside source (local law
enforcement) said she would not make a good
juror in a death penalty case
# 123-male Juror # 7
# 127-female Juror # 8
# 157-female D7
# 169-female S7 Relative in law enforcement expressed concern as
to whether she could consider the death penalty
# 171-female D8
# 172-female Juror # 9
# 176-female S8 Not employed, stated it would be a hardship for
her to sit on the jury
# 189-male S9 Son was prosecuted by State
# 193-female S10 Preferred the next juror up, also a female
# 209-female D9
# 211-male D10
# 212-male D11
# 220-female Juror # 10
# 237-not in record S11
# 243-male D12
# 254-not in record S12
# 261-male Juror # 11
# 262-female Juror # 12
¶ 22. During the initial selection of 12 jurors, the State struck three females and one male, tendering seven females and five males. Brawner asserted that this was a prima facie showing of gender bias against female jurors and challenged the strikes based on J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S. Ct. 1419, 128 L.Ed.2d *9 89 (1994). Because seven of the 12 tendered jurors were female, the judge declined to find a prima facie showing of gender bias. Out of caution, however, the judge granted the State's request to show on-the-record the non-discriminatory purpose for each strike (see reasons in table above). The defense then struck four males and two females from the tendered jurors, and the State objected that the defense had struck every white male that had been tendered. The judge then asked the defense to give the reason for each strike and found that even though there seemed to be some bias, it was too weak to find a pattern of gender discrimination.
¶ 23. The State next tendered one male and five females, striking one male and five females during the process, and the defense renewed its J.E.B. gender challenge. The State again, "out of an abundance of caution" requested and was allowed to give reasons for its strikes. The defense offered rebuttal to five of the State's strikes. First, Brawner argued that juror number 38, who is pregnant, had not shown that the baby would be born during the trial or that the pregnancy would impact her ability to be a juror. The State countered that a pregnant juror the previous week had had a hard time with the heat, because the court room was not air conditioned. Next, Brawner argued that jurors 108 and 176 were struck because they were unemployed and that the State was being inconsistent because it allowed other jurors who were retired, thus unemployed, to be seated. The State countered that an additional reason for striking juror 108 was because her brother had been convicted of murder. Finally, the State struck jurors # 122 and # 169 based on "outside information" provided by law enforcement officials who knew these potential jurors and thought they might be biased against the death penalty. Brawner noted that after juror # 122 was questioned under oath by both parties and the judge, she expressed no qualms about the death penalty. Brawner argues that the State's use of "second hand hearsay" evidence restricted his ability to rebut the State's reason for striking such a juror.
¶ 24. The State offered an additional reason for striking so many females: namely, that there were 13 out of 15 female jurors in a row at one point, thus the State had little choice but to strike female jurors. The judge again found no pattern of gender discrimination.
¶ 25. The proper analysis to determine if purposeful discrimination in the jury selection process has occurred was set out in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and has been reiterated by this Court in numerous cases. See Berry v. State, 728 So. 2d 568 (Miss.1999); Randall v. State, 716 So. 2d 584 (Miss.1998); McFarland v. State, 707 So. 2d 166 (Miss.1998). Batson requires, as step one, that the defendant make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. In step two, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. The Batson procedure then authorizes the defendant to rebut the "prosecutorial explanations, if he is able to do so." Chisolm v. State, 529 So. 2d 635, 638 (Miss.1988). Finally, in step three, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. The trial judge must "make an on-the-record factual determination that each reason proffered by the State for exercising a peremptory challenge is, in fact, race neutral." Hatten v. State, 628 So. 2d 294, 295 (Miss.1993). In other words, the trial judge must determine whether the reason *10 given is a pretext for discrimination. See Hernandez v. New York, 500 U.S. 352, 363, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991) (plurality).
¶ 26. Although Batson and Hatten concerned racial discrimination, this Court held in Bounds v. State, 688 So. 2d 1362 (Miss.1997), that all of the case law following and interpreting Batson also applies to J.E.B. and gender discrimination issues, and race-neutral reasons for striking a juror are also permissible gender-neutral reasons. Id. As with race-based Batson claims, a party alleging gender discrimination must make a prima facie showing of intentional discrimination before the party exercising the challenge is required to explain the basis for the strike. J.E.B., 511 U.S. at 145, 114 S. Ct. 1419. When an explanation is required, it need not rise to the level of a "for cause" challenge; rather, it merely must be based on a juror characteristic other than gender, and the proffered explanation may not be pretextual. See Hernandez, 500 U.S. at 362-63, 111 S. Ct. 1859. The trial court's decision is accorded great deference on review, and this Court will reverse only where the decision is clearly erroneous. Puckett v. State, 788 So. 2d 752, 756 (Miss.2000); Collins v. State, 691 So. 2d 918, 926 (Miss. 1997).
¶ 27. As explained in Randall v. State, 716 So. 2d 584, 587 (Miss.1998), to determine if a prima facie case of discrimination has been shown, "the pivotal question is whether the opponent of the strike has met the burden of showing that proponent has engaged in a pattern of strikes based on race or gender, or in other words `the totality of the relevant facts gives rise to an inference of discriminatory purpose.' " Id. (quoting Batson, 476 U.S. at 94, 106 S.Ct. at 1721). In the present case, the trial judge twice found that the defense did not make a prima facie showing of gender discrimination. In reviewing the trial court's determination, we agree that there was no prima facie showing that the State engaged in a pattern of strikes based on gender. The initial 36 jurors in the jury pool, from which the twelve jurors were ultimately selected, consisted of 22 females and 12 males (the gender of two of the prospective jurors is not clear from the record), or slightly more than 60% female. From these, a jury of nine females and 3 males was selected, or 75% female. Upon the tender of the first twelve prospective jurors, seven female and five male, the State used four strikes to eliminate three women and one man. Upon the second tender of five women and one man, the State struck five women and one man. In total the State tendered 12 women and six men. Although the State struck substantially more women than men, the fact that the selected jury incorporated a proportionally larger percentage of women than were in the venire contradicts the claim of gender discrimination.
¶ 28. Notwithstanding the finding that a prima facie showing of gender bias had not been made, the judge nevertheless allowed the State to offer, for the record, its gender-neutral reasons for striking females.[1] We view this as a good practice for two reasons. First, if it becomes necessary to remand for a Batson hearing, this record would be invaluable assistance to the trial judge and would allay the *11 difficulties caused by lost or misplaced documentation and faded memories, which may lessen the credibility of a party. Second, if on appeal this Court determines that a prima facie case has been made, this procedure gives the Court a complete record for reviewing the issue of pretext. As revealed in Lockett v. State, 517 So. 2d 1346, 1349 (Miss.1987), this practice has been allowed since a few days after Batson was decided in 1986. However, as held in Stewart v. State, 662 So. 2d 552, 559 (Miss. 1995), "a trial judge does not have the authority to invoke a Batson hearing on his own initiative," without the opposing party first making a prima facie showing of discriminatory purpose.
¶ 29. In Puckett v. State, 737 So. 2d 322, 334-35 (Miss.1999), this Court stated that the voluntary action of the State in providing race or gender neutral reasons for its strikes without a finding of a prima facie showing of purposeful discrimination does not lessen the burden on the defendant to establish the prima facie case. "Upon review, this Court `must first ... determine[ ] that the circumstances of the State's use of peremptory challenges against minority venire persons created an inference of purposeful discrimination.'" Id. (quoting Thorson v. State, 653 So. 2d 876, 898 (Miss.1994)).
¶ 30. Where a trial judge finds that there is no prima facie showing of discrimination, but then allows the opposite party to make a record for appeal by stating their reasons for the strikes, the trial judge must ensure that the record is complete by allowing a rebuttal and by making specific on-the-record factual findings for each strike as required by Hatten.
¶ 31. Although in the present case we have held that there was no prima facie showing of discriminatory purpose in the peremptory strikes made by the State, we nevertheless address the issue of using outside information as the basis for striking jurors. We have upheld this practice in previous cases.[2] However, we feel compelled to address the practice of striking potential jurors in criminal trials based on information gathered from outside sources, often law enforcement officers, when those sources are not revealed or are not available for questioning. In addressing the gender-neutral reasons offered by the prosecution for striking female jurors in one case, we stated:
Clearly, none of these reasons per se violates Batson, and so the analysis moves to step three in order to determine whether, under the totality of the circumstances, the reasons offered by the State were mere pretexts for unlawful discrimination. Here they clearly were not. The determination of pretext, like the other Batson elements, hinges to a large extent on credibility. Purkett, 514 U.S. at 769, 115 S. Ct. 1769.[3] Furthermore, as this Court stated in Mack v. State, the relative strength of the prima facie case will color to a degree the determination of the pretext. Mack v. State, 650 So. 2d 1289, 1298 (Miss. 1994).
Hughes v. State, 735 So. 2d 238, 252 (Miss. 1999). In this same light, we listed a number of possible acceptable race-neutral bases for peremptory strikes in Appendix *12 I of Lockett. Even though Lockett was decided prior to our Hatten requirement for on-the-record factual determinations, we stated that "our opinion should not be construed to limit legitimate, racially neutral reasons to the reasons in this case or to hold these reasons to be automatically race-neutral in any other case." Lockett, 517 So.2d at 1352 (emphasis added). While we do not hold today that our trial judges should conduct a "mini-hearing" within a Batson hearing each time a peremptory challenge is exercised based on information gained from outside sources, we do depend on the trial courts to exercise caution to ensure that peremptory challenges based on information from outside sources is credible and supported by on-the-record factual findings to this effect and that a complete record is made on this issue. If in doubt about the validity of outside information, the trial court should do what is necessary to ensure the proposed reasons are non-pretextual. This may include questioning the outside source on the record.
¶ 32. We find no error in the trial court's J.E.B. analysis. No prima facie case of gender discrimination was shown by Brawner. It is not necessary to review each gender neutral reason offered by the State for its strikes.
III. WHETHER THE TRIAL COURT ERRED IN DENYING BRAWNER'S ORE TENUS MOTION TO ABOLISH THE USE OF PEREMPTORY CHALLENGES IN CRIMINAL CASES.
¶ 33. During the selection of the jury, Brawner raised this motion ore tenus asking the trial court to abolish the use of peremptory challenges in criminal cases. The trial court denied the motion. This issue was raised in Snow v. State, 800 So. 2d 472, 483 (Miss.2001), where Snow asserted that the racial and gender restrictions on peremptory challenges are not enforceable under the three-step analysis provided by Batson, and, therefore, that the appropriate remedy is the abolition of peremptory challenges. This Court stated:
No court, this Court included, has held the allowance of peremptory challenges to be unconstitutional despite the argument made by Justice Marshall in Batson to that end and we decline to take that opportunity here, where the issue is presented for the first time on appeal. See Batson, 476 U.S. at 104, 106 S. Ct. 1712 (Marshall, J., concurring)(writing that peremptory challenges should be eliminated in order to end racial discrimination in the jury-selection process because Batson could not do so alone).
Snow, 800 So.2d at 483-84.[4] Unlike Snow, Brawner brought up this issue during trial and in his post trial motions. Brawner argues that Justice Sullivan of this Court also supported restrictions on peremptory challenges, advocating their complete elimination in his concurring opinion in Thorson v. State, 653 So. 2d 876, 896-97 (Miss. 1994). Additionally, Brawner argues that a prosecutor may easily assert a purported race-neutral or gender-neutral reason for striking a potential juror, but it is difficult for the trial judge to determine if the reason given is in good faith.
¶ 34. The U.S. Supreme Court has stated that the right of peremptory challenge is not a constitutional guarantee. Batson, 476 U.S. at 108, 106 S.Ct. at 1729, 90 *13 L.Ed.2d at 95 (citing Frazier v. United States, 335 U.S. 497, 69 S. Ct. 201, 93 L. Ed. 187 (1948)). However, notwithstanding Justice Marshall's concurring opinion, the Batson majority upheld the use of peremptory challenges. Additionally, in J.E.B. the Court maintained this position stating "[o]ur conclusion that litigants may not strike potential jurors solely on the basis of gender does not imply the elimination of all peremptory challenges." J.E.B., 511 U.S. at 143, 114 S.Ct. at 1429. Brawner concedes that in the almost 20 years since Batson was decided no court, including this Court, has adopted Justice Marshall's position. Additionally, Brawner has not cited any authority that would persuade this Court that the abolition of peremptory challenges would necessarily secure a more fair or impartial jury for a defendant, and the potential exists that it would have the opposite effect. As Chief Justice Hawkins stated in his specially concurring opinion in Hatten v. State, 628 So. 2d 294 (Miss.1993), "[a] structure centuries in the building should hardly be radically altered, much less demolished, without painstaking study." Id. at 305. Therefore, we decline to make such a sweeping change.
IV. WHETHER THE TRIAL COURT ERRED IN DENYING BRAWNER'S MOTION IN LIMINE TO EXCLUDE OR IN THE ALTERNATIVE TO LIMIT THE INTRODUCTION OF PHOTOGRAPHIC EVIDENCE VIA SLIDE PROJECTOR.
V. WHETHER THE TRIAL COURT ERRED IN DENYING BRAWNER'S MOTION IN LIMINE TO EXCLUDE OR IN THE ALTERNATIVE LIMIT THE INTRODUCTION OF PHOTOGRAPHIC EVIDENCE.
¶ 35. Because these issues are intertwined, we will analyze them together. Brawner filed a Motion in Limine to Exclude or in the Alternative to Limit Introduction of Photographic Evidence. He also filed a similar motion regarding introduction of photographic evidence via a slide projector. Brawner argued that, since there was no dispute as to what or who the photos depicted, where the photos were taken or the manner of death, admitting them or enlarging them using a slide projector would be irrelevant and inflammatory. The trial court granted the motion to limit photographic evidence, requiring the State to seek the court's ruling on the photographs to be introduced, but subsequently allowed each of the State's photographs to be admitted. The trial court denied the motion to restrict the use of a slide projector, stating that use of a projector is a modern day practice that has been used in the courtroom for at least a quarter of a century to display evidence. The court also noted that attempting to limit the size of the displayed image had in the past produced blurry and useless photos.
¶ 36. The denial of a motion in limine is reviewed for an abuse of discretion. McDowell v. State, 807 So. 2d 413, 421 (Miss.2001). A motion in limine should be granted only when the trial court finds two factors are present: (1) the material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the mere offer, reference, or statements made during trial concerning the material will tend to prejudice the jury. McGilberry v. State, 797 So. 2d 940, 942 (Miss.2001).
¶ 37. In support of his argument against admitting the photographs, Brawner cites Sudduth v. State, 562 So. 2d 67 (Miss.1990), in which this Court noted that "photographs of the victim should not *14 ordinarily be admitted into evidence where the killing is not contradicted or denied, and the corpus delicti and the identity of the deceased have been established." Id. at 70. We also stated that "photographs of bodies may nevertheless be admitted into evidence in criminal cases where they have probative value and where they are not so gruesome or used in such a way as to be overly prejudicial or inflammatory." Id. See Brown v. State, 690 So. 2d 276, 289 (Miss.1996); Alexander v. State, 610 So. 2d 320, 338 (Miss.1992). Also, the admissibility of photographs rests within the sound discretion of the trial court. Jackson v. State, 672 So. 2d 468, 485 (Miss.1996); Griffin v. State, 557 So. 2d 542, 549 (Miss.1990). Moreover, the decision of the trial judge will be upheld unless there has been an abuse of discretion. This standard is very difficult to meet. In fact, the "discretion of the trial judge runs toward almost unlimited admissibility regardless of the gruesomeness, repetitiveness, and the extenuation of probative value." Brown, 690 So.2d at 289; Holly v. State, 671 So. 2d 32, 41 (Miss.1996).
¶ 38. The photos in question depict: the body of Carl Craft (exhibit 3); the body of Jane Craft (exhibit 12); and the body of Paige Brawner (exhibit 15). Each of these pictures shows the bodies as they were found by police, and there was only one picture of each of the victims submitted. Brawner argues that there were other, less gruesome and inflammatory photographs, that could have been used instead of these, to which the State counters that there were other, more gruesome, photographs that were not introduced. The State also claims that as long as the court determines that a photograph is admissible, it is the State's choice as to which photographs are used, not the choice of the defendant.
¶ 39. As stated in Sudduth, 562 So.2d at 70, photographs of bodies may be admitted where they have probative value and where they are not so gruesome or used in such a way as to be overly prejudicial or inflammatory. In this case, the photographs have substantial probative value. They identify the victims and show them as they were found at the scene of the murders. They help corroborate the State's assertion of the cause of death. More importantly, they help the jury to determine the credibility of Brawner's statements to police and his testimony on the witness stand. The use of the slide projector helped the jury to follow the testimony of the crime scene examiner as to the positions of the bodies and related physical evidence.
¶ 40. This Court has frequently upheld the admission of photos depicting bloody gunshot wounds. See, e.g., Walker v. State, 740 So. 2d 873, 880-88 (Miss.1999); Miller v. State, 740 So. 2d 858, 864-65 (Miss.1999); Manning v. State, 735 So. 2d 323, 342 (Miss.1999) (affirming admission of "bloody," "close-up" photos of one victim's body face down in pool of blood and knife wound to another's throat); Jordan v. State, 728 So. 2d 1088, 1093 (Miss.1998); Williams v. State, 684 So.2d, 1179, 1198 (Miss.1996) (affirming admission of photos of victim's excised larynx, heart, vaginal and anal area, as well as photos of stab wound to victim's chest and heart); Jackson v. State, 684 So. 2d 1213, 1230 (Miss. 1996) (affirming admission of photos of four dead children stabbed in neck, chest, and face).
¶ 41. In Woodward v. State, 726 So. 2d 524, 537 (Miss.1997), we stated that "the use of a projector to enhance the testimony of a witness is within the discretion of the trial court, and is encouraged-to the extent it `aids the jury in understanding the witness or other evidence.'" Id. (quoting Jenkins v. State, 607 So. 2d 1171, 1176 (Miss.1992)). We qualified this by *15 saying the manner of use may not be for the purpose of inflaming the jury. In Woodward, a photo of the deceased as she was found by police, was admitted over the defendant's objection, as evidence supporting a "heinous, atrocious, or cruel" aggravating factor. This photo was left showing on the projector after the authenticating witness finished testifying, and while the jurors exited the courtroom, and the defendant moved for a mistrial based on the State's attempt to inflame the jury. This Court found that the trial court did not abuse its discretion in denying the defendant's motion for a mistrial.
¶ 42. Here, the photographs in question were shown on a screen between 24 and 30 feet from the jury, and they were enlarged to approximately 40" × 60". The photos were those of the crime scene as found by police. The record shows that the photos were displayed for approximately 30 seconds each. There is no evidence in the record that the jury was inflamed from this presentation of the photos. Neither does Brawner cite a case supporting his assertion that the mere presentation of photographs in this manner is inflammatory. In summary, these photographs have probative value in accurately depicting the scene of a gruesome crime. They are not unduly prejudicial, and the trial court did not abuse its discretion by admitting them into evidence or allowing them to be displayed using a slide projector.
VI. WHETHER THE TRIAL COURT ERRED IN DENYING BRAWNER'S MOTION TO QUASH THE CAPITAL MURDER COMPONENT OF COUNT ONE OF THE INDICTMENT.
VII. WHETHER THE TRIAL COURT ERRED IN GRANTING INSTRUCTION C-16.
¶ 43. Both of these questions deal with the same issue, so will be analyzed together. Brawner filed a motion to quash the capital murder component of count one of the indictment, challenging the underlying felony of child abuse. Additionally, Brawner objected to sentencing instruction C-16, charging the aggravator of felony child abuse, arguing that there was no evidentiary basis for felonious child abuse and/or battery of a child. Brawner argues that the autopsy report prepared by Dr. Steven Hayne noted that Paige had two gunshot wounds and that each gunshot would have been fatal independent of the other. He asserts that since there was no underlying child abuse causing death, the charge should be simple murder. The State relies on Faraga v. State, 514 So. 2d 295 (Miss.1987), and Stevens v. State, 806 So. 2d 1031 (Miss.2001), to contend that under Mississippi law, the intentional act of murdering a child by any manner or form constitutes capital murder.
¶ 44. The Mississippi statute governing when a killing shall be capital murder states in pertinent part:
(2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:
...
(f) When done with or without any design to effect death, by any person engaged in the commission of the crime of felonious abuse and/or battery of a child in violation of subsection (2) of Section 97-5-39, or in any attempt to commit such felony;
...
Miss.Code. Ann. § 97-3-19(2)(f) (Rev. 2000). Subsection 2 of Section 97-5-39 reads as follows:
(2) Any person who shall intentionally (a) burn any child, (b) torture any child *16 or, (c) except in self-defense or in order to prevent bodily harm to a third party, whip, strike or otherwise abuse or mutilate any child in such a manner as to cause serious bodily harm, shall be guilty of felonious abuse and/or battery of a child and, upon conviction, may be punished by imprisonment in the penitentiary for not more than twenty (20) years.
Miss.Code. Ann. § 97-5-39 (Rev.2000) (emphasis added). In Faraga, the defendant was indicted for capital murder in the killing of a two month-old-child. Faraga took the child and threw him onto the hood of a car, then twice threw the child to the pavement. The child died of head wounds received during this episode. Faraga argued that the statutes were passed by the Legislature to deter persistent child abuse, and in his case there was a single act and no pattern of abuse. This Court dismissed this argument stating that "Faraga's act of throwing a child to the pavement which resulted in skull fractures and broken bones clearly was intended to be classified as felonious abuse of a child under Miss. Code Ann. § 97-5-39(2)." 514 So.2d at 302. The Court also said "[t]he intent of the Legislature was that serious child abusers would be guilty of capital murder if the child died" and clarified that the abuse need not be dispensed over a period of time. Thus, if conduct fits the description of felonious child abuse, and the child subsequently dies, it is capital murder. Id. at 302. In Stevens, the facts are not as evident as in Faraga that felonious child abuse occurred. As discussed previously, the Stevens shot everyone in his ex-wife's home when he came to kill his ex-wife. We found that it was the "intent of the Mississippi Legislature under Miss.Code Ann. § 97-5-39(2) that the intentional act of murdering a child by any manner or form constitutes felonious child abuse and, therefore, constitutes capital murder under Miss.Code Ann. § 97-3-19(2)."[5] 806 So.2d at 1044. Here, Brawner shot his daughter's grandmother as his daughter watched, then shot his daughter's mother as she watched. He again shot both the grandmother and the mother two additional times, all as Paige looked on. He then shot his daughter twice. Shooting Paige fits the description of felony child abuse in that it is a strike to the child in a manner as to cause serious bodily harm. Therefore, we reject Brawner's assertion that the killing of Paige Brawner was not capital murder.
VIII. WHETHER THE SENTENCE OF DEATH IMPOSED BY THE JURY IN COUNTS 1, 2, 3 & 4 OF THE INDICTMENT IS EXCESSIVE OR DISPROPORTIONATE TO THE SAME PENALTY IMPOSED IN SIMILAR CASES.
¶ 45. Brawner asserts that Miss. Code Ann. § 99-19-105(3) (Rev.2000) requires the Court to perform a proportionality review if it affirms a death sentence in a capital case. He also requests the Court to reverse the death sentence for Count one based on his arguments in Issues VI and VII. Brawner cites no authority to support his contention that the death penalty is disproportionate in this case.
¶ 46. This Court must review the death sentence in accordance with Miss.Code Ann. § 99-19-105(3), which states:
*17 (3) With regard to the sentence, the court shall determine:
(a) Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor;
(b) Whether the evidence supports the jury's or the judge's finding of a statutory aggravating circumstance as enumerated in Section 99-19-101;
(c) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant; and
(d) Should one or more of the aggravating circumstances be found invalid on appeal, the Mississippi Supreme Court shall determine whether the remaining aggravating circumstances are outweighed by the mitigating circumstances or whether the inclusion of any invalid circumstance was harmless error or both.
Miss.Code Ann. § 99-19-105(3).
¶ 47. There is nothing in the record to suggest that the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor. In addition, Brawner has not argued to the contrary. There is evidence supporting the finding of aggravating factors. The following aggravating factors were found by the jury, and we find there is sufficient evidence supporting them: the capital offense was committed by a person under sentence of imprisonment (four counts); the offense was committed while the defendant was engaged in the commission of robbery (three of the four counts); and the offense was committed for the purpose of avoiding or preventing lawful arrest (four counts).
¶ 48. The death penalty has been held not to be disproportionate in cases similar to this one. See Stevens v. State, 806 So. 2d 1031 (Miss.2001) (defendant shot and killed his ex-wife, also shot and killed two children and the ex-wife's husband who were in the home at the time, and shot his teenage daughter, who was not killed); McGilberry v. State, 741 So. 2d 894 (Miss. 1999) (16-year-old defendant robbed and killed four members of his own family); Brown v. State, 690 So. 2d 276 (Miss.1996) (defendant chopped to death three members of a family); Jackson v. State, 684 So. 2d 1213 (Miss.1996) (defendant stabbed and killed four children during attempted robbery of his mother's home).
¶ 49. There are other cases, where fewer persons, and no children, were killed, which have sustained this test: Manning v. State, 765 So. 2d 516 (Miss.2000) (defendant murdered two elderly women by means of beating them unconscious with iron and slashing their throats with kitchen knife, while robbing them of approximately $12); Brown v. State, 682 So. 2d 340 (Miss.1996) (defendant who shot store clerk four times during commission of armed robbery). See also Doss v. State, 709 So. 2d 369 (Miss.1997) (death sentence was proportionate where defendant robbed and shot victim); Cabello v. State, 471 So. 2d 332, 350 (Miss.1985) (death sentence was proportionate where defendant strangled and robbed victim); Evans v. State, 422 So. 2d 737, 739 (Miss.1982) (death sentence was proportionate where defendant robbed and shot victim).
¶ 50. In view of these and other cases (see Appendix), we cannot say that the death penalty is disproportionate in the current case where Brawner killed his ex-wife, mother-in-law and father-in-law during the commission of a robbery, then shot and killed his own three-year-old daughter because she could identify him.
CONCLUSION
¶ 51. For these reasons, we affirm the trial court's judgment.
*18 ¶ 52. COUNTS I THROUGH IV: CONVICTIONS OF CAPITAL MURDER AND SENTENCES OF DEATH BY CONTINUOUS INTRAVENOUS ADMINISTRATION OF A LETHAL QUANTITY OF AN ULTRA SHORT ACTING BARBITURATE OR OTHER SIMILAR DRUG IN COMBINATION WITH A CHEMICAL PARALYTIC AGENT, AFFIRMED.
SMITH, C.J., WALLER, P.J., EASLEY, CARLSON AND DICKINSON, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.
APPENDIX
DEATH CASES AFFIRMED BY THIS COURT
Byrom v. State, 863 So. 2d 836 (Miss. 2004).
Howell v. State, 860 So. 2d 704 (Miss. 2003).
Howard v. State, 853 So. 2d 781 (Miss. 2003).
Walker v. State, 815 So. 2d 1209 (Miss. 2002).* following remand.
Bishop v. State, 812 So. 2d 934 (Miss. 2002).
Stevens v. State, 806 So. 2d 1031 (Miss. 2002).
Grayson v. State, 806 So. 2d 241 (Miss. 2002).
Knox v. State, 805 So. 2d 527 (Miss.2002).
Simmons v. State, 805 So. 2d 452 (Miss. 2002).
Berry v. State, 802 So. 2d 1033 (Miss. 2001).
Snow v. State, 800 So. 2d 472 (Miss.2001).
Mitchell v. State, 792 So. 2d 192 (Miss. 2001).
Puckett v. State, 788 So. 2d 752 (Miss. 2001).* following remand.
Goodin v. State, 787 So. 2d 639 (Miss. 2001).
Jordan v. State, 786 So. 2d 987 (Miss. 2001).
Manning v. State, 765 So. 2d 516 (Miss. 2000).* following remand.
Eskridge v. State, 765 So. 2d 508 (Miss. 2000).
McGilberry v. State, 741 So. 2d 894 (Miss.1999).
Puckett v. State, 737 So. 2d 322 (Miss. 1999).* remanded for Batson hearing.
Manning v. State, 735 So. 2d 323 (Miss. 1999).* remanded for Batson hearing.
Hughes v. State, 735 So. 2d 238 (Miss. 1999).
Turner v. State, 732 So. 2d 937 (Miss. 1999).
Smith v. State, 729 So. 2d 1191 (Miss. 1998).
Burns v. State, 729 So. 2d 203 (Miss. 1998).
Jordan v. State, 728 So. 2d 1088 (Miss. 1998).
Gray v. State, 728 So. 2d 36 (Miss.1998).
Manning v. State, 726 So. 2d 1152 (Miss. 1998).
Woodward v. State, 726 So. 2d 524 (Miss. 1997).
Bell v. State, 725 So. 2d 836 (Miss.1998).
Evans v. State, 725 So. 2d 613 (Miss. 1997).
Brewer v. State, 725 So. 2d 106 (Miss. 1998).
Crawford v. State, 716 So. 2d 1028 (Miss. 1998).
Doss v. State, 709 So. 2d 369 (Miss.1996).
*19 Underwood v. State, 708 So. 2d 18 (Miss. 1998).
Holland v. State, 705 So. 2d 307 (Miss. 1997).
Wells v. State, 698 So. 2d 497 (Miss.1997).
Wilcher v. State, 697 So. 2d 1087 (Miss. 1997).
Wiley v. State, 691 So. 2d 959 (Miss. 1997).
Brown v. State, 690 So. 2d 276 (Miss. 1996).
Simon v. State, 688 So. 2d 791 (Miss. 1997).
Jackson v. State, 684 So. 2d 1213 (Miss. 1996).
Williams v. State, 684 So. 2d 1179 (Miss. 1996).
Davis v. State, 684 So. 2d 643 (Miss. 1996).
Taylor v. State, 682 So. 2d 359 (Miss. 1996).
Brown v. State, 682 So. 2d 340 (Miss. 1996).
Blue v. State, 674 So. 2d 1184 (Miss. 1996).
Holly v. State, 671 So. 2d 32 (Miss.1996).
Walker v. State, 671 So.2d 581(Miss.1995).
Russell v. State, 670 So. 2d 816 (Miss. 1995).
Ballenger v. State, 667 So. 2d 1242 (Miss. 1995).
Davis v. State, 660 So. 2d 1228 (Miss. 1995).
Carr v. State, 655 So. 2d 824 (Miss.1995).
Mack v. State, 650 So. 2d 1289 (Miss. 1994).
Chase v. State, 645 So. 2d 829 (Miss. 1994).
Foster v. State, 639 So. 2d 1263 (Miss. 1994).
Conner v. State, 632 So. 2d 1239 (Miss. 1993).
Hansen v. State, 592 So. 2d 114 (Miss. 1991).
* Shell v. State, 554 So. 2d 887 (Miss. 1989), Shell v. Mississippi, 498 U.S. 1, 111 S. Ct. 313, 112 L. Ed. 2d 1 (1990) reversing, in part, and remanding, Shell v. State, 595 So. 2d 1323 (Miss.1992) remanding for new sentence hearing.
Davis v. State, 551 So. 2d 165 (Miss. 1989).
Minnick v. State, 551 So. 2d 77 (Miss. 1989).
* Pinkney v. State, 538 So. 2d 329 (Miss.1989), Pinkney v. Mississippi, 494 U.S. 1075, 110 S. Ct. 1800, 108 L. Ed. 2d 931 (1990) vacating and remanding Pinkney v. State, 602 So. 2d 1177 (Miss.1992) remanding for new sentencing hearing.
* Clemons v. State, 535 So. 2d 1354 (Miss.1988), Clemons v. Mississippi, 494 U.S. 738, 110 S. Ct. 1441, 108 L. Ed. 2d 725 (1990) vacating and remanding, Clemons v. State, 593 So. 2d 1004 (Miss.1992) remanding for new sentencing hearing.
Woodward v. State, 533 So. 2d 418 (Miss. 1988).
Nixon v. State, 533 So. 2d 1078 (Miss. 1987).
Cole v. State, 525 So. 2d 365 (Miss.1987).
Lockett v. State, 517 So. 2d 1346 (Miss. 1987).
Lockett v. State, 517 So. 2d 1317 (Miss. 1987).
* Case was originally affirmed in this Court but on remand from U.S. Supreme Court, case was remanded by this Court for a new sentencing hearing.
*20 Faraga v. State, 514 So. 2d 295 (Miss. 1987).
* Jones v. State, 517 So. 2d 1295 (Miss. 1987), Jones v. Mississippi, 487 U.S. 1230, 108 S. Ct. 2891, 101 L. Ed. 2d 925 (1988) vacating and remanding, Jones v. State, 602 So. 2d 1170 (Miss.1992) remanding for new sentencing hearing.
Wiley v. State, 484 So. 2d 339 (Miss. 1986).
Johnson v. State, 477 So. 2d 196 (Miss. 1985).
Gray v. State, 472 So. 2d 409 (Miss.1985).
Cabello v. State, 471 So. 2d 332 (Miss. 1985).
Jordan v. State, 464 So. 2d 475 (Miss. 1985).
Wilcher v. State, 455 So. 2d 727 (Miss. 1984).
Billiot v. State, 454 So. 2d 445 (Miss. 1984).
Stringer v. State, 454 So. 2d 468 (Miss. 1984).
Dufour v. State, 453 So. 2d 337 (Miss. 1984).
Neal v. State, 451 So. 2d 743 (Miss.1984).
Booker v. State, 449 So. 2d 209 (Miss. 1984).
Wilcher v. State, 448 So. 2d 927 (Miss. 1984).
Caldwell v. State, 443 So. 2d 806 (Miss. 1983).
Irving v. State, 441 So. 2d 846 (Miss. 1983).
Tokman v. State, 435 So. 2d 664 (Miss. 1983).
Leatherwood v. State, 435 So. 2d 645 (Miss.1983).
Hill v. State, 432 So. 2d 427 (Miss.1983).
Pruett v. State, 431 So. 2d 1101 (Miss. 1983).
Gilliard v. State, 428 So. 2d 576 (Miss. 1983).
Evans v. State, 422 So. 2d 737 (Miss. 1982).
King v. State, 421 So. 2d 1009 (Miss. 1982).
Wheat v. State, 420 So. 2d 229 (Miss. 1982).
Smith v. State, 419 So. 2d 563 (Miss. 1982).
Johnson v. State, 416 So. 2d 383 (Miss. 1982).
Edwards v. State, 413 So. 2d 1007 (Miss. 1982).
Bullock v. State, 391 So. 2d 601 (Miss. 1980).
Reddix v. State, 381 So. 2d 999 (Miss. 1980).
Jones v. State, 381 So. 2d 983 (Miss. 1980).
Culberson v. State, 379 So. 2d 499 (Miss. 1979).
Gray v. State, 375 So. 2d 994 (Miss.1979).
Jordan v. State, 365 So. 2d 1198 (Miss. 1978).
Voyles v. State, 362 So. 2d 1236 (Miss. 1978).
Irving v. State, 361 So. 2d 1360 (Miss. 1978).
Washington v. State, 361 So. 2d 61 (Miss. 1978).
Bell v. State, 360 So. 2d 1206 (Miss.1978).
DEATH CASES REVERSED AS TO GUILT PHASE AND SENTENCE PHASE
Flowers v. State, 842 So. 2d 531 (Miss. 2003).
*21 Randall v. State, 806 So. 2d 185 (Miss. 2002).
Flowers v. State, 773 So. 2d 309 (Miss. 2000).
Edwards v. State, 737 So. 2d 275 (Miss. 1999).
Smith v. State, 733 So. 2d 793 (Miss. 1999).
Porter v. State, 732 So. 2d 899 (Miss. 1999).
Kolberg v. State, 704 So. 2d 1307 (Miss. 1997).
Snelson v. State, 704 So. 2d 452 (Miss. 1997).
Fuselier v. State, 702 So. 2d 388 (Miss. 1997).
Howard v. State, 701 So. 2d 274 (Miss. 1997).
Lester v. State, 692 So. 2d 755 (Miss. 1997).
Hunter v. State, 684 So. 2d 625 (Miss. 1996).
Lanier v. State, 684 So. 2d 93 (Miss. 1996).
Giles v. State, 650 So. 2d 846 (Miss. 1995).
Duplantis v. State, 644 So. 2d 1235 (Miss. 1994).
Harrison v. State, 635 So. 2d 894 (Miss. 1994).
Butler v. State, 608 So. 2d 314 (Miss. 1992).
Jenkins v. State, 607 So. 2d 1171 (Miss. 1992).
Abram v. State, 606 So. 2d 1015 (Miss. 1992).
Balfour v. State, 598 So. 2d 731 (Miss. 1992).
Griffin v. State, 557 So. 2d 542 (Miss. 1990).
Bevill v. State, 556 So. 2d 699 (Miss. 1990).
West v. State, 553 So. 2d 8 (Miss.1989).
Leatherwood v. State, 548 So. 2d 389 (Miss.1989).
Mease v. State, 539 So. 2d 1324 (Miss. 1989).
Houston v. State, 531 So. 2d 598 (Miss. 1988).
West v. State, 519 So. 2d 418 (Miss.1988).
Davis v. State, 512 So. 2d 1291 (Miss. 1987).
Williamson v. State, 512 So. 2d 868 (Miss.1987).
Foster v. State, 508 So. 2d 1111 (Miss. 1987).
Smith v. State, 499 So. 2d 750 (Miss. 1986).
West v. State, 485 So. 2d 681 (Miss.1985).
Fisher v. State, 481 So. 2d 203 (Miss. 1985).
Johnson v. State, 476 So. 2d 1195 (Miss. 1985).
Fuselier v. State, 468 So. 2d 45 (Miss. 1985).
West v. State, 463 So. 2d 1048 (Miss. 1985).
Jones v. State, 461 So. 2d 686 (Miss. 1984).
Moffett v. State, 456 So. 2d 714 (Miss. 1984).
Lanier v. State, 450 So. 2d 69 (Miss. 1984).
Laney v. State, 421 So. 2d 1216 (Miss. 1982).
*22 DEATH CASES REVERSED AS TO PUNISHMENT AND REMANDED FOR RESENTENCING TO LIFE IMPRISONMENT
Reddix v. State, 547 So. 2d 792 (Miss. 1989).
Wheeler v. State, 536 So. 2d 1341 (Miss. 1988).
White v. State, 532 So. 2d 1207 (Miss. 1988).
Bullock v. State, 525 So. 2d 764 (Miss. 1987).
Edwards v. State, 441 So. 2d 84 (Miss. 1983).
Dycus v. State, 440 So. 2d 246 (Miss. 1983).
Coleman v. State, 378 So. 2d 640 (Miss. 1979).
DEATH CASES REVERSED AS TO PUNISHMENT AND REMANDED FOR A NEW TRIAL ON SENTENCING PHASE ONLY
King v. State, 784 So. 2d 884 (Miss.2001).
Walker v. State, 740 So. 2d 873 (Miss. 1999).
Watts v. State, 733 So. 2d 214 (Miss. 1999).
West v. State, 725 So. 2d 872 (Miss.1998).
Smith v. State, 724 So. 2d 280 (Miss. 1998).
Berry v. State, 703 So. 2d 269 (Miss. 1997).
Booker v. State, 699 So. 2d 132 (Miss. 1997).
Taylor v. State, 672 So. 2d 1246 (Miss. 1996).
* Shell v. State, 554 So. 2d 887 (Miss. 1989), Shell v. Mississippi, 498 U.S. 1, 111 S. Ct. 313, 112 L. Ed. 2d 1 (1990) reversing, in part, and remanding, Shell v. State 595 So. 2d 1323 (Miss.1992) remanding for new sentencing hearing.
* Pinkney v. State, 538 So. 2d 329 (Miss.1989), Pinkney v. Mississippi, 494 U.S. 1075, 110 S. Ct. 1800, 108 L. Ed. 2d 931 (1990) vacating and remanding, Pinkney v. State, 602 So. 2d 1177 (Miss.1992) remanding for new sentencing hearing.
* Clemons v. State, 535 So. 2d 1354 (Miss.1988), Clemons v. Mississippi, 494 U.S. 738, 110 S. Ct. 1441, 108 L. Ed. 2d 725 (1990) vacating and remanding, Clemons v. State, 593 So. 2d 1004 (Miss.1992) remanding for new sentencing hearing.
* Jones v. State, 517 So. 2d 1295 (Miss. 1987), Jones v. Mississippi, 487 U.S. 1230, 108 S. Ct. 2891, 101 L. Ed. 2d 925 (1988) vacating and remanding, Jones v. State, 602 So. 2d 1170 (Miss.1992) remanding for new sentencing hearing.
Russell v. State, 607 So. 2d 1107 (Miss. 1992).
Holland v. State, 587 So. 2d 848 (Miss. 1991).
Willie v. State, 585 So. 2d 660 (Miss. 1991).
Ladner v. State, 584 So. 2d 743 (Miss. 1991).
Mackbee v. State, 575 So. 2d 16 (Miss. 1990).
Berry v. State, 575 So. 2d 1 (Miss.1990).
Turner v. State, 573 So. 2d 657 (Miss. 1990).
State v. Tokman, 564 So. 2d 1339 (Miss. 1990).
Johnson v. State, 547 So. 2d 59 (Miss. 1989).
Williams v. State, 544 So. 2d 782 (Miss. 1989); sentence aff'd 684 So. 2d 1179 (1996).
Lanier v. State, 533 So. 2d 473 (Miss. 1988).
*23 Stringer v. State, 500 So. 2d 928 (Miss. 1986).
Pinkton v. State, 481 So. 2d 306 (Miss. 1985).
Mhoon v. State, 464 So. 2d 77 (Miss. 1985).
Cannaday v. State, 455 So. 2d 713 (Miss. 1984).
Wiley v. State, 449 So. 2d 756 (Miss. 1984); resentencing affirmed, Wiley v. State, 484 So. 2d 339 (Miss.1986), cert. denied Wiley v. Mississippi, 486 U.S. 1036, 108 S. Ct. 2024, 100 L. Ed. 2d 610 (1988); resentencing ordered, Wiley v. State, 635 So. 2d 802 (Miss.1993) following writ of habeas corpus issued pursuant to Wiley v. Puckett, 969 F.2d 86, 105-106 (5th Cir. 1992); resentencing affirmed, Wiley v. State, 691 So. 2d 959 (Miss.1997) (rehearing pending).
Williams v. State, 445 So. 2d 798 (Miss. 1984).* Case was originally affirmed in this Court but on remand from U.S. Supreme Court, case was remanded by this Court for a new sentencing hearing.
NOTES
[1] This procedure differs from that identified in Hernandez, in which the State offered neutral reasons without the trial judge first finding that a prima facie case has been made. Hernandez, 500 U.S. at 359, 111 S. Ct. 1859 ("Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.").
[2] See Hughes v. State, 735 So. 2d 238 (Miss. 1999) ("[o]ur information was that [the female juror] is related to a victim in a pending capital murder case here in Itawamba County, and law enforcement feels that at this time because of that she is unstable."). See also Snow v. State, 800 So. 2d 472, 482 (Miss. 2001); Brown v. State, 749 So. 2d 82, 87 (Miss.1999); Lockett, 517 So.2d at 1352.
[3] Purkett v. Elem, 514 U.S. 765, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995) (per curiam).
[4] In his concurring opinion in Batson, Justice Marshall strongly advocated abolishing peremptory challenges in criminal cases, saying "the inherent potential of peremptory challenges to distort the jury process by permitting the exclusion of jurors on racial grounds should ideally lead the Court to ban them entirely from the criminal justice system." Batson, 476 U.S. at 107, 106 S.Ct. at 1728, 90 L.Ed.2d at 94.
[5] Taken to the extreme, the felonious child abuse statute might incorrectly be applied to the act of a person who purposefully kills a 17 year old minor, as in a gang fight or a barroom brawl. However, our holdings in Stevens and in the present case do not extend the statute this far. Faraga, Stevens, and this case all involve small children. We urge the Legislature to clarify the intent of § 97-5-39(2). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1665713/ | 703 F.Supp. 533 (1988)
ALLSTATE INSURANCE COMPANY, Plaintiff,
v.
Machel HILBUN, Defendant.
Civ. A. No. J88-0002(L).
United States District Court, S.D. Mississippi, Jackson Division.
December 7, 1988.
*534 Stephen P. Kruger, Upshaw, Williams, Biggers, Page & Kruger, Jackson, Miss., for plaintiff.
David Ringer, Florence, Miss., for defendant.
MEMORANDUM OPINION AND ORDER
TOM S. LEE, District Judge.
Before the court for consideration is the motion of plaintiff Allstate Insurance Company for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendant Machel Hilbun has responded to the motion and the court has reviewed the memoranda of authorities together with attachments submitted by the parties.
This is an action by Allstate for declaratory judgment brought pursuant to 28 U.S. C. § 2201, in which Allstate seeks a determination that it has no liability to Hilbun under the uninsured motorist provisions of a certain automobile policy under which Hilbun was an insured. The facts underlying the parties' dispute are set forth in a previous opinion of the court entered August 24, 1988, but will be briefly restated here.
On October 30, 1987, Hilbun was involved in an automobile accident with two other vehicles, one driven by Ellen Crawford and the other by David Richardson. At the time of the accident, Southern Farm Bureau Casualty Insurance Company (Southern Farm) provided bodily injury and property damage liability coverage to Ellen Crawford; that policy furnished $10,000 of liability coverage. David Richardson, who was an employee of Dickerson Auto Clinic, Inc., was also at the time of the accident covered under a policy of automobile liability insurance issued by Casualty Reciprocal Exchange (Casualty) to his employer; the per person liability limit under the Dickerson policy was $350,000. Hilbun made claims upon both Richardson's and Crawford's liability insurance carriers for her damages caused by the accident; yet each carrier denied her claim on the basis that the accident was not the fault of its insured.
Hilbun also made demand upon her carrier, Allstate, that it determine whether the carriers of Richardson and Crawford had insurance coverage for the accident and, if not, to pay her claims for all damages resulting from the accident under Allstate's uninsured motorist coverage. Following that demand, Allstate brought this action seeking a declaratory judgment that neither the Richardson nor Crawford vehicle was an uninsured motor vehicle under Mississippi law such that it consequently is under no duty to assume any liability for damages sustained by Hilbun.
Under Mississippi law, an uninsured motor vehicle is one as to which there is no bodily injury liability insurance. Miss.Code Ann. § 83-11-103. However, under Mississippi's statutory definition of "uninsured motor vehicle," an automobile is also considered uninsured if it is:
(ii) a motor vehicle as to which there is [bodily injury liability] insurance in existence, but the insurance company writing the same has legally denied coverage thereunder ...; or
(iii) an insured motor vehicle, when the liability insurer of such vehicle has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his insured motorist coverage[.]
Miss.Code Ann. § 83-11-103(c)(ii) and (iii). In the case at bar, it is undisputed that as to both the Crawford and Richardson vehicles, there is in existence bodily injury liability insurance. The parties do dispute, however, whether the Crawford or Richardson vehicle, or both, may properly be considered "uninsured" under the definitions provided in subsections (ii) and (iii). The applicability of these two subsections will be separately considered.
Allstate urges that there has been no denial of coverage by the liability carriers for either Richardson or Crawford and that, accordingly, neither vehicle may properly be considered "uninsured." Plaintiff, on the other hand, asserts that since both companies have refused to pay her damages, *535 regardless of the reason, coverage is not available to her and therefore, the carriers have effectively denied coverage.[1] In support of its motion, Allstate has submitted the affidavit of Paul W. Baham, Jr., District Claims Manager of Southern Farm, in which he states that his company's policy in effect at the time of the accident provides both bodily injury and property damage liability coverage for the claims made against Crawford by Hilbun "if liability is established against Crawford for the accident." His affidavit further states the company's position that Hilbun's claim was and continues to be denied not because there is no coverage available to Crawford but on the basis that Crawford was neither responsible for the accident nor legally liable to Hilbun. Similarly, W.M. Mammoliti, Area Claims Manager for Casualty, has stated by affidavit that at the time of the October 30 accident, there was in effect a policy insuring Dickerson's Auto Clinic and H.C. Dickerson which provides bodily injury and property damage liability coverage for Hilbun's claims against David Richardson, an employee of Dickerson Auto Clinic. And, as did Crawford's carrier, Casualty denied and continues to deny Hilbun's claims for the reason that Richardson was not responsible for the accident and is not liable to Hilbun not because there was no coverage.
The Mississippi Supreme Court has stated that "[a]n insurer denies coverage to its insured when it fails or refuses to accord him the protection it contracted to give." State Farm Mutual Automobile Insurance Company v. Talley, 329 So.2d 52, 56 (Miss.1976) (quoting State Farm Mutual Automobile Insurance Company v. Brower, 204 Va. 887, 134 S.E.2d 277 (1964)). Here, there has been no such failure or refusal. The Baham and Mammoliti affidavits establish the position of each respective carrier that there is in fact coverage under their policies for the accident in question. They have not denied coverage to their insureds; they have simply denied any liability to Hilbun under the facts. In fact, the court observes that Casualty has proceeded in the defense of its insured in a state court action concerning the accident.[2] Each carrier has acknowledged the existence of coverage and presumably an obligation to pay Hilbun in the event it is established that her damages were in fact caused through the fault of its insured.
In support of her position that Richardson's and Crawford's insurers have denied coverage, plaintiff relies on Hodges v. Canal Insurance Co., 223 So.2d 630, 634 (Miss.1969), in which the court stated that Mississippi's uninsured motorist provision "must be construed from the perspective of the injured insured, from whose standpoint a tortfeasor operating an automobile with no insurance available is an uninsured motorist." She reasons that insurance is not "available" to her inasmuch as the carriers have refused payment to her. In this regard, the court notes that an injured insured, before she may recover under the uninsured motorist provisions of her policy, must establish that she is "legally entitled to recover as damages for bodily injury or death from the owner or operator of an uninsured motor vehicle...." Miss.Code Ann. § 83-11-101 (Supp.1988). And, while there is no requirement under Mississippi *536 law that the insured first obtain judgment against the owner or operator of the uninsured automobile before bringing an action against the uninsured motorist carrier under an insurance contract, the insured is nevertheless required to establish legal liability of the uninsured motorist. Harthcock v. State Farm Mutual Automobile Insurance Co., 248 So.2d 456, 460 (Miss. 1971); Preferred Risk Mutual Insurance Co. v. Poole, 411 F.Supp. 429, 437 (N.D. Miss.1976). In the case at bar, the liability insurance carriers for Richardson and Crawford have denied the "legal liability" of their respective insureds for the accident, an element which plaintiff must prove to recover uninsured motorist benefits in any event. Under the circumstances, Hilbun's attempt to equate a denial of legal liability with a denial of insurance coverage cannot be accepted. In sum, the court is of the opinion that neither Southern Farm nor Casualty has denied coverage to its respective insureds; thus, neither vehicle is uninsured under Miss.Code Ann. § 83-11-103(c)(ii).
Having concluded that neither of the involved vehicles was uninsured because of any denial of coverage, the court next considers whether that part of Mississippi's definition of "uninsured motor vehicle" which includes "underinsured" automobiles applies in this case. A potential basis for declaring the Crawford and/or Richardson vehicles uninsured is that provision defining an uninsured motor vehicle as an insured motor vehicle
when the liability insurer of such motor vehicle is provided limits of bodily injury liability for its insured vehicle which are less than the limits applicable to the injured person provided under his uninsured motorist coverage.
Under this definition, the court must compare the limits of a tortfeasor's liability coverage to the limits applicable to the insured person under his uninsured motorist coverage. Wickline v. United States Fidelity & Guaranty Co., 530 So.2d 708, 713 (Miss.1988). The Allstate policy under which Hilbun was an insured provides uninsured motorist bodily injury coverage with limits of $100,000 per person and $300,000 per occurrence. The vehicle driven by Richardson provides liability limits of $350,000 per person and per occurrence, thus exceeding the uninsured motorist coverage furnished to Hilbun under her own policy. The vehicle operated by Richardson was therefore not underinsured. As to the Crawford vehicle, however, the Southern Farm policy provides only $10,000 of liability coverage, substantially less than Hilbun's coverage of $100,000. Allstate reasons that since the total limits of liability applicable to this accident the combined liability limits of both the Crawford and Richardson coverages, $360,000 exceed the $100,000 coverage furnished to Hilbun under her own policy, then neither of those vehicles may be considered uninsured and therefore Hilbun's uninsured motorist coverage is not invoked. The court cannot accept this argument, at least in the present posture of the case.
Acknowledging that there are no Mississippi cases on point, Allstate has cited Scharfschwerdt v. Allstate Insurance Co., 430 So.2d 578 (Fla.1983), in which the Florida Supreme Court held that
where two tortfeasors are jointly and severally liable for damages caused to a third person in an automobile accident, although one tortfeasor is uninsured or underinsured, if the other tortfeasor has liability insurance with policy limits equal to, or greater than, those contained in the uninsured motorist coverage possessed by the injured third person, the injured third person cannot recover under his own uninsured motorist policy.
Id. at 579. Allstate's reliance on the rule stated in Scharfschwerdt appears to be based on an assumption that Crawford and Richardson are joint tortfeasors and hence are jointly liable for Hilbun's damages. Under Mississippi law, two tortfeasors may be held equally liable for the entire damage sustained where their concurrent negligence produces a single indivisible injury. Gallo v. Crocker, 321 F.2d 876 (5th Cir. 1963). And, the victim of that negligence may maintain an action for that tortious conduct against and collect damages from either of the tortfeasors. Hood v. Dealers *537 Transport Co., 472 F.Supp. 250, 253 (N.D. Miss.1979). Here, a determination has not yet been made that Richardson and Crawford are jointly and severally liable, or in fact that either is liable, for damages to Hilbun. It has not been established that either party was negligent, whether one party was solely responsible for the accident and if so whom, or whether, as Allstate seems to assume, both Richardson and Crawford were at fault. A decision by the court as to the parties' relative fault would entail the court's resolving factual disputes, a function clearly not within the court's province on a motion for summary judgment.
If it were to be ultimately determined that Richardson was solely at fault and thus solely liable for Hilbun's damages, then Hilbun could not invoke the uninsured motorist coverage of Allstate's policy since his vehicle was not uninsured or underinsured. If, however, it were determined that Hilbun's damages were caused entirely by the negligence of Crawford, then in that situation, Crawford would be considered uninsured by virtue of her being underinsured. Finally, if it were found that both Richardson and Crawford were negligent and that their combined negligence caused plaintiff's injuries, then, if Mississippi law were construed in accordance with the rule stated by the Florida Supreme Court, neither would be considered uninsured and Hilbun could have no recovery under her policy. While it is not essential that the court resolve the issue at this time, the court does find the reasoning of the court in Scharfschwerdt persuasive. Further, venturing an Erie guess, this court is of the opinion that if the Mississippi Supreme Court were presented with this question, it would favorably view the rule enunciated in Scharfschwerdt. Accordingly, in the court's opinion, the only basis upon which Hilbun could recover under her policy is if she establishes that Crawford, the underinsured motorist, was negligent and that her negligence was the sole proximate cause of Hilbun's damages, and if she further establishes that her damages are in excess of Crawford's $10,000 limit of liability.[3]
The court would note that previously in this cause, Hilbun, in an apparent effort to defeat this court's subject matter jurisdiction, submitted to the court an affidavit in which she stated that "at this time" her damages do not exceed the sum of $10,000. Allstate took the position in response that Hilbun might ultimately claim that her damages exceed $10,000 since she had limited her affidavit to damages at a particular point in time. Allstate now takes the position that Hilbun should be bound by her prior affidavit such that she can not now claim damages in excess of $10,000, resulting in the irrelevance of Crawford's being underinsured. The court, in considering Hilbun's affidavit on the jurisditional issue, observed that Allstate's potential exposure extended to the $100,000 limit of liability under the uninsured motorist provision of its policy since plaintiff's affidavit left open a possibility that she would ultimately seek more than $10,000 in actual damages. Because Allstate formerly urged that Hilbun's damages could eventually exceed $10,000, the court will not now bind Hilbun to her previous representation regarding her damages and thus rejects Allstate's argument that she should be so bound.
Because the court has concluded that the vehicle operated by Richardson is not an uninsured motor vehicle within the meaning of either Allstate's policy or Mississippi's statutory definition of uninsured motor vehicle, the court is of the opinion that Allstate's motion should be granted on the issue of whether Richardson was uninsured. However, because there does exist the potential that Crawford's vehicle was uninsured because she, under the facts, is *538 underinsured, the motion should otherwise be denied.
Accordingly, it is ordered that Allstate's motion is granted in part and denied in part as provided hereinabove.
ORDERED.
NOTES
[1] Unlike the statutory definition of uninsured motor vehicle which includes an automobile upon which there is liability insurance but as to which the carrier has "legally" denied coverage, Allstate's policy defines an uninsured automobile as "a motor vehicle for which the insurer denied coverage...." Under Mississippi law, where the provision in a policy with respect to what constitutes an uninsured vehicle does not diminish the coverage required by statute, the policy definition controls the determination of whether a particular automobile is uninsured. State Farm Mutual Automobile Ins. Co. v. Talley, 329 So.2d 52, 54 (Miss.1976) (policy provision defining uninsured automobile requiring only denial of coverage and not legal denial of coverage held to control court's inquiry). Hence, the court need only consider whether there has been a denial of coverage, irrespective of whether it was a "legal" denial of coverage.
[2] On September 6, 1988, Ellen Crawford instituted an action against Dickerson Auto Clinic, Inc. and David Richardson in the County Court of the First Judicial District of Hinds County, Mississippi, No. 24,135, for injuries she allegedly sustained in the accident. In that suit, Casualty is providing Richardson's and his employer's defense.
[3] The court would note that if the facts are as claimed by the parties to this lawsuit, Allstate and Hilbun, it is unlikely that Hilbun can demonstrate that Crawford's actions were the sole cause of the accident. These parties claim that the Richardson vehicle struck the rear of Hilbun's vehicle causing her to spin and collide with the automobile driven by Crawford. And, it is worth noting that Crawford was the first of the persons involved in the accident to institute suit as a result of the accident. See supra note 2. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2227946/ | 904 N.E.2d 1244 (2005)
359 Ill. App.3d 1205
SUBLETT
v.
ALLIED HEALTHCARE PRODUCTS, INC.
No. 2-05-0214.
Appellate Court of Illinois, Second District.
October 25, 2005.
Rev'd & rem. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3353258/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISCHARGE OR REDUCE MECHANIC'S LIEN (#101)
The present matter before the court involves a defendant's motion to discharge or reduce a mechanic's lien in a foreclosure action upon said lien.
On January 6, 1993, the plaintiff, Milone MacBroom, Inc. (hereinafter "plaintiff"), filed a mechanic's lien on the CT Page 6843 Middletown land records, in the amount of $14,000.00, for engineering services allegedly provided by the plaintiff for the defendants, Bysiewicz Corporation, principal, and Ameritage Corporation, Bysiewicz Corporation's agent, for the preparation of subdivision plans for property known as Long Hills Farms Subdivision, located in Middletown, Connecticut (hereinafter "subject property").
On April 20, 1993, the plaintiff filed the present action to foreclose upon its mechanic's lien.
On April 27, 1993, the defendant, Bysiewicz Corporation (hereinafter "defendant"), filed its motion to discharge or reduce the plaintiff's mechanic's lien, pursuant to General Statutes Sec. 49-35a(c). The defendant claims that the plaintiff's mechanic's lien should be discharged or reduced on the grounds that:
a. The subject property to be foreclosed is not the same property described in the plaintiff's Notice to File Mechanic's Lien and Mechanic's Lien and violated state law[;]
b. [t]he provisions of Connecticut General Statutes [Sec.] 49-34 have not been complied with in that not all of the owners of the property described in the plaintiff's Notice of Intent to File Mechanic's Lien and Mechanic's Lien were notified in a proper manner in accordance with state law[; and]
c. [t]he plaintiff did not perform the services it seeks to be reimbursed for.
(Court file, defendant's motion to discharge or reduce mechanic's lien, Item #101.
The defendant's memorandum of law in support was filed May 27, 1993. The plaintiff filed its memorandum of law in opposition to the defendant's motion to discharge or reduce plaintiff's mechanic's lien on June 14, 1993.
On the same date, the defendant's motion to discharge or reduce the plaintiff's mechanic's lien was heard by the court. CT Page 6844
General Statutes Sec. 49-35a(c) provides that "if an action for foreclosure of the lien is pending before any court, any party to that action may at any time prior to trial, unless an application under subsection (a) of this section has previously been ruled upon, move that the lien be discharged or reduced." General Statutes Sec. 49-35b provides that:
(a) Upon the hearing held on the application or motion set forth in section 49-35a, the lienor shall first be required to establish that there is probable cause to sustain the validity of his lien. Any person entitled to notice under section 49-35a may appear, be heard and prove by clear and convincing evidence that the validity of the lien should not be sustained or the amount of the lien claimed is excessive and should be reduced.
(b) Upon consideration of the facts before it, the court or judge may: (1) Deny the application or motion if probable cause to sustain the validity of the lien is established; or (2) order the lien discharged if (A) probable cause to sustain its validity is not established, or (B) by clear and convincing evidence its invalidity is established; or (3) reduce the amount of the lien if the amount is found to be excessive by clear and convincing evidence; or (4) order the lien discharged or reduce the amount of the lien conditioned upon the posting of a bond, with surety, in a sum deemed sufficient by the judge to indemnify the lienor for any damage which may occur by the discharge or the reduction of amount.
A. Whether the different descriptions of the subject property in the plaintiff's mechanic's lien and that alleged in the complaint, in the present foreclosure action, are grounds to discharge the plaintiff's mechanic's lien. CT Page 6845
General Statutes Sec. 49-33(b) states in part that "[t]he claim is a lien on the land . . . that the materials were furnished or services were rendered." Generally, a mechanic's lien, as a creature of statute, is strictly construed and governed by the statute or statutes which give rise to its availability, as a prejudgment remedy, for services or materials provided which benefit a particular parcel of land. See D. Caron, Connecticut Foreclosures, Sec. 13.01 (2d Ed. 1989).
However, the Connecticut Supreme Court has carved-out an exception, to this general rule, when the description of the property within the mechanic's lien is overly broad. "[A] mere mistake in including more land than can be made subject to the lien will not void the lien. . . ." (Citations omitted.) Tramonte v. Wilens, 89 Conn. 520, 526-27, 94 A. 978
(1915).
The mechanic's lien legislation is remedial in character and should be construed so as to carry out its fundamental purpose. Pierce, Butler Pierce Mfg. Corporation v. Enders, 118 Conn. 610, 615, 174 A. 169, and cases cited. Courts have been liberal in considering errors in matters of detail but have insisted upon reasonable compliance with specific provisions of the statute. So it has been held that a lien will not be held invalid because of a mistake in stating the date of ceasing to render services; Westland v. Goodman, 47 Conn. 83, 85; or the amount of land covered Tramonte v. Wilens, 89 Conn. 520, 524, 94 A. 978.
City Lumber Company v. Borsuk, 131 Conn. 640, 645, 41 A.2d 775
(1945).
In the present action, the plaintiff's mechanic's lien describes the subject property, as well as additional property not intended to be the subject of the plaintiff's lien. The property description of the subject property, within the mechanic's lien, although overly broad, satisfies the requirements of General Statutes Sec. 49-33(a). The defective property description, in the mechanic's lien, does not render the mechanic's lien void as to the property which was properly the subject of the lien. CT Page 6846
Therefore, even though the plaintiff's mechanic's lien describes more property that is properly the subject of the lien, this presents insufficient grounds to discharge the plaintiff's mechanic's lien.
B. Whether failure to notify any and all property owners, pursuant to General Statutes Sec. 49-34, renders the entire mechanic's lien void.
General Statutes Sec. 49-34 states in relevant part that "[a] mechanic's lien is not valid, unless the person performing the services or furnishing the materials, . . . serves a true and attested copy of the certificate upon the owner of the building, lot or plot of land in the same manner as is provided for the service of the notice in section 49-35." General Statutes Sec. 49-35(a) provides in relevant part that:
The notice shall be served upon the owner or original contractor, if such owner or original contractor resides in the same town in which the building is being erected, raised, removed or repaired or the lot is being improved, or the plot of land is being improved or subdivided, by any indifferent person, sheriff or other proper officer, by leaving with such owner or original contractor or at his usual place of abode a true and attested copy thereof. If the owner or original contractor does not reside in such town, but has a known agent therein, the notice may be so served upon the agent, otherwise it may be served by any indifferent person, sheriff or other proper officer, by mailing a true and attested copy of the notice by registered or certified mail to the owner or original contractor at the place where he resides. If such copy is returned unclaimed, notice to such owner or original contractor shall be given by publication in accordance with the provisions of section 1-2. When there are two or more owners, or two or more original contractors, the notice shall be so served on each owner and on each original CT Page 6847 contractor. The notice, with the return of the person who served it endorsed thereon, shall be returned to the original maker of the notice within said period of ninety days.
In the present action, the plaintiff does not contest that certain property owners of land described in the mechanic's lien were not provided notice, pursuant to General Statutes Sec. 49-34. The plaintiff argues that where the additional property owners were inadvertently included by reason of an overly broad property description, the lien should only be held partially void as to those property owners who were not provided with statutory notice.
The plaintiff's argument is based on the same reasoning derived from the previously referred to decisions dealing with an overly broad property description within a mechanic's lien. See Tramonte, supra; also Borsuk, supra. Neither Tramonte nor the Borsuk decision dealt with the issue of a lienholder's failure to provide statutory notice.
Although a scrivener's error in the property description is not necessarily fatal to the lien, lack of adequate notice to any and all property owners, on the other hand, is an insurmountable defect. See Roundhouse Construction Corporation v. Telesco Masons Supplies Co., 168 Conn. 371,362 A.2d 778 (1975). Even though all intended property owners were given proper notice, the decision in Roundhouse Corporation Corp., provides that procedural due process requires that any and all property owners must be given notice of the mechanic's lien or the lien, in its entirety, will be rendered void. Id.; Kababik v. Hydraulic Repair Company, Inc., 7 Conn. L. Rptr. 280 (September 3, 1992, McGrath, J.), citing General Statutes Secs. 49-34 and 49-35.
It is fundamental that property cannot be taken without procedural due process as guaranteed by the fourteenth amendment to the constitution of the United States and article first, Sec, 10, of the constitution of Connecticut. For more than a century, the central meaning of procedural due process has been clear. "Parties whose right are to be affected are entitled to be heard; and in order that they may enjoy that right CT Page 6848 they must first be notified." Baldwin v. Hale, 68 U.S. 223, 233, 17 L.Ed. 531; Windsor v. McVeigh, 93 U.S. 274, 23 L.Ed. 914; Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215; Grannis v. Ordean, 234 U.S. 385, 34 S.Ct. 779, 58 L.Ed. 1363. It is equally fundamental that the right to notice and an opportunity to be heard "must be granted at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62. The United States Supreme Court has reiterated that these fundamental requirements apply to the deprivation of "any significant property interest." Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 28 L.Ed.2d 113.
Roundhouse Construction Corporation v. Telesco Masons Supplies Co., 168 Conn. 371, 376-77, 362 A.2d 778 (1975).
In the present action, the defendant's property interest are affected by the recording of the plaintiff's mechanic's lien. As a result of the plaintiff's mechanics lien, the property owners have suffered a loss or a taking in that the plaintiff's mechanic's lien severely restricts the opportunity for and possibly of alienation. The plaintiff's failure to comply with the notice requirements, under General Statutes Sec. 49-34, renders the plaintiff's mechanic's lien void in its entirety.
Therefore, the court grants the defendant's motion to discharge the plaintiff's mechanic's lien because the plaintiff failed to comply with the mandatory notice requirements, pursuant to General Statutes Sec. 49-34.
It is so ordered.
HIGGINS, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3095502/ | COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00535-CR
Jimie Griffin § From Criminal District Court No. 2
§ of Tarrant County (1320819D)
v. § January 23, 2014
§ Per Curiam
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
the appeal should be dismissed. It is ordered that the appeal is dismissed.
SECOND DISTRICT COURT OF APPEALS
PER CURIAM | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2408528/ | 952 S.W.2d 852 (1997)
Wesley Ray CREAGER, Appellant,
v.
The STATE of Texas, Appellee.
No. 1381-95.
Court of Criminal Appeals of Texas, En Banc.
September 10, 1997.
Layne H. Harwell, Fort Worth, for appellant.
Barry S. Green, District Attorney, Decatur, Matthew Paul, State's Atty., Austin, for State.
Before the court en banc.
OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
WOMACK, Judge.
We granted discretionary review of this case to decide if the court of appeals had correctly analyzed the appellant's claim that his written statement was involuntary.
The appellant was interrogated by the 271st Judicial District Attorney's investigator, who obtained an arrest warrant from a magistrate in Jack County and went to Hobbs, New Mexico, where the appellant was working. After the appellant was arrested, the investigator interrogated him in the Hobbs Police Department's jail. The interrogation was tape-recorded, and the pre-trial evidence included the parties' separate transcripts of the recording of the interrogation. Using a printed form, the investigator read the appellant the warnings that are set out in Code of Criminal Procedure Article 38.22, § 2(a). The appellant orally waived his right to remain silent and signed a waiver on the printed form.
After the warnings and waivers, the investigator introduced himself as a specialist in child abuse cases. He asked the appellant to look at a doctor's report about the child who was alleged to be the victim. (Later he showed the appellant photographs of the child's bruises.) He told the appellant that he had talked to the witnesses and the child, and that he was very satisfied with what the *853 child told him. Then he said, "Wes, I'm here to try to make things easier for you. I drove all this distance to try to make things work for you on your behalf. OK? [The child] has told me that you abused him."
The appellant repeatedly denied his guilt, and the investigator repeatedly insisted that a two-and-a-half year old child could not have been mistaken or have invented such a story. The investigator remarked that the appellant was making it hard on himself and everybody. The appellant said he did not want to make it rough on the child, whom he loved, and asked, "What kind of route can we go if I say that I did this and I get help. Because if I did this, I want help. Because, well it could happen again to some other child if I did this." The investigator gave the appellant some information about the range of punishment, early release, probation eligibility, and plea bargaining.
INVESTIGATOR: Which may be probation, it may be sixty years, but no matter what it is you'd have the final outcome on that say.... Just because you give a statement and tell about what happened doesn't mean that you can't go to court, because you can still go to court. Because you can fight that sentencing. OK?
APPELLANT: But that's the offer that there is, is a ten year probation and that means I'm marked for ten years as a sex offender, is that right?
INVESTIGATOR: No matter what, yeah.
APPELLANT: It's never erased, it's always on my record for as long as I live and breathe.
INVESTIGATOR: That's correct.
APPELLANT: And what you also told me is that there is no way I can beat this.
INVESTIGATOR: No, Wes, you can't beat something that happened. [Etc.]
The appellant said that he believed himself to be innocent. The investigator replied that the appellant was not innocent, that he needed to face the facts, and that the investigator, who was "kind of the middle man," was there to "get your story and take it back to the DA.... I go back and tell the DA what you told me and it goes from there."
For a while the appellant continued to profess belief in his innocence, but he later admitted that he did sexually assault the child. He wrote a confession on a form that contained the warnings required by Code of Criminal Procedure Article 38.22, § 2(a).
Before his trial the appellant filed a "motion for hearing on voluntariness," which asked the court "to determine whether [his] admission and confessions were voluntarily made by the Defendant." The trial court received evidence at a pre-trial hearing, including the warnings that were read to the appellant, transcripts of the tape-recordings of his interrogation, documents that were shown the appellant during interrogation, and the appellant's written statement. On the day of trial the judge announced that he would "refuse or deny the Defendant's motion to suppress the confession," and that "at an appropriate time, the Court will make the appropriate findings of fact and of law in that connectionin connection with the Jackson v. Denno hearing." No such findings appear in the record.
When the appellant's written confession was offered at trial his attorney urged "our previous objection," which was overruled. The jury convicted the appellant after fifteen minutes of deliberation. The court assessed punishment of 50 years' confinement.
The appellant's point of error in the court of appeals was that the trial court abused its discretion in admitting a statement that was "the result of improper persuasion by the investigator who conducted the interrogation." The appellant said the improper tactics included (1) false and misleading statements of inducement that the investigator was there on appellant's behalf to make things easier for him, (2) a statement that the appellant would be found guilty if he went to trial, (3) the false statement of inducement that the investigator was a middle *854 man who could help get a plea bargain offer from the district attorney, (4) a statement that by giving a written confession the appellant would be in a position to obtain a plea bargain, and (5) confirmation of the appellant's mistaken belief that he had been offered ten years' probation for a confession.
The court of appeals found error, saying:
Appellant and the State agree that in order to induce a confession, a promise must be (1) positive, (2) made or sanctioned by someone in authority, and (3) of such an influential nature that a defendant would speak untruthfully....
In affirming Gipson [v. State, 819 S.W.2d 890 (Tex.App.Dallas 1991), aff'd, 844 S.W.2d 738 (Tex.Cr.App.1992)], the Court of Criminal Appeals validated the reasoning that it is improper to warn an accused his confession might be used for him or on his behalf. The investigator in that instance told the accused that his confession "would be his story he could use in court" and that "he could imply that any way he wanted to." Gipson, 844 S.W.2d at 739. Although the investigator avoided admitting that he told the accused the statement would be used in his favor, he acknowledged that the language was ambiguous and could be interpreted by the defendant as it being advantageous for him to confess. The interrogation of appellant by [the investigator in this case] was, if anything, less ambiguous than that in Gipson.
Among the first comments made by [the investigator] to appellant was the statement, "I'm here to try to make things easier for you. I drove all this distance to try to make things work for you on your behalf." After telling appellant that [the investigator] "(had) the evidence to take you to court and ... put you in prison" and reading him the statements from family members whom [the child] told about the assault, [the investigator] then advised appellant that [the investigator] was "trying to guide you through ... what you need to do here."
Most troubling to us is the following statement by the investigator:
"I'm saying to you, that you don't have to go to trial on this case, you don't have to go to trial at all. You can plea bargain this case out. You don't have to go to trial. It's up to you. But it's gonna go to trial unless you and I can set [sic] down and you know, talk about what happened." (Emphasis added.)
[The investigator] some time later added, "All I can tell you is why I'm here. I'm here to take your story back to the District Attorney to tell him what happened."
In light of the language held improper in Gipson, we conclude the investigator's comments were improper in this instance. We find the confession was the product of improper persuasion and should have been suppressed.
Creager v. State, No. 2-94-240-CR, slip op. at 9-10 (Tex.App.Fort Worth, Nov. 28, 1995) (unpublished). Finding the error harmful, the court of appeals reversed the judgment of conviction and remanded the case to the district court. We granted discretionary review.
The court of appeals' opinion erred in two respects. First, it placed reliance on Gipson, a case in which a rule about statutory warnings was improperly used to resolve an issue of voluntariness. Second, the court of appeals accepted the parties' agreement that the issue of voluntariness could be completely resolved by the rule that a confession is inadmissible if it was induced by a certain kind of promise. That rule is not sufficient to resolve all the issues about the voluntariness of this statement.
For or Against
A warning to a suspect before interrogation that a statement could be used "for or against" the suspect is an impropriety that, of itself, can require that the statement be held inadmissible. The rule of the inadmissibility of a statement made after a warning that it could be used "for or against" a suspect has a statutory basis. The warning now appears in Code of Criminal Procedure Article 38.22, § 2(a)(1), which requires that to be admissible a statement of an accused made as a result of custodial interrogation *855 must show that the suspect was warned "that any statement he makes may be used against him at his trial." The requirement was first enacted in Article 662 of the Code of Criminal Procedure of 1856, which excluded the statement of an accused made while in custody unless the accused was "first cautioned that it may be used against him."
The first application of the statute came in Unsell v. State, 39 Tex. Crim. 330, 45 S.W. 1022 (1898).[1] The arresting officer had "warned the defendant, and told him that anything he would say could be used against him or for him on his trial." 39 Tex. Crim. at 331, 45 S.W. at 1023. About a half hour later Unsell made a remark about some cattle in his inclosure, which was admitted in evidence. This Court said (ibid.):
Without going into a discussion of the various questions, suffice it to say that this testimony was inadmissible, because, among other reasons, the defendant was not warned as required by the statute. Before a confession can be used against a defendant when made under arrest, he must be warned and cautioned that said confession can be used against him. To warn him that it may be used for him would be holding out an inducement.
The requirement that the defendant be warned that a statement may be used against him has been reenacted repeatedly in a series of amendments to the statute. This Court has consistently held that a statement is inadmissible when it followed a warning that violated the statute in saying that the statement might be used "for or against" the suspect.
A more recent, constitutionally-based requirement of warning has not been construed so strictly. In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the Court said that the Fifth Amendment required at least some warnings before custodial interrogation, one being that a person in custody must first be warned "that anything he says can be used against him in a court of law."[2] 384 U.S. at 479, 86 S. Ct. at 1630. The Fifth Amendment right is not violated when a suspect is warned that his statement "could be used against him, or could be used for him." Gardner v. State, 733 S.W.2d 195, 202-03 (Tex.Cr.App.1987).
This case does not involve statutory or constitutional warnings before the interrogation. There is no question that the appellant was given proper warnings before the interrogation. The issue is the significance of the interrogator's remarks during the interrogation which might have led the appellant to believe that a confession would help him. Such remarks might be a circumstance which bear on the voluntariness of the appellant's statement, but they would not necessarily render the statement inadmissible. Voluntariness is decided by considering the totality of the circumstances under which the statement was obtained. Haynes v. Washington, 373 U.S. 503, 83 S. Ct. 1336, 10 L. Ed. 2d 513 (1963).
In Gipson v. State, 819 S.W.2d 890 (Tex. App.Dallas 1991), aff'd, 844 S.W.2d 738 (Tex.Cr.App.1992), the court of appeals resolved a voluntariness question by misusing the per se rule that violation of the warning statute makes the statement inadmissible. There was no question that Gipson had been given proper warnings. The interrogator testified that while he was taking the confession he told Gipson "it would be his story he could use in court....[I]t would be presented to the Grand Jury and also presented in Court, just like he told it." The interrogator agreed with defense counsel that he was telling Gipson that the statement could be used on his behalf or against him. Gipson, 819 S.W.2d at 894. The court of appeals held, "A per se rule of inadmissibility applies if the evidence is uncontroverted that the officer told the accused that his confession could be used `for or against him.'" Ibid.
*856 But as we have explained above, the per se rule of inadmissibility is for a misstatement of the statutory warning given before interrogation, not for remarks made during interrogation. The court of appeals cited Dunn v. State, 721 S.W.2d 325 (Tex.Cr.App.1986). It did not mention that the opinion in Dunn represented the views of only two judges, which six judges declined to join. Dunn involved similar facts: There was no question that Dunn had been given proper warnings; the interrogator told Dunn that "he would stand a better chance ... of not getting the death penalty, perhaps" if he confessed, and the officer agreed with defense counsel that this meant a statement could be used for or against him. Dunn, 721 S.W.2d at 340. At one point, Judge Teague's opinion said, "We find and hold from a totality of the circumstances that the appellant was induced to confess by the conduct of [the officer] and the admissions by him settle beyond question that the appellant's confession was not a voluntary one." Id. at 342. This was the law to be applied to the question of voluntariness which the case presented. But at another point the opinion said, "As a matter of law, [the officer's] improper warning caused the confession to become inadmissible evidence at appellant's trial." Ibid. This was a misstatement of fact and a misapplication of the law about statutory warnings, because there was no improper warning before the interrogation. We disavow any implication in the Dunn opinion that the per se rule of inadmissibility that results from a violation of the warning statute applies to an officer's remarks made during the subsequent interrogation.
We cannot agree with the court of appeals' statement that we "validated" this reasoning when we affirmed Gipson. The only grounds on which we granted discretionary review in Gipson concerned the harmfulness of the trial court's ruling admitting the confession. Gipson, 844 S.W.2d at 739. We did not review the admissibility of the confession.
The admissibility of the appellant's confession in this case cannot be resolved by applying the per se rule for violation of the warning statute. The issue is the voluntariness of the statement.
Promises
The court of appeals also relied on the parties' agreement that the controlling test is stated in Fisher v. State, 379 S.W.2d 900, 902 (Tex.Cr.App.1964), which quoted 1 Branch's Annotated Penal Code of Texas 95 (2nd ed., 1956):
To render a confession inadmissible upon the ground that it was induced by the promise of some benefit to defendant, such promise must be positive, and must be made or sanctioned by a person in authority and it must also be of such character as would be likely to influence the defendant to speak untruthfully.
This is undoubtedly the rule to resolve a claim that a statement was involuntary simply because it was induced by an improper promise. But the appellant's claim in this case includes more circumstances than the making of a promise.
The totality of the circumstances should be considered, as we have said. Article 38.21 of the Code of Criminal Procedure requires that the statement have been "freely and voluntarily made without compulsion or persuasion." Even without the statute, the courts of this state have held that statements must not have been "obtained by the influence of hope or fear, applied by a third person to the prisoner's mind." Cain v. State, 18 Tex. 387, 390 (Tex.1857). The ultimate question is whether the suspect's will was overborne. Armstrong v. State, 718 S.W.2d 686, 693 (Tex.Cr.App.1985).
Trickery or deception does not make a statement involuntary unless the method was calculated to produce an untruthful confession or was offensive to due process. Dotsey v. State, 630 S.W.2d 343 (Tex.App. Austin 1982).
To decide this case the court of appeals must examine the totality of the circumstances surrounding the acquisition of the statement to determine whether it was given voluntarily. Armstrong v. State, supra, 718 S.W.2d at 693.
If the decision turns on issues of fact that were disputed in the trial court, we remind the court of appeals that written findings of *857 fact are required by Code of Criminal Procedure Article 38.22, § 6, and that they may be obtained by a remand to the trial court. Hester v. State, 544 S.W.2d 129 (Tex.Cr.App. 1976).
The judgment of the court of appeals is vacated and the cause is remanded to that court for further proceedings consistent with this opinion.
MEYERS, Judge, concurring.
Like the majority, I cannot subscribe to an understanding of Dunn v. State, 721 S.W.2d 325 (Tex.Crim.App.1986) that requires per se inadmissibility of those confessions tendered after a statement-taking officer both gives a proper Tex.Code Crim. Proc. Ann. art. 38.22 § 2(a)(2) warning and later states that the confession can be used "for or against" the defendant. Once the defendant has been properly admonished that his statements may be used against him at trial he has been properly warned under art. 38.22 § 2(a)(2). And like the majority, I agree that the issue in this case does not even involve the statutory or constitutional adequacy of the pre-interrogation warnings, but instead involves whether appellant voluntarily confessed under the totality of the circumstances. In other words, appellant's claim cannot be resolved by merely applying the test, as set out in Fisher v. State, 379 S.W.2d 900 (Tex.Crim. App.1964), for determining when a promise renders a confession inadmissible. This is so because, as the majority asserts, there is more to appellant's claim than the making of a promise. But not much more. In fact, his claim, as set out in the majority's opinion, includes only one circumstance that does not appear to be an inducement by promise. Specifically, the investigator's alleged comment that appellant would be found guilty if he chose to go to trial is not a promise, but rather a statement spoken, perhaps, to create fear in appellant's mind. All of the other circumstances set out in appellant's claim appear to me to be in the nature of a promise. Because the majority's opinion might be misunderstood to suggest that there is much more to appellant's claim than that he was made promises so that he would confess, I can concur in the result only.
OVERSTREET, Judge, dissenting.
I dissent to the majority's holding that the per se rule of inadmissibility is for a misstatement of the statutory warning given before interrogation, but not for remarks made during interrogation. The rule of per se inadmissible confessions made subsequent to "for or against" statements of interrogators is of such great import that it warrants the broad application that it has heretofore enjoyed. When a defendant makes a confession following an interrogator's statement that the confession may be used "for or against" the defendant, the confession ought to be inadmissible per se, even when proper Miranda warnings preceded the interrogation. The majority's myopic and truncated analysis effectively undermines the integrity of the interrogation process and thereby compromises the policy objective of protecting the interrogee from improper influence and inducement.
Appellant was arrested in New Mexico pursuant to a warrant and given appropriate Article 38.22, V.A.C.C.P., warnings. Upon interrogation, which was audio-taped and transcribed, appellant made a written confession. An investigator with the district attorney's office conducted the interrogation. Appellant, on appeal, argued that the investigator's remarks, made during the course of the interrogation, caused appellant's confusion regarding his rights and confession and that the trial court erred in not suppressing the confession which was the result of such improper persuasion by the investigator.
Per the State's transcription of the audiotapes of the interrogation, these remarks preceded appellant's confession:
[INVESTIGATOR]: I'm the district attorney investigator for Jack and Wise County. Like I told you a minute ago. My main focus with the District Attorney's office for the last two and a half years has been with the child abuse cases. That's all I work, and nothing but child abuse.
* * *
[INVESTIGATOR]: Wes, I'm here to try to make things easier for you. I drove all *858 this distance to try to make things work for you on your behalf.
* * *
[INVESTIGATOR]: ... You do not have to take this case to court. You can plead guilty to the charges, you can give a statement to the district attorney's office, plead guilty to the charge, you can plea bargain the case out, so to speak. That means no trial, you basically, it's a talk between the appointed district attorney and attorneys, and they work out the details and they decide what they think is a good offer for you. Which may be probation, it may be sixty years, but no matter what it is, you'd have the final outcome on that say.... It doesn't mean just because you give a statement and tell about what happened, doesn't mean that you can't go to court, because you can still go to court. Because you can fight that sentencing. OK?
[APPELLANT]: But that's the offer that there is, is a ten year probation and that means I'm marked for ten years as a sex offender, is that right?
[INVESTIGATOR]: No matter what, yeah.
[APPELLANT]: It's never erased, it's always on my record for as long as I live and breathe.
[INVESTIGATOR]: That's correct.
* * *
[INVESTIGATOR]: ... And I'm just here, I'm kind of the middle man here. I mean I work under the DA. I came down here to talk to you, to get your story and take it back to the DA.
* * *
[INVESTIGATOR]: ... I'm just, like I said, I'm just the middle man. I go back and tell the DA what you told me and it goes from there.
* * *
[INVESTIGATOR]: We, you have got to be a man about what took place, accountable for your actions, and what you did. You need to get it out on the table, talk about it, get it down in writing, let me go back to the district attorney and and [sic] say he cooperated with us, he told me what happened out there and how, how it took place.
Appellant argues that these remarks, among others, by the interrogating officer effectively offered an inducement to make a statement, with such inducement being comparable to a statement that his confession could be used "for or against" appellant. At a hearing on appellant's motion to suppress the confession, the trial court denied the motion. At trial the confession was admitted into evidence, over objection.
An interrogator's remarks, following warnings, to the defendant that a confession may be used "for or against" the defendant irreversibly obfuscates the requirements of 38.22 § 2(a)(1),(2), V.A.C.C.P., that the suspect be warned prior to interrogation that any statement made by the accused may be used against the accused at his trial and in court.[1] Even where proper 38.22 warnings precede such remarks by interrogators, "for or against" remarks modify the preceding warning. While warning a suspect that his statements may be used against him is appropriate, an interrogator's subsequent remark that the statement of the suspect may be used "for or against" the suspect is a mutation *859 of the constitutional and statutory requisite warning.
This Court should not encourage interrogators to take artistic license with the statutorily and constitutionally required warnings. Initially relating those warnings accurately does not grant a license to subsequently modify and embellish them to induce a confession during the course of the interrogation. An interrogator's remarks that explicitly contradict a clause of the preceding Art. 38.22 warning is as inappropriate as an interrogator's failure to inform a suspect of the required Art. 38.22 § 2(a)(1),(2) warnings prior to making the confession.
To suggest, as the majority does, that an interrogator's remarks made subsequent to proper reading of warnings cannot render a subsequent confession inadmissable per se is a radical departure from common sense and is far afield of present caselaw. The United States Supreme Court has even said in, Miranda v. Arizona, 384 U.S. 436, 476, 86 S. Ct. 1602, 1629, 16 L. Ed. 2d 694, 725 (1966),
[A]ny evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege. The requirement of warnings and waiver of rights is a fundamental with respect to the Fifth Amendment privilege and not simply a preliminary ritual to existing methods of interrogation.
I do not subscribe to the notion that the rule of per se inadmissible confessions is limited by previous caselaw to confessions obtained subsequent to improper warnings. Even where proper warnings have been given, an interrogator's subsequent remarks, in some instances, may render resulting confessions inadmissible per se.
The basis of the per se rule of inadmissibility is that if the accused is advised that his confession may be used "for or against him" or "for and against him," such is an improper warning, and without more renders the confession inadmissible as a matter of law, because to warn the accused that his confession might be used for him holds out an inducement for making the confession. Dunn v. State, 721 S.W.2d 325, 341 (Tex.Cr.App.1986)(plurality opinion); Sterling v. State, 800 S.W.2d 513, 518-19 (Tex.Cr. App.1990), cert. denied, 501 U.S. 1213, 111 S. Ct. 2816, 115 L. Ed. 2d 988 (1991).
In both Dunn and Sterling, this court found no impropriety regarding the reading of Miranda warnings to the defendant prior to the interrogation. In both cases, during the interrogation, however, the interrogating officer effectively told the defendant that the defendant's confession may be used "for or against" the defendant. See Dunn v. State, 721 S.W.2d at 337, 340; and Sterling, 800 S.W.2d at 515, 518. In both cases, the interrogating officer's remarks that the confession could be used "for or against" the defendant was the premise on which this court concluded that the confession was inadmissable per se. Dunn, 721 S.W.2d at 341; Sterling, 800 S.W.2d at 519.
The instant case is similar to Dunn and Sterling. The interrogating officer appropriately and properly warned appellant. During the interrogation, however, the investigator effectively told appellant that a confession would be used for appellant's benefit, i.e. for him. After the interrogator stated that his role in the interrogation process was "kind of the middle man," he thereafter clearly sought to portray his request for a statement as a way in which he could assist appellant in his relations with the District Attorney. The clear implication of the interrogating investigator's remarks to appellant is that a written statement could be used "for" appellant. And as this Court pointed out in Dunn, 721 S.W.2d at 341, "For over one hundred years this Court has held that if the evidence is uncontroverted and uncontradicted that the person who takes or obtains a written confession from the accused tells the accused that his confession might be used `for or against him[,]' or `for and against him,' then this renders the confession inadmissible at trial because the warning does not comply with our State confession statute...."
And while the majority, Creager v. State, 952 S.W.2d 852, 854-55 (Tex.Cr.App.1997), cites Gardner v. State, 733 S.W.2d 195, 202-03 (Tex.Cr.App.1987), cert. denied, 488 U.S. 1034, 109 S. Ct. 848, 102 L. Ed. 2d 979 (1989), *860 for the proposition that "[t]he Fifth Amendment right is not violated when a suspect is warned that his statement `could be used against him, or could be used for him[,]'" Gardner does not make such a holding. Gardner held that because the defendant failed to timely voice an objection, no error as to his Fifth Amendment claim was preserved. Gardner v. State, 733 S.W.2d at 202-03. In obiter dictum, Gardner stated that it had found no cases in which such a warning violates Miranda or infringes on a defendant's Fifth Amendment rights, and that this Court found no error. Id. at 203. However, such obiter dictum is a far cry from the definitive Fifth Amendment proposition that the majority cites Gardner for.
The majority also denigrates Dunn for simply being a plurality opinion. However, a majority of this Court in Sterling, supra, applied Dunn as "squarely on point[,]" because of improper "for or against" inducements, and held that such rendered the confession inadmissible because of violating Article 38.22. Sterling v. State, 800 S.W.2d at 518-19. In holding that that induced statement was inadmissible, a majority of this Court cited, discussed and applied Dunn for the principle of per se inadmissibility. Thus if a majority of this Court wishes to now overrule Dunn's per se inadmissibility holding as a plurality opinion, it must also overrule Sterling's majority equivalent holding.
The defendant's waiver of rights is compromised by the interrogator's remark that the defendant's confession may be used "for or against him."[2] In that situation, the defendant would not possess the requisite "knowledge" component in order to voluntarily waive his rights prior to confession.[3] Our tolerance of an interrogator's arbitrary mutation and convolution of the constitutional and statutory requirement that the defendant be warned prior to questioning that his statements "may be used against him" is literally a travesty of jurisprudence.
The majority in no way presents a reasoned argument for casting aside this Court's controlling precedential caselaw of "over one hundred years[,]" but instead concocts an artificial distinction between whether inducement was made during warnings prior to interrogation or during the interrogation itself. But a difference which makes no difference is no difference.
For the reasons stated herein, I voice my dissent.
BAIRD, J., joins.
NOTES
[1] The first discussion of the requirement of the statute was in the case of Unsell's codefendant, Guinn v. State, 39 Tex. Crim. 257, 45 S.W. 694 (1898), but the discussion there was obiter dictum because Guinn had not made a statement.
[2] The substance of this particular Miranda warning was added to the Texas confession statute in 1977. S.B. 157, 65th LegislatureRegular Session, Acts 1977, ch. 348, § 2. It appears in Article 38.22 as Section 2(a)(2): "any statement he makes may be used as evidence against him in court."
[1] Article 38.22 § 2, V.A.C.C.P., states:
Sec. 2. No written statement made by an accused as a result of custodial interrogation is admissible as evidence against him in any criminal proceeding unless it is shown on the face of the statement that:
(a) the accused, prior to making the statement, either received from a magistrate the warning provided in Article 15.17 of this code or received from the person to whom the statement is made a warning that:
(1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial;
(2) any statement he makes may be used as evidence against him in court;
(3) he has the right to have a lawyer present to advise him prior to and during any questioning;
(4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and
(5) he has the right to terminate the interview at any time; and
(b) the accused, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived the rights set out in the warning prescribed by Subsection (a) of this section.
[2] When the State bears the burden of proof on a motion in which the defendant seeks to suppress a statement which he claims was obtained in violation of Miranda, the State need prove waiver only by a preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 168, 107 S. Ct. 515, 522, 93 L. Ed. 2d 473, 485 (1986).
[3] It must be shown that the accused, prior to and during the making of the statement (i.e. confession, admission, et.cetera) knowingly, intelligently, and voluntarily waived the rights set out in the warnings prescribed by 38.22 § 2(a), V.A.C.C.P. See Art. 38.22 § 2(b), V.A.C.C.P. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610092/ | 12 Ariz. App. 13 (1970)
467 P.2d 88
NEW PUEBLO CONSTRUCTORS, INC., an Arizona corporation, Appellant,
v.
LAKE PATAGONIA RECREATION ASSOCIATION, INC., a nonprofit Arizona corporation, Appellee.
No. 2 CA-CIV 781.
Court of Appeals of Arizona, Division 2.
March 31, 1970.
Rehearing Denied May 4, 1970.
Review Denied June 2, 1970.
*14 Robertson & Pickett, P.C., by Peter Johnson, Tucson, for appellant.
John S. Schaper, Phoenix, Karam & Martin, by Nasib Karam, Nogales, for appellee.
HOWARD, Chief Judge.
On September 25, 1967 the appellee, hereinafter referred to as Lake Patagonia or the Owner, and the appellant, hereinafter referred to as New Pueblo or the Contractor, entered into a contract for the construction of a dam on Sonoita Creek in Santa Cruz County, Arizona.
Paragraph 26 of the contract provides in part as follows:
"ADJUSTMENT OF DISPUTE. All questions or controversies which may arise between the Contractor and the Owner, under or in reference to this contract, shall be subject to the decision of some competent person to be agreed upon by the Owner and the Contractor, and his decision shall be final and conclusive upon both parties. Should the Owner and Contractor be unable to agree upon such person, a board of three arbitrators shall be chosen, one by the Owner, one by the Contractor, and the third by the two so chosen, and the decision of any two of said arbitrators shall be final and binding upon the parties. * * *"
In the fall of 1968, a dispute arose as to whether the dam had been completed by New Pueblo within the time specified by the contract, and whether Lake Patagonia was entitled to liquidated damages. In addition, New Pueblo contended that the project engineer had miscalculated certain quantities of material supplied by New Pueblo to the project and therefore miscalculated the amount of money due and owing to New Pueblo.
On January 29, 1969 the engineer certified that the work covered by the contract had been completed and accepted. The engineer certified what the total amount earned by the Contractor was and further certified that the sum of $81,972.52 was then due to the Contractor. New Pueblo filed a mechanics lien on January 10th and *15 17th, 1969 and claimed that over $124,800.00 was due.
On April 18, 1969 New Pueblo, pursuant to paragraph 26 of the contract, sent a letter to Lake Patagonia requesting arbitration of the dispute as to the amount due.[1]
On April 21, 1969 Lake Patagonia filed a complaint in the superior court and two days later counsel for Lake Patagonia refused to concur with the request for arbitration.
On April 25, 1969 Lake Patagonia filed an application in the Santa Cruz County Superior Court for an order to stay arbitration. New Pueblo filed a response to the application to stay arbitration and affirmatively moved for an order to compel arbitration. New Pueblo also moved the court for an order staying the action filed in the superior court.[2]
Pursuant to A.R.S. § 12-1502 the court granted the stay of arbitration and refused to issue an order requiring arbitration.[3]
Appellant presents the following questions for review: Whether the trial court erred in denying New Pueblo's motion for an order compelling arbitration, erred further in denying New Pueblo's motion to stay the action pending arbitration, and further erred in granting Lake Patagonia's application to stay arbitration. The appellee, Lake Patagonia, contends that the above questions should be answered in the negative because 1) the superior court still retains jurisdiction over issues not related to the demand for arbitration and 2) the matter raised and the demand of New Pueblo is not subject to arbitration.
NO ARBITRABLE MATTERS
It is Lake Patagonia's contention that the only matter as to which New Pueblo has sought arbitration by virtue of the letter of April 18, 1969 is the amount of money which New Pueblo claims to be due. It therefore reasons that any determination in this case as to the arbitrability of that issue *16 has nothing to do with its quiet title action, the right of Lake Patagonia to sue for damages for malicious filing of the liens and its right to liquidated damages resulting from New Pueblo's failure to complete the work covered by the contract. It contends that since none of these issues are within the demand for arbitration, then resolution of the said issues are completely beyond the authority of any arbitrator. Lake Patagonia cites no authority for this contention, and we have found none.
Referring to the theory of arbitration generally, our Supreme Court has stated:
"Broadly speaking, arbitration is a contractual proceeding, whereby the parties to any controversy or dispute, in order to obtain an inexpensive and speedy final disposition of the matter involved, select judges of their own choice and by consent submit their controversy to such judges for determination, in the place of the tribunals provided by the ordinary processes of law." Gates v. Arizona Brewing Co., 54 Ariz. 266, 95 P.2d 49 (1939).
Therefore, in order to accomplish this purpose, arbitration clauses should be construed liberally and any doubts as to whether or not the matter in question is subject to arbitration should be resolved in favor of arbitration. Metro Industrial Painting Corp. v. Terminal Construction Co., 287 F.2d 382 (2nd Cir.1961); United Steelworkers of America v. Warrior and Gulf Navigation Co., 363 U.S. 574, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960); Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402 (2nd Cir.1959); Lundell v. Massey-Ferguson Services N.V., 277 F. Supp. 940 (N.D. Iowa 1967); Southern Bell Telephone & Telegraph Co. v. Louisiana Power and Light Co., 221 F. Supp. 364 (D.La. 1963); Firestone Tire & Rubber Co. v. United Rubber Workers of America, Local Union No. 100, AFL-CIO, 168 Cal. App. 2d 444, 335 P.2d 990 (1959); Bewick v. Mecham, 26 Cal. 2d 92, 156 P.2d 757 (1945).
The federal courts have adopted what could be termed the "positive assurance" test which requires arbitration unless it can be said with "positive assurance" that the arbitration clause does not cover the dispute:
* * * * * *
"An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage." United Steelworkers of America v. Warrior and Gulf Navigation Co., supra.[4]
Turning our attention to the contract in the instant case, we find that the parties agreed that:
"All questions or controversies which may arise between the Contractor and Owner, under or in reference to this contract, shall be subject to the decision of some competent person to be agreed upon by the Owner and the Contractor. * * *" (Emphasis added.)
We think it can be clearly said that all the matters raised in Lake Patagonia's complaint are matters which have their basis in the contract. Lake Patagonia's contention that the trial court still has jurisdiction because the matters set forth in its complaint were not covered in the demand letter of April 18, 1969 is entirely without merit. The only matter that can fairly *17 be said not to be within the letter is Lake Patagonia's claim for liquidated damages as the result of New Pueblo's alleged failure to complete the work on time. New Pueblo's motion in the court to require arbitration of the matters set forth in Lake Patagonia's complaint is sufficient demand for arbitration of the matter of the right to liquidated damages.
ARE DECISIONS OF THE ENGINEER ARBITRABLE?
Lake Patagonia next contends that the matters set forth in its complaint in the trial court are not subject to arbitration because of the fact that the contract excludes from arbitration the decisions of the engineer. This contention is based upon paragraphs 14 and 20 of the contract between the parties.[5]
Lake Patagonia takes the position that these paragraphs make the engineer the sole judge of the amount due and payable under the contract, that his judgment is therefore final and conclusive and not subject to the arbitration clause. The type of provisions as provided in paragraphs 14 and 20 of the contract at issue have been held as making the engineer the sole and final judge of the quality, quantity and acceptability of the Contractor's work. Guarantee Title & Trust Co. v. Willis, 38 Ariz. 33, 297 P. 445 (1931); Gillespie Land & Irrigation Co. v. Hamilton, 43 Ariz. 102, 29 P.2d 158 (1934); Massman Const. Co. v. Lake Lotawana Ass'n, 240 Mo. App. 469, 210 S.W.2d 398 (1948).
If it were not for other provisions in the contract, we would have to agree with Lake Patagonia that the questions involved have been excluded from arbitration. However, the contract must be construed so that every part of it is given effect. Sligh v. Watson, 69 Ariz. 373, 214 P.2d 123 (1950). The courts will adopt such construction as will harmonize all parts of the contract and conflicting provisions will be reconciled by a reasonable interpretation in view of the entire instrument. Hamberlin v. Townsend, 76 Ariz. 191, 261 P.2d 1003 (1953). Turning to paragraph II, B, 2, page 3 of the special conditions of the contract, we find that they provide in part as follows:
"The Owner's representative and the Contractor's representative shall be present during the classification of material excavation. Upon written request of the Contractor a statement of quantities and classification of excavation in designated locations will be furnished the Contractor within 10 days of the receipt of such request. This statement shall be considered as satisfactory to the Contractor unless specific objections thereto, with reasons therefor, are filed with the *18 Owner, in writing, within 10 days after receipt of said statement by the Contractor or his representative on the work. Failure to file such written objections within said 10 days shall be considered a waiver of all claims based on alleged erroneous estimates of quantities or incorrect classification of materials for the work covered by such statement."
This paragraph indicates to us that it was never intended that the decision of the engineer would be final and conclusive on the matters that are at issue. Why give the contractor a right to a claim based on alleged erroneous estimates of quantities or incorrect classification of materials if the decision of the engineer was to be final? Furthermore, the contract provides that it is the duty of the engineer to enforce the specifications in a fair and unbiased manner and that computation of quantities of material that are used shall be made by the engineer in accordance with the methods defined in the plans and specifications. If the engineer fails to perform his duty in a fair and unbiased manner or fails to compute the quantities in the method defined in the plans and specifications, is his decision still to be final and conclusive? We think not. Even the cases cited by Lake Patagonia for the proposition that the engineer's decision is final and conclusive except acts on the part of the engineer that are arbitrary, capricious or unreasonable. New Pueblo did file an objection pursuant to the provisions of paragraph II, B, 2 of the special conditions of the contract and such objection was rejected. The whole tone and tenor of the claim of New Pueblo is that the action of the engineer was arbitrary, capricious and unreasonable.
Furthermore, we believe that the arbitration clause in and of itself nullifies any finality which the engineer may be cloaked with by virtue of paragraphs 14 and 20 of the agreement. This does not apply to those matters upon which the parties made the decision of the engineer conclusive as is found in paragraph 9:
"* * * The Contractor shall not take advantage of any errors, discrepancies or omissions which may exist in the Plans and Specifications, but shall immediately call them to the attention of the Engineer whose interpretation of correction thereof shall be conclusive." (Emphasis added.)
In the final analysis, if we were to follow the contentions of Lake Patagonia as to the finality of the engineer's decisions, we would have to write the agreement to arbitrate completely out of the contract since there would be nothing left to arbitrate. This we decline to do.
Lake Patagonia also contends in essence that the matters which would be decided by the arbitrators would involve both questions of law and fact and that questions of law are to be decided by the courts and not by arbitrators. This argument is also without merit. An arbitration agreement such as the one in this case gives the arbitrators full power to decide both questions of law and fact. Funk v. Funk, 6 Ariz. App. 527, 434 P.2d 529 (1967).
FARMERS HOME ADMINISTRATION APPROVAL
Paragraph 41 of the contract between the parties provides in part:
"* * * The final estimate of the work must be checked and approved by both the Engineer and the Representative for Farmers Home Administration. * * *"
Lake Patagonia contends that such a requirement for approval by a third person is a condition precedent to recovery under the contract and that there is no way in which an arbitrator could independently determine what was due to New Pueblo and enter a binding arbitration award unless the arbitration award were approved by Farmers Home Administration. They therefore reason that an arbitration proceeding would be meaningless. We do not agree with the contention of Lake Patagonia. Clauses in building construction contracts which require approval by federal administrative agencies do not make such *19 agencies the final judge as to whether or not either party has performed under the contract. See 67 A.L.R. 2d 1017 et seq.
OTHER MATTERS
Lake Patagonia contends that the $14,173.24 claimed by New Pueblo to be due is for extra work which was not approved by the engineer. Because of this Lake Patagonia claims that such extra work does not arise "under or in reference to" the contract. We do not agree. We believe that it does arise under or in reference to the contract. Paragraphs 10 and 11 of the contract relate to extra work and charges and claims for extra costs. The fact that the engineer would not issue any contract change orders and would not approve of the claim does not preclude New Pueblo from asserting its claim for the requirement of a change order as a condition precedent to recovery will be eliminated in the presence of gross mistake, fraud or error amounting to a failure to exercise an honest judgment. Corbin on Contracts § 651 (1952), Restatement of Contracts § 303. This issue really involves the merits of the action which are not the concern of the courts. A.R.S. § 12-1502, subsec. E.
In its last dying volley Lake Patagonia claims that in any event none of these issues are arbitrable because the arbitration clause only refers to controversies between the Contractor and the Owner and this controversy is between the engineer and the Contractor. This contention is spurious. The agreement between the parties makes the engineer the agent of the Owner.
For the foregoing reasons the order of the trial court is set aside and the case is reversed and remanded to the trial court for further proceedings consistent with this opinion.
KRUCKER, J., and LAWRENCE GALLIGAN, Superior Court Judge, concur.
NOTE: Judge HATHAWAY having requested that he be relieved from consideration of this matter, Judge GALLIGAN was called to sit in his stead and participate in the determination of this decision.
NOTES
[1] The first paragraph of that letter is as follows:
"Pursuant to paragraph 26 of that certain contract and notice of award, dated September 25, 1967, between Lake Patagonia Recreation Association, Inc. and New Pueblo Constructors, Inc., notice is hereby given to Lake Patagonia Recreation Association to designate an arbitrator pursuant to paragraph 26 to participate in the decision of the following dispute: payment of the claim of New Pueblo Constructors, Inc. of the sum of $124,837.02 based upon proper measurement and computation of quantities and for completion of all items required by the project engineer, the designated agent of the owner, to be done by the contractor."
[2] action filed by Lake Patagonia consisted of four counts. Count one is a quiet title action based on the alleged invalidity of the mechanics liens filed by New Pueblo, count two is an action for slander of title based upon the filing of the mechanics liens, count three alleges breach of contract on the part of New Pueblo for failure to complete the contract on the date agreed upon, and count four asks the court to interpret paragraph 26 of the contract to resolve the question as to whether or not their disputes must be arbitrated.
[3] The pertinent provisions of A.R.S. § 12-1502 are as follows:
"A. On application of a party showing an agreement described in § 12-1501, and the opposing party's refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issues so raised and shall order arbitration if found for the moving party. Otherwise, the application shall be denied.
B. On application, the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate. Such an issue, when in substantial and bona fide dispute, shall be forthwith and summarily tried and the stay ordered if found for the moving party. If found for the opposing party, the court shall order the parties to proceed to arbitration.
* * * * * *
E. An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown."
[4] See also Operating Engineers Local Union No. 3 v. Crooks Bros. Tractor Co., 295 F.2d 282 (9th Cir.1961); Amalgamated Meat Cutters and Butcher Workmen of North America, No. 385, AFL-CIO v. Penobscot Poultry Co., 200 F. Supp. 879 (D.Me. 1961); International Union, United Automobile, Aircraft, and Agricultural Implement Workers of America, AFL-CIO v. Cardwell Manufacturing Co., 304 F.2d 801 (10th Cir.1962); Carey v. General Electric Co., 315 F.2d 499 (2nd Cir.1963), cert. denied, 377 U.S. 908, 84 S. Ct. 1162, 12 L. Ed. 2d 179 (1964); American Radiator & Standard Sanitary Corp. v. Local 7 of International Brotherhood of Operative Potters, AFL-CIO, 358 F.2d 455 (6th Cir.1966).
[5] Paragraph 14 provides in part:
"* * * The Engineer shall have full authority to interpret the Plans and Specifications and shall determine the amount, quality, and acceptance of the work and supplies to be paid for under this contract and every question relative to the fullfillment of the terms and provisions therein. * * *"
Paragraph 20 provides as follows:
"Partial payments will be made as the work progresses at the end of each calendar month, or as soon thereafter as practicable on estimates made by the Engineer and as approved by the Owner, provided that the Contractor is performing the overall job in a diligent manner. In making partial payments, there shall be retained ten percent on the amount of each estimate until final completion and acceptance of all work covered by the contract.
Upon the completion and acceptance of the work, the Engineer shall issue a certificate that the work has been completed and accepted by him under the conditions of this contract, and shall make and approve the final estimate of the work. The entire balance found to be due the Contractor, including the retained percentages, but excepting such sums as may be lawfully retained by the Owner, shall be paid to the Contractor. Such payment shall be conditioned, however, upon the submission by the Contractor of evidence satisfactory to the Owner that all claims for labor, material, and any other outstanding indebtedness in connection with this Contract have been paid."
* * * * * * | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610096/ | 467 P.2d 683 (1970)
STATE of Oregon, Respondent,
v.
Ronald Glenn MILLER, Appellant.
Court of Appeals of Oregon, Department 2.
Argued and Submitted January 23, 1970.
Decided April 9, 1970.
Rehearing Denied May 5, 1970.
Review Denied June 16, 1970.
*684 Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.
Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.
Before SCHWAB, C.J., and FOLEY and BRANCHFIELD, JJ.
SCHWAB, Chief Judge.
Defendant was indicted with his brother, Gerald Miller, tried separately before a jury and convicted of the crime of assault and robbery while being armed with a dangerous weapon. The robbery took place on the night of April 7, 1968, at a neighborhood grocery store in Portland. Only one robber, the defendant, entered the store.[1] The defendant, brandishing a hand gun, told the clerk of the store, one Rekdahl, that it was a holdup and directed him to open the safe. The defendant took the money from the safe and Rekdahl's wallet. At a later date Rekdahl picked the defendant's picture from a group of "mug shots" and on April 30, 1968, picked the defendant out of a lineup.
Defendant makes three assignments of error on appeal. The first assignment involves the repeating of the testimony of a witness to the jury.
After the jury retired to deliberate, the foreman sent a message to the trial judge, saying, "It is imperative that the jury have Rekdahl's testimony read. Is this permissible?" The defendant objected to any portion of the testimony's being read to the jury. The judge overruled the objection and, although he ascertained from the jury foreman that the jury wanted only a part of Rekdahl's testimony read, directed that all of it be read to the jury. This was not error.
While such requests should not be encouraged, when a jury requests that *685 testimony be repeated the decision on that request lies within the discretion of the trial court. State of Oregon v. Vaughn, 200 Or. 275, 265 P.2d 249 (1954); State v. Jennings, 131 Or. 455, 282 P. 560 (1929). Further, if the court in the exercise of its discretion decides that a portion of the evidence should be read to the jury in response to its request, it is a proper exercise of discretion "* * * to direct the reading also of other appropriate parts which the jury might otherwise disregard [citing cases]." State v. Jennings, supra, at 476, 282 P. at 567.
Defendant's second assignment of error is that the court required him to testify against himself in violation of his Fifth Amendment rights by directing him to speak in the courtroom for the purposes of an in-court voice identification. On direct examination Rekdahl positively identified the defendant as the robber and testified that he had experienced no difficulty in identifying him in the lineup. Cross-examination by defendant's counsel was thorough and searching. Apparently out of concern that the certainty of the identification had been put in question by this thorough cross-examination, the prosecuting attorney asked for the in-court voice identification. Defense counsel promptly objected to this on the ground that it was irrelevant, prejudicial and cumulative.
For the first time on appeal defendant raises the Fifth Amendment rights against self-incrimination as the basis of his objection. The authorities do not support his position. State v. Hughes, 252 Or. 354, 449 P.2d 445 (1969); State v. Fisher, 242 Or. 419, 410 P.2d 216 (1966); United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). In any event, we need not further discuss the Fifth Amendment basis of this assignment of error because it was not preserved on appeal by a proper objection at trial.
The relevancy of the in-court voice identification is obvious. Whether the prejudice resulting from requiring the defendant to speak before the trial jury outweighed the relevancy is a matter for the trial court's discretion. State v. Oland, Or. App., 89 Adv.Sh. 655, 461 P.2d 277 (1969). A trial court may in its discretion permit cumulative testimony. Simmons v. Holm, et al, 229 Or. 373, 367 P.2d 368 (1961); State v. Haines, 147 Or. 609, 34 P.2d 921 (1934).
Defendant's last assignment of error is that the court erred in failing to instruct on the lesser included offense of assault and robbery not being armed with a dangerous weapon. Defendant did not request any such instruction and he did not take exception to the failure to give such instruction. The only case cited by defendant in support of his assignment of error is State v. Braley, 224 Or. 1, 355 P.2d 467 (1960), reversed on other grounds sub nom. Braley v. Gladden, 9 Cir., 403 F.2d 858 (1968). Braley does not support him. There the court stated:
"Defendant did not request an instruction embodying the elements of second degree murder under ORS 163.020(2), nor did he take an exception for the failure to give the instruction. Therefore, he is not entitled to assert the alleged error on appeal. We have held that if no exception is taken upon the failure to give an instruction on an included crime, the alleged error may not be asserted on appeal [citing cases] * * *." State v. Braley, supra, at 18, 355 P.2d at 475.
In State v. Carcerano, 238 Or. 208, 224, 390 P.2d 923 (1964), cert. den. 380 U.S. 923, 85 S. Ct. 921, 13 L. Ed. 2d 807 (1965), an armed robbery appeal, the court quoted the following from State v. Cain, 230 Or. 286, 290-91, 369 P.2d 769 (1962), another armed robbery conviction:
"`The last assignment complains that the judge failed to instruct on lesser charges. He was not requested to. Since the matter was not presented to the trial court we decline to decide whether the instructions would have been appropriate in this case. However, as above indicated, there was no denial *686 that an armed robbery took place. It was only denied that defendant did it.'"
In State v. Kendrick, 239 Or. 512, 518-19, 398 P.2d 471 (1965), the court said:
"* * * In the absence of a request for an instruction on a lesser included crime, it is not error for the court to fail to give it. State v. Cain, 230 Or. 286, 369 P.2d 769; State v. Carcerano, 70 Or.Adv.Sh. 611, 390 P.2d 923. For tactical reasons a defendant may not desire such an instruction and should not thereafter be able to take advantage of the court's failure to give it unless it has been requested."
While in some cases trial judges would be warranted in inquiring whether defense counsel wished to submit instructions on lesser included offenses, trial judges have no duty to give such instructions sua sponte. We note that defendant did not cite State v. Olson, Or. App., 89 Adv.Sh. 345, 459 P.2d 445 (1969) or State of Oregon v. Nodine, 198 Or. 679, 259 P.2d 1056 (1953). In Nodine, a murder prosecution, discussing the failure to request instructions, the court stated:
"Nevertheless, in a case where human life is at stake, we are not prepared to apply a procedural requirement of this kind, salutary though it may be, in all its strictness * * *." 198 Or. at 687, 259 P.2d at 1059.
The procedural rule requiring instructions be requested was not followed. In Olson we held the same reasoning applied in attempt cases because the punishment was identical. It was not our intention in Olson to extend the holding in Nodine to other than murder cases. Indeed, whether the holding in Nodine remains viable now that the death penalty has been abolished is a question worthy of consideration in an appropriate case.
Affirmed.
NOTES
[1] The defendant's brother, Gerald, was convicted in a separate trial and his separate appeal is pending before this court. 467 P.2d 973. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3346767/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION RE: MOTION TO STRIKE OF DEFENDANT'S COLEMAN BROTHERS SHOWS, INC.
On July 16, 1992, the plaintiff, Jane Doe by and through her mother, Eleanor Doe, filed a five-count revised complaint in which she alleges that on June 7, 1990, she was a customer and business invitee of a carnival owned and operated by Coleman Brothers Shows, Inc. (Coleman Brothers), when its employee, the defendant David Smith, Jr., forcibly raped and assaulted her.
The first and second counts of her complaint are against Coleman Brothers, alleging negligence and nuisance, respectively.
On August 10, 1992, the defendant Coleman Brothers moved to strike the nuisance count on the ground that it is legally insufficient because the plaintiff has failed to allege that she was injured either CT Page 5243-O in the exercise of a public right or in relation to her ownership in an interest in land.
The purpose of a motion to strike is to test the legal sufficiency of a pleading. Practice Book 152; Ferryman v. Groton,212 Conn. 138, 142, 561 A.2d 432 (1989). In ruling upon a motion to strike, the court must take as admitted all well pleaded facts and construe them in a manner most favorable to the plaintiff. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170,544 A.2d 1185 (1988). If a pleading contains the necessary elements of a cause of action, it will survive a motion to strike. D'Ulisse-Cupo v. Board of Directors of Notre Dame High School,202 Conn. 206, 218-219, 520 A.2d 217 (1987). In order to prevail on a claim of nuisance, a plaintiff must prove that:
(1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was a proximate cause of the plaintiff's injuries. (Internal quotations and citations omitted.)
Doe v. Manheimer, 212 Conn. 748, 755-56, n. 4, 563 A.2d 699
(1989). There are two different types of nuisance: absolute and negligent. Couture v. Board of Education, 6 Conn. App. 309,314, 508 A.2d 463 (1985). Within these two types, there are two further classifications of nuisance: public and private. "A private nuisance exists only where one is injured in relation to a right which he enjoys by reason of his ownership of an interest in land." Webel v. Yale University, 125 Conn. 525, 7 A.2d 215
(1939). A public nuisance, on the other hand, exists only where the conduct or condition complained of interfered with a right common to the general public. Doe v. Manheimer, supra, 756. "A person entering premises at the express or implied invitation of a tenant or owner is not exercising a public right. Rather, the person is entering as a visitor . . . . [T]he visitor cannot recover on a public nuisance claim." Stewart v. Federated Department Stores, Inc., 4 Conn. L. Rptr. 67 (May 17, 1991, Lewis, J.), citing Webel v. Yale University, 125 Conn. 515, 524-525, 7 A.2d 215 (1939); and Dahlstrom v. Roosevelt Mills, Inc., 27 Conn. Sup. 355, 357,238 A.2d 431 (1967).
In her complaint, the plaintiff claims that the defendant Coleman Brothers was the owner of a carnival providing amusement devices to and for the use of the public for profit at a carnival site CT Page 5243-P at Burrows Field, Route 1, Poquonnock Road, Groton, Connecticut and promoted said facility to the public and induced the public including minor females to attend said facility. The plaintiff further alleges that on or about the date of the alleged incident, the plaintiff was a customer and business invitee of the defendant and that the incident occurred after business hours.
Because the plaintiff, as a business invitee, has not alleged that she suffered an injury in relationship to her ownership of an interest in land, she has not stated a sufficient claim of private nuisance. And, because she has not alleged that she was injured in the exercise of a right common to the general public, she has not stated a sufficient claim of public nuisance.
In her memorandum in opposition, the plaintiff argues that the defendant's contention that it is not liable for public nuisance because the injury occurred on its private property is erroneous because its own conduct drew the public onto the property during and after hours. It appears that the plaintiff is asserting that the defendant is liable under the doctrine of attractive nuisance.
Contrary to the plaintiff's claim, her argument fails because Connecticut has not adopted the doctrine of attractive nuisance. Neal v. Shields, Inc., 166 Conn. 3, 12, 367 A.2d 102 (1974). However, when applying the principles of common law negligence the courts have recognized that children require special consideration. Id. See also Wolfe v. Rehbein, 123 Conn. 115,193 A.2d 608 (1937) (where the court held that a landowner owed a duty to exercise reasonable care to prevent injury to children that he knows or should know are trespassing upon his property).
Therefore, if liability in this case exists, it belongs in the area of negligence, not nuisance.
Accordingly, the defendant's motion to strike the second count of the plaintiff's revised complaint is granted. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2410209/ | 329 F. Supp. 2d 568 (2004)
Andrea BLANCH Plaintiff,
v.
Jeff KOONS Defendant.
No. 03 Civ. 8026.
United States District Court, S.D. New York.
August 17, 2004.
Cinque & Cinque, P.C., New York, NY, for plaintiff. Robert W. Cinque, of counsel.
The Koegel Group LLP, New York, NY, for defendant. John B. Koegel, of counsel.
OPINION and ORDER
STANTON, District Judge.
Plaintiff moves for leave to amend the complaint in this copyright infringement action, to allege a claim for punitive damages. Motions to amend a complaint are *569 freely granted when justice so requires. Fed.R.Civ.P. § 15(a). Here, however, the defendant opposes the motion, arguing that as a matter of law punitive damages are not available for copyright infringement actions, and the motion should be denied as futile. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957) ("A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.").
Conventional authority holds that punitive damages are unavailable in copyright infringement actions, regardless of whether plaintiff is seeking statutory damages or the alternative of actual damages plus profits. See e.g., Oboler v. Goldin, 714 F.2d 211, 213 (2d. Cir.1983). However, two recent decisions in this district suggest that the copyright statute logically permits punitive damages in cases when the plaintiff seeks actual damages and profits, rather than statutory damages, for willful or malicious infringement.
In the first of those cases, Silberman v. Innovation Luggage, Inc., 2003 WL 1787123 at *9-10 (S.D.N.Y. April 3, 2003), statutory damages under 17 U.S.C. § 504(c) were barred because the infringement commenced before the work was registered, so the plaintiff was relegated to actual damages plus profits under 17 U.S.C. § 504(b). The plaintiff also sought punitive damages. Judge Lynch stated that (1) generally punitive damages are not available as an addition to statutory damages (which allow for increases in cases of willful infringement), because the statutory damages achieve the purpose of deterrence; and (2) since there was no proof of malice or ill will, in Silberman, there was no reason to deviate from the general principle, id. at *10. In such cases actual damages have sufficient deterrent effect.
In TVT Records v. The Island Def Jam Music Group, 262 F. Supp. 2d 185, 187 (S.D.N.Y. May 5, 2003) Judge Marrero, relying in part on Silberman, held that punitive damages were not foreclosed by the Copyright Act as a matter of law, and allowed claims for punitive damages for willful infringement to go to the jury. He held "the logical circumstances in which such damages would be available, provided the requisite malice is indicated, is in cases such as this one where the available damages exclude statutory damages, or where actual damages plus profits are available as an alternative to statutory damages." He stated that "where the contemplated award is actual damages plus profits, such a recovery is compensatory only and does not address the interests of deterrence and punishment that are reflected in the principles underlying both punitive damages and statutory damages for willful infringement. Therefore in this context, to say that the public policy rationale for punitive damages can be properly accounted for is not correct." Id. at 186. In the event, the jury awarded punitive damages for willful copyright infringement. On a subsequent motion for judgment n.o.v. as a matter of law, Judge Marrero did not address that portion of the award because the plaintiffs had by then elected to receive statutory damages instead. See TVT Records, 279 F. Supp. 2d 366, 384 n. 14; TVT Records, 279 F. Supp. 2d 413, 416-17, n. 3.
Ultimately, the determination whether punitive damages are available for copyright infringement cases must be made in a case where the issue is squarely presented: where the jury could find malice or willful infringement, and the plaintiff is not seeking (or is barred from obtaining) statutory damages.
*570 Here, as in Silberman, statutory damages are unavailable because the infringement commenced before the work was registered. In light of the speculation by one judge of this court, and the (at least) provisional holding by another, I grant leave to amend the complaint so that plaintiff has a chance to prove malice and raise squarely the question whether punitive damages are available to her.
The motion for leave to amend the complaint is granted. In granting such leave I do not forecast any favorable view of plaintiff's position: the present weight and reason of the law (favoring registration)[1] seem strongly against it. I simply allow the argument to be heard on the facts.
So ordered.
NOTES
[1] If punitive damages are available to a plaintiff who did not timely register her work, the statutory purpose of encouraging copyright registration is frustrated. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2027063/ | 917 N.E.2d 1287 (2009)
Crystal SANQUENETTI, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.
No. 61A01-0907-CR-344.
Court of Appeals of Indiana.
December 17, 2009.
*1288 Daniel M. Grove, Special Assistant to the Public Defender, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Stephen Tesmer, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
OPINION
CRONE, Judge.
Case Summary and Issue
Crystal Sanquenetti appeals her four-year sentence following her guilty plea to class C felony nonsupport of a dependent child, arguing that it is inappropriate in light of the nature of the offense and her character. We reverse and remand with instructions to revise her sentence to two years, executed.
Facts and Procedural History
On February 28, 1994, the trial court entered a child support order against Sanquenetti, *1289 ordering her to pay $52 per week for the support of her dependent children, R.F., born December 27, 1984, and L.F., born October 29, 1986. On September 13, 2002, in cause number 61C01-0207-FD-114 ("FD-114"), Sanquenetti pled guilty to two counts of class D felony nonsupport of a dependent. On April 7, 2009, the trial court sentenced her to three years' imprisonment with one and one-half years suspended on each count, to be served consecutively.
On February 2, 2009, prior to her sentencing in FD-114, the State charged Sanquenetti with the offense that is the basis for this appeal: class C felony nonsupport of a dependent child based on her failure to pay support between April 9, 2004, and August 28, 2007, with an arrearage of more than $15,000. On May 26, 2009, Sanquenetti and the State entered into a plea agreement, wherein Sanquenetti pled guilty as charged and left her sentence to the trial court's determination. On June 23, 2009, the trial court sentenced Sanquenetti to four years in the Department of Correction, executed. The trial court ordered this sentence to be served consecutive to the sentences in FD-114. This appeal ensued. Additional facts will be provided as necessary.
Discussion and Decision
Sanquenetti asserts that her sentence is inappropriate based on the nature of the offense and her character. Article 7, Section 6 of the Indiana Constitution authorizes this Court to independently review and revise a sentence imposed by the trial court. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.2007), clarified on reh'g, 875 N.E.2d 218. Indiana Appellate Rule 7(B) states, "The Court may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender." "Although appellate review of sentences must give due consideration to the trial court's sentence because of the special expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B) is an authorization to revise sentences when certain broad conditions are satisfied." Purvis v. State, 829 N.E.2d 572, 587 (Ind. Ct.App.2005) (internal citations omitted), trans. denied.[1] The defendant bears the burden of persuading us that the sentence is inappropriate. Rutherford v. State, 866 N.E.2d 867, 873 (Ind.Ct.App.2007).
"[R]egarding the nature of the offense, the advisory sentence is the starting point our legislature has selected as an appropriate sentence for the crime committed." Anglemyer, 868 N.E.2d at 494. The advisory sentence for a class C felony is four years, with a fixed term of between two and eight years. Ind.Code § 35-50-2-6. Sanquenetti received the advisory sentence.[2]
There are several considerations that temper our estimation of the seriousness *1290 of Sanquenetti's offense. Sanquenetti was charged with nonsupport of a dependent child under Indiana Code Section 35-46-1-5, which provides,
A person who knowingly or intentionally fails to provide support to the person's dependent child commits nonsupport of a child, a Class D felony. However, the offense is a Class C felony if the total amount of unpaid support that is due and owing for one (1) or more children is at least fifteen thousand dollars ($15,000).
We recognize that due to Sanquenetti's actions, or rather lack thereof, her children failed to receive the financial resources to which they were entitled, and the burden of supporting the children shifted unfairly to the custodial parent. We cannot emphasize enough the importance of honoring one's responsibility for and commitment to his or her children. Nevertheless, we note that there is no evidence of hardship or sacrifice suffered by the children or the custodial parent or evidence that state support of the children was necessary.
In addition, we note that nonsupport of a dependent is a class C felony where the amount owed is greater than $15,000. See Ind.Code § 35-46-1-5. Sanquenetti's conviction for class C felony nonsupport of a dependent is based on nonpayment of child support from April 9, 2004, to August 28, 2007. Although the State claims that Sanquenetti owes more than $30,000, that amount includes support payments Sanquenetti failed to make before April 9, 2004. See Appellant's App. at 9, 53. We note that in FD-114, Sanquenetti pled guilty on September 13, 2002, to two counts of class D felony nonsupport of a dependent. Unfortunately, the record before us does not contain sufficient information about FD-114 to determine Sanquenetti's child support arrearage or the period of nonsupport upon which those convictions are based. Nevertheless, we may reasonably infer that Sanquenetti's class D felony convictions were based on some portion of the child support arrearage that accrued before April 9, 2004.[3] Thus, for some portion of her pre-April 9, 2004, arrearage, Sanquenetti has been charged, convicted, and sentenced, and is currently serving her time. Accordingly, we do not think that justice would be served by considering Sanquenetti's total arrearage in assessing the nature of this offense.[4]
*1291 Further, we note that for purposes of Indiana Code Section 35-46-1-5, "`[d]ependent' means: (1) an unemancipated person who is under eighteen (18) years of age; or (2) a person of any age who has a mental or physical disability." Ind.Code § 35-46-1-1.[5] In other words, the failure to pay child support to a child eighteen years of age or older does not constitute a crime under Indiana Code Section 35-46-1-5.[6] This is true even though the duty to support an unemancipated child does not cease until the child becomes twenty-one years of age. See Indiana Code § 31-14-11-18. Although a parent remains criminally liable for the child support owed to a child prior to the child's eighteenth birthday even after the child turns eighteen, a parent is not criminally liable under Indiana Code Section 35-46-1-5 for the support that accrues after the child turns eighteen.
Here, on April 9, 2004, when the State charged Sanquenetti in this cause, R.F. was nineteen years old and was no longer a dependent as defined by Indiana Code Section 35-46-1-1. In fact, he ceased being a dependent as defined by Indiana Code Section 35-46-1-1 when he turned eighteen on December 27, 2002. Therefore, Sanquenetti is criminally liable for the child support she owes for R.F.'s support prior to his eighteenth birthday, but is not criminally liable for the child support that she failed to pay after R.F. turned eighteen. The same reasoning applies to Sanquenetti's other child, L.F., who turned eighteen on October 29, 2004.[7] Accordingly, we conclude that the nature of Sanquenetti's offense does not support the advisory sentence.
As to Sanquenetti's character, we note that she pled guilty, which reflects favorably on her character. See Scheckel v. State, 655 N.E.2d 506, 511 (Ind.1995) ("[T]he fact that [defendant] pled guilty demonstrates his acceptance of responsibility for the crime."). Although she has two prior convictions for class D felony nonsupport of a dependent child and a 1996 class C felony battery conviction, she pled guilty in each case.[8]
The State emphasizes Sanquenetti's "continued unwillingness to support her *1292 children." Appellee's Br. at 5. We observe that Sanquenetti did not finish high school and does not have a high school degree. In 2009, she worked part time (thirty-three hours a week) at an IGA grocery store earning $6.60 an hour. She was unemployed for five years prior to being hired at IGA. We observe that "[i]t is a defense that the accused person was unable to provide support." Ind.Code § 35-46-1-5(d). Although, Sanquenetti pled guilty and did not raise this defense, the record suggests that her failure to meet her child support obligations was not made in callous disregard of her children's needs. Accordingly, we do not think that her failure to pay child support reflects as poorly on her character as the State argues.
In light of the nature of the offense and Sanquenetti's character, we conclude that her four-year sentence is inappropriate. We exercise our authority to revise her sentence to two years, executed. Therefore, we reverse and remand with instructions for the trial court to revise Sanquenetti's sentence accordingly.
Reversed and remanded.
RILEY, J., concurs.
VAIDIK, J., dissents with separate opinion.
VAIDIK, Judge, dissenting.
I respectfully dissent from the majority's conclusion that Sanquenetti's advisory sentence of four years for Class C felony nonsupport of a dependent is inappropriate. According to the factual basis for Sanquenetti's guilty plea,
between the dates of April 9, 2004 and August 28, 2007 in Parke County, State of Indiana, [Sanquenetti] knowingly or intentionally fail[ed] to provide support for [her] dependent children, [L.S.F.], date of birth October 29, 1986, and [R.J.F.], December 27, 1984, and the amount of the unpaid support that is due and owing is more than 15,000.00.
May 26, 2009, Tr. p. 6. Following the trial court's imposition of the advisory sentence, Sanquenetti did not file a petition for post-conviction relief challenging her guilty plea; rather, she filed a direct appeal challenging her sentence. Nevertheless, the majority appears to be using Sanquenetti's sentencing challenge as a vehicle to correct what it perceives to be an injustice. That is, the majority has "serious concerns that there is no valid basis for Sanquenetti's class C felony conviction." Op. at 1291 n. 7. The majority believes that the amount of child support for the years 2005 through 2007 should not be included as a basis for Sanquenetti's criminal liability under Indiana Code section 35-46-1-5 because that section only imposes criminal liability for children under eighteen years of age, and Sanquenetti's children were eighteen years of age or older during this time frame. The majority opines that without child support from the years 2005 through 2007, the amount owed is not at least $15,000, which is what makes this crime a Class C felony. But this speculation, based on an incomplete record, ignores the clear language of Sanquenetti's factual basis, which provides that the amount of unpaid support due and owing is more than $15,000.
As the majority itself recognizes, when a defendant pleads guilty, she is precluded from challenging the factual basis for the guilty plea on direct appeal. Tumulty v. State, 666 N.E.2d 394, 395 (Ind.1996). As such, the correct forum for Sanquenetti to challenge her guilty plea is post-conviction, where a more thorough record can be developed. *1293 Rather, our job in this direct appeal is to review the appropriateness of Sanquenetti's advisory sentence in light of the nature of the offense and her character.
As for the nature of the offense,[9] as the trial court found, there is no evidence that the crime caused or threatened serious harm to anyone. Nonetheless, I believe that this crime per se evidences that hardship or sacrifice was suffered by the children or the custodial parent. Thus, I disagree with the majority's comment that there was no evidence of hardship shown in this case.
As for Sanquenetti's character, as the trial court pointed out, Sanquenetti has a history of criminal activity, including two convictions for Class D felony nonsupport of a dependent and a 1996 conviction for Class C felony battery. Appellant's App. p. 26. In addition, she "recently violated terms of a pretrial release." June 23, 2009, Tr. p. 5; see also Appellant's App. p. 26. Although it is true that Sanquenetti pled guilty to this offense and was working a part-time job in 2009 (though she was unemployed for the previous five years), I believe that these actions pale in comparison to her criminal activities. Therefore, I would find that Sanquenetti's advisory sentence of four years is not inappropriate.
NOTES
[1] The State cites Everroad v. State, 701 N.E.2d 1284 (Ind.Ct.App.1998), for the proposition that "`[b]ecause reasonable people will differ as to the appropriate sentence in any given case,' this Court will `refrain from merely substituting [its] opinions for those of the trial court.'" Appellee's Br. at 4 (quoting Everroad, 701 N.E.2d at 1286)). Although under Appellate Rule 7(B) we give due consideration to the trial court's sentencing decision and recognize the unique perspective a trial court brings to such determinations, our review is no longer "extremely" deferential, nor must we exercise our authority "with great restraint." Rutherford v. State, 866 N.E.2d 867, 873 (Ind.Ct.App.2007).
[2] The State asserts that due to Sanquenetti's prior class D felony convictions, her sentence is nonsuspendable under Indiana Code Section 35-50-2-2(b)(2). Appellee's Br. at 6. Indiana Code Section 35-50-2-2(b)(2) provides that "the court may suspend only that part of the sentence that is in excess of the minimum sentence" where the "crime committed was a Class C felony and less than seven (7) years have elapsed between the date the person was discharged from probation, imprisonment, or parole, whichever is later, for a prior unrelated felony conviction and the date the person committed the Class C felony for which the person is being sentenced." (Emphasis added.) The minimum sentence for a class C felony is two years. Ind.Code § 35-50-2-6. Accordingly, the trial court had authority to suspend two years of Sanquenetti's four-year sentence.
[3] As of July 17, 2002, Sanquenetti owed $17,798.77 in child support. Appellant's App. at 9.
[4] We note that nonsupport of a dependent child is a continuous act, and where a parent fails to provide child support following an earlier conviction, the parent commits another offense. Boss v. State, 702 N.E.2d 782, 784-85 (Ind.Ct.App.1998). However, the Fifth Amendment to the United States Constitution and Article 1, Section 14 of the Indiana Constitution protect individuals from being put in jeopardy twice for the same offense. Accordingly, Sanquenetti cannot be punished again for the amount of nonsupport and time periods of nonsupport upon which her class D felonies are based. In other words, the child support arrearage under the class D felony convictions cannot be added to the subsequent arrearage to achieve the $15,000 needed to elevate nonsupport of a dependent child to a class C felony.
[5] There is no indication that either child has a mental or physical disability.
[6] This may reflect our legislature's view of the greater importance of providing support to younger children, or it may be an oversight that the legislature may wish to revisit.
[7] Thus, at a minimum, the amount of child support due for the years 2005 to 2007 should not be included as a basis for Sanquenetti's criminal liability under Indiana Code Section 35-46-1-5. The arrearage for those years equals $7,644. Appellant's App. at 9. Indeed, we have serious concerns that there is no valid basis for Sanquenetti's class C felony conviction. We think that there is a reasonable possibility that if the child support arrearage giving rise to her class D felony convictions for nonsupport of a dependent is excluded from the basis of the class C felony conviction, and the $7,644 from the years 2005 to 2007 is also excluded, the remainder of Sanquenetti's child support arrearage is less than $15,000. We observe that when a defendant pleads guilty, he or she is precluded from challenging the factual basis of the guilty plea on direct appeal. Tumulty v. State, 666 N.E.2d 394, 395 (Ind. 1996). The proper forum for the determination of claims such as the lack of factual basis and other attacks upon the conviction itself is the post-conviction proceeding. Id. at 396.
[8] The record before us contains no other facts regarding Sanquenetti's battery conviction.
[9] The majority concludes that although the State claims that Sanquenetti actually owes more than $30,000 in child support, this amount predates April 9, 2004. And because Sanquenetti pled guilty on September 13, 2002, to two counts of Class D felony nonsupport of a dependent, "we may reasonably infer that Sanquenetti's class D felony convictions were based on some portion of the child support arrearage that accrued before April 9, 2004." Op. p. 1290. The majority continues, "Thus, for some portion of her pre-April 9, 2004 arrearage, Sanquenetti has been charged, convicted, and sentenced, and is currently serving her time. Accordingly, we do not think that justice would be served by considering Sanquenetti's total arrearage in assessing the nature of this offense." Id. at 1290. However, as the majority concedes, the record before us does not contain sufficient information about the cause number involving the Class D felony convictions for nonsupport of a dependent to determine Sanquenetti's child support arrearage or the period of nonsupport upon which those convictions are based. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2027089/ | 917 N.E.2d 1231 (2009)
In re Marriage of Stephanie REEDER, Appellant-Petitioner,
v.
John REEDER, Respondent,
Coots Henke & Wheeler, Appellees.
No. 29A02-0902-CV-142.
Court of Appeals of Indiana.
December 9, 2009.
*1232 Jon R. Pactor, Indianapolis, IN, Attorney for Appellant.
E. Davis Coots, James K. Wheeler, Brandi A. Gibson, Carmel, IN, Attorneys for Appellees.
OPINION
HOFFMAN, Senior Judge.
Petitioner-Appellant Stephanie Reeder appeals the trial court's award of attorney fees to the law firm of Appellee Coots, Henke, & Wheeler ("the Coots firm") in a dissolution action involving Respondent-Appellee John Reeder. We affirm.
Stephanie raises three issues for our review, which we consolidate and restate as:
I. Whether the trial court erred in ordering Stephanie to pay a particular amount to the Coots firm.
II. Whether the trial court erroneously deprived Stephanie of a jury trial.
In 2000, Stephanie filed a petition for dissolution of her marriage to John. In one of the numerous hearings on the petition, Stephanie stated that she owed approximately $245,000.00 in attorney fees and expenses to the Coots firm; and she requested that John be ordered to pay the fees and expenses. In support of her request, Stephanie presented an affidavit summarizing the claim for expenses and an attachment setting forth the details of the claim.
On November 21, 2007, the trial court issued an order acknowledging the previous dissolution of Stephanie and John's marriage and determining issues involving property settlement, child custody, parenting time, support, and payment of attorney fees.[1] Among other things, the trial court determined that John should pay Stephanie $1,269,234.00 as part of the marital distribution. The trial court further determined that Stephanie should pay the attorney fees and expenses owed by her to the Coots firm. Specifically, the trial court stated:
a. $200,000.00 shall be paid to [the Coots firm] within 30 days of the date of this Order. All attorney fees and expenses shall be deducted and the remainder, if any, shall be given to Stephanie.
*1233 b. $15,000 per month shall be paid commencing on February 1, 2008 and shall be paid on the 1st of each succeeding month until December 31, 2011 when all remaining payments and interest shall be paid in a lump payment.
c. Such monthly payments shall first be paid to [the Coots firm] until all attorney fees and expenses have been deducted. Upon satisfaction of all of Stephanie's attorney fees and expenses, such law firm shall notify John and John shall make such monthly payments directly to Stephanie or her designee.
d. Interest shall accrue on any unpaid balance in the amount of 8% per year.
(Finding of Fact No. 84; Appellant's App. at 53-54). The order also entered judgment in favor of the Coots firm. Id. at 58.
Stephanie and John filed separate motions to correct error with regard to the trial court's November 21, 2006 order. In Stephanie's motion, filed by an attorney not affiliated with the Coots firm, she questioned the propriety of requiring all of the initial payments from John to be made to the Coots firm. She stated that although she agreed that the Coots firm should be paid, she needed money for living expenses. (Appellant's App. at 61-62).
On December 28, 2007, the Coots firm filed its "Notice of Intent to Hold Lien for Attorney Fees and Motion to Assert Attorney's Lien." (Appellant's App. at 72). Thereafter, Stephanie and John submitted an "Amended Decree of Marriage with Settlement Agreement," which was approved by the trial court on March 10, 2008. The Coots firm responded by filing a motion to correct error and for disbursal of funds, alleging, among other things, that the judgment in favor of the Coots firm and Finding 84 of the November 21, 2006 order should be reinstated. (Appellant's App. at 94-95).
A hearing was held on the Coots firm's motion on December 15, 2008, and Stephanie was represented by counsel at this hearing. On December 15, 2008, the trial court stated in a CCS entry that "concerning [Stephanie's] request to now litigate the reasonableness of attorney fees that [Stephanie] presented such attorney fees as an exhibit at trial showing that such fees were proper and requested the Court to affirmatively assess such fees against [John]." (Appellant's App. at 129). In the entry, the Court further stated that Stephanie, "when she had new counsel, further failed to challenge the amount of such fees in her [motion to correct error] filed on December 21, 2007 and in fact, stated in such pleading that she `believes her attorney should be paid.'" Id. In a subsequent order, the trial court found that "the amount of [the Coots firm's] fees for legal services, as detailed in [Stephanie's hearing exhibit], is reasonable based on the factors set forth in Rule 1.5(a) of the Indiana Rules of Professional Conduct." (Appellant's App. at 32). The trial court also "affirmed and reinstated" Finding 84 of the November 21, 2007 order. (Appellant's App. at 33).
I.
Stephanie argues that the trial court failed to hold an evidentiary hearing on the reasonableness of the fees that the Coots firm was owed and attempting to collect. A determination of attorney fees "in family law matters is within the sound discretion of the trial court and will be reversed upon a showing of a clear abuse *1234 of that discretion." Bean v. Bean, 902 N.E.2d 256, 266 (Ind.Ct.App.2009).
Stephanie cites numerous cases that discuss the determination of attorney fee awards. For example, she cites Stepp v. Duffy, 654 N.E.2d 767, 775 (Ind.Ct.App. 1995), trans. denied, for the proposition that when the "amount of the fee is not inconsequential, there must be objective evidence of the nature of the legal services and the reasonableness of the fee." She notes that we have held as a general rule that "the reasonableness of the attorney fee is a matter resolved in an evidentiary hearing." Bethlehem Steel Corp. v. Sercon Corp., 654 N.E.2d 1163, 1169 (Ind.Ct.App. 1995), trans denied.
We understand the wisdom of the general rule, and we hold that the goal of the rulethe determination of a reasonable attorney fee awardis achieved in this case. First, and most importantly, Stephanie made the original claim that the attorney fees claimed by the Coots firm were reasonable, albeit in an effort to have John pay the fees. We cannot fail to see the irony of her present position that she was requesting that John pay an unreasonable amount of attorney fees. Second, the fee award was discussed in a telephone hearing before the evidentiary hearing on the Coots firm's motion to correct error. Third, the attorney fees seem to have been discussed in the evidentiary hearing. Finally, the trial court specifically determined that the fee request was reasonable under the factors set forth in Rule 1.5(a) of the Indiana Rules of Professional Conduct.[2]
We cannot say that the trial court, which is deemed an expert on the question of the propriety of fees and which may judicially know what constitutes a reasonable fee award, abused its discretion in determining that Stephanie made a request that John pay reasonable attorney fees. See Canaday v. Canaday, 467 N.E.2d 783 (Ind. Ct.App.1984) (holding that the trial court may make a determination as an expert and upon judicial knowledge). Furthermore, given the facts of this case, we cannot conclude that a separate hearing on the issue of reasonableness was required.
II.
Stephanie further claims that she was denied a constitutional right to a jury trial regarding the contract she had with the Coots firm. She cites Article I, Section 20 of the Indiana Constitution, which state that in "all civil cases, the right of trial by jury shall remain inviolate." She reasons that if the Coots firm had filed a lawsuit to collect the fees as a contract matter, "there would be no question that she would have had the right to a jury trial." Appellant's Brief at 19.
Initially, we note that Stephanie has failed to demonstrate to this court that she requested that the trial court hold a jury trial. Indeed, given her admission at the dissolution hearing, such a request would *1235 have been improper. We further note that after Stephanie made the request that John pay the presumably reasonable attorney fees, the Coots firm was given an assignment of a portion of the property award to Stephanie in the dissolution action. Accordingly, the Coots firm was free to take action on the assignment rather than pursue a needless breach of contract action.
Affirmed.
ROBB, J., and VAIDIK, J., concur.
NOTES
[1] The trial court found "that on January 30, 2006, this Court ordered that this cause be bifurcated ... and the parties' marriage was dissolved." (Finding of Fact No. 5; Appellant's App. at 39).
[2] These factors are: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or the circumstances; (6) the nature and length of the professional relationship to the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. Ind. Professional Rule 1.5(a). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2590168/ | 1 N.Y.2d 545 (1956)
Bronx Savings Bank, Appellant,
v.
Anna Weigandt, Respondent.
Court of Appeals of the State of New York.
Argued May 23, 1956.
Decided July 11, 1956.
Samuel M. Lane for appellant.
Jack H. Hantman for respondent.
CONWAY, Ch. J., DESMOND, DYE, FULD, FROESSEL and VAN VOORHIS, JJ., concur.
*548BURKE, J.
On April 10, 1953 Lawrence Weigandt applied to the Bronx Savings Bank for a policy of life insurance. In the application he stated that he had never had or been told that he had tuberculosis or any disease of the glands or bones. The same day a medical examiner for the bank examined Mr. Weigandt. He noted no deformity and found the applicant to be in apparent good health.
On April 16, 1953 the application was approved by the bank's medical consultant. The next day the policy with the application annexed thereto was delivered to the insured and the first premium was paid.
On July 20, 1953 the applicant jumped or fell from the roof of the building in which he resided and sustained injuries which caused his death. A subsequent autopsy disclosed that the applicant, Mr. Weigandt, had active tuberculosis of the spine on the date of his death.
Thereafter the bank, relying on printed legends in the application, instituted this action to rescind the policy on the ground that, at the time he made the application, the applicant falsely represented that he was in good health; and on the ground that the policy did not take effect because when it was delivered to the applicant and the first premium was paid he was not in good health. The defendant, the named beneficiary and widow of the applicant, generally denied the allegations of the complaint and counterclaimed for the face value of the policy.
In addition to the above facts it was established on the trial that the applicant was suffering from tuberculosis of the spine at the time he made the application, and that if this was known *549 the application would not have been approved and the policy would not have been delivered. However, it was not established that the applicant knew or had reason to know of his condition.
Special Term dismissed the complaint and awarded judgment to the defendant on her counterclaim. On appeal the Appellate Division unanimously affirmed and granted the plaintiff permission to appeal to this court.
With respect to the first cause of action the plaintiff relies on the following legend which appears on the bottom of one of the pages of the application form: "Except as stated above I am now in good health. The statements herein are true, fully and correctly recorded, and made for the purpose of inducing the Bank to issue insurance on my life."
It contends that this representation as to good health made by the insured was material and contrary to the fact; therefore it warrants rescission of the contract of insurance induced thereby even though innocently made. Its position is that, except as regulated by statute, a contract of insurance is like any other contract and governed by the same principles. Rescission is granted in other contracts whether or not the misrepresentation about which there is a mutual mistake of fact was knowingly made. Consequently, rescission should have been granted.
We cannot agree with appellant's position. A representation as to good health in an application for insurance, such as the one quoted above, is not an affirmation of fact and does not provide a basis for rescission in the absence of proof of actual fraud. Speaking of such representations in Sommer v. Guardian Life Ins. Co. (281 N.Y. 508), we said:
"The applicant does not guarantee the literal truth of the statement, nor do the parties condition their contract upon the existence of good health. The representation is not part of the contract; it is a `statement inducing the formation of the contract as distinguished from an affirmation of fact or a promise incorporated in and material to the contract.' (3 Williston on The Law of Contracts [Rev. ed.], § 673; Vance on The Law of Insurance, pp. 389, 390; 4 Couch, Cyclopedia of Insurance Law, §§ 824, 885.) Such statements must be construed in the light of their purpose to furnish to the company information which will enable it to decide whether it shall make a contract of insurance in which the information furnished will not be incorporated as an affirmation of fact.
*550"The courts, both State and Federal, have generally construed statements that an applicant was in good health or free from disease as a representation only that the applicant in good faith believed and was justified in believing that his health was not impaired by any condition which would ordinarily be regarded as a `disease.' The representation cannot reasonably be understood as intended to do more than convey to the company such information as the applicant might be expected to have and to give to the company that the applicant has had no symptom of disease which would, ordinarily, act as a warning or notice, even to a layman, that his health might be impaired in substantial degree, and assurance that the applicant, in good faith believes that he is in fact a well person." (P. 514.)
As the plaintiff failed to prove that the applicant knew or had reason to know that his health was substantially impaired at the time he made the application, the first cause of action was properly dismissed.
Turning to the second cause of action, the appellant relies on the following printed legend on the bottom of the first page of the application:
"I agree that: 1. If the first premium has been paid when this application is delivered to the Bank and a conditional advance premium receipt has been issued by the Bank, the policy shall take effect as of the date of completion of the medical examination or the date of receipt of this application by the Bank if no medical examination is required, provided the Bank shall be satisfied that under its rules and standards the person to be insured was a risk acceptable to it on said date * * * and provided further that the person to be insured was in good health on said date.
"2. If the first premium has not been so paid, the policy shall not take effect until the first premium is paid and the policy delivered while the person to be insured is in good health."
In affirming the dismissal of the second cause of action, the Appellate Division held that the above-quoted language was sufficiently ambiguous for Special Term to find that it was intended to mean that, in the absence of fraud, the policy would become effective upon payment of the first premium and delivery of the policy in the absence of an adverse intervening change of health where the applicant is given a medical examination and found to be in good health and the policy is delivered and the *551 first premium paid at a subsequent date. The appellant urges that this construction is erroneous and arises from a refusal to read the language as written though its intent is clear. It asserts that this language provides for three possible effective dates for the policy, depending upon when the premium is paid and whether a medical examination is required, and there is not an interval of time to consider. In each instance the person to be insured must be in good health on the significant date; what his health may have been before or what it may become thereafter is of no concern at all.
Under the guides of construction enunciated by this court, as well as the caveats we have issued, there is sufficient ambiguity in the above-quoted clauses to uphold the conclusion reached by the Appellate Division. There is no doubt that an insurance company is entitled to have its contract enforced by the courts as written (Drilling v. New York Life Ins. Co., 234 N.Y. 234; Royster Guano Co. v. Globe & Rutgers Fire Ins. Co., 252 N.Y. 75; Johnson v. Travelers Ins. Co., 269 N.Y. 401). We have declared that in the absence of legislative restrictions an insurance company has the right to insert a condition precedent as plaintiff claims exists in the policy before us (Sommer v. Guardian Life Ins. Co. of America, 281 N.Y. 508, 513, supra). In fact we have upheld the validity of such a condition (Drilling v. New York Ins. Co., 234 N.Y. 234, supra). "But insurance contracts, above all others, should be clear and explicit in their terms. They should not be couched in language as to the construction of which lawyers and courts may honestly differ. In a word, they should be so plain and unambiguous that men of average intelligence who invest in these contracts may know and understand their meaning and import" (Janneck v. Metropolitan Life Ins. Co., 162 N.Y. 574, 577-578). "The question is simply whether the average man in applying for insurance and reading the language of this policy at the time it was written would ascribe the meaning to that language which the insurance company here urges" (Hartol Prods. Corp. v. Prudential Ins. Co., 290 N.Y. 44, 50). It is not enough if the applicant might have so construed it, provided it could reasonably be construed otherwise. To sustain the construction urged, the insurer has the burden of establishing that "the words and expressions used not only are susceptible of that construction but that it is the only construction that can fairly be placed thereon." *552 (Hartol Prods. Corp. v. Prudential Ins. Co., 290 N.Y. 44, 49, supra). This it has failed to do.
The policy in this case admits of such ambiguity. The clause numbered "1" expresses an intent upon the part of the insurer to cover the risk on the date of the medical examination if the first premium is paid with the application and the applicant is in good health at that time and the insurer approves the application. Thus a person reading it could reasonably interpret the dominant intent of this clause to be that the insurer is willing to accept the risk if the medical examination proves satisfactory and the answers to the questions in the application do not persuade it to take a contrary view. Therefore, where everything required by this clause is accomplished and satisfactory to the insurer but the payment of the first premium and delivery of the policy, a person might reasonably read the clause marked "2" as intending to mean that he is an acceptable risk if there is no change in his health between the time of the medical examination and the delivery of the policy and payment of the first premium. This is not only inferable from the fact that this clause follows clause "1" in immediate sequence and it refers to clause "1" by providing that "if the first premium is not so paid" and "the policy shall not take effect until", as pointed out by the Appellate Division, but also because it provides that these things must be done "while the person to be insured is in good health" (emphasis added). This latter expression certainly connotes a period or interval of time which might be reasonably interpreted as intending to relate the condition of the applicant on the date of the delivery of the policy back to his condition on the date of the medical examination when he was found to be in good health. As this ambiguity is attributable to the insurer, it must be resolved against it. (Hartol Prods. Corp. v. Prudential Ins. Co., 290 N.Y. 44, supra; Griffey v. New York Central Ins. Co., 100 N.Y. 417; Darrow v. Family Fund Soc., 116 N.Y. 537, 544; Matthews v. American Central Ins. Co., 154 N.Y. 449, 456; Janneck v. Metropolitan Life Ins. Co., 162 N.Y. 574, supra; Silverstein v. Commercial Cas. Ins. Co., 237 N.Y. 391.)
Appellant also urges that it is error to construe these clauses in this manner because they set up a condition precedent and are not in the nature of a representation. In effect its argument is that changes in health have nothing to do with the case; the applicant must in fact be in "good health" on the crucial date *553 or the policy does not take effect. In other words "good health" where it is a representation means apparent or subjective good health, but "good health" where it is a condition precedent such as here, means good health in fact or objective good health. The difficulty with this contention is that placing a legal conclusion on the words used in this policy does not change their meaning or the manner in which they might reasonably be construed by an average person who would purchase such a policy (Hartol Prods. Corp. v. Prudential Ins. Co., supra). An insurer may, "when not restricted by the Legislature, condition the valid inception of a contract of insurance upon the existence at the time of perfect and complete health, free even from temporary slight impairment; but such * * * condition should be phrased in clear and unequivocal terms" (Sommer v. Guardian Life Ins. Co., 281 N.Y. 508, 513-514, supra). In Drilling v. New York Life Ins. Co. (234 N.Y. 234, supra), we had an opportunity to construe a "good health" clause as a condition precedent and upheld its validity. However, we indicated there that if the clause was not worded otherwise it would merely mean apparent good health. (See Drilling v. New York Life Ins. Co., supra, p. 239). It would be manifestly unjust to have a policy of life insurance so ambiguous that it would lead a person to believe that he is insured and then seek to rescind it after his life expires on the ground that it is not to be interpreted in a manner in which he might reasonably have interpreted it. He cannot then be placed in a position of status quo ante. It is too late then for him to seek other insurance. An insurer is entitled to protect itself against risks it does not wish to take so that it can accurately predetermine its premium rates. But it must manifest its intent to exclude such risks in clear, unequivocal terms. The clause before us does not meet this test.
The judgment should be affirmed, with costs.
Judgment affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2984281/ | Order filed April 15, 2014.
In The
Fourteenth Court of Appeals
____________
NO. 14-14-00025-CV
NO. 14-14-00160-CV
____________
FIREMAN'S FUND INSURANCE COMPANY, Appellant
V.
TRIYAR COMPANIES, LLC ET AL, Appellee
and
TRIYAR COMPANIES, LLC, TRIYAR COMPANIES, INC. FKA TRIYAR
COMPANIES, LLC, SJM REALTY, LTD., AND GPM HOUSTON
PROPERTIES, LTD, Appellant
V.
FIREMAN'S FUND INSURANCE COMPANY, Appellee
On Appeal from the 55th District Court
Harris County, Texas
Trial Court Cause Nos. 2010-47654A & 2010-47654
ORDER
The reporter’s record in this case was due January 13, 2014. See Tex. R.
App. P. 35.1. On January 29, 2014, this court ordered the court reporter to file the
record within 30 days. On March 11, 2014 Gina Wilburn filed a motion for
extension of time to file the record which was GRANTED until April 01,
2014.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 Gina Wilburn and Terri Anderson, the court reporters, to file
the record in this appeal within 30 days of the date of this order. No further
extensions will be entertained absent exceptional circumstances. The trial and
appellate courts are jointly responsible for ensuring that the appellate record is
timely filed. See Tex. R. App. P. 35.3(c). If Gina Wilburn and Terri Anderson
do not timely file the record as ordered, we will issue an order directing the trial
court to conduct a hearing to determine the reason for the failure to file the record.
PER CURIAM | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4517087/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-7483
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN DAVID HILL,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Thomas D. Schroeder, Chief District Judge. (1:13-cr-00435-TDS-1)
Submitted: March 12, 2020 Decided: March 17, 2020
Before KING, KEENAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brian David Hill, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brian David Hill appeals the district court’s order denying his pro se motion to stay
the judgment pending appeal and his pro se motion for recusal related to revocation of
supervised release proceedings. We have reviewed the record and find no reversible error.
Accordingly, we affirm for the reasons stated by the district court. United States v. Hill,
No. 1:13-cr-00435-TDS-1 (M.D.N.C. Oct. 4, 2019). We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
AFFIRMED
2 | 01-03-2023 | 03-17-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2227953/ | 904 N.E.2d 1242 (2005)
359 Ill. App.3d 1198
THOMPSON
v.
ILLINOIS DEPT. OF EMPLOYMENT SEC.
No. 1-04-3507.
Appellate Court of Illinois, First District
September 29, 2005.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876361/ | 247 S.W.3d 605 (2008)
STATE of Missouri
v.
Vaughn L. JACKSON.
No. ED 89663.
Missouri Court of Appeals, Eastern District, Division Five.
March 18, 2008.
Timothy Forneris, St. Louis, MO, for appellant.
Shaun Mackelprang, Jefferson City, MO, for respondent.
Before PATRICIA L. COHEN, C.J., NANNETTE A. BAKER, J., and KURT S. ODENWALD, JR., J.
ORDER
PER CURIAM.
Vaughn Jackson ("Defendant") appeals from his conviction for second-degree robbery in the Circuit Court of St. Louis City. In his sole point on appeal, Defendant contends that the trial court erred in denying his motion to dismiss for violation of his right to a speedy trial. He claims that he suffered an unreasonable delay of fourteen months that was not attributable to his own actions and he was prejudiced.
*606 We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.
We affirm the judgment pursuant to Rule 30.25(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1880206/ | 194 So. 2d 470 (1967)
Alvin J. FREMIN
v.
Theodore COLLINS and Allstate Insurance Company.
No. 2424.
Court of Appeal of Louisiana, Fourth Circuit.
January 9, 1967.
Rehearing Denied February 13, 1967.
*471 George T. Oubre, Norco, for plaintiff-appellee.
Brierre & Malone, Eugene D. Brierre, New Orleans, for defendant-third-party plaintiff-appellant.
*472 Bernard, Micholet & Cassisa, Emile L. Turner, Jr., New Orleans, for third-party defendant-appellee.
Before REGAN, HALL and BARNETTE, JJ.
REGAN, Judge.
The plaintiff, Alvin J. Fremin, filed this suit against the defendants, Theodore Collins and Allstate Insurance Company, Fremin's uninsured motorist carrier, endeavoring to recover the sum of $54,000.00, representing the monetary value of injuries incurred by him as the result of an automobile accident which occurred on or about September 29, 1963, while the plaintiff was engaged in rescuing his minor son from the path of an automobile being driven by Collins.
The defendants answered and denied the plaintiff's accusations of negligence, and alternatively pleaded his contributory negligence. Allstate also filed a third party petition against Collins requesting indemnity for any damages that it may be judicially required to pay to the plaintiff as the result of the negligence of Collins.
Subsequently, on January 20, 1965, Allstate filed a supplemental third party petition against Queens Insurance Company, Inc., and explained therein that Queens had written a contract of insurance covering Fremin for injuries sustained as the result of the negligence of an uninsured motorist, which coverage was identical to that contained in the policy issued by Allstate to Fremin.
On April 5, 1965, the plaintiff, Fremin, amended his original petition and made Queens Insurance Company a party defendant in this suit, requesting the rendition of a judgment in the identical amount from all three defendants solidarily.
Queens Insurance Company filed a peremptory exception of no right or cause of action against the third party demand of Allstate Insurance Company and a peremptory exception of prescription of one year against the amended petition of the plaintiff. In addition, Allstate Insurance Company pleaded the peremptory exception of no cause or right of action to the petition filed against it by the plaintiff.
The lower court in its judgment referred the exception of Allstate against the plaintiff to the merits; it sustained the exception of no cause of action by Queens against Allstate, and sustained the exception of prescription by Queens against the plaintiff.
Insofar as the peremptory exception pleaded by Allstate against the petition of the plaintiff, which the lower court referred to the merits, it is quite evident that this is an interlocutory decree which is not appealable under Article 2083 of the Code of Civil Procedure. In the case of Victory Oil Company v. Perret,[1] we reasoned therein that a judgment which referred to the merits a plea of prescription was an interlocutory decree which could cause no irreparable injury and therefore was not appealable. Consequently, under Section 5 of Rule VII of the Uniform Rules of Appeal, the appeal by Allstate is dismissed insofar as it affects the lower court's judgment referring Allstate's exception of no cause of action against the plaintiff to the merits for adjudication.
The first vexatious problem posed for our consideration is the validity of the lower court's judgment maintaining the peremptory exception of prescription filed by Queens Insurance Company against the amended petition of the plaintiff, Alvin J. Fremin, which endeavored to hold Queens liable under the uninsured motorist provision of its policy. Queens points out that the plaintiff's amended petition was filed long after a year had elapsed from the date of the occurrence of the accident. Consequently, it insists that the plaintiff's claim *473 was prescribed by virtue of the passage of a year in conformity with the rationale emanating from Civil Code Article 3536, which affords an injured party a period of one year in which to file suit as the result of an offense or quasi offense. It is interesting to observe in this connection that no appeal was prosecuted by the plaintiff from the lower court's judgment. On the contrary, the appeal was perfected by the other defendant herein, Allstate Insurance Company, and we are therefore obliged to decide the question which it has posed as a result of the rationale emanating from Emmons v. Agricultural Insurance. Company.[2]
The exception of prescription pleaded by Queens presumes that the action against it by the plaintiff is one sounding in tort and not in contract so that the one year prescriptive period applies. The Queens exception also presumes that suit must be instituted directly against the insurer providing uninsured motorist coverage within a year and that suit against the uninsured motorist, the principal defendant herein, which was filed within the prescriptive period, is not sufficient to interrupt prescription as to the uninsured motorist carrier.
We are convinced that the terminology of the policy discloses that the type of suit filed against the uninsured motorist carrier possesses the full character of an action ex delicto and is not therefore contractual in nature. The pertinent policy provision reads:
"To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness, or disease, including death resulting therefrom * * * sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile;" (Emphasis added.)
It appears clear that if the insured, that is, the plaintiff herein, is legally entitled to recover from the uninsured motorist, the defendant Collins, then the insurer, is responsible to the insured for his damages, up to the amount of the appropriate policy limitation. Therefore, if the prescriptive period is interrupted as to the uninsured motorist, and judgment is then obtained against him, the uninsured motorist liability carrier would then be liable to the insured for the amount recovered up to the policy limits. The language of the contract of insurance obviously means that liability of the insurer depends entirely upon the liability of the uninsured motorist. It logically follows that if prescription is interrupted as to the uninsured motorist, a suit instituted after the passage of the one year period would not be too late vis a vis the uninsured motorist carrier. In view of the foregoing ratiocination, we are of the opinion that the judgment of the lower court maintaining the exception of prescription by Queens against the plaintiff's amended petition was erroneously rendered.
The final vexatious question posed for our consideration is whether the defendant, Allstate Insurance Company, possesses the right to request contribution from Queens for one half the amount of any judgment rendered against it. The hypothesis upon which Allstate predicated the success of its third party petition against Queens is that this insurer is a solidary obligor with Allstate with respect to their obligation to the plaintiff.
In support of this argument, counsel for Allstate points to the rationale of Civil Code Article 2091, which reads:
"There is an obligation in solido on the part of the debtors, when they are all obliged to the same thing, so that each may be compelled for the whole, and when the payment which is made by one of them, exonerates the others toward the creditor." *474 Counsel therefore insists that since both Allstate and Queens were obligated to respond in damages in conformity with the uninsured motorist provisions of their respective contracts of insurance, they were obliged to do the same thing, so that each could be compelled to pay the entire amount. A cursory analysis of the codal article referred to above reveals that an obligation in solido is incurred when all creditors are obliged to do "the same thing so that each may be compelled for the whole, and when the payment which is made by one of them, exonerates the others toward the creditor."
It is our opinion that the two insurance companies are not obliged to perform the same act. On the contrary, each is bound to do a separate and distinct thing under a separate and distinct agreement.
Article 2077 of the Civil Code which appears in the general provisions of the code preceding the detailed rules on joint, several, and solidary obligations stipulates that when there are more than one obligor in the same contract, the obligation produced thereby may be joint, several, or solidary. Article 2078 more specifically provides that:
"Several obligations are produced, when what is promised by one of the obligors, is not promised by the other, but each one promises separately for himself to do a distinct act; such obligations, although they may be contained in the same contract, are considered as much individual and distinct as if they had been in different contracts, and made at different times."
Moreover, Article 2084, dealing with several obligations, reads:
"Several obligations, although created by one act, have no other effects than the same obligations would have had, if made by separate contracts; therefore they are governed by the rules which apply to all contracts in general."
An analysis of these codal articles convinces us that the contracts which form an integral part of this litigation were individually incurred by the respective insurance companies, and required separate performance in order to effect exoneration therefrom by each obligee.
We are likewise convinced that the payment of $5,000.00 by one of the insurers herein to the insured under its contract of insurance would not in any way exonerate the other company from such payment under its respective policy. Moreover, Article 2093 expressly points out that an obligation in solido is not presumed, but that it must be expressly stipulated unless, of course, it is created by some provision of law.
In this case, the facts hereof disclose that each insurer contracted independently with the insured to provide coverage for damage caused by the negligence of an uninsured motorist. They are separate and distinct obligations and do not result in solidary liability between the obligors. On the contrary, the nature of the obligations could be a separate or a several liability under each insurance policy. Consequently, we are of the opinion that the lower court reasoned correctly in sustaining Queens' exception of no cause of action to the third party petition filed by Allstate.
For the foregoing reasons, the judgment of the lower court is affirmed insofar as it sustained the exception of no cause of action filed by Queens Insurance Company against Allstate Insurance Company's third party petition.
The lower court's judgment is reversed insofar as it sustained the exception of prescription filed by Queens to the amended petition of the plaintiff.
In addition thereto, the matter is remanded for such additional proceedings as the character of the litigation may ultimately require.
All costs of this appeal are to be divided equally between Queens Insurance Company *475 and Allstate Insurance Company. All other costs which may be incurred are to await a final determination hereof.
Affirmed in part and reversed in part and remanded.
NOTES
[1] 151 So. 2d 565 (La.App.1963).
[2] 245 La. 411, 158 So. 2d 594 (1963). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610297/ | 207 Kan. 224 (1971)
485 P.2d 336
STATE OF KANSAS, Appellee,
v.
VERA IRENE PHIPPEN, Appellant.
No. 45,888
Supreme Court of Kansas.
Opinion filed May 15, 1971.
Robert M. Brown, of Topeka, argued the cause and was on the brief for the appellant.
Donald P. Morrison, Assistant County Attorney, argued the cause, and Vern Miller, Attorney General, and Gene M. Olander, County Attorney, were with him on the brief for the appellee.
The opinion of the court was delivered by
SCHROEDER, J.:
This is an appeal by the defendant in a criminal *225 action from a conviction of manslaughter in the fourth degree. Various trial errors are assigned for reversal.
The case arises out of a homicide that was committed at approximately 9 o'clock p.m. on the 29th day of March, 1969. The deceased was John Bond, the husband of Arloa Bond. Vera Irene Phippen (defendant-appellant) was charged with the offense of murder in the first degree for this homicide.
Five adult persons and two children all resided at 505 1/2 Forest Street in Topeka, Kansas. Their names were: John Bond and his wife, Arloa Bond, their infant child, Johnny, Mr. Wilhite, Mr. Phippen and his wife, the defendant, and her fourteen year old daughter, LaNita Long. The residence was described as a three-room garlow. These persons were evicted from this residence because there were too many people living in it. Part of the day in question was spent moving to the Trail Ridge Apartments at 2113 East 11th Street Terrace, Topeka, Kansas. All of the adult persons heretofore named were involved in the moving process to some extent.
The evidence discloses Mr. Bond had been drinking heavily and was "pilled up." Mrs. Bond said she was afraid of her husband "knowing that the day before he had been shooting barbiturates and seconals into his body to go with the liquor." When Mr. Bond was in this condition his wife, Arloa, had great fear of him because of previous beatings she had received.
The moving process was about completed when Mr. Phippen informed the defendant that John Bond had smarted off to him. The defendant stated she was not going to put up with that and asked her husband, Mr. Phippen, if he had a gun. Obligingly her husband procured his sawed-off shotgun and took it to the new residence where it was seen at several places in the course of the evening. Its last resting place before the fatal incident was under the bed of Mr. Phippen and the defendant. At this time the weapon was loaded and cocked, ready for use.
At approximately 8 or 8:30 p.m. on the evening of March 29 Mrs. Bond was downstairs in the new apartment with her child and LaNita Long. Mr. Phippen and the defendant were upstairs in the bedroom. When Mrs. Bond discovered the arrival of her husband she proceeded up the stairs with her child in her arms. There was testimony that Mrs. Bond exclaimed, "Ray, Ray, help, help, he's *226 here," as she proceeded up the stairs. She entered the bedroom which was occupied by Mr. Phippen and the defendant and went to a far corner away from the door of the bedroom. Mr. Bond had a can of tear gas in his hand and followed her up the stairs and went into the bedroom. Mrs. Bond asked Mr. Bond to leave her alone because she had the baby in her arms, but Mr. Bond made an effort to grab the baby away from her.
Mr. Phippen said, "Snake, go on, we don't want to have any trouble in here." Mr. Bond, after turning around and starting toward the door of the bedroom, observed the defendant with the sawed-off shotgun in her hand. It had been retrieved from underneath the bed by the defendant sometime during the course of the altercation between Mr. Bond and his wife. When Mr. Bond observed the shotgun he said "So you have got it."
As Mr. Bond approached the door, as if to leave the room, he came within very close proximity of the defendant. Mrs. Bond testified that the distance between Mr. Bond and the defendant was approximately three feet. At this point the sawed-off shotgun was discharged into the abdomen of Mr. Bond, mortally wounding him. The testimony is conflicting as to just what occurred immediately prior to the discharge of the shotgun.
Both Mr. Phippen and the defendant testified that as Mr. Bond walked toward the door he turned back toward the defendant and reached down like he was going to knock the gun out of the defendant's left hand or pull it away from her. They said when Mr. Bond pulled the gun it went off discharging into his abdomen.
The defendant testified:
"Q. Did you know the gun was even cocked?
"A. No, I didn't.
"Q. You say he pulled it out of your hands?
"A. Yeah, but I didn't know it was loaded and I didn't know it was cocked."
Mrs. Bond testified the defendant had the gun down at her side in her right hand. She testified:
"Q. Were you in a position to see whether or not he grabbed for the gun or not?
"A. No, sir.
"Q. Couldn't see that, or that didn't happen?
"A. It didn't happen, to my knowledge. When I looked to see at him as he was starting to walk out of the room and his hand was up like this (indicating), and she was standing in front of him when he started to walk out of the room. She just pulled the gun up and shot.
*227 "Q. At that time, did you say he was about three feet away from her; is that right?
"A. Yes."
LaNita Long went into the bedroom with Mrs. Bond as she ran up the stairs. She observed Mr. Bond and said she thought he was going to try to walk out of the door, but instead he turned and drew his hand back and it looked to her like he was going to hit her mother, the defendant, at which time she heard the gun go off. She said the gun was in the left hand of the defendant, who is right-handed, and it was being held at her side pointed down. She thought Mr. Bond was about two or three inches away from the barrel of the gun when it went off.
Mrs. Bond testified the defendant had previously said, "she was going to shoot one of them, she didn't care which one of them, the first one of them that ____ with her," referring to Mr. Bond and Mr. Wilhite.
The evidence disclosed the shot was fired at very close range, making a round hole in his belt and trousers the size of a shotgun barrel.
On the evidence presented the trial court of its own volition refused to instruct the jury on first and second degree murder, thereby absolving the defendant of these offenses. The jury was instructed only on the offenses of manslaughter in the first degree and manslaughter in the fourth degree.
The appellant first contends the trial court erred in overruling her motion for discharge at the conclusion of the opening statement made by the state because the contents of the opening statement failed to state a cause of action.
In his opening statement the prosecuting attorney informed the jury the defendant was charged with the offense of murder in the first degree as set forth in the information. He indicated that because the jury members were present a few hours earlier when the appellant was formally arraigned the information would not be reread. He followed these remarks by naming the witnesses who would probably testify, but without reciting what their testimony would disclose to prove the appellant guilty of the offense of murder in the first degree or any other degree of homicide.
K.S.A. 62-1438 provides in part:
"The jury being impaneled and sworn, the trial may proceed in the following order:
*228 "First. The prosecuting attorney must state the case, and offer the evidence in support of the prosecution."
The foregoing provisions do not require that the prosecutor state a cause of action in his opening statement to substantiate the charge in the information. Here the prosecuting attorney did advise the jury that this was a first degree murder case.
The appellant has not cited any authority in support of her argument. In McCoy v. Fleming, 153 Kan. 780, 113 P.2d 1074, it was said:
"... No citation of authorities in support of appellant's meager argument is contained in the brief, and this court might well conclude that counsel, after diligent search, had not been able to find any, in which case the judgment should be affirmed...." (p. 783.)
The record fails to disclose the appellant was prejudiced by the opening statement of the prosecuting attorney, and it did not affect her substantial rights. (K.S.A. 62-1718.)
The appellant next contends the trial court erred in overruling her objection to statements previously made by her because the police officer, who arrived at the scene shortly after the shooting, failed to advise her of her rights pursuant to the Miranda decision.
The police officer dispatched to the Trail Ridge Apartments at the time of the incident on the day in question observed a young white male lying on his back, his legs slightly spread, with an open wound in his stomach, and between his legs was what appeared to be a canister of tear gas. Without giving a Miranda warning he then asked the appellant and her husband what had happened. He testified:
"Q. What did they say?
"A. Mrs. Phippen said that they were both in bed asleep and they heard an explosion and the lights come on and then the man was laying on the floor."
The officer was then asked whether or not Mr. Bond was alive before the ambulance drivers got there, to which he replied that he did observe him gasp; however, he could get no response from him; that he couldn't get any pulse or respiration.
It is argued by the appellant that although the answer given to the officer's question was exculpatory, it was clearly damaging to her in view of the testimony she gave under oath at the trial of the case.
In the landmark case of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R. 3d 974, the United States Supreme Court said:
*229 "... the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way...." (p. 444.) (Emphasis added.)
Later in the opinion the court said:
"Our decision is not intended to hamper the traditional function of police officers in investigating crime ... General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the factfinding process is not affected by our holding...." (p. 477.)
Our decisions have recognized a distinction between the investigatory stage of the case and the custodial interrogation of one suspected of crime. (State v. Little, 201 Kan. 94, 439 P.2d 387; and State v. Hinkle, 206 Kan. 472, 479 P.2d 841.)
Clearly on the facts here presented the inquiry by the police officer was a noncustodial, investigatory inquiry. The officer, having just arrived on the scene of the homicide, observed the deceased, and then asked Mr. and Mrs. Phippen what had happened. Under these circumstances no explanation of the appellant's rights was required.
The appellant contends the trial court erred in overruling her motion for discharge at the conclusion of the state's evidence because the state failed to establish the corpus delicti.
It is argued there is no evidence in the state's case in chief touching upon the cause of the decedent's death.
It is uniformly held by American courts that in homicide cases the corpus delicti is the body or substance of the crime which consists of the killing of the deceased by some criminal agency and is established by proof of two facts, that one person was killed, and that another person killed him. (State v. Doyle, 201 Kan. 469, 477, 441 P.2d 846.)
If the evidence discloses clearly that a certain person is dead, that his death resulted, at the hands of another, from the use of violent or criminal means, the corpus delicti is sufficiently proved. (40 Am.Jur.2d, Homicide, § 432, p. 693.) Furthermore, the corpus delicti may be established even though no coroner's autopsy has been performed, as here. (40 Am.Jur.2d, Homicide, § 433, p. 694.)
The record is sufficient to establish that John Bond did in fact die of the shotgun wound inflicted by the appellant.
*230 Arloa Bond testified that her husband died on March 29, 1969; that she was at the funeral and knew him to be dead. She also testified that on the evening in question the appellant had a gun in her right hand with which she shot John Bond. She also testified John Bond was shot at a range of three feet; that this shot hit him in the abdomen and "blew him right in two." She further said she saw "where he was shot and his guts were rolling out of him."
The police officer's testimony disclosed when he arrived at the scene shortly after the homicide he could get no pulse or respiration from the deceased.
There was no testimony during the state's case in chief that Mr. Bond tried to grab the shotgun from the appellant.
The corpus delicti may be proved by the direct testimony of persons who saw the act, or by indirect and circumstantial evidence, or partly by one and partly by another. No exclusive mode of proof of the corpus delicti is prescribed by the law. (State v. Cippola, 202 Kan. 624, 451 P.2d 199, cert. denied 396 U.S. 967, 24 L. Ed. 2d 432, 90 S. Ct. 446.)
The appellant complains of the rebuttal testimony of Arloa Bond on the ground it was improper rebuttal testimony.
After the appellant and her husband testified in the defense of her case, that John Bond had tried to grab the gun away from her, causing the gun to fire as the muzzle of it was pulled toward him, the state called as a rebuttal witness Arloa Bond, who had previously testified in the state's case in chief. Mrs. Bond was permitted to testify on rebuttal that she had not seen her husband grab for the gun that was in the appellant's hand. This testimony on rebuttal was given over the appellant's objection.
The appellant contends Arloa Bond should have been asked these questions on direct examination in the state's case in chief.
Rebuttal testimony is permitted by the provisions of K.S.A. 62-1438.
The state is not required to anticipate every possible defense the defendant in a criminal action may offer. If so, the state would be required to elicit testimony in its case in chief to cover every possible contingency. Here the state was not required to anticipate the appellant's defense. Therefore, the state properly offered the testimony of Arloa Bond to rebut the testimony of the appellant and her husband after it was given to establish a defense. In State v. Neff, 169 Kan. 116, 218 P.2d 248, the court held:
*231 "It is always desirable that there should be an orderly presentation of proof. Rules pertaining thereto, however, are directory and not mandatory. An alteration in the prescribed customary order of proof rests in the sound judicial discretion of the trial court and the court's ruling will not be disturbed on appeal unless its exercise of discretion is abused." (Syl. ¶ 8.)
The appellant contends the verdict was contrary to the law and the evidence.
The trial court instructed the jury on manslaughter in the fourth degree as follows:
"Manslaughter in the fourth degree is the involuntary killing of another person by the act, procurement or culpable negligence of another which is not included in the definition of manslaughter in the first degree as herein defined. You are instructed that in order for a person to be guilty of culpable negligence within the meaning of that statute that person must be guilty of some act or acts constituting reckless indifference to the rights or safety of other persons."
K.S.A. 21-420 reads:
"Every other killing of a human being, by the act, procurement or culpable negligence of another, which would be manslaughter at the common law, and which is not excusable or justifiable, or is not declared in this article to be manslaughter in some other degree, shall be deemed manslaughter in the fourth degree."
The appellant contends the facts in the case considered most favorably for the state failed to make out the crime of manslaughter in the fourth degree as defined by 21-420, supra. The appellant does not object to the instruction or quarrel with the definition of culpable negligence given the jury, but contends the facts in this case disclose no culpable negligence.
This court in State v. Brooks, 187 Kan. 46, 354 P.2d 89, relied upon the Custer case for the definition of manslaughter. It said:
"As held in State v. Custer, supra [129 Kan. 381, 282 P. 1071], and our other decisions, involuntary manslaughter is the killing of another unintentionally and without malice and results either from the commission of a lawful act or an unlawful act. If death resulted from negligent conduct in doing a lawful act it is necessary in order to constitute manslaughter that the conduct be reckless, that is, be such as to evince disregard or indifference to consequences, under circumstances involving danger to life and safety to others, although no harm was intended. On the other hand, if death resulted from unlawful conduct amounting to misdemeanors denounced by statutes for the purpose of protecting human life and safety, and the death would not have resulted except for the unlawful conduct, the killing would also be manslaughter at common law. Whether statutes are enacted and designed for the purpose of protecting human life and safety is a question of law for the courts to determine (State v. Yowell, 184 Kan. 352, supra)." (p. 50.)
In a criminal action the function of this court on appeal is not *232 to decide whether guilt was shown by the evidence beyond a reasonable doubt, but to ascertain whether there was, in the evidence, a basis for a reasonable inference of guilt. (State v. Burgess, 205 Kan. 224, 226, 468 P.2d 229.)
The evidence is uncontroverted that at the time in question the appellant had a sawed-off shotgun in her hand, which was loaded and cocked. To find the appellant guilty of manslaughter in the fourth degree the jury must have found the gun was unintentionally discharged by the appellant. Under these circumstances two alternatives are possible to support the verdict. First, if the jury gave credence to her testimony that she did not know the gun was loaded or cocked, and the appellant as she was brandishing the gun aimed it at Mr. Bond when it was unintentionally discharged by her squeezing on the trigger, which the jury was entitled to find from the evidence, the appellant's conduct would constitute culpable negligence within the meaning of 21-420, supra. Second, if the jury found the appellant knew the gun was loaded and cocked, and the appellant as she was brandishing the gun aimed it at Mr. Bond when it was unintentionally discharged by Mr. Bond's attempt to pull it from her, which the jury was entitled to find from the evidence, the appellant's conduct would constitute culpable negligence within the meaning of 21-420, supra.
Finding no reversible error the judgment of the lower court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2415294/ | 423 F.Supp.2d 85 (2005)
DIVERSIFIED CARTING, INC., Diversified Construction Corp., and Troy Caruso, Plaintiffs,
v.
The CITY OF NEW YORK; Seasons Contracting Corp.; Turner Construction Corp.; the Port Authority of New York and New Jersey; the New York State Emergency Management Office; the Federal Emergency Management Agency; World Trade Center Properties LLC; Silverstein Properties, Inc.; Silverstein WTC Management Co. LLC; Westfield America Trust Westfield WTC LLC; Westfield Corporation, Inc.; Westfield America, Inc.; 7 World Trade Center Co.; Marriott International, Inc.; U.S. General Services Administration; and "John Doe" and "Jane Doe," being fictitious names, Defendants.
No. 04CIV9507HB.
United States District Court, S.D. New York.
August 15, 2005.
*87 OPINION & ORDER
*88 BAER, District Judge.[*]
On December 3, 2004, Plaintiffs, Diversified Carting, Inc., Diversified Construction Corporation and Troy Caruso (collectively, "Diversified"), filed the instant action against the above named defendants for, inter alia, breach of contract, unjust enrichment, quantum meruit, and breach of fiduciary duty. (Compl.¶ 1).[1] Presently before this Court is a consolidated motion to dismiss and a motion for summary judgment. (Dckt. 82; 90.) For the foregoing reasons, the motion to dismiss is GRANED in-part and DENIED in-part and the motion for summary judgment is DNIED.
I. BACKGROUND
A. Factual Background
The World Trade Center was a "complex of seven commercial buildings" located in Lower Manhattan. (Compl.¶ 24.) On September 11, 2001, the World Trade Center was destroyed as a result of a terrorist attack. As is now common knowledge, two planes were hijacked and flown into the Twin Towers of the World Trade Center, causing their collapse and the destruction of other buildings within the complex and a myriad of deaths and personal injuries.
According to Diversified, on or about September 11, 2001, it was retained to assist with the search, excavation, and clean-up efforts at the World Trade Center disaster site. (Compl. ¶ 30.) While Diversified acknowledges that its services were not retained through the typical competitive bid process and no written contract was ever executed, they alleged that they performed excavation and demolition, and provided equipment and trucking services from on or about September 11, 2001 through sometime in January 2002. (Compl. ¶¶ 28; 30-32; 34.) Consequently, Diversified billed for its work using "billing rates for time, material, trucking and equipment" which it has alleged were "fair [and] reasonable." (Compl. ¶¶ 31; 32.)
Diversified now alleges it has not been paid for the work it performed at Building 7 and filed the instant action to recover not less than $452,498.97 against a variety of public and private entities involved in the recovery and clean-up efforts at the World Trade Center following the September 11, 2001 terrorist attacks. (Compl. ¶¶ 1; 35.)
First, the Complaint asserts that the Federal Government, and in particular, the Federal Emergency Management Agency ("FEMA") and the U.S. General Services Administration (collectively, "the Federal Defendants") hired contractors, including Diversified, to assist in the search, excavation, and clean-up efforts at the World Trade Center. (Compl. ¶¶ 11; 21; 30).[2]
Second, in addition to the Federal Defendants, the Complaint also includes several New York City and State agencies. (Compl.118.) In particular, the Complaint *89 alleges that the New York City Department of Design and Construction, the New York City Department of Transportation, and the New York City Office of Emergency Management (collectively, "the City Defendants"), and the New York State Emergency Management Office ("NYSEMO"), an agency of the State of New York, contracted with general contractors who, in turn, contracted with Diversified. (Compl. ¶¶ 30; 33.) The Port Authority of New York and New Jersey ("the Port Authority"),[3] the owner of the World Trade Center, is another governmental entity sued in this lawsuit. (Compl. ¶¶ 9; 24.)
Third, beyond the governmental entities, the Complaint names the lessees of the World Trade Center, World Trade Center Properties LLC, Silverstein Properties, Inc., Silverstein WTC Management Co. LLC, and 7 World Trade Company, L.P. (collectively, "SRE"). (Compl. ¶¶ 12-14; 19; 25.) Other alleged lessees of the World Trade Center included in the instant action are Westfield America Trust, Westfield WTC LLC, Westfield Corporation, Inc., and Westfield America, Inc. (collectively, "Westfield"), which leased the retail space within the World Trade Center. (Compl.¶¶ 15-18.) In addition, Marriott International, Inc.,[4] which either owned or leased the land and/or the building that housed the Marriott Hotel located at the World Trade Center, is a defendant. (Compl. ¶¶ 20; 26.)
Lastly, the Complaint names two contractors which allegedly served as the general contractors for the recovery and clean-up efforts at the World Trade Center, Turner Construction Corp. ("Turner") and Seasons Construction Corp. ("Seasons"). (Compl. ¶¶ 6; 7; 33.)
B. Procedural History
Diversified filed the instant action on December 3, 2004. (Dckt.1.) HMH filed a motion for summary judgment on May 9, 2005. (Dckt.82.) On May 16, 2005, I issued an Order requiring defendants to file a single consolidated motion to dismiss. (Dckt.89.) The Defendants had apparently not bothered to chat with one another about their proposed motions to dismiss, or if they had, felt their prose deserved separate and distinct study despite their overwhelming similarities. Subsequently, the Federal Defendants, the City Defendants, and SRE filed a consolidated motion to dismiss on June 6, 2005. (Dckt.90.)
II. MOTION TO DISMISS
A. Motion to Dismiss
The Federal Defendants, the City Defendants, and SRE move to dismiss the Complaint. The Federal Defendants contend that this Court lacks subject matter jurisdiction because neither the Tucker Act, 28 U.S.C. §§ 1346, 1491, the Miller Act, 40 U.S.C. § 3131 et. seq., nor the Stafford Act, 42 U.S.C. § 5121 et. seq., waive federal sovereign immunity. Further, the Federal Defendants argue that if this Court has subject matter jurisdiction, Diversified has failed to state a claim under the Miller Act. Similarly, the City Defendants maintain that Diversified's Second and Ninth Causes of Action improperly seek recovery under the Miller Act and the Stafford Act. The City Defendants and SRE also challenge the sufficiency of the pleadings.
1. Subject Matter Jurisdiction
The Federal Defendants move to dismiss the Complaint for lack of subject *90 matter jurisdiction in accordance with Rule 12(b)(1) of the Federal Rules of Civil Procedure ("Rule 12(b)(1)"). Pursuant to Rule 12(b)(1), this Court must accept all of the facts alleged in the Complaint as true and "draw all reasonable references in favor of the plaintiff." Raila v. United States, 355 F.3d 118, 119 (2d Cir.2004). In any analysis of such a motion, "the plaintiff bears the burden of proving by a preponderance of the evidence that jurisdiction exists," Chayoon v. Chao, 355 F.3d 141, 143 (2d Cir.2004) (citing Garcia v. Akwesasne Hous. Auth., 268 F.3d 76, 84 (2d Cir.2001)), and jurisdiction must be "affirmatively" demonstrated. APWU et. al. v. Potter, 343 F.3d 619, 623 (2d Cir.2003). Dismissal of the Complaint is only appropriate where "it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him or her to relief." Raila, 355 F.3d at 119.
Subject matter jurisdiction is, of course, essential for Plaintiff to proceed, and to establish it here, a plaintiff must "demonstrate a specific statutory waiver of sovereign immunity." Lawson v. Fed. Emergency Mgmt. Agency, No. 03 Civ. 0881, 2003 WL 2006600, at *2 (S.D.N.Y. Apr. 30, 2003), aff'd, 104 Fed.Appx. 216 (2d Cir. 2004). Absent such consent or statutory waiver, the United States is immune from suit and this Court lacks subject matter jurisdiction. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (citation omitted); Spinale v. United States, No. 03 Civ. 1704, 2004 WL 50873, at *6 (S.D.N.Y. Jan. 9, 2004) (holding that if the United States "has not waived its sovereign immunity, or if the conditions under which the United States has agreed to waive that immunity have not been met, federal subject matter jurisdiction does not exist").
Diversified relies on three statutes to establish subject matter jurisdiction: (1) the Tucker Act, (2) the Miller Act, and (3) the Stafford Act.
a. Tucker Act
The Tucker Act "provides a comprehensive system for commencing actions against the United States as an entity." Coleman v. Nolan, 693 F.Supp. 1544, 1548 n. 3 (S.D.N.Y.1988) (internal quotations omitted). In particular, the Tucker Act waives sovereign immunity and provides subject matter jurisdiction for non-tort claims against the United States "founded either upon the Constitution, or any act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States." C.H. Sanders Co. v. BHAP Hous. Dev. Fund Co., 903 F.2d 114, 119 (2d Cir.1990) (quoting 28 U.S.C. § 1346(a)(2)). However, the Tucker Act "is solely jurisdictional" and "does not create a substantive right to money damages." Cheminova A/S v. Griffin L.L.C., 182 F.Supp.2d 68, 75 (D.D.C. 2002) (citing United States v. Mitchell, 463 U.S. 206, 216-17, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983)) (emphasis added).
Under Tucker, and in order to prevail here, Diversified must demonstrate more. The Tucker Act, without an independent waiver of sovereign immunity, does not provide the Court with subject matter jurisdiction over the Federal Defendants.
b. Stafford Act
The Stafford Act, also known as the Disaster Relief Act of 1974, was enacted to provide federal assistance to states in times of disasters. See 42 U.S.C. § 5121 et seq. While the Stafford Act empowers the President to order FEMA, inter alia, to clear debris, FEMA's activities are not entitled to sovereign immunity unless they were "based upon the exercise or performance of . . . a discretionary function or duty." Dureiko v. United States, 209 F.3d 1345, 1351 (Fed.Cir.2000) (quoting 42 *91 U.S.C. § 5148). To determine whether FEMA's activities were discretionary, and entitled to sovereign immunity, the Federal Circuit has articulated a two-prong test:
(1) whether the act involves an element of judgment or choice; and
(2) if so, whether that judgment is of the kind that the discretionary function exception was designed to shield.
Dureiko, 209 F.3d at 1351.[5] Under the first prong of the test, an act does not involve judgment or choice, and FEMA can be sued as they are here, if "a federal statute, regulation or policy specifically prescribes a course of action for an employee to follow." Id. (quoting Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)); see also Graham v. Fed. Emergency Mgmt. Agency, 149 F.3d 997, 1006 (9th Cir.1998). Conversely, if FEMA's decision was discretionary, the analysis continues to the second prong of the Dureiko test. See, e.g., Dureiko, 209 F.3d at 1351. Under the second prong of the test, FEMA is entitled to sovereign immunity if its actions and decisions were "based on considerations of public policy." Id. (citation omitted); see also Rosas v. Brock, 826 F.2d 1004, 1009 (11th Cir.1987). The Federal Circuit reasoned that Congress could not have intended that this exception would:
[A]llow government agencies like FEMA to voluntarily contract with other parties in the course of providing disaster relief assistance, reap the benefits of such contracts but refuse to perform under them, and then claim immunity from liability resulting from its non-performance.
Dureiko, 209 F.3d at 1353-4.
This two-prong analysis was fashioned by the Federal Circuit to resolve a contractual dispute arising from a mobile home park damaged by Hurricane Andrew. Id., at 1348. In the aftermath of the federally declared disaster, FEMA was enlisted to oversee the recovery and reconstruction efforts of the disaster area. Id. As part of the recovery efforts, FEMA allegedly entered into a contract with the plaintiff whereby FEMA would clear debris from the mobile home park in exchange for permission to house displaced hurricane victims in the mobile home park. Id. Plaintiff alleged that FEMA failed to remove the debris in the agreed upon manner and subsequently sued FEMA for, inter alia, breach of contract. Id. at 1350. FEMA maintained that sovereign immunity shielded it from liability and moved to dismiss, claiming that the district court lacked subject matter jurisdiction. Id. The district court agreed and granted the motion. Id. at 1353. On appeal, the Federal Circuit rejected FEMA's contention, and held that once FEMA entered into the contract, its acts were no longer discretionary but, rather, mandatory. Id. According to the Federal Circuit, a contract is "indistinguishable from a federal statute, regulation, or policy that specifically prescribes a course of action for an employee to follow." Id. As such, the Federal Circuit reversed and remanded the case. Id. at 1360.
Here, the Federal Defendants' contention that Diversified's Second Cause of Action for breach of contract pursuant to the Stafford Act does not provide a waiver of sovereign immunity is belied not merely by a contractual arrangement but, by the President's National Emergency Order:
*92 A national emergency exists by reasons of the terrorist attacks at the World Trade Center . . . and the continuing and immediate threat of further attacks on the United States. Now, therefore, . . . George W. Bush, President of the United States of America, by virtue of the authority vested in me as President by the Constitution and the laws of the United States, . . . hereby declare that the national emergency has existed since September 11, 2001.
Proclamation No. 7463, 66 Fed.Reg. 48199 (Sept. 14, 2001). In the aftermath of the September 11, 2001 attacks, the President directed FEMA to coordinate disaster relief efforts pursuant to the Stafford Act:
I have determined that the damage in certain areas of the State of New York, resulting from fires and explosions on September 11, 2001, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act.
66 Fed.Reg. 48682-01 (Sept. 21, 2001). In the weeks following the disaster, President Bush amended his initial order to ensure that FEMA would pay one hundred percent of all costs for debris removal at the World Trade Center site:
I amend my major disaster declaration of September 11, 2001, to provide that the Federal Emergency Management Agency (FEMA) may reimburse 100 percent of total eligible costs for all Categories under Public Assistance.
66 Fed.Reg. 49674-02 (Sept. 28, 2001).[6] As a Presidential Order has the force of law, Acevedo v. Nassau County, N.Y, 500 F.2d 1078, 1084 n. 7 (2d Cir.1974), under the first prong of the Dureiko test, President Bush's Order that FEMA would pay for all debris removal costs was mandatory and to be strictly adhered to by FEMA. FEMA lacked discretion as to whether it was obligated to pay for the clean-up and recovery efforts at the World Trade Center. Therefore, the decision to pay Diversified pursuant to the alleged contract does not "involve[] an element of judgment or choice." Dureiko, 209 F.3d at 1351.
As the discretionary function exception to the Stafford Act's waiver of sovereign immunity does not apply, the Federal Defendants are not immune from this lawsuit. Dureiko, 209 F.3d at 1353. The Stafford Act, once the two-prong test is met, contains the independent waiver of sovereign immunity and provides this Court with subject matter jurisdiction over the Federal Defendants. Therefore, the Federal Defendants' motion to dismiss for lack of subject matter jurisdiction is DENIED.[7]
*93 2. Failure to State a Cause of Action
The Federal Defendants also contend that even if I find subject matter jurisdiction, the Complaint fails to adequately allege a Miller Act claim. The City Defendants join this portion of the Federal Defendants' motion and maintain that Diversified's Ninth Cause of Action fails to state a cognizable claim under the Miller Act. In addition, the City Defendants argue that the Stafford Act does not include a right of recovery against a local municipality.
This branch of the motion is brought pursuant to yule 12(b)(6) of the Federal Rules of Civil Procedure. That rule requires the Court to construe all factual allegations in the Complaint in favor of the non-moving party. See Krimstock v. Kelly, 306 F.3d 40, 47-8 (2d Cir.2002). The Court's consideration is limited to facts stated on the face of the Complaint and in documents appended to the complaint or incorporated in the complaint by reference, as well as to matters of which judicial notice may be taken. See Allen v. West-Point-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991). The Complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir.2004) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).
a. Miller Act
The Ninth Cause of Action against the Federal Defendants, the City Defendants, NYSEMO, Turner, and Seasons, is for violation of the Miller Act, in particular, the bond requirements. (Compl.¶¶ 81-85.)
The Miller Act was enacted by Congress in 1935 to protect subcontractors who work on government building projects. See Active Fire Sprinkler Corp. v. United States Postal Serv., 811 F.2d 747, 749 n. 1 (2d Cir.1987). The provisions of the Miller Act are "only applicable where the work in question was contracted for by the United States, or one of its agents or agencies." United States ex rel. Polied Envtl. Serv., Inc. v. Incor Group, Inc., No. 3:02Civ.01254, 2003 WL 1797846, at *1 (D.Conn. Apr. 4, 2003). The Miller Act requires, inter alia, that general contractors on government building projects post a payment bond "for the protection of all persons who supply labor or materials for the project." Active Fire Sprinkler Corp., 811 F.2d at 749.
The Miller Act also explicitly provides subcontractors with "the right to sue on the surety bond posted by the prime contractor," Dep't. of the Army v. Blue Fox, Inc., 525 U.S. 255, 264, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999), but "does not expressly create a substantive right on behalf of a subcontractor to directly sue the United States, for compensation owed to him by the prime contractor." 4-Star Constr. Corp. v. United States, 6 Cl.Ct. 271, 273 (1984) (emphasis in original); see also United States ex rel. Fred's Plumbing & Heating, Inc. v. Small Bus. Admin., 807 F.Supp. 675, 678 (D.Colo.1992) ("the [Miller] Act creates no affirmative rights against the government"). As such, "a subcontractor's sole remedy is to institute a suit against the governmental contractor . . . or the surety, in the name of the United States." 4-Star Constr. Corp., 6 Cl.Ct. at 273; 40 U.S.C. § 3133.
*94 According to Diversified, in the wake of September 11, 2001, the President suspended the Miller Act's surety bond requirement, "agreed to act as surety," and "guarant[eed] all payments for work to be done." (Pl. Consol. Op. to Def. Mot. to Dismiss, at 20.). As such, Diversified argues, the Miller Act claim raises numerous questions of fact that require discovery. Unfortunately for Diversified, their claims are contradicted by the plain language of the Miller Act and their Ninth Cause of Action must be dismissed as a matter of law against the Federal Defendants and the City Defendants.
Pursuant to Section 3147 of the Miller Act, "the President may suspend the provisions of this subchapter during a national emergency," 40 U.S.C.A. § 3147, but the provisions pertain solely to wages. See 40 U.S.C. §§ 3141, 3142, 3143, 3144, 3145, 3146. The President's authority to suspend the Miller Act is expressly limited to Section 3147 and the suspension is limited to wages. Section 3133, which contains the bond requirements, is located in Subchapter III, entitled "Bonds." As such, the President's Order regarding debris removal, made pursuant to the Stafford Act, cannot be construed as having suspended the bond requirements of the Miller Act and, as the Federal Defendants were neither the surety nor the government contractor, Diversified cannot recover from them.
Similarly, the City Defendants were neither the surety nor the government contractor. See 4-Star Constr. Corp., 6 Cl.Ct. at 273; 40 U.S.C. § 3133. Assuming arguendo, that the City Defendants acted as an agent or agency of the federal government and contracted with Diversified for the work at the World Trade Center (see Compl. ¶¶ 30; 32; 33), again, Diversified cannot recover against the City because the Miller Act does not provide a private right of recovery from the federal government or its agents/agencies. See Dep't. of the Army, 525 U.S. at 264, 119 S.Ct. 687. In addition, Diversified does not allege that the City Defendants were general contractors. Thus, as the Complaint does not allege that the City Defendants were either government contractors or the surety, Diversified does not have a cognizable Miller Act claim against the City Defendants.
Accordingly, the Federal Defendants' and the City Defendants' motion to dismiss the Ninth Cause of Action for violation of the Miller Act, in particular, the bond requirements, is GRANTED. It is important to note, however, that at this stage of the proceedings, Diversified's Miller Act claims against Turner and Seasons remain viable.
b. Stafford Act/City Defendants
As previously mentioned, Diversified's Second Cause of Action is for breach of contract. (Compl.¶¶ 39-45.) According to the City Defendants, Diversified cannot recover damages for breach of contract under the Stafford Act against the nonfederal government defendants, e.g., New York City and State governments and their respective agencies.
The Stafford Act authorizes the President to order the clearing of debris which results from a major disaster, through use of federal agencies, 42 U.S.C.A. § 5173(a)(1), and addresses the ability to recover for, inter alia, breach of contract or disaster relief, from the federal government. 42 U.S.C. § 5148. However, the Stafford Act does not provide an explicit right of recovery from a non-federal government entity. See 42 U.S.C. § 5148. As such, where a statute does not explicitly confer a right to recover, I must determine whether "an implied right of action is implicit." Hallwood Realty Partners, L.P. *95 v. Gotham Partners, L.P., 286 F.3d 613, 619 (2d Cir.2002). The Supreme Court articulated four factors to consider in this determination:
(1) legislative intent, (2) the consistency of the remedy with the underlying purposes of the legislative scheme, (3) whether the plaintiff was a member of the class for whose benefit that statute was enacted, and (4) whether the cause of action is one traditionally relegated to state law.
Id. (citing Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 45 L.E d.2d 26 (1975)). Legislative intent is the main factor to be considered, white the other three are reviewed "only as possible indicia for legislative intent.", Hallwood Realty Partners, L.P., 286 F.3d at 619 n. 7; see also County of Westchester v. N.Y., 286 F.3d 150, 152 (2nd Cir.2002). A determination of the legislative intent is "a matter of statutory interpretation" and a court must first look to the statute's text and structure. Olmsted v. Pruco Life Ins. Co. of N.J., 283 F.3d 429, 432 (2d Cir.2002).
Stafford Act claims are typically brought following national disasters such as hurricanes, Hawaii ex rel. Attorney Gen. v. Fed. Emergency Mgmt. Agency, 294 F.3d 1152 (9th Cir.2002), typhoons, Graham v. Fed. Emergency Mgmt. Agency, 149 F.3d 997 (9th Cir.1998), severe freezes, Rosas v. Brock, 826 F.2d 1004 (11th Cir.1987), floods, United Power Ass'n v. Fed. Emergency Mgmt. Agency, No. 99 Civ. 180, 2001 WL 1789404, at *1 (D.N.D. Aug. 14, 2001) and, droughts, Ornellas v. United States, 2 Cl.Ct. 378 (C1.Ct.1983). In general, the actions are filed against FEMA and challenge FEMA's decision, for instance, to deny disaster relief to a particular party.[8]
This is not the first time a court in this Circuit has been asked to determine whether the Stafford Act includes an implied right of action. In State of New York v. O'Hara, the state filed an action for breach of contract and fraud against defendants who were performing remedial work at Love Canal. 595 F.Supp. 1101 (W.D.N.Y.1984). Defendants, as they do here, moved to dismiss the Stafford Act claim and argued that the statute did not confer a right of recovery upon the plaintiff. Id. The district court agreed. Id. at 1103. Applying the Cort factors to the Stafford Act, the district court reasoned that there was a noticeable sound of silence, both in the statute and in the legislative history, as to Congress's intent to create a right of recovery from non-federal government entities and, indeed, there was "some indication that Congress meant not to provide a [private] right of action." Id. at 1102 (emphasis in original). The district court concluded that because the case did "not involve a statute which deal[t] with an area of law in which a private right of action has been traditionally recognized by courts," such silence should be viewed as "legislative acquiescence with existing case law," and, that no private right of action existed under the Stafford Act Id. at 1103.
Here, Diversified, a subcontractor, sued the City Defendants, in addition to FEMA, under the Stafford Act. (Compl. ¶¶ 39-45.) In addition to the legislative history discussed in O'Hara, the legislative history accompanying President *96 Bush's Order indicates that the House of Representatives understood the uniqueness of the events of September 11, 2001 and that FEMA was to be the lead agency in providing disaster relief.[9] There is no indication in either the Stafford Act's legislative history, O'Hara, 595 F.Supp. at 1102, or President Bush's Order, suggesting that local government entities were to be in charge of federal disaster relief.[10] In addition, as the court in O'Hara recognized, breach of contract is an area of law traditionally relegated to state common law. Indeed, a subcontractor, such as Diversified, was not the intended beneficiary of the Stafford Act, a statute designed to give aid to states after disasters.
For the foregoing reasons, Diversified does not have an express or an implied right of recovery against non-federal government entities pursuant to the Stafford Act. Thus, the City Defendants' motion to dismiss Diversified's Second Cause of Action as against the City Defendants is GRANTED.
3. Pleadings
The City Defendants and SRE contend that the Complaint fails to state a cause of action separate and apart from Diversified's Second Cause of Action for breach of contract pursuant to the Stafford Act and the Ninth Cause of Action for violation of the Miller Act. In particular, SRE argues that the pleadings fail to (1) specifically reference SRE, or (2) adequately allege a breach of contract claim. In addition, both the City Defendants and SRE maintain that Diversified cannot plead equitable doctrine claims in the alternative to breach of contract claims.
a. Claims Against SRE
SRE is implicated in the First Cause of Action for declaratory relief (Compl. ¶¶ 36-38), the Third Cause of Action for breach of contract (Compl. ¶¶ 46-51), the Fifth Cause of Action for restitution (Compl.¶¶ 59-66), the Sixth Cause of Action for unjust enrichment (Compl.¶¶ 67-71), and the Seventh Cause of Action for quantum meruit. (Compl. ¶¶ 72-76.) SRE maintains that Diversified's pleadings fail to state any cause of action because the Complaint fails to refer specifically to SRE but instead groups SRE together with other defendants. In addition, according to SRE, Diversified has failed to allege sufficiently the necessary elements of breach of contract. Poppycock.
In breach of contract claims, the claimant need only include "short and plain statements of the case." See Power Travel Int'l, Inc. v. Am. Airlines, Inc. 257 F.Supp.2d 701, 703 (S.D.N.Y.2003) (holding that Rule 8 "requires only short and plain statements of the case when pleading a breach of contract claim"). Under New York Law, a viable claim for breach of contract "need only allege (1) the existence of an agreement, (2) adequate performance of the contract by the plaintiff, (3) breach of contract by the defendants, and (4) damages." Eternity Global Master Fund, Ltd. *97 v. Morgan Guar. Trust Co. of N.Y, 375 F.3d 168, 177 (2d Cir.2004) (citing Harsco Corp. v. Segui, 91 F.3d 337, 348 (2d Cir. 1996)); see also Valjean Mfg. Inc. v. Michael Wediger, Inc., No. 03 Civ. 6185, 2005 WL 356799, at *14 (S.D.N.Y. Feb. 14, 2005) (Baer, J.).
Here, SRE are named defendants in the instant action. (Compl. ¶¶ 13; 14). In stating the breach of contract claim against all Defendants, the Complaint states that it "repeats and re-alleges paragraphs marked and numbered `1' through `45' as if fully and at length set forth herein," incorporating all of the previous factual allegations made in the Complaint. (Compl. ¶ 46.) Consequently, the section of the Complaint which refers specifically to SRE (Compl. ¶ 25) is considered a part of the pleadings for the breach of contract claim against all defendants. (Compl. ¶¶ 46-51.) By such incorporation, Diversified has sufficiently met the notification requirement of Rule 8.
As SRE is clearly designated, let's turn to the adequacy of the pleadings with respect to the elements of a breach of contract claim. The Complaint alleges each of these necessary elements. First, an agreement allegedly exists between SRE and Diversified ("Seasons and/or Turner, and the other defendants, agreed to pay Diversified for its work"). (Compl. ¶¶ 47; 49.) Second, Diversified allegedly adequately performed the contract, specifically the debris removal ("Diversified fully performed its demolition and debris removal."). (Compl. ¶ 50.) Third, SRE allegedly breached the contract in that it refused to pay Diversified ("Defendants have refused to fully pay Diversified"). (Compl. ¶50.) Fourth, and last, Diversified was allegedly damaged by the breach, in the amount of $452,498.97. (Compl. ¶ 51).
Construing Diversified's allegations liberally, and pending discovery, Diversified, at this stage of the proceeding, has adequately pled the required elements of a breach of contract claim. See Xpedior Creditor Trust v. Credit Suisse First Boston (USA) Inc., 341 F.Supp.2d 258, 271 (S.D.N.Y.2004). Accordingly, SRE's motion to dismiss the Third Cause of Action for breach of contract is DENIED.
b. Quantum Meruit, Restitution, and Unjust Enrichment
Diversified's Fifth, Sixth, and Seventh Causes of Action, respectively, also contend that if no valid contract with the City Defendants and/or SRE exists, then it is entitled to recover under the equitable doctrines of quantum meruit, restitution, and unjust enrichment. (Compl. ¶¶ 59-76.)
Quantum meruit is "a doctrine of quasi contract" and New York law requires a claimant to establish "(1) the performance of services in good faith, (2) the acceptance of the services by the person to whom they were rendered, (3) an expectation of compensation therefore, and (4) the reasonable value of the services." Longo v. Shore & Reich, Ltd., 25 F.3d 94, 98 (2d Cir.1994); see also Bauman Assoc., Inc. v. H & M Transp., Inc., 171 A.D.2d 479, 567 N.Y.S.2d 404, 408 (1st Dep't 1991). Similarly, a party can recover under a theory of unjust enrichment if no valid contract exists between the parties. See In re First Cent. Fin. Corp., 377 F.3d 209, 213 (2d Cir.2004). To prevail, a claimant must establish: "(1) that the defendant benefited, (2) at the plaintiff's expense and (3) that equity and good conscience require restitution." Kaye v. Grossman, 202 F.3d 611, 616 (2d Cir.2000); see also Valjean Mfg., No. 03 Civ. 6185, 2005 WL 356799, at *17 ("[T]o establish a claim for unjust enrichment, a claimant must demonstrate defendant's enrichment at claimant's expense and that equity and good conscience militate against permitting defendant to retain *98 what [the claimant] is seeking to recover.") (Baer, J.). As for restitution, it is available "where there has been a showing of unjust enrichment." Brown v. Sandimo Materials, 250 F.3d 120, 126 (2d Cir.2001).
The City Defendants and SRE's contentions that recovery under (1) a claim of quantum meruit, (2) restitution, and (3) unjust enrichment are not available because of the alleged contract between Diversified and Seasons. At this stage of the proceedings, I cannot address and should not resolve the issue as to whether an express agreement did in fact exist. Even if an express contract existed, it is well settled that a plaintiff is permitted to plead in the alternative. Fed.R.Civ.P. 8(e)(2) ("a party may set forth two or more statements of a claim or defense alternately or hypothetically"); see also Aetna Cas. and Sur. Co. v. Aniero Concrete Co., 404 F.3d 566, 585 (2d Cir.2005). A party may bring a quantum meruit or unjust enrichment claim on its own, without a breach of contract claim. See Aniero Concrete Co., Inc. v. N.Y.C. Constr. Auth., No. 94 Civ. 3506, 2000 WL 863208, at *1 (S.D.N.Y. June 27, 2000).
The Complaint sufficiently alleges a claim in quantum meruit. Diversified alleges that it performed services in good faith (Compl. ¶ 73), that the defendants allegedly accepted the services ("after accepting such work, materials, and equipment defendants . .") (Compl. ¶ 75), that Diversified expected payment for the services (Compl. ¶ 76.), and, finally, Diversified pled a value for the services which is reasonable. (Compl. ¶¶ 32; 74.)
Similarly, the Complaint sufficiently alleges viable unjust enrichment claims. First, the defendants allegedly benefited from Diversified's work ("the defendants derived substantial benefits due to Diversified's performance.") (Compl. ¶ 69.) Second, the work was allegedly conducted at Diversified's expense ("Diversified contributed large amounts of time, materials and equipment, and suffered equipment damage, to clear debris"). (Compl. ¶ 68.) Finally, the Complaint alleges that equity and good conscience requires restitution ("it is against all notions of equity and justice for the Defendants to retain the benefit of Diversified's work at Site without compensating Diversified"). (Compl. ¶ 65.) As such, Diversified has adequately pled the elements of an unjust enrichment claim against the City Defendants and SRE.
Accordingly, at this stage in the proceedings and pending discovery, the City Defendants and SRE's motion to dismiss Diversified's Fifth, Sixth, and Seventh Causes of Action is DENIED.
4. Fiduciary Duty Pursuant to New York Lien Law
Diversified's Eighth Cause of Action is for breach of fiduciary duty against the Federal Defendants, the City Defendants, NYSEMO, Turner and Seasons. (Compl. ¶¶ 77-80.) The City Defendants argue that no fiduciary duty exists pursuant to New York Lien Law.
While Rule 8 of the Federal Rules of Civil Procedure requires minimal pleading, the Complaint's references to the New York Lien Law fails to satisfy even the most liberal pleading requirements, i.e., Diversified fails to point to any specific violation. (Compl. ¶ 78.).
As the World Trade Center was not owned or operated by the City Defendants and the Complaint does not allege that the City Defendants became the effective owners or operators of the site (Compl. ¶¶ 24-26), Diversified cannot establish a duty under § 3 of the Lien Law. Similarly, the Complaint does not allege that the City Defendants were the general contractor or *99 a subcontractor nor does it establish a fiduciary duty under § 5 or § 70.
Accordingly, the City Defendants' motion to dismiss Diversified's Eighth Cause of Action for breach of fiduciary duty claim is GRANTED.
5. Pendant State Law Claims
Finally, Diversified's Tenth Cause of Action is for breach of covenant of good faith and fair dealing (Compl. ¶¶ 86-89), and the Eleventh Cause of Action is for constructive trust/trustee ex maleficio. (Compl. ¶¶ 90-103.) The City Defendants argue these state law claims should be dismissed for lack of jurisdiction.
Supplemental jurisdiction can be extended to state law claims in district court where the state law claims are "so related to claims in the action within such original jurisdiction that they form part of the same case or controversy." 28 U.S.C. § 1367; see also Jones v. Ford Motor Credit Co., 358 F.3d 205, 212 (2d Cir.2004). "A state law claim forms part of the same controversy if it and the federal claim derive from a common nucleus of operative fact." Briarpatch Ltd. L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 308 (2d Cir. 2004) (citing Cicio v. Does, 321 F.3d 83, 97 (2d Cir.2003)). Where a state claim is part of the same case or controversy as a sustained federal claim, the exercise of supplemental jurisdiction is within the discretion of a district court. First Capital Asset Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159, 182 (2d Cir.2004).
This Court has original jurisdiction over Diversified's federal claim against the Federal Defendants under the Stafford Act. The remaining state law claims arise from the very same work that is the subject of the federal claims. See Polygram Merch., Inc. v. N.Y. Wholesale Co., No. 97 Civ. 6489, 1999 WL 4957, at *3 (S.D.N.Y. Jan. 6, 1999) (Baer, J.). The common nucleus is the search, excavation, and clean-up efforts at the World Trade Center site. The absence of any material differences of fact, which distinguish the federal claims, make a single adjudication appropriate. Indeed, the allegations in the Complaint center around a "constantly evolving project" (Compl. ¶ 31), thus the federal law claims and the state law claims stem from a "common nucleus of operative facts." See Briarpatch Ltd. L.P., 373 F.3d at 308.
Accordingly, for now, this Court will extend supplemental jurisdiction to Diversified's other state law claims against the City Defendants and the City Defendant's motion to deny supplemental jurisdiction and dismiss the Tenth Cause of Action for breach of covenant of good faith and fair dealing and the Eleventh Cause of Action for constructive trust/trustee ex maleficio is DENIED.
III. MOTION FOR SUMMARY JUDGMENT
As for HMH's motion for summary judgment, it is, in my view and at this juncture, not only far fetched but a waste of the client's money. Summary judgment is only available where a court determines that there is no genuine issue of material fact and the undisputed facts are sufficient to warrant judgment as a matter of law, Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), it is rarely granted before discovery. Here, there are genuine issues of material facts which cannot be decided as a matter of law, to name a few (1) whether an agreement between HMH and Diversified exists; (2) whether Turner, Seasons, and the City Defendants had the ability to bind HMH to agreements made with Diversified; (3) whether
*100 Diversified had dealings with HMH, its property, or anyone acting on behalf of HMH; (4) whether the City of New York or the Port Authority assumed control of the World Trade Center site after the terrorist attacks; and, (5) whether HMH, or a party acting on its behalf, was involved in decisions regarding debris removal at the World Trade Center site.
Accordingly, HMH's motion for summary judgment is DENIED.
IV. CONCLUSION
For the reasons set forth above, the Defendant's motion to dismiss is GRANED in-part and DENIED in-part; and, it is hereby
ORDERED, that the Federal Defendants' motion to dismiss the Second Cause of Action for breach of contract pursuant to the Stafford Act is DENIED; and, it is further
ORDERED, that the City Defendants' motion to dismiss the Second Cause of Action for breach of contract pursuant to the Stafford Act is GRANTED and the Second Cause of Action is DISMISSED as against the City Defendants; and, it is further
ORDERED, that SRE's motion to dismiss the Third Cause of Action for breach of contract is DENIED; and, it is further
ORDERED, that the City Defendants' and SRE's motion to dismiss the Fifth Cause of Action for restitution, the Sixth Cause of Action for unjust enrichment, and the Seventh Cause of Action for quantum meruit is DENIED; and, it is further
ORDERED, that the City Defendants' motion to dismiss the Eighth Cause of Action for breach of fiduciary duty is GRANTED and the Eighth Cause of Action is hereby DISMISSED in its entirety; and, it is further
ORDERED, that the Federal Defendants' and the City Defendants' motion to dismiss the Ninth Cause of Action for violation of the Miller Act is GRANTED and the Ninth Cause of Action is DISMISSED against the Federal Defendants and the City Defendants; and, it is further
ORDERED, that the City Defendants' motion to deny supplemental jurisdiction and dismiss the Tenth Cause of Action for breach of covenant of good faith and fair dealing, and the Eleventh Cause of Action for constructive trust/trustee ex malificio is DENIED; and, it is further
ORDERED that HMH's motion for summary judgment is DENIED; and it is further
ORDERED that (1) Movants, or group of Movants, are to file only one consolidated motion for summary judgment, if any, on or before October 11, 2005; (2) Respondent, or group of Respondents, are to file only one consolidated response to Movants motion for summary judgment, if any, on or before October 31, 2005; (3) Movants, or group of Movants, are to file only one consolidated reply brief in support of their motion for summary judgment, if any, on or before November 15, 2005; (4) Movants, or group of Movants, are to deliver the fully briefed motion for summary judgment, if any, to Chambers on or before November 16, 2005 at 10.00 a.m.; and, (5) if Movant or Respondent desires oral arguments on the motion for summary judgment to notify the Court in writing on or before November 16, 2005 at 10.00 a.m.; and, it is further
ORDERED that the Clerk of the Court is instructed to close this and any other open motions and remove these open motions from my docket.
IT IS SO ORDERED.
NOTES
[*] Margaret Johnson, a summer 2005 intern in my Chambers, and currently a second year law student at New York University School of Law, provided substantial assistance in the researching and drafting of this opinion.
[1] Pursuant to The Homeland Security Act of 2002, all functions, personnel, and liabilities of the Federal Emergency Management Agency have been transferred to the Secretary of the Department of Homeland Security. See 5 U.S.C. § 301 et seq. Accordingly, the Court will deem the Complaint amended to substitute the Federal Emergency Management Agency with the Department of Homeland Security. The Clerk of the Court is directed to terminate the Federal Emergency Management Agency as Defendant, add the Department of Homeland Security as the new Defendant, and revise the caption of this action.
[2] U.S. General Services Administration was dismissed from the suit on April 18, 2005. (Dckt.69.)
[3] The Port Authority was dismissed from the suit on April 5, 2005. (Dckt.56.)
[4] It is uncontested that Defendant Marriott International, Inc. is incorrectly named in the Complaint, and that the correct name is HMH WTC LLC (herein, "HMH").
[5] See Graham v. Fed. Emergency Mgmt. Agency, 149 F.3d 997, 1006 (9th Cir.1998); Rosas v. Brock, 826 F.2d 1004, 1009 (11th Cir.1987). The Dureiko test was adopted in United Power Assoc. v. Fed. Emergency Mgmt. Agency, No. 99 Civ. 180, 2000 WL 33339635, at *2 (D.N.D. Sept. 13, 2000); see also 14 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Fed. Pract. & Proc. § 3658.1 (3d ed.1998).
[6] Two further amendments followed. See 66 Fed.Reg. 51435-01 (Oct. 9, 2001); 66 Fed. Reg. 52407-02 (Oct. 15, 2001). While the Amended Order states that FEMA "may" reimburse 100 percent of total eligible costs, both the White House and FEMA interpreted this order as mandatory, not discretionary. See Press Release, White House, Pres. Auth. Add. Disaster Fund. for N.Y. (Sept. 18, 2001) (http://www.white house.gov /news/releases/ 2001/09/XXXXXXXX-X. html) (last visited Aug. 10, 2005) ("The President's major disaster declaration . . . initially directed the Federal government to pay 75 percent of the eligible costs. . . . Under the President's [Amended Order], the Federal share has now been increased to 100 percent for these programs."); Press Release, FEMA, Pres. Auth. 100 Percent Funding For N.Y. Public Assist. Grants (Sept. 18, 2001) (http://www.fema.gov/ news/newsrelease. fema?id=5672) (last visited Aug. 10, 2005) ("Under the President's Order today, [FEMA's Director] said the federal government will now pay 100 percent of those costs retroactive to September 11, the date of the President's declaration.") Thus, the Amended Order requires that FEMA pay 100 percent of such costs, rather than simply giving FEMA the option to do so.
[7] As this Court has subject matter jurisdiction over the Federal Defendants pursuant to the Stafford Act, this Court will not address the Federal Defendant's argument that the Miller Act does not provide a waiver of sovereign F.2d at 120. immunity. See C.H. Sanders Co., Inc., 903 F.2d at 120.
[8] For example, in City of San Bruno v. Fed. Emergency Mgmt. Agency, the city applied for relief under FEMA's public assistance program after El Nino caused a hillside to collapse. 181 F.Supp.2d 1010, 1011 (N.D.Ca. 2001). FEMA determined that the City was not eligible for funding and rejected the application. Id. at 1012. The City subsequently filed suit. Id. at 1011. The court determined it lacked subject matter jurisdiction as FEMA's decision to deny public assistance was discretionary. Id. at 1013.
[9] "The Nation on September 11th faced the most horrific disaster ever to occur in America, a disaster of unprecedented scope. . . . FEMA has risen to the challenge and the Committee commends the agency for its response." H.R.Rep. No. 107-480, at 57 (2002).
[10] See e.g. H.R.Rep. No. 107-480, at 57 (2002); see also Press Release, White House, Pres. Auth. Add. Disaster Fund. for N.Y. (Sept. 18, 2001) (http://www.white house. gov/news/rel eases/2001/09/ XXXXXXXX-X.html (last visited Aug. 11, 2005)); Press Release, FEMA, Pres. Auth. 100 Percent Funding For N.Y. Public Assist. Grants (Sept. 18, 2001) (http://www.fema.gov/ news/newsrelease. fema?id=5672) (last visited Aug. 11, 2005). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1809508/ | 681 So.2d 1248 (1996)
Tammy BULLOCK
v.
Lillie GRAHAM, T.L. James & Company, Inc. and Highlands Insurance Company.
No. 96-C-0711.
Supreme Court of Louisiana.
November 1, 1996.
*1249 Timothy Kevin Lamy, Barker, Boudreaux, Lamy & Foley, for Applicant.
Philip Jude Borne, Christovich & Kearney, for Respondents.
BLEICH, Justice.[*]
ISSUE
We granted writs in this case to determine the amount of damages a plaintiff may recover after stipulating that the amount in controversy did not exceed the jurisdictional limits placed on civil jury trials by La.C.C.P. art. 1732(1).[1] The court of appeal reduced the trial court's judgment to conform with the parties' stipulation. We affirm.
FACTS AND PROCEDURAL HISTORY
The facts of this case are not in dispute. Tammy Bullock brought this action against T.L. James & Company, Inc. (T.L. James) and its liability insurer, Highlands Insurance Company, for injuries sustained as a result of a collision between her automobile and a compacting machine owned by T.L. James and operated by Lillie Graham at the time of the accident.
In response to Bullock's petition, defendants filed an answer in which they denied all allegations of negligence, asserted contributory negligence as an affirmative defense, and requested a jury trial. Shortly thereafter, plaintiff filed a supplemental and amended petition in which she alleged that the amount in controversy did not exceed the jurisdictional limitations placed on civil jury trials by Louisiana Code of Civil Procedure, Article 1732(1). Defendants answered the amended petition by stipulating that the amount in controversy did not exceed $20,000.00. As a result, the trial court struck the jury trial request and the matter proceeded to a bench trial.
Following trial on the merits, the court concluded that plaintiff was entitled to general damages of $20,000.00 and special damages of $8,288.97. The trial court further found that defendants were 60% at fault and that plaintiff was 40% at fault. Following a reduction for plaintiff's comparative fault, the trial court rendered judgment in favor of plaintiff, Bullock, and against defendants, T.L. James, Graham and Highlands Insurance Company in the amount of $16,973.38 together with interest and costs.
Defendants appealed this judgment to the First Circuit Court of Appeal. Following its previous decision in Stevens v. Winn-Dixie of Louisiana, 95-0435 (La.App. 1st Cir. 11/9/95); 664 So.2d 1207, the First Circuit amended the judgment by reducing plaintiff's recovery to $12,000.00. The First Circuit arrived at the amended judgment by reducing the $20,000.00 jurisdictional limit by plaintiff's 40% comparative fault. We granted writs to determine the correctness of the court of appeal's decision, and to resolve the *1250 conflict among the circuits. Bullock v. Graham, T.L. James & Company, Inc. and Highlands Insurance Company, 95-1050 (La.App. 1st Cir. 2/23/96); 670 So.2d 806.
DISCUSSION
The stipulation that the trial court is limited in the amount it can award is not contested. What is at issue is the method of calculation of the award. Plaintiff argues that the trial court's assessment of damages, $28,288.97, should be reduced by her percentage of comparative fault, and then if the award is in excess of the jurisdictional limit, it should be further reduced to conform with the limitations provided by Article 1732(1). This was the method used by the Fourth Circuit in the case of Walker v. Thap, 92-0016 (La.App. 4 Cir. 5/17/94); 637 So.2d 1150. The defendants contend that under the stipulation, the maximum possible award is $20,000.00, and any comparative fault attributed to the plaintiff should be deducted from that amount. This was the method of the First Circuit in this case on appeal and in the case of Stevens, supra. We agree with the First Circuit's method of calculation.
Part of the confusion lies in the differing terminology being utilized. Article 1732 refers to "cause of action" while plaintiff used the term "amount in controversy" in her stipulation. Black's Law Dictionary defines "cause of action" as "the fact or facts which give a person a right to judicial redress or relief against another." It further defines "amount in controversy" as "the damages claimed or relief demanded by the injured party in dispute; the amount claimed or sued for in litigation." BLACK'S LAW DICTIONARY (6th Ed.1990). We think the terms are synonymous as used in this case. Both refer to the amount the plaintiff alleges her case is worth. In order to avoid a jury trial, plaintiff had to allege that her case was worth less than $20,000.00. The result of her allegations deprived the defendants of their fundamental right to a jury trial which they had requested.
Procedural maneuvers designed solely to deprive litigants of their right to jury trial based on jurisdictional amounts are disfavored. Black v. Prudential Property & Casualty Insurance Co., 93-878 (La.App. 3d Cir. 3/2/94), 634 So.2d 1340, 1344. Plaintiff's petition limiting the amount in controversy to $20,000.00 deprived the defendants of their right to a jury trial. Plaintiff should therefore be bound by that stipulation. Furthermore, stipulations between the parties are binding on the trial court when not in derogation of law. R.J. D'Hemecourt Petroleum, Inc. v. McNamara, 444 So.2d 600, 601 (La. 1983), cert. denied, 469 U.S. 820, 105 S.Ct. 92, 83 L.Ed.2d 39 (1984). We have found nothing to indicate that a stipulation as to the maximum amount of damages is in derogation of law. Therefore, both the plaintiff and the trial court are bound by the $20,000.00 jurisdictional limit. So when the trial court was assessing plaintiff's damages and concluded that she was entitled to $20,000.00 in general damages and $8,288.97 in special damages for a total of $28,288.97, the trial court was obligated to reduce the total amount of damages to $20,000.00 in accordance with plaintiff's stipulation. The remainder of plaintiff's damages should be regarded as waived. Louisiana Civil Code of Procedure Article 5 says as much. "When a plaintiff reduces his claim on a single cause of action to bring it within the jurisdiction of a court and judgment is rendered thereon, he remits the portion of his claim for which he did not pray for judgment, and is precluded from demanding it judicially." La.C.C.P. art. 5. Although Article 5 refers to the subject matter of a court, the same principle applies here when we are referring to the jurisdictional limits for a jury trial.
The plaintiff argues that according to her method of calculation, she is still bound by the stipulation. She would have us believe that her method produces a qui pro quo between the parties. The stipulation benefits the defendants by limiting the amount of damages to a maximum of $20,000.00. The plaintiffs benefit by receiving a bench trial, rather than a jury trial, while the entire judicial system benefits by a less expensive and quicker trial. While this may be true, the plaintiff fails to point out that if the defendants had received a jury trial as they originally requested, the jury might have *1251 found for the defendants with the plaintiff recovering nothing.
Louisiana Code of Civil Procedure Article 1731 governs the availability of jury trials with regard to particular issues. Part (B) of that article states: "The nature and amount of the principal demand shall determine whether any issue in the principal demand or incidental demand is triable by jury." La. C.C.P. art. 1731(B). Louisiana Code of Civil Procedure Article 1732 is a limitation to Article 1731. At the time of this litigation, Article 1732 read in pertinent part as follows:
"A trial by jury shall not be available in:
(1) A suit where the amount of no individual petitioner's cause of action exceeds twenty thousand dollars exclusive of interest and costs."
These two articles read together support our decision as to the correct method of calculation. Plaintiff alleged in her petition that the amount in controversy did not exceed $20,000.00. We take this to mean that the maximum recovery, given no fault on her part, is $20,000.00. If plaintiff is assessed a percentage of fault, then that percentage would be deducted from the maximum recoverable amount or $20,000.00. Just as with the federal diversity statute, 28 U.S.C. § 1332, the plaintiff's claim controls. Anderson v. Moorer, 372 F.2d 747, 750 (5th Cir., 1967). In plaintiff's petition, she alleges zero fault on her part. Then in an amended petition she alleges that the amount in controversy does not exceed $20,000.00. It then follows that the most she expects to recover if she is not at all at fault is $20,000.00.
Plaintiff would argue that our interpretation is too narrow and restrictive. She would have us include the comparative fault issue pled by defendants in their original answer, which pre-dated the amended petition containing the stipulation. Since the stipulation followed the allegation of comparative fault by defendants, plaintiff wishes for their amended petition to be construed in light of the comparative fault issue and recovery limited to $20,000.00 after a reduction of comparative fault. Plaintiff believes that the "cause of action" includes all issues raised by the pleadings.
Although not directly on point, but relevant for guidance purposes, 28 U.S.C. § 1332 gives United States district courts original jurisdiction over cases involving citizens of different states where the matter in controversy exceeds the sum or value of $50,000.00. Federal courts have unanimously held that it is the plaintiff's claim or demand that controls, even if the defendant has a viable defense to any or all of plaintiff's claim. "[T]he probability of a valid factual defense... is not sufficient to diminish the amount in controversy and to oust the court of jurisdiction, even if that defense appears on the face of the complaint." Anderson, 372 F.2d 747 at 750. Clearly, the federal courts do not take into consideration comparative fault alleged in a defendant's answer when determining jurisdiction.
The various courts of appeal across our state disagree on the method of calculation of an award under these circumstances. In the Fourth Circuit case of Walker v. Thap, 92-0016 (La.App. 4th Cir. 5/17/94), 637 So.2d 1150, the plaintiff filed a suit in First City Court of New Orleans for personal injuries sustained when her vehicle was struck by defendant's vehicle. The court found that petitioner had sustained damages in the amount of $21,625.62 and further found petitioner to be 50% at fault. Calculating petitioner's damages in light of her comparative fault, the court determined them to be $10,812.81. Since this amount was in excess of the jurisdictional limit of the City Court ($10,000.00), the award was further reduced and judgment was rendered in favor of petitioner for $10,000.00. Walker, supra.
The First Circuit, in Stevens v. Winn-Dixie of Louisiana, 95-0435 (La.App. 1st Cir. 11/9/95), 664 So.2d 1207, held a stipulation similar to the one in the present case binding on the court and reduced plaintiff's award by his comparative fault, but began at the stipulated amount. In that case, plaintiff stipulated in open court that the amount of the case was reduced to $20,000.00 or less to overcome the defendant's request for a jury trial. The trial court awarded plaintiff $30,000.00, which after the application of 50% comparative fault, was reduced to a $15,000.00 judgment. The court of appeal reduced *1252 the award to $20,000.00, which then entered a final judgment of $10,000.00 in light of the plaintiff's 50% comparative fault. Stevens, supra.
In the instant case, plaintiff alleged in her petition that the good faith amount in dispute was less than $20,000.00, it then follows that the most plaintiff could expect to recover is $20,000.00 if plaintiff is free from fault. Since plaintiff has been assessed 40% comparative fault, her recovery should be reduced accordingly. The result is an award of $12,000.00 to the plaintiff.
DECREE
For the assigned reasons, the maximum amount plaintiff could recover is $20,000.00, the amount of her stipulation, which will be reduced accordingly by plaintiff's percentage of fault. The decision of the First Circuit Court of Appeals is affirmed.
KIMBALL and JOHNSON, JJ., dissent.
CALOGERO, C.J., dissents and assigns reasons.
CALOGERO, Chief Justice, dissenting.
I dissent. Contrary to the majority's assertions, the "amount in dispute" in a given case is the amount that one might ultimately get from the totality of a claim, including quantum and full percentage reductions.
When a plaintiff stipulates that her claim is worth no more than $20,000, based on an anticipation of, for example, a $35,000 quantum reduced by 50% comparative fault, an ultimate award in an amount less than $20,000 establishes retrospectively that the plaintiff was entitled to recover no more than $20,000 from the defendant. The plaintiff is not stipulating that her quantum in damages exceeded $20,000, but rather that the amount she would be due at case end is $20,000 or less. There is no provision of law holding that a judge in a non-jury circumstance is prohibited from assessing proven damages in excess of $20,000, though the law might indeed prohibit his denying a defendant a jury trial because of a plaintiff's stipulation where the ultimate judgment rendered (the amount in controversy and the amount of the award) exceeds $20,000. In this latter event, he ought not have prevented the defendant from having a jury trial on plaintiff's stipulation.
Contrary to the majority's assertions, this interpretation does not disadvantage a defendant, whose exposure is limited to $20,000 (now $50,000 by Acts 1993, No. 661, § 1) as a result of a plaintiff's decision to ask for no more than $20,000. Furthermore, if a defendant truly desires a jury trial, and disbelieves a plaintiff's assertion of an ultimate amount below the jurisdictional floor, the defendant may contravene the plaintiff's good faith at a hearing on contradictory motion.
Since the amount ultimately awarded by the trial court in the instant case was below the $20,000 jurisdictional floor, and since more pertinently there is no error in denying a jury trial where the ultimate amount awarded is less than $20,000, the decision of the trial court awarding plaintiff $16,973.38 should have been upheld.
NOTES
[*] Lemmon, J., not on panel. Rule IV, Part 2, § 3.
[1] La.C.C.P. art. 1732, which places limitations on jury trials, provided, at the time of this matter, in pertinent part as follows:
A trial by jury shall not be available in:
(1) A suit where the amount of no individual petitioner's cause of action exceeds twenty thousand dollars exclusive of interest and costs.
The statute was amended by Acts 1993, No. 661, § 1 to change the jurisdictional amount to fifty thousand dollars exclusive of interest and costs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2607233/ | 183 Ariz. 296 (1995)
903 P.2d 604
Marion D. WIDGER, an individual; Pecosland Associates, a partnership; WHHC Partnership, a partnership; Continental Service Corp., a corporation, Plaintiffs-Appellants, Cross-Appellees,
v.
ARIZONA DEPARTMENT OF REVENUE, an agency of the State of Arizona; Pinal County, a political subdivision of the State of Arizona; Pinal County Treasurer, an elected official of Pinal County; Pinal County Assessor, an elected official of Pinal County; Pinal County Board of Supervisors, elected officials of Pinal County, Defendants-Appellees, Cross-Appellants.
No. 1 CA-TX 93-0005.
Court of Appeals of Arizona, Division 1, Department T.
February 23, 1995.
Reconsideration Denied March 15, 1995.
Redesignated as Opinion April 13, 1995.
Redesignation as Opinion Reaffirmed May 12, 1995.
Review Denied September 26, 1995.[*]
Donald P. Roelke, Phoenix, for plaintiffs-appellants, cross-appellees.
Grant Woods, the Atty. Gen. by Michael F. Kempner, Asst. Atty. Gen., Phoenix, for defendants-appellees, cross-appellants.
OPINION
GARBARINO, Judge.
The appellants (Taxpayers) appeal from a signed minute entry order dismissing their action for a partial refund of property taxes for 1987 and 1988, and from a later order denying their motion for new trial. The appellees cross-appeal from the portion of the tax court's opinion in Rio Rico Properties, Inc. v. Santa Cruz County, 172 Ariz. 80, 834 P.2d 166 (Tax 1992)[1], that found the amending act of Ariz. Rev. Stat. Ann. (A.R.S.) section 11-506 unconstitutional to the extent it attempted to retroactively amend the statute.
FACTS AND PROCEDURAL HISTORY
The subject of this litigation is a 593-acre portion of a section of land located in Pinal County several miles west of Maricopa, Arizona, and immediately south of the southern boundary of the Ak Chin Indian Reservation.
In 1973 the land was being used for farming. In 1974 the previous owners recorded a *297 subdivision plat, intending to develop the land. Based on the recorded plat, the property was split into 186 parcels of 3.33 acres or less. At that time the assessor followed the policy that a parcel could not qualify as agricultural land unless it contained a minimum of twenty acres.[2] Additionally, the assessor did not recognize common ownership of contiguous pieces of property in determining parcel areas for assessment purposes. Accordingly, because each parcel that now made up the land in question was smaller than twenty acres, each parcel was deemed not to be agricultural property, and from at least 1986 through 1989 the parcels were assessed as vacant residential subdivision lots.
The previous owners abandoned their plan to develop the land shortly after they recorded their subdivision plat. The platted lots were never offered for sale. Although the plat remained of record, the use of the land did not change. From 1973 on, the land was always farmed and under cultivation.
In December 1986 the previous owners sold all their property in Pinal County to the Taxpayers, including the land at issue here. The Taxpayers leased it back to the previous owners, who farmed it through January 1988. The Taxpayers then leased the property and other lands acquired from the previous owners to other persons, who continued to farm it. Larry Fidler, Chief Deputy Pinal County Assessor, testified that he believed that if the Taxpayers' property had not been subdivided, it would have been classified as agricultural from 1975 through the time of trial.
For 1987 and 1988 nearly all the parcels comprising the Taxpayers' land were valued at $1,785 per acre. In those same years farm land in the immediate vicinity was valued at $411 per acre and $470 per acre, respectively. In the joint pretrial statement the parties agreed that those per-acre values would have been applied to the Taxpayers' land had it been assessed as agricultural land for 1987 and 1988.
In 1988 the Taxpayers filed a valuation appeal on the subject property through an agent who was unaware that it was being farmed. The appeal sought a reduction of the market valuation of the land, but did not challenge the assessor's failure to value the land as agricultural. The assessor adjusted the valuation of the parcels, and the appeal went no further.
The same agent appealed the valuation of the parcels for the Taxpayers in 1989. The appeal was again based on the contention that the property was overvalued as vacant land. Later that year, however, the agent discovered that the land was being farmed. The 1989 appeal was ultimately settled through a stipulated judgment in the tax court that classified and assessed the property as agricultural property.
In 1990 the property received an assessment as agricultural property from the county board of equalization to accord with the settlement of the 1989 appeal. In 1991 the assessor recognized the property's agricultural status in his initial valuation.
The Taxpayers brought this statutory mandamus action in April 1990 seeking relief under A.R.S. section 11-506 for tax years 1986 through 1988.[3]See A.R.S. §§ 12-2021 *298 to -2030 (1994). As the issues were narrowed for trial, the Taxpayers sought a declaration that their parcels erroneously had been assessed as nonagricultural property for tax years 1987 and 1988, together with an order directing that appellees correct the classification and valuation for those years and refund overpayments of taxes made on the original nonagricultural assessments.
Following trial, the tax court held that retroactively applying the 1991 amendments limiting taxpayers' relief under A.R.S. section 11-506[4] would unconstitutionally impair vested rights. Rio Rico Properties, 172 Ariz. at 91, 834 P.2d at 177. It nevertheless held that the Taxpayers had no claim for relief under pre-amendment section 11-506:
"[E]rroneous assessment" does not mean one the incorrectness of which is to be determined by either a judicial or quasi-judicial fact finding or law interpreting process. The scope of "erroneous assessment" as used in A.R.S. § 11-506 prior to the 1991 amendment included no more than an assessment that arises from a mistake in fact so indisputable when revealed that the existence of the mistake could not reasonably be denied. "Erroneous assessment" did not include within its scope an assessment that is determined to be incorrect by an interpretation by a court of law. Nor does it include an assessment the incorrectness of which arises from a deliberate misapplication of policy by an agent of a taxing authority.
....
In Widger, the Pinal County Assessor interpreted the law so that an agricultural classification was not available to land subdivided for sale as residential lots. The Assessor further refused such a classification to lots of less than 20 acres, and, for assessment purposes, refused to group contiguous lots as one unit. Widger's property, therefore, was not valued as being used for agricultural purposes.
The Assessor's acts, whether right or wrong, were not mistakes. They were an implementation of policy. For that reason, the Taxpayers in Widger have no claim under A.R.S. § 11-506. If the Assessor's interpretation of Department guidelines was incorrect, Widger's remedy was in a valuation appeal in the relevant years. A.R.S. § 11-506 was never intended to be used as a vehicle to litigate valuation and classification appeals after the time had passed to litigate them under Title 42.
Id. at 92-93, 94, 834 P.2d at 178-79, 180.
This appeal and cross-appeal followed.
ISSUES
1. Did the tax court err by holding that the assessor's nonagricultural valuations of the Taxpayers' property in 1987 and 1988 did not constitute erroneous assessments for which the Taxpayers could claim relief under A.R.S. section 11-506?
2. Did the tax court err by holding that retroactive application of the amended version of A.R.S. section 11-506 to the Taxpayers would unconstitutionally impair their vested rights?
DISCUSSION
In light of our recent opinions in S & R Properties v. Maricopa County, 178 Ariz. 491, 875 P.2d 150 (App. 1993), and E.C. Garcia and Co. v. Arizona State Dep't of Revenue, *299 178 Ariz. 510, 875 P.2d 169 (App. 1993), the dispositive question here is whether the tax court erred by holding that the assessor's nonagricultural valuations of the Taxpayers' property for 1987 and 1988 did not constitute "erroneous assessments" for which relief might be granted under pre-amendment A.R.S. section 11-506. We hold that the tax court correctly determined they were not.
In S & R Properties each taxpayer owned property that was classified as 100% commercial and contended that only a portion was used for commercial purposes, or owned property classified as residential-rental and contended it was actually an owner-occupied residence. 178 Ariz. at 496, 875 P.2d at 155. In discussing the question of whether pre-amendment A.R.S. section 11-506 was applicable, we stated:
[W]e adopt the view of the court in Telco [Arizona Telco Fed. Credit Union v. Arizona Dep't of Revenue, 158 Ariz. 535, 764 P.2d 20 (App. 1988)] that section 11-506 is a simple, alternative means of correcting indisputable assessment errors.... [T]he statute appears to contemplate a method by which a taxpayer can call to the attention of the DOR an alleged error and obtain relief if the error is indisputable....
This construction of the statutory scheme presupposes that the error, which only requires "verification," will be one plainly and indisputably revealed by the County's own records or the taxpayer's claim.... If the November 1 deadline for filing an appeal has passed when a taxpayer discovers an error, and the error is clear and indisputable either from the County's own records or the taxpayer's claim, DOR should verify that error, and the County should issue a refund without the necessity of a formal appeal. See Telco, 158 Ariz. at 540, 764 P.2d at 25.
On the other hand, if an alleged erroneous assessment cannot be determined without the resolution of disputed issues of fact and the assessment of credibility of witnesses, and such error has not been adjudicated in the appeal process, it is not an error that can be "verified" by DOR. The function of the appeal process is to resolve disputed issues of fact and law between the taxpayers and the taxing authority. We believe the legislature did not intend for the refund process to be used as a forum to litigate such issues. Consequently, a taxpayer who fails to appeal an alleged erroneous assessment, the determination of which depends on the adjudication of disputed issues of fact or law, may not litigate his right to a refund under section 11-506.
Id. at 501-02, 875 P.2d at 160-61.
In E.C. Garcia the taxpayers' property was used continuously for agriculture and was valued as such for tax purposes through 1986. 178 Ariz. at 512, 875 P.2d at 171. In 1987 and 1988 the Pima County Assessor valued the property as nonagricultural. Id. at 512, 513, 875 P.2d at 171, 172. In 1989 two parcels of the taxpayers' property were valued as nonagricultural. Id. at 513, 875 P.2d at 172. The taxpayers successfully appealed the 1988 nonagricultural valuation; as to the 1989 valuation, they entered into an agreement with the Pima County Assessor and the department of revenue to value the property as agricultural. Id.
The taxpayers also appealed the 1987 valuation but failed to perfect the appeal. Id. at 512, 514-15, 875 P.2d at 171, 173-74. Subsequently, a special action was filed seeking a refund of the 1987 property taxes pursuant to A.R.S. section 11-506. Id. at 512, 513, 875 P.2d at 171, 172. The tax court declined to accept jurisdiction of the taxpayers' special action, and the taxpayers appealed to this Court. Id. at 514, 875 P.2d at 173. In discussing the applicability of the pre-amendment version of A.R.S. section 11-506, we stated:
Contrary to the argument of the County and the Department, Telco's interpretation of A.R.S. section 11-506 did not conflict with section 42-204(E) or render the property tax appeal process a nullity. By its terms, A.R.S. section 11-506 allowed a refund of taxes paid on an erroneous assessment only when the assessment is "verified by the Department of Revenue...." If the Department did not agree that the assessment was erroneous, the Taxpayer had no claim for relief under A.R.S. section *300 11-506. In that situation the Taxpayers' exclusive remedy is to pursue the property tax appeal process according to the procedures and time limits established by A.R.S. sections 42-176 or 42-246.
We also reject the argument of the County and the Department that the term "erroneous assessment" in A.R.S. section 11-506 was limited to administrative or clerical errors that are clear on the face of the tax roll, and that it cannot encompass questions of valuation or classification. We agree with Telco that A.R.S. section 11-506 was a remedial statute. .. . In our opinion, where property that was in fact used for agricultural purposes was valued on the tax roll as non-agricultural property, the result was an "erroneous assessment" within the meaning of that term in A.R.S. section 11-506.
Id. at 516-17, 875 P.2d at 175-76. We also stated that we agreed with the opinion in S & R Properties. Id. at 519, 875 P.2d at 178.
Read together, S & R Properties and E.C. Garcia stand for the proposition that, although pre-amendment A.R.S. section 11-506 applied to more than mere administrative or clerical errors that are obvious on the face of the tax roll, relief was available under that statute only for assessment errors that were clear and indisputable without the need for resolution of contested issues of fact or law. The errors in S & R Properties and E.C. Garcia plainly fit that description. The same is true of the error Division Two of this Court found remediable in Telco, in which the taxpayer's credit union property was classified as class three (commercial), while at the same time other credit unions received the more favorable class four classification.[5] 158 Ariz. at 539-40, 764 P.2d at 24-25.
We find the instant case distinguishable from the cases discussed above. A.R.S. section 42-229 provides: "If two or more contiguous lots, tracts of land or patented mines are owned by the same person, they may be jointly assessed and one valuation fixed for the whole." (Emphasis added). Based on this permissive language, at all material times the assessor followed a policy of declining to recognize combined acreages, like the Taxpayers' 186 subdivided lots, for the purpose of valuation. Because Department of Revenue Agricultural Manual No. 1532 required that field crop land have an area of at least twenty acres to qualify as agricultural property, the assessor's policy resulted in individual nonagricultural valuation for all the Taxpayers' lots despite their de facto combined use as a farming operation.[6]
As is obvious from the trial transcript and the briefs, this valuation/classification decision cannot be characterized as an "error" that was "clear and indisputable either from the County's own records or from the taxpayer's claim" and which did not depend "on the adjudication of disputed issues of fact or law." S & R Properties, 178 Ariz. at 501, 502, 875 P.2d at 160, 161 (emphasis added). Determining whether the assessor's action was legally correct properly would have been "[t]he function of the appeal process." Id. at 502, 875 P.2d at 161.
CONCLUSION
The tax court did not err by holding that the Taxpayers had no claim under pre-amendment A.R.S. section 11-506. Because of our resolution of this issue, we need not consider whether the tax court erred by holding that A.R.S. section 11-506, as amended in 1991, could not retroactively apply here. The tax court's ruling is affirmed.
LANKFORD, P.J., and NOYES, J., concur.
NOTES
[*] Corcoran, J., of the Supreme Court, did not participate in the determination of this matter.
[1] The tax court's opinion announced its decisions in this case and another, both of which raised the same issue.
[2] At all times material to this litigation, A.R.S. § 42-162(A)(4) included within "class four" property "[a]ll real property and the improvements to such property, if any, used for agricultural purposes, and all other real property and the improvements to such property, if any, not included in class one, two, three, five or six." A.R.S. § 42-141(A)(5) provided in part: "Land used for agricultural purposes shall be valued using solely the income approach to value without any allowance for urban or market influences." Characterization of property as "used for agricultural purposes" is generally a significant benefit for the landowner. The Arizona Supreme Court has stated: "If land is being used for agricultural purposes in the middle of urban growth, the statute in question requires that it be appraised on the basis of current usage. If a market data approach were used to appraise the land, the value of surrounding land would reflect the value for future housing or commercial use. This anticipated or future use may not be used in fixing a value for the land being used as a farm." Golder v. Dep't of Revenue, State Bd. of Tax Appeals, 123 Ariz. 260, 265, 599 P.2d 216, 221 (1979).
[3] Before it was amended in 1991, A.R.S. § 11-506 provided in pertinent part:
If all or a part of a property tax has been paid on an erroneous assessment after such assessment is verified by the department of revenue, the county board of supervisors shall direct the county treasurer to grant a refund to the taxpayer, to the extent of the erroneous tax paid pursuant to such erroneous assessment after correcting the tax roll, provided the taxpayer submits a claim therefor to the county treasurer within three years after the payment of such erroneous tax.
A.R.S. § 11-506 was repealed by 1994 Ariz. Sess. Laws ch. 323, § 1, effective January 1, 1996.
[4] 1991 Ariz. Sess. Laws ch. 182, § 2, as amended by 1991 Ariz. Sess. Laws ch. 303, § 2, added to the then-existing text of A.R.S. § 11-506 a requirement that the county assessor as well as the department of revenue verify the erroneous assessment, and added a new subsection B:
For purposes of this section, an erroneous assessment is limited to a clerical or computational error or any other error not involving the exercise of discretion, opinion or judgment by the assessor or the department. This section does not apply to questions of valuation that can be appealed according to §§ 42-221 or 42-604. An erroneous assessment does not include an assessment that is uniformly made according to department of revenue guidelines for all similarly classified property.
[5] The practice of placing credit unions in class four was in accordance with a 1971 department of revenue letter to the chief appraiser for Maricopa County. We have no occasion in this appeal to consider whether this practice was or would be legally correct.
[6] Effective for tax years beginning with 1991, A.R.S. § 42-221(E) was amended to permit valuation or classification change petitions to include more than one parcel of property if all have a common owner and the same use, are located in the same geographic area, and are appealed on the same basis. 1990 Ariz. Sess. Laws ch. 360, §§ 11, 24. The assessor evidently interpreted this as ending his authority to refuse to recognize contiguous parcels of agricultural property. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1107010/ | 981 So.2d 287 (2008)
Inez R. STRAHAN
v.
SABINE RETIREMENT & REHABILITATION CENTER, INC.
No. 07-1607.
Court of Appeal of Louisiana, Third Circuit.
April 30, 2008.
*289 Donald G. Kelly, James Rex Fair, Jr., Natchitoches, LA, for Plaintiff/Appellant, Inez R. Strahan.
Joseph G. Glass, Jaime M. Cambre, Duplass, Zwain, Bourgeois, Morton, Pfister & Weinstock, Metairie, LA, for Defendant/Appellee, Sabine Retirement & Rehabilitation Center, Inc.
Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
THIBODEAUX, Chief Judge.
The plaintiff-appellant, Inez R. Strahan, a resident of Sabine Retirement and Rehabilitation Center (SRRC), was injured in a motor vehicle accident while being transported in an SRRC vehicle to a doctor's appointment. Ms. Strahan sued SRRC for damages after the expiration of one year from the date of the accident. The trial court sustained SRRC's exceptions of prescription and prematurity. Ms. Strahan has appealed the judgment sustaining the exception of prescription, claiming that her suit seeks damages for breach of contract and is subject to a ten-year prescriptive period, as opposed to the one-year prescriptive period applied to her action by the trial court. For the following reasons, we affirm the judgment of the trial court.
I.
ISSUES
1. Does this nursing home resident's petition for damages for the injuries she suffered in the nursing home's vehicle while being transported to a doctor's appointment assert a delictual and/or contractual cause of action?
2. Is the plaintiff's petition prescribed since it was filed more than one year after the date of the accident that resulted in her injuries?
II.
FACTUAL BACKGROUND
Ms. Strahan signed a contract with SRRC for her admission into its facility on April 11, 2005. The contract states that SRRC will provide maintenance, room, board, linens, bedding, nursing care, and certain other personal services to her. On January 13, 2006, while Ms. Strahan was being transported to a regularly scheduled doctor's visit in an SRRC van by an SRRC employee, the vehicle was involved in an accident. Ms. Strahan suffered multiple bruises and abrasions, a broken left arm, a sprained left ankle, aggravation to a previously existing lumbar spine fracture, and a concussion.
On April 17, 2007, approximately one year and four months after the accident occurred, Ms. Strahan filed a lawsuit against SRRC titled "Suit for Breach of Contract and for Damages." In that suit, she alleged that she was entitled to damages for the breach of the specific contract provision requiring SRRC to provide transportation for her to a hospital when such was ordered by a physician. According to Ms. Strahan, the following actions and/or omissions constituted breaches of that contractual obligation: failure to properly prepare her for travel to and from the location of her doctor's appointment; failure and refusal to adhere to the contract's requirements regarding work that is to be performed, resulting in a failure to provide adequate care to her, a patient; violation of the express and implied warranties of fitness in regard to the specifications and services to be provided under the contract; and violations of the *290 implied covenants of good faith and fair dealing. She requested damages for her resulting physical injuries, pain and suffering, mental anguish, economic duress, and medical costs.
SRRC filed exceptions of prematurity and prescription in response to the suit. The trial court sustained both exceptions; however, its ruling on the exception of prescription is the only issue before us on appeal.
The trial court agreed with SRRC's argument that Ms. Strahan's suit was prescribed. First, the trial court analyzed the suit to determine whether her claims arose out of tortious conduct or were contractually based, or both. In doing so, the trial court relied on the premise that the nature of the duty breached is the determining factor regarding whether an action is delictual or contractual. Roger v. Dufrene, 613 So.2d 947 (La.1993). Considering this, the court stated that Ms. Strahan's claims, "at their core, are based on alleged delictual actions or omissions of [SRRC], not contractual breach." SRRC's actions, according to the trial court, did not stem from a breach of its contractual promise "[t]o coordinate transportation for the resident to the hospital when ordered by a physician," as asserted by Ms. Strahan. Instead, its actions constituted a delictual violation of SRRC's general duty of care owed to all persons when operating its vehicles. Having found that Ms. Strahan's action was delictual in nature, the trial court stated, "As such, the liberative prescription period is one (1) year pursuant to all applicable prescriptive periods, be it La.[Civ.Code] art. 3492 (negligence),[1] La.R.S. 9:5628 ( [medical] malpractice),[2] or La.R.S. 40:2010.9(C)[3] (nursing home bill of rights)." (Footnotes added). Consequently, the trial court held that Ms. Strahan's suit was prescribed since it was filed more than one year from the date of the accident at issue.
In Ms. Strahan's appeal, she claims that the trial court improperly disregarded *291 the existence of the explicit contractual duty SRRC owed to her as set forth in their agreement to "coordinate transportation for [her] to the hospital when ordered by a physician" and erroneously focused instead on SRRC's general duty to third parties to conclude that her claim had prescribed. Because breach of contract actions are personal actions that are subject to a liberative prescriptive period of ten years, pursuant to La.Civ.Code art. 3499,[4] she asserts that her lawsuit constitutes a timely filed action that was erroneously dismissed.
III.
LAW AND DISCUSSION
The standard of review applied to a ruling on an exception of prescription is as follows:
In reviewing a peremptory exception of prescription, an appellate court will review the entire record to determine whether the trial court's finding of fact was manifestly erroneous. Morrison v. C.A. Guidry Produce, 03-307 (La.App. 3 Cir. 10/1/03), 856 So.2d 1222. Further, "the standard controlling review of a peremptory exception of prescription requires that this court strictly construe the statutes `against prescription and in favor of the claim that is said to be extinguished.'" Security Ctr. Prot. Servs., Inc. v. All-Pro Security, Inc., 94-1317, 94-1318, p. 12 (La.App. 4 Cir. 2/23/95), 650 So.2d 1206, 1214 (quoting La. Health Serv. v. Tarver, 635 So.2d 1090, 1098 (La.1994)).
Hall v. Reber, 03-1482, p. 3 (La.App. 3 Cir. 3/31/04), 870 So.2d 424, 426.
The "character of an action given by a plaintiff in his pleadings determines the prescription applicable to it." Duer & Taylor v. Blanchard, Walker, O'Quin & Roberts, 354 So.2d 192, 194 (La.1978) (citations omitted). This determination can be made by ascertaining the nature of the duty that has been allegedly breached. Roger, 613 So.2d 947. "It is the nature of the duty breached that should determine whether the action is in tort or in contract." Id. at 948 (citing Sciacca v. Polizzi, 403 So.2d 728 (La.1981)). In this case, the nature of the duty breached is disputed. The trial court found that Ms. Strahan's claim for damages is delictual in nature, arising out of a violation of a general duty of care to all persons, as opposed to a breach of any contractual obligation imposed upon SRRC. Based on our review of the record, we agree.
Contractual damages arise out of the breach of a special obligation contractually assumed, and delictual damages arise out of the violation of a duty owed to all persons. Washington Nat'l Ins. Co., v. Arnaud, 96-134 (La.App. 3 Cir. 6/26/96), 676 So.2d 1130, writ denied, 96-1918 (La.11/1/96), 681 So.2d 1263 (citing Davis v. LeBlanc, 149 So.2d 252 (La.App. 3 Cir. 1963)). The facts alleged are that Ms. Strahan was injured while being transported to a regularly scheduled doctor's appointment in the nursing home's van. The contract calls for SRRC to provide general services of care and maintenance to her as a resident of the facility and also contains a specific requirement that she be transported by the nursing home to a hospital when ordered by a physician. Although the record is void of any evidence explaining the meaning of this latter provision and its intended implication, it is apparently conceded by SRRC that it was transporting *292 Ms. Strahan under this provision or other applicable terms of her contract. Nevertheless, the ultimate resolution of the issue before us depends on whether the occurrence of the motor vehicle accident while en route to Ms. Strahan's medical appointment constituted a breach of the nursing home agreement, entitling Ms. Strahan to contractually-based damages.
"It is well settled that the same acts or omissions may constitute breaches of both general duties and contractual duties and may give rise to both actions in tort and actions in contract." Dubin v. Dubin, 25,996, p. 5 (La.App. 2 Cir. 8/17/94), 641 So.2d 1036, 1039 (citing Free v. Franklin Guest Home, Inc., 397 So.2d 47 (La.App. 2 Cir.), writ denied, 401 So.2d 975 (La.1981); Franklin v. Able Moving & Storage Co., Inc., 439 So.2d 489 (La.App. 1 Cir.1983)). A plaintiff may assert both causes of action and is not required to plead the theory of his case. Id. Breaches of contract are distinguished as follows:
Generally, where a person neglects to do what he is obligated to do under a contract, he has committed a passive breach of the contract. If he negligently performs a contractual obligation, he has committed active negligence and thus an active breach of the contract. Huggs, Inc. v. LPC Energy, Inc., 889 F.2d 649 (5th Cir.1989); Hennessy v. South Central Bell Telephone Company, 382 So.2d 1044 (La.App. 2d Cir.1980). A passive breach of contract warrants only an action for breach of contract; an active breach of contract, on the other hand, may also support an action in tort under LSA-C.C. Art. 2315. Huggs, supra.
Id. at 1040.
We find that the nature of the duty breached here is based in negligence, which is delictual in nature. SRRC commenced the performance of its obligation to provide transportation to Ms. Strahan to her medical appointment. However, the claim giving rise to the injuries and resulting damages to Ms. Strahan is rooted in the issue of whether she was being transported negligently. SRRC owed a general duty of care to all passengers riding in its motor vehicles and to the motoring public when its vehicles were in use. This particular duty, which it owed to Ms. Strahan as well, did not arise solely when the nursing home agreement was entered into. Considering this, we find no manifest error in the trial court's finding in this regard.
We further recognize that the prescriptive period set forth in the Nursing Home Bill of Rights law provides that regardless of whether the claim is based in tort or breach of contract, no action for damages or injury may be brought more than one-year from the date of discovery of the alleged act or omission. La.R.S. 40:2010.9(C). The one-year prescriptive period began to run in this case when the injury to Ms. Strahan had manifested itself with certainty the date of the accident. It is undisputed that the accident occurred on January 13, 2006, although Ms. Strahan filed her suit for damages on April 17, 2007, more than one year after the accrual of her cause of action. Accordingly, we find no manifest error in the trial court's finding that Ms. Strahan's action is prescribed.
IV.
CONCLUSION
The judgment of the trial court, sustaining Sabine Retirement and Rehabilitation Center's exception of prescription, is affirmed. Costs of this appeal are assessed to the plaintiff-appellant, Inez Strahan.
AFFIRMED.
NOTES
[1] Civil Code Article 3492 states:
3492. Delictual actions
Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained. It does not run against minors or interdicts in actions involving permanent disability and brought pursuant to the Louisiana Products Liability Act or state law governing product liability actions in effect at the time of the injury or damage.
[2] Revised Statutes 9:5628(A) states:
A. No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.
[3] Revised Statutes 40:2010.9(C) states:
C. Any claim brought pursuant to R.S. 40:2010.8 et seq. shall be filed in a court of competent jurisdiction within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, omission or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission or neglect. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including, but not limited to, minors, interdicts and all persons adjudicated to be incompetent of handling their own affairs.
[4] Civil Code Article 3499 states:
Art. 3499. Personal action
Unless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2227958/ | 904 N.E.2d 1238 (2005)
359 Ill. App.3d 1190
MAIN & CHICAGO L.L.C.
v.
CITY OF EVANSTON.
No. 1-05-0439.
Appellate Court of Illinois, First District.
September 23, 2005.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2899526/ | NO. 07-08-0208-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 1, 2009
______________________________
CHARLES H. HARRISON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE COUNTY COURT AT LAW NO. 1 OF LUBBOCK COUNTY;
NO. 2006-497,399; HONORABLE L.B. “RUSTY” LADD, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.,
OPINION
Appellant, Charles H. Harrison,
was convicted following a jury trial of driving while intoxicated. The court assessed sentence at 180 days confinement and a $2,000 fine–all of which was suspended in favor of twenty-four months of community supervision. Appellant’s single issue on appeal is whether the trial court erred in denying his motion for dismissal based upon a violation of his constitutional right to a speedy trial. We affirm.
Background
On November 27, 2005, Appellant was stopped by Sergeant Leland Hufstedler of the Lubbock Police Department, at approximately 1:30 a.m. for driving without headlights. When Sergeant Hufstedler spoke with Appellant, he detected the smell of alcoholic beverage emanating from his person. When asked, Appellant responded that he had been drinking earlier. Sergeant Hufstedler observed that Appellant was unsteady on his feet and leaned on his vehicle while walking on the sidewalk. He radioed Corporal Jimmy Altgelt of the LPD–DWI Unit to take over the investigation. After administering three standardized field sobriety tests, Corporal Altgelt determined Appellant was driving while intoxicated and placed him under arrest. Appellant later declined to provide a breath sample.
On January 11, 2006, the State filed an announcement indicating it was ready for trial. Although neither Appellant nor the State filed any motions for continuance, the trial court repeatedly reset the date for the pre-trial hearing until the hearing was ultimately held January 17, 2007. Thereafter, the trial court repeatedly reset the trial date until Appellant was tried March 10-11, 2008.
A week prior to trial, Appellant filed a motion to dismiss asserting that his constitutional right to a speedy trial had been violated. During the twenty-seven months that had passed since his arrest, Appellant asserted that the State and the court had failed to take dispositive action and, as a result, relevant witnesses might not be available to aid his defense.
On March 10, 2008, the trial court held a hearing on Appellant’s speedy-trial claim. Appellant testified that, because of the delay, he might not be able to contact a witness who had accompanied him throughout the night prior to his arrest and witnessed the traffic stop and events leading to his arrest. He testified that, during the delay, the witness had moved to Wyoming, and he last spoke with the witness six months prior to the filing of his motion. Although he had a telephone number for the witness, he was unsure whether it was a working number. The State presented no evidence. The trial court accepted fault for the delay noting that the delay was due to the court’s caseload.
(footnote: 1) The trial court denied Appellant’s motion and asked if both sides were ready for trial. Appellant re-urged his motion and the trial court denied the motion a second time. Thereafter, Appellant and the State indicated they were ready for trial.
After the State rested, Appellant again re-urged his speedy-trial claim. He asserted that, had there been no delay, he would have been able to call the witness identified in his motion to “testify about [Appellant’s] whereabouts and activities the evening in question.” Without stating how the witness’s testimony would be beneficial to the defense, Appellant indicated that he was prejudiced because his testimony would “counteract some of the evidence that’s been introduced by the State.” The trial court again denied the motion.
Following the two day trial, the jury convicted Appellant of driving while intoxicated. Punishment was assessed by the court and this appeal followed.
Discussion
Appellant asserts his right to a speedy trial was violated by the twenty-seven month delay. He contends his defense was prejudiced because he lost contact with a “potential witness” whose testimony would have “counteract[ed] some of the evidence that [was] introduced by the State” at trial.
I. Standard of Review
In reviewing the trial court’s ruling on Appellant’s speedy-trial claim, we apply a bifurcated standard of review: an abuse of discretion standard for factual components and a
de novo
standard for legal components.
Cantu v. State
, 253 S.W.3d 273, 282 (Tex.Crim.App. 2008);
Zamorano v. State
, 84 S.W.3d 643, 648 (Tex.Crim.App. 2002). While our review necessarily involves factual and legal conclusions, how these two inter-relate “as a whole . . . is a purely legal question.”
Cantu
, 253 S.W.3d at 282 (quoting
Zamorano
, 84 S.W.3d at 648 n.19). This is particularly so here where the facts are not disputed.
II. The Right to a Speedy Trial
The right to a speedy trial attaches once a person is arrested and charged.
Cantu
, 253 S.W.3d at 280. Constitutional speedy-trial claims are analyzed on an
ad hoc
basis by weighing and then balancing the four factors set forth in
Barker v. Wingo
, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). These four factors are: (1) length of delay, (2) reason for the delay, (3) assertion of the right, and (4) prejudice to the accused.
Cantu
, 253 S.W.3d at 280. We consider the four factors together along with the relevant circumstances noting that no one factor possesses “talismanic qualities.”
Zamorano
, 84 S.W.3d at 648.
While the State has the burden of justifying the length of the delay, the defendant has the burden of proving the assertion of the right and showing prejudice.
See Ex parte McKenzie
, 491 S.W.2d 122, 123 (Tex.Crim.App. 1973). The defendant’s burden of proof on the latter two factors varies inversely with the State’s degree of culpability for the delay,
i.e.,
the greater the State’s bad faith or official negligence and the longer its actions delay a trial, the less a defendant must show actual prejudice or prove diligence in asserting his right to a speedy trial.
Cantu
, 253 S.W.3d at 280-81 (citing
Robinson v. Whitley
, 2 F.3d 562, 570 (5
th
Cir. 1993)).
A. Length of Delay
The
Barker
test is triggered by a delay that is unreasonable enough to be presumptively prejudicial.
Doggett v. United States
, 505 U.S. 647, 652 n.1, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992). While there is no set time element that triggers a
Barker
analysis, the Court of Criminal Appeals has held that a delay of four months is insufficient while a seventeen-month delay is sufficient.
Cantu
, 253 S.W.3d at 281 (collected cases cited therein).
Here, twenty-seven months passed between Appellant’s arrest and his assertion of his speedy-trial claim. We find this factor weighs in favor of Appellant. Since the triggering mechanism has been met, we consider the three remaining
Barker
factors.
B. Reason for the Delay
We next consider the reason(s) the State provided in an attempt to justify the delay.
Barker
, 407 U.S. at 531;
Zamorano
, 84 S.W.3d at 648-50. Sometimes, the government’s justifications under this prong should be given greater or lesser weight, depending on the relative merit of the reasons which are given.
Barker
, 407 U.S. at 531. A “neutral” justification such as an overcrowded docket or mere negligence “should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.”
Id.
The State announced its readiness for trial in its filing on January 17, 2006, less than two months following Appellant’s arrest. Neither party sought any continuances. Rather, the trial court assumed responsibility for the delay because it continually reset the pre-trial hearing and trial dates due to its crowded docket. Accordingly, the second
Barker
factor weighs only slightly in favor of a finding of a speedy trial violation.
C. Timeliness of Asserted Speedy-Trial Claim
The third factor is concerned with the timeliness of a defendant’s assertion of his right to a speedy trial.
See Barker
, 407 U.S. at 529, 531-32;
Zamorano
, 84 S.W.3d at 648, 651-52. Although the defendant has no duty to bring himself to trial, he does have a responsibility to assert his right to a speedy trial.
Cantu
, 253 S.W.3d at 282. Nonetheless, filing for a dismissal before seeking a speedy trial generally weakens a speedy-trial claim because it indicates a desire to have no trial instead of a speedy one.
Id.
at 283. When this occurs, the defendant should provide cogent reasons for this failure to seek a speedy trial before dismissal.
Id.
In twenty-seven months between Appellant’s arrest and trial, Appellant did not seek a speedy trial. Then, only a week before trial, he sought a dismissal based on a speedy trial violation without offering any explanation for his delay in asserting his rights. Accordingly, this factor weighs heavily against finding a speedy trial violation.
D. Prejudice
Because pretrial delay is often both inevitable and wholly justifiable,
Cantu,
253 S.W.3d at 285, the fourth Barker factor examines whether and to what extent the delay has prejudiced the defendant.
Barker
, 407 U.S. at 532. Prejudice “should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect.”
Barker
, 407 U.S. at 532. There are three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.
Id.
Appellant did not assert that he suffered from “oppressive pretrial incarceration,” anxiety, or concern. He asserts that, because of the delay, a potential witness was unavailable. He also indicated that the missing witness’s testimony would “counteract some of the evidence” introduced by the State without indicating what the missing witness’s testimony would show or what evidence introduced by the State would be counteracted.
To establish particularized prejudice based on an unavailable witness, a defendant must present proof both of the efforts made to locate the witness and that the witness would have benefitted his defense.
See Phipps v. State
, 630 S.W.2d 942, 947 (Tex.Crim.App. 1982);
Mabra v. State
, 997 S.W.2d 770, 780 (Tex.App.–Amarillo 1999, pet. ref’d). Appellant did neither. Thus, he failed to establish particularized prejudice at the hearing before the trial court. This factor weighs against a finding of a speedy trial violation.
E. Weighing of
Barker
Factors
In this case, the length of the delay weighs in favor of finding a violation of the right to a speedy trial and the reasons for the delay weigh only slightly in favor of finding a violation. These two factors are outweighed by the remaining factors. Appellant’s failure to timely assert his right to a speedy trial and his choice of remedy (dismissal) indicates he acquiesced in the delay extenuating any presumptive prejudice. Moreover, Appellant’s evidence of particularized prejudice, if any, is extremely marginal at best. Thus, the last and most important factor weighs against a finding of a speedy trial violation. Accordingly, based on the evidence presented in this case, we find the trial court did not err in its determination that Appellant’s right to a speedy trial was not violated and overrule Appellant’s sole issue.
Conclusion
The trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
Publish.
FOOTNOTES
1:The trial court indicated that 200 to 250 misdemeanor cases were filed in the court each month and, in addition to pre-trial proceedings, the trial court conducted twenty-four to twenty-five jury trials each year. | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1268020/ | 583 F.3d 930 (2009)
Mary L. HALL and Eugene Hall, Plaintiffs-Appellants,
v.
SPENCER COUNTY, KENTUCKY, et al., Defendants-Appellees.
No. 08-6455.
United States Court of Appeals, Sixth Circuit.
Argued: October 6, 2009.
Decided and Filed: October 20, 2009.
*931 ARGUED: David A. Friedman, Fernandez Friedman Haynes & Kohn PLLC, Louisville, Kentucky, for Appellants. David A. Cohen, McBrayer, McGinnis, Leslie & Kirkland, PLLC, Lexington, Kentucky, for Appellees. ON BRIEF: David A. Friedman, Fernandez Friedman Haynes & Kohn PLLC, Louisville, Kentucky, for Appellants. David A. Cohen, Stephen G. Amato, McBrayer, McGinnis, Leslie & Kirkland, PLLC, Lexington, Kentucky, for Appellees.
Before: MARTIN, COLE, and KETHLEDGE, Circuit Judges.
OPINION
BOYCE F. MARTIN, JR., Circuit Judge.
Appellants Mary Lou and Eugene Hall, owners of a towing service, brought a 42 U.S.C. § 1983 action. They sought declaratory relief, injunctive relief and damages arising from an alleged reduction of "wrecker-run" assignments. They claim an outsourced emergency dispatcher removed them from a rotation list. In their original complaint, the Halls alleged due process claims against appellees Russell and Marlene Cranmer, Spencer County, Kentucky and Taylorsville, Kentucky, alleging, inter alia, that they had impermissibly reduced and suspended assignment of wrecker calls to the Halls. Following discovery, the Halls moved for leave to file an amended complaint replacing all claims based on the bid contract award, instead alleging that the defendants had reduced the wrecker assignments to them in retaliation for their public complaints about the outsourced dispatcher and the instant litigation. The district court granted the motion[1] but found that the claims asserted in the amended complaint were sufficiently different from the claims in the original complaint that they were not entitled to relation-back to the original filing date under Federal Rule of Civil Procedure 15(c). The district court found that the "new" claims were thus time-barred under the applicable Kentucky statute of limitations. It dismissed the federal claims with prejudice and remanded the remaining state law claims in the amended complaint to the Circuit Court of Spencer County, Kentucky. The Halls appealed this judgment.
*932 After reviewing the two complaints, we conclude that the claims asserted in the amended complaint were based on the same "conduct, transaction or occurrence" as the claims in the original complaint: the reduction of wrecker calls by the Cranmers to the Halls. Fed. R. Civ. Pro. 15(c)(1)(B). We thus find that the claims in the amended complaint relate back to the claims in the original complaint and were thus filed within the statute of limitations. For the following reasons, we REVERSE the judgment of the district court.
I
The Halls operated a wrecking-towing service and storage lot in Spencer County, Kentucky that obtained a substantial part of their business by responding to 911-dispatched towing calls. The County had long assumed the responsibility of dispatching local 911 calls on behalf of the city of Taylorsville, Kentucky. When the County decided to outsource dispatching duties, Russell Cranmer successfully bid for the 911 dispatch contract in 1993 and renegotiated the contract in 1998.[2] In 2005, the County solicited bids for the dispatch service and again awarded a one-year contract to Marlene Cranmer effective July 1, 2005.
When the Cranmers began operating the dispatch service, the Halls were the only towing company in Spencer County. By 2004, two additional towing companies, S & K Towing and Elk Creek Towing, were operating in the County. The Cranmers began sending dispatch calls to S & K in early 2004 when S & K began operating in Spencer County.[3] The Cranmers allege that they began sending S & K far more, though not all, of the calls because the Halls were unwilling or unable, due to health reasons, to take dispatch calls. Though the Halls requested that the Cranmers take S & K off of the dispatch list after Mr. Hall recovered from his illness so that the Halls could again have all the dispatch calls, the Cranmers created a rotational system, rotating dispatches between the competing towing services. During 2004 and 2005, the Halls complained repeatedly and publicly about the dispatch service, registering complaints with the mayor, ethics committee, fiscal court, state offices and the state auditor.
On March 17, 2006, the Halls filed a lawsuit in state court against the Cranmers, the City, the County, and three other defendants alleging that the bidding process had proceeded improperly, that the dispatch contract had been improperly awarded to the Cranmers and that no rotational protocol existed for dispatching towing companies, in violation of the Halls' rights. Importantly, the complaint alleged further that the reduction and elimination in wrecker assignments by the Cranmers constituted a violation of the Halls' right to due process of law. Defendants subsequently removed the case to federal court based on federal question jurisdiction arising from the Halls' due process claims.
On September 24, 2007, after initial discovery, the Halls sought leave to file an amended complaint. The district court granted them leave to file the proposed complaint, which abandoned all previous claims related to the bidding process and asserted new theories based on a theory *933 of retaliation. The amended complaint dismissed all defendants save the Cranmers, the City,[4] and the County. The Halls allege that they determined through discovery that the Cranmers had stopped sending them calls due to their public complaints and the pending litigation.
The remaining defendants sought summary judgment on a variety of grounds. The district court granted defendants' motion for summary judgment on the grounds that the relevant one-year statute of limitations bars the Halls' federal claims. The district court found that the claims asserted in the amended complaint did not relate back to the Halls' original filing and that there was no other basis for deeming the amended complaint to assert claims within one year of the initial reduction or total suspension of the Halls' wrecker run assignments. The district court then dismissed the Halls' supplemental state law claims without prejudice. The Halls filed a timely appeal.
II
We review de novo the district court's grant of summary judgment. Blair v. Henry Filters, Inc., 505 F.3d 517, 523 (6th Cir.2007). Summary judgment should be granted only when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). When we review a motion for summary judgment, we must view all facts and inferences in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). We also review de novo the district court's conclusion that allegations in an amended complaint do not relate back to the original complaint. U.S. ex rel. Bledsoe v. Comm. Health Sys., Inc., 501 F.3d 493, 516 (6th Cir.2007) (citing Miller v. Am. Heavy Lift Shipping, 231 F.3d 242, 247 (6th Cir.2000)).
III
For claims under Section 1983, the Court applies the statute of limitations for personal-injury tort actions in the state where the cause of action originated. Owens v. Okure, 488 U.S. 235, 249-50, 109 S. Ct. 573, 102 L. Ed. 2d 594 (1989). Under Kentucky law, personal-injury claims must be filed within one year of the tort. Ky. Rev.Stat. § 412.140(1)(a); Collard v. Ky. Bd. of Nursing, 896 F.2d 179, 182 (6th Cir.1990); Million v. Raymer, 139 S.W.3d 914, 919 (Ky.2004).
The cause of action accrues on the date of the injury to the person even though the extent of the injury is not known until later. Caudill v. Arnett, 481 S.W.2d 668, 669 (Ky.1972). Thus, it accrues once "the cause or the foundation of the right [comes] into existence." Id. (quoting Jordan v. Howard, 246 Ky. 142, 54 S.W.2d 613, 615 (1932)). A cause of action does not accrue until the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, both his injury and the responsible party. Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 818-19 (Ky.1991). The cause of action therefore accrued when the Halls had knowledge of the injury and had reason to suspect their cause of action.
The Halls filed the original complaint on March 17, 2006 and filed their amended *934 complaint on September 24, 2007, more than one year later. The Cranmers say that they sent their last dispatch to the Halls on March 12, 2006. The Halls say that they were no longer receiving calls after March 30, 2006. Thus, by March 30, 2006, the Halls had filed their lawsuit and were no longer receiving referral calls, either of which was sufficient to place them on notice of the potential claim asserted in the amended complaint. Thus, as the district court found, the post-filing claims are barred unless they relate back to the original complaint or form part of a continuing violation.
Whether new allegations in a complaint relate back to the previous complaint is governed by Federal Rule of Civil Procedure 15(c). As pertinent here, that rule provides:
An amendment to a pleading relates back to the date of the original pleading when ... the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out or attempted to be set out in the original pleading.
Fed. R. Civ. Pro. 15(c)(1)(B).
Rule 15(c) is "`based on the notion that once litigation involving particular conduct or a given transaction or occurrence has been instituted, the parties are not entitled to the protection of the statute of limitations against the later assertion by amendment of defenses or claims that arise out of the same conduct, transaction, or occurrence.'" Bledsoe, 501 F.3d at 516 (quoting Brown v. Shaner, 172 F.3d 927, 932 (6th Cir.1999)). In short, "a court will permit a party to add even a new legal theory in an amended pleading as long as it arises out of the same transaction or occurrence." Miller, 231 F.3d at 248. Rule 15(c)(2) does not define the scope of the terms "conduct, transaction, or occurrence." When applying this standard to the facts of a given case, we give meaning to those terms "not by generic or ideal notions of what constitutes a `conduct, transaction, or occurrence,' but instead by asking whether the party asserting the statute of limitations defense had been placed on notice that he could be called to answer for the allegations in the amended pleading." Bledsoe, 501 F.3d at 516 (citing Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 573 (7th Cir.2006)) ("The criterion of relation back is whether the original complaint gave the defendant enough notice of the nature and scope of the plaintiff's claim that he shouldn't have been surprised by the amplification of the allegations of the original complaint in the amended one."). The Rule also must be interpreted in light of the "fundamental tenor of the Rules," which "is one of liberality rather than technicality." Miller, 231 F.3d at 248.
Both Hall's original complaint and the amended complaint are based on the same nexus of facts and actions as the original complaint as they both alleged constitutional claims based on the reduction of wrecker calls to the Halls; the amended complaint simply asserts a new legal theory based on this occurrence. While the amended complaint is substantially more sophisticated than the original complaint and asserts a new motivation for the reduction pursuant to a different constitutional claim, it merely asserts a new legal theory arising out of the same occurrence as asserted in the original complaint. It thus satisfies our test for relation back under the liberal standard required by Rule 15(c). See Miller, 231 F.3d at 248 ("[A] court will permit a party to add even a new legal theory in an amended complaint as long as it arises out of the same transaction or occurrence.") Defendants had adequate notice of the nature and scope of the allegations in the amended complaint that the number of calls sent to the Halls was reduced in retaliation for their complaints about the *935 original bid process and the flawed imposition of the rotational system by the Cranmers. The defendants were not prejudiced in their defense of claims based on their reduction of wrecker assignments to the Halls. Accordingly, we disagree with the district court and find that the claims alleged in the amended complaint satisfy the requirements for relation back and are thus not barred by the one-year statute of limitations for such claims.[5]
IV
For the reasons discussed above, this Court REVERSES the district court's judgment.
NOTES
[1] The defendants did not cross-appeal the district court's decision to permit the filing of the amended complaint.
[2] Russell Cranmer is also the Spencer County Deputy Sheriff.
[3] The Halls suggest that S & K Towing was ineligible to receive dispatch calls because it did not have a tow lot in Spencer County. They note that both Spencer County and the Kentucky State Police required an in-county tow-in lot for inclusion on the towing rotation list in 2005. However, whether S & K was permitted to receive towing calls is not before this Court.
[4] On May 21, 2009, we granted the parties' stipulation to the dismissal with prejudice of all claims against the City.
[5] As the Halls demonstrated that the claims in their amended complaint relate back to the claims in their original complaint, we need not determine whether the claims constitute a continuing violation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2437819/ | 794 S.W.2d 14 (1990)
Judd McILVAIN, et al., Petitioners,
v.
Emerick JACOBS, Jr. and Joyce Moore, Respondents.
No. C-8149.
Supreme Court of Texas.
June 20, 1990.
Rehearing Overruled September 6, 1990.
*15 William W. Ogden, Andy Taylor, and Rob L. Wiley, Houston, for petitioners.
Randall D. Wilkins, Houston and David W. Showalter, Bellaire, for respondents.
OPINION
COOK, Justice.
This is a defamation suit filed by respondents Emerick Jacobs, Jr. and Joyce Moore against petitioners Judd McIlvain, Gulf Television Corporation and Corinthian Broadcasting Corporation. The trial court granted summary judgment in favor of petitioners, but the court of appeals reversed the judgment and remanded the cause to the trial court. 759 S.W.2d 467. We reverse the judgment of the court of appeals and affirm the judgment of the trial court.
Jacobs and Moore work for the City of Houston Water Maintenance Division. In December 1982, Judd McIlvain broadcast a news report stating that the Public Integrity Review Group ("PIRG") was conducting an investigation of the water maintenance division. The report as broadcast is set out below:
The city's public integrity section is investigating the use of city employees for private work in the home of the city water maintenance manager.
The employees of the city water maintenance division say four payroll employees were used, on city time, to care for the elderly father of Emerick Jacobs, the manager of water department maintenance division.
The employees say they were sent by a supervisor each day to the manager's home to care for his father and do other tasks around the house.
On top of this, these same employees are putting in for overtime so they could get their city jobs done later on.
Police investigators who are conducting the investigation were looking for a gun, but they didn't find the gun at the Dalton Street Water Facility. They found liquor bottles. One city employee says drinking on the job there is not so unusual. The information about the alleged theft of City time may be turned over to a grand jury. Judd McIlvain. News Center 11.
In Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S. Ct. 1558, 89 L. Ed. 2d 783 (1986), the United States Supreme Court held that "[A] private-figure plaintiff must bear the burden of showing that the speech at issue is false before recovering damages for defamation from a media defendant." Id. at 787, 106 S. Ct. at 1569. Since McIlvain is clearly a media defendant, this requirement is imposed on Jacobs by constitutional considerations of free speech and free press.
A showing of the substantial truth of McIlvain's broadcast at the summary judgment hearing will defeat Jacobs' cause of action. Crites v. Mullins, 697 *16 S.W.2d 715, 717 (Tex.App.-Corpus Christi 1985, writ ref'd n.r.e.); Fort Worth Press Co. v. Davis, 96 S.W.2d 416, 419 (Tex.Civ. App.-Fort Worth 1936, writ ref'd); see also Bell Publishing Co. v. Garrett Engineering Co., 141 Tex. 51, 60, 170 S.W.2d 197, 203 (1943); W. Prosser & P. Keeton, Prosser and Keeton on Torts § 116 (1984). The test used in deciding whether the broadcast is substantially true involves consideration of whether the alleged defamatory statement was more damaging to Jacobs' reputation, in the mind of the average listener, than a truthful statement would have been. 53 C.J.S. Libel and Slander § 109(a) (1987); see Gannett Co. v. Re, 496 A.2d 553, 557 (Del.1985). This evaluation involves looking to the "gist" of the broadcast. Prosser & Keeton § 116. If the underlying facts as to the gist of the defamatory charge are undisputed, then we can disregard any variance with respect to items of secondary importance and determine substantial truth as a matter of law. Crites, 697 S.W.2d at 717-18.
McIlvain's broadcast statements are factually consistent with PIRG's investigation and its findings. A comparison of the contents of the broadcast and the PIRG report demonstrates that the broadcast was substantially correct, accurate and not misleading.
The broadcast stated that an investigation into the use of city employees for private work was underway. The affidavits of assistant city attorney Brenda Loudermilk and city legal department investigator V.H. Shultea, Jr. confirm the existence of the investigation. The broadcast further stated that employees of the city water maintenance division allege four employees were used on city time to care for the elderly father of Emerick Jacobs. According to the City of Houston's legal department report, employees of the water maintenance division had gone on separate occasions with Joyce Moore to St. Joseph's Hospital or to the home of Jacobs' father and sat with him while he was ill. Sworn statements by a division employee indicate that on three occasions, Moore and other water division employees would visit Jacobs' father in the hospital during work hours, staying there for a half day or longer. While on these visits, the employees were paid their regular city wages. According to the broadcast, these employees put in overtime so they could get their jobs done. The PIRG investigation found from the payroll division office records that on several occasions, when these employees were absent from the office for as long as four hours caring for the elder Mr. Jacobs, they requested and received overtime.
The broadcast further stated that police investigators were looking for a gun at the water facility but instead found liquor bottles and that one city employee claimed drinking on the job was not unusual. The report stated that the search of Joyce Moore's desk produced a liquor bottle but no gun. The PIRG report also contained statements by employees that Moore and Jacobs were seen in Moore's office drinking alcohol.
Finally, the evidence conclusively shows that this information was being gathered for possible prosecution. McIlvain's report states that the information may be turned over to the grand jury.
Based on these facts, McIlvain has established the substantial truth[1] of the broadcast as a matter of law, thus negating an essential element of Jacobs' cause of action. Accordingly, we reverse the judgment of the court of appeals and affirm the judgment of the trial court.
RAY and MAUZY, JJ., note their dissent.
NOTES
[1] Other states have also recognized the "substantial truth" standard in defamation cases involving a media defendant. See, e.g., Herron v. King Broadcasting Co., 112 Wash.2d 762, 776 P.2d 98 (1989); Jones v. Palmer Communications, Inc., 440 N.W.2d 884 (Iowa 1989); Chicarella v. Passant, 343 Pa.Super. 330, 494 A.2d 1109 (1985); Pritchard v. Times Southwest Broadcasting, Inc., 277 Ark. 458, 642 S.W.2d 877 (1982); Hein v. Lacy, 228 Kan. 249, 616 P.2d 277 (1980); Fecteau v. George J. Foster & Co., 120 N.H. 406, 418 A.2d 1265 (1980); Baker v. Burlington Northern, Inc., 99 Idaho 688, 587 P.2d 829 (1978). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610099/ | 2 Wash. App. 315 (1970)
467 P.2d 879
GLENN W. CAYCE, Respondent,
v.
THE DEPARTMENT OF LABOR AND INDUSTRIES et al., Appellants.
No. 60-40436-1.
The Court of Appeals of Washington, Division One, Panel 1.
April 13, 1970.
Slade Gorton, Attorney General, and Joe Gordon, Jr., Assistant, for appellant Department of Labor and Industries.
Ingram, Zelasko & Goodwin and Richard E. Goodwin, for appellant Aloha Lumber Company.
James J. Solan, for respondent.
FARRIS, J.
Respondent, Glenn W. Cayce, a claimant under the Industrial Insurance Act, RCW 51.32, injured his back on January 2, 1964, while employed by Aloha Lumber Company of Aberdeen, Washington. His claim was closed on December 8, 1965, with a permanent partial disability award of 20 per cent of the maximum allowable for unspecified disabilities. He appealed to the Board of Industrial Insurance Appeals where hearings were followed by the issuance of a proposed decision and order which raised his disability award to 40 per cent of the maximum allowable for unspecified disabilities. Exceptions to this preliminary order were filed by Mr. Cayce and the department. On *316 October 8, 1967, the board issued an order reversing the department and adopting the findings and conclusions of the proposed decision and order.
Mr. Cayce then appealed to Grays Harbor County Superior Court on or about October 30, 1967. The trial court, sitting without a jury, entered its findings of fact and conclusions of law and judgment on June 10, 1968, which reversed the board order and directed the department to award Mr. Cayce 100 per cent of the maximum allowable for unspecified disabilities for the effects of his 1964 industrial injury. From this judgment the department and the employer appeal.
All parties agree that there is adequate medical testimony in the record to support the trial court's award. The question is whether the trial court used a correct standard in reaching its decision.
[1] Appellants argue that the trial court erred in reaching and entering that part of finding of fact 4 which provides:
From the standpoint of the picture of the man as a whole, his age, his employment career, his training, his capabilities, his experience, and from the standpoint that he is probably permanently off the regular labor market in his field of work, the Board's rating is highly unrealistic.
The rule is clear:
[U]nspecified permanent partial disability involves only the loss of bodily function, and is measured, not by the loss of earning power, but by the relationship between the unspecified disability and the specified disabilities. Accordingly, two claimants with precisely the same injury to the back should be awarded identical percentages of permanent partial disability, although one claimant may have twice as much earning power as the other.
Franks v. Department of Labor & Indus., 35 Wash. 2d 763, 774, 215 P.2d 416 (1950).
It is mandatory that the extent of disability, as it exists at any relevant date, be determined by medical testimony, some of it based upon objective standards. Page v. Department of Labor & Indus., 52 Wash. 2d 706, 328 P.2d 663 (1958).
*317 Here, the medical testimony would support an award ranging from 40 per cent of the maximum allowable for unspecified disabilities to total permanent disability. The trial court was required to review the record and determine the degree of disability. After rejecting total permanent disability, the trial court could only consider those factors which measure loss of bodily function, in determining the degree of permanent partial disability.
It is error to consider loss of earning power in fixing an award for permanent partial disability. The language which is objected to by the appellant is at best unfortunate and at worst reversible error. The award for a permanent partial disability cannot vary on the basis of the age, employment career, training, experience, or field of work of the injured worker. One is not limited to a 12-inch ruler to measure 1 foot, but if the standard used by the trial court in evaluating competent medical evidence is capable of measuring factors other than loss of bodily function, an explanation of how and why that standard is used must be made a part of the record. The sole use of any standard selected must be to determine disability in terms of physical condition and the record must so reflect.
Finding of fact 4 provides in full as follows:
That plaintiff is 51 years old, 5' 6" tall and weighs 130 pounds. That plaintiff has had no special training but he did attend approximately one year of junior college taking a general course; however, plaintiff has spent most of his adult working life engaged in hard, arduous work or work involving repeated bending, turning or twisting.
From a strictly physical standpoint, the Board's rating of 40% may be correct. From the standpoint of the picture of the man as a whole, his age, his employment career, his training, his capabilities, his experience, and from the standpoint that he is probably permanently off the regular labor market in his field of work, the Board's rating is highly unrealistic.
The appellant urges that we interpret the words "may be" as "is" in the sentence "From a strictly physical standpoint, *318 the Board's rating of 40% may be correct." This we decline to do.
We therefore remand the matter to the trial court with instructions to fix the award in a manner that is consistent with this opinion.
Costs will abide the final determination.
JAMES, C.J., and SWANSON, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610100/ | 467 P.2d 960 (1970)
Dan R. GARZA and Norma M. Garza, Respondents,
v.
Jeffrey L. GRAYSON and Jane R. Grayson, Appellants.
Supreme Court of Oregon.
Argued and Submitted January 6, 1970.
Decided April 15, 1970.
Justin N. Reinhardt, Portland, argued the cause and filed briefs for appellants.
Richard H. Muller, Portland, argued the cause for respondents. On the brief were Tamblyn, Muller & Marshall, Portland.
Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, HOLMAN and TONGUE, JJ.
O'CONNELL, Justice.
This is a declaratory judgment proceeding in which plaintiffs seek a declaration establishing the existence of an easement over defendants' land for the construction and maintenance of a service line serving plaintiff's adjoining land. The case was tried without a jury. Defendants appeal from a decree granting the relief sought by plaintiffs.
Bjorn Gadeholt was the owner of Lots 579 and 580 in Lake View Villas, a subdivision in Lake Oswego then in the process of development. Gadeholt's lots were not served by an existing sewer system. The city was in the process of providing a sewer system for the area.
On June 28, 1963, Gadeholt conveyed Lot 579 to plaintiffs. The deed made no mention of an easement.
On December 19, 1963, Gadeholt conveyed Lot 580, which adjoined Lot 579, to William Leer and wife, who are defendants' *961 predecessors in title. The Leer deed contained the following reservation:
"RESERVING, however, an easement for public utility purposes over and across the northeasterly five feet of the above described property, constituting a strip five feet in width laying adjacent to the northeast boundary of the above described tract and extending from Blue Heron Road to the most easterly corner of said tract."
Defendants make two principal contentions: (1) the Leer deed could not create an easement benefiting plaintiffs' land because an easement cannot be reserved in favor of a third person, and (2) the reservation of an easement "for public utility purposes over and across" grantees' land does not include an easement for a sewer line because it would not be "over and across" defendants' land but rather would be under and through it.
The rule adopted in most jurisdictions is that in a deed creating an estate in one person, the grantor cannot reserve an easement or other interest in a third person.[1] There is language in our own cases supporting this view.[2] This rule is derived from a narrow and highly technical interpretation of the meaning of the terms "reservation" and "exception" when employed in a deed.[3] It is said that a person other than the grantor "has no interest in the land to be excepted from the grant, and likewise none from which a reservation can be carved out."[4]
We do not regard this as a satisfactory reason for defeating the grantor's intention to create an easement in a person other than the grantee of the estate conveyed in the deed, if the intention to create the easement is adequately expressed in the deed. The view we take is supported by most if not all the legal commentators and by the better reasoned cases.[5] It is also adopted by the Restatement. 5 Restatement of the Law of Property, § 472, p. 2966 (1944) states the rule as follows:
"By a single instrument of conveyance, there may be created an estate in land in one person and an easement in another."[6]
*962 The contrary view expressed in our previous cases, including Butcher v. Flagg, 185 Or. 471, 203 P.2d 651 (1949) and Van Natta v. Nys and Erickson, 203 Or. 204, 278 P.2d 163, 279 P.2d 657 (1955) is repudiated.
The interest created here is not substantially different than the interest recognized as creatable in Rodgers et ux. v. Reimann et ux., 227 Or. 62, 361 P.2d 101 (1961). There we recognized that a building restriction contained in a deed conveying the parcel of land could operate to benefit an adjoining parcel of land previously conveyed to another grantee (although it was found that the interest was not in fact created because there was insufficient evidence to establish the intent to benefit the particular parcel in question). In that case we carefully explained the basis for recognizing the creation of an interest in a third person. There is an equally sound basis for recognizing the creation of an easement in the present case.
The fact that in the Rodgers case the interest purported to be created was by way of contract or covenant and the present case by way of conveyance (reservation) of an easement is not material.
It will be noted that the reservation in the Leer deed did not name the person or property to be benefited by the easement. This was true also in the building restriction in the Rodgers case and yet we recognized the creation of an interest appurtenant to the adjoining land.
We have previously held that an appurtenant easement may be created without specifically designating the dominant estate which is benefited by the easement. Thus in Tusi v. Jacobsen, 134 Or. 505, 293 P. 587, 293 P. 939, 71 A.L.R. 1364 (1930), where the deed reserved a right of way over the land conveyed without reference to the land to be benefited, we recognized the creation of an easement appurtenant to land retained by the grantor. There we said that whether an easement is appurtenant may be determined by "`the relation of the easement to the so-called dominant estate, or the absence of it, and in the light of all the circumstances under which the grant was made,'" and that "we look not only to the deed but to the facts and circumstances under which it was executed to ascertain the intention of the original grantor in the creation of this easement. What was the relation of the easement to the remaining part of the land owned by the grantor?" (134 Or. at 509, 510, 293 P. at 588).
The intention to benefit the land of a prior grantee can likewise be derived from the circumstances attendant upon the grant.
In the present case there was sufficient evidence to establish the grantor's intention to impose the servitude upon defendants' land for the benefit of the land previously conveyed to plaintiffs. The grantor himself testified that this was his purpose. Considering the location of the easement in relation to the surrounding land, it is difficult to conceive of the easement as having any other purpose than to benefit plaintiffs' land.
We do not accept defendants' narrow construction of the terms "public utility" and "over and across" mentioned above. Although a sewer line is below the surface, it still may be described as running "over and across" the servient land. The term "over" does not necessarily mean "above." A sewer system designed by the city to dispose of sewage in a part of the city certainly can be classified as a "public utility." It is clear from the evidence that the grantor who employed this term in the *963 reservation intended the term to embrace the sewer easement now claimed by plaintiffs.
We are of the opinion that the trial court correctly interpreted the reservation in the deed.
The judgment of the trial court is affirmed.
PERRY, C.J., concurs in the result.
NOTES
[1] The cases are collected in Annotation: Reservation or exception in deed in favor of stranger, 88 A.L.R. 2d 1199 (1963).
[2] Butcher v. Flagg, 185 Or. 471, 483, 203 P.2d 651 (1949); Van Natta v. Nys and Erickson, 203 Or. 204, 217, 278 P.2d 163, 279 P.2d 657 (1955).
[3] "Theoretically, an `exception' exists when some part of the ownership of the grantor is never parted with; while a `reservation' is the term applicable when the instrument transfers all the grantor had but recreates in the grantor some specified interest with respect to land transferred." 6 Powell on Real Property § 892, pp. 224-225 (1968).
[4] 88 A.L.R. 2d 1199, 1202 (1963).
[5] The Kentucky court confronted the rule directly: "We have no hesitancy in abandoning this archaic and technical rule. It is entirely inconsistent with the basic principle followed in the construction of deeds, which is to determine the intention of the grantor as gathered from the four corners of the instrument." Townsend v. Cable, 378 S.W.2d 806, 808 (Ky. 1964). 2 American Law of Property, § 8.29, p. 254 (1952); Harris, Reservations in Favor of Strangers to the Title, 6 Okla. L.Rev. 127 (1953).
See also, 4 Tiffany, Law of Real Property, § 974, pp. 51-52 (3d ed. 1939); Note, Can a Reservation or Exception of an Easement be Made in Favor of a Third Person in Pennsylvania, 53 Dick.L.Rev. 151 (1949); and Hollosy v. Gershkowitz, 88 Ohio App. 198, 200, 98 N.E.2d 314 (1950) (relying on 5 Restatement of Property, § 472).
[6] Comment b to § 472 adds the following explanation:
"Concurrent conveyances of incorporeal and corporeal interests by single instrument of conveyance. It is possible in a single instrument of conveyance to convey corporeal interests to one while conveying incorporeal interests to another. Thus, conveyances may be made of a life estate to one and of a remainder in fee to another. Likewise, it is possible to convey an estate in fee to one conveyee and at the same time and by the same instrument of conveyance convey an easement in the same land to another conveyee. This result is not prevented by the fact that the conveyance of the easement is, in terms, a reservation to the person to whom it is conveyed. Thus an easement may be created in C by a deed by A which purports to convey Blackacre to B in fee reserving an easement to C. If, in other respects, the necessary formalities for the creation of an easement are complied with, such a reservation operates as an effective conveyance to the person in whose favor the reservation is, in terms, made." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610102/ | 485 P.2d 1058 (1971)
E.R. MINSHALL, Plaintiff in Error,
v.
CORPORATION COMMISSION of Oklahoma and Sam F. Shakely, Manager, Pollution Abatement, Defendants in Error.
No. 42966.
Supreme Court of Oklahoma.
June 2, 1971.
Marvin T. Johnson, Tulsa, for plaintiff in error.
Nathan S. Sherman, Asst. Conservation Atty., Corp. Commission, Oklahoma City, for defendants in error.
*1059 LAVENDER, Justice.
In this appeal, E.R. Minshall attacks the validity and effectiveness of an order of the Corporation Commission that orders him to replug or repair an oil and gas well that had been abandoned and plugged in 1941.
The order (No. 68269) was made in a proceeding before the Commission under the provisions of Senate Bill No. 396 of the Thirtieth (1965) Oklahoma Legislature (Chapter 191 O.S.L. 1965; 52 O.S.Supps. 1965-1969 §§ 309 through 317) prior to the amendment of Sections 1 and 2 thereof in 1970.
The proceeding was had upon an application by the individual defendant in error herein, Sam F. Shakely, Manager of Pollution Abatement in the Conservation Division of the Corporation Commission.
After notice and hearing thereon, as provided for in Section 8 of the 1965 act (52 O.S.Supps. 1965-1970 § 316), the Commission found, in substance and effect, that a well that had been drilled on a described ten-acre tract of land in Rogers County, Oklahoma, in exploring for oil and gas, had been plugged and abandoned in December of 1941; and that the well was leaking gas, through and onto the ground *1060 around it, at the time of the application and hearing. This, we note, met the requirements for the finding by the Commission, provided for in Section 2 of the act, hereinafter quoted.
In addition thereto, the Commission found that E.R. Minshall (who had filed a response to the application and was represented at the hearing by an attorney) had been the operator of the oil and gas lease covering the land upon which the well was located, when the well was drilled, abandoned, and plugged.
The evidence is not conflicting and supports all of the above-mentioned findings by the Commission.
Based upon those findings, the Commission ordered that Mr. Minshall replug or repair the well in accordance with the Commission's existing rules and regulations, and file a report thereof with the Commission, within thirty days from the date of the order.
He provided a superseders bond in the amount prescribed therefor by the Commission ($1,500.00) and appealed to this court.
We agree with Mr. Minshall's argument that the statute appearing as 17 Ohio St. 1961 § 53 was the applicable "plugging" statute in effect from 1917 until the effective date of the 1965 act, and that, while it provided that all oil and gas wells be "plugged" upon abandonment, in accordance with the Commission's rules and regulations promulgated under authority of that statute, it has no application to the replugging or repairing of plugged wells.
However, we cannot sustain his contentions that the 1965 act was not intended to apply to wells which were plugged prior to the effective date thereof, and, as applied to a well that had been plugged more than five years prior to the effective date thereof would not only be an ex post facto law prohibited by Section 15 of Article 2 of the Oklahoma Constitution but would, in effect revive a right or remedy (based upon failure to properly plug a well, as required by 17 Ohio St. 1961 § 53) that had been barred by lapse of time or by a statute of this state, in violation of Section 52 of Article 5 of the Constitution.
The purpose and intent of the 1965 act was to protect the waters and lands within this state against pollution caused by salt water, oil, gas, or other deleterious substances, presently leaking from abandoned wells, by providing a means whereby such presently-leaking wells "may be plugged, replugged, or repaired, by or under the authority and direction of the Corporation Commission," without affecting any existing means or remedy. See: Sections 1 and 7 of the act (52 O.S.Supps. 1965-1969 §§ 309 and 315).
Section 2 of the act provides the means for accomplishing such purpose and intent. Omitting a proviso concerning emergency situations, that section (divided herein for convenience and clarity) provided:
"If after notice and hearing the Commission finds that a well drilled for the exploration, development, or production of oil or gas, or as in injection or salt water disposal well, has been abandoned and is leaking salt water, oil, gas or other deleterious substances into any fresh water formation or onto the surface of the land in the vicinity of the well,
and
if after thirty days from the date of the finding by the Commission such well has not been properly plugged, replugged, or repaired to remedy such situation,
then the Commission or any person who is or may be affected by such condition, if so authorized by the Commission, may enter upon the land upon which the well is located and plug, replug, or repair such well as may be reasonably required to remedy such condition, * * *." (Emphasis supplied)
The 1965 act was intended to apply, and does apply, with respect to, any and all abandoned wells which are presently leaking salt water, oil, gas or other deleterious substances. If an abandoned well is not presently leaking any of those substances, the act has no application thereto. If it is presently leaking any of those substances, *1061 it makes no difference that the well has been plugged, or when it was plugged. If the well has been plugged, the question of whether or not it was properly plugged in accordance with the then-effective rules and regulations of the Commission is not involved. This interpretation of the act leaves the appellant's contentions concerning the application of the act and the constitutionality of the act as applied to an oil and gas well that was abandoned and plugged more than five years prior to the effective date of the act without any basis.
However, we cannot sustain the Commission's order requiring Mr. Minshall to replug or pay for the replugging or repairing of the well in question.
Apparently, the Commission's finding that E.R. Minshall had been the operator of the lease when this well was abandoned and plugged, and its order requiring him to replug or repair the well, were made on the theory that, as such operator, he was obligated by law to do the necessary remedial work or to pay the costs and expenses thereof if he did not and the work was done by, or under the authority of, the Commission as provided for in Section 2 of the 1965 act.
Section 6 of the act (52 O.S.Supps. 1965-1970 § 314) does grant to any person who had no obligation to plug, replug, or repair the well, but does so under the provisions of the act, a right of action for the reasonable cost and expense thereof against "the person or persons who by law were obligated to properly plug, replug, or repair the well," and a lien upon the interest of "such obligated person or persons" in and to the oil and gas rights in the land and the equipment located thereon. And Section 7 of the act (52 O.S.Supps. 1965-1970 § 315) does mention the person or persons "otherwise legally responsible" for plugging, replugging, or repairing a well.
However, neither of those sections, nor any other provision of the act, imposes upon any one, either expressly or by necessary implication, any responsibility for obligation (not otherwise imposed by law) to plug, replug, or repair any well.
And neither of those sections, nor any other provision of the act, requires any one, either expressly or by necessary implication, to reimburse the Corporation Commission for any part of the costs or expenses of any remedial work done by, or under the authority and direction of, the Commission as provided for in Section 2 of the act. In this connection, we note that Section 3 of the Senate Bill No. 553 of the Second Regular (1970) Session of the Thirty-second Oklahoma Legislature (Chapter 217 O.S.L. 1970, page 356; 52 O.S.Supp. 1970 § 318) although not in effect when this order was made would be applicable to any remedial work on this well that might be undertaken by the Commission:
"When the Commission undertakes to plug, replug, or repair any well or wells as authorized and provided in Title 52 of the Oklahoma Statutes, §§ 309 and 310, all such remedial work shall be done by contracts let upon competitive bids. The Commission shall not expend from the Conservation Fund or any other fund in the State Treasury, in any fiscal year, for the purposes herein provided, an amount of money in excess of the total sum specifically authorized annually by the Legislature for such purposes."
We are not concerned in this case with the rights, if any, of any person or persons under the provisions of Section 6 of the 1965 act, mentioned above.
Section 2 of the 1965 act is the "authorizing" section insofar as the Corporation Commission is concerned. It simply authorizes the Corporation Commission, or some "person," as that term is broadly defined in Section 9 of the act (52 O.S. Supps. 1965-1970 § 317), who is or may be affected by the leaking condition of the particular well and who is authorized by the Commission so to do, to enter upon the land upon which the well is located, and plug, replug, or repair the well, as may reasonably be required to remedy the leaking condition of the well, if the well is not properly plugged, replugged, or repaired, as the case may be, to remedy the situation *1062 within thirty days after the date of the Commission's "finding" provided for in said Section 2.
Neither Section 2, nor any other provision of the act, authorizes the Corporation Commission, either expressly or by necessary implication, to determine who, if any one, is obligated by law to do the necessary remedial work, or to order or require any one to do such remedial work.
Insofar as the replugging, or repairing, of wells which have been plugged is concerned, 17 Ohio St. 1961 § 53, mentioned above, neither imposes any such obligation upon any one nor confers any such authority upon the Corporation Commission.
We conclude that the Corporation Commission was without authority to determine that E.R. Minshall, as the operator of the lease involved when the well in question herein was abandoned and plugged, is obligated by law to replug, or repair the well to remedy its leaking condition, or to order him to do such remedial work.
The Commission's finding, in effect, that the well involved herein is one of those described in Section 2 of the 1965 act, mentioned above, is supported by the evidence and would constitute a valid basis for the action authorized in Section 2 of that act in the event the necessary remedial work is not done within thirty days from the effective date of such finding (if the well is still leaking at that time).
The cause is remanded to the Corporation Commission with instructions to modify its Order No. 68269 by eliminating therefrom that portion thereof which requires E.R. Minshall to do the necessary remedial work on the well described therein.
BERRY, C.J., DAVISON, V.C.J., and WILLIAMS and BLACKBIRD, JJ., concur.
McINERNEY, J., concurs in result.
IRWIN and HODGES, JJ., dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610298/ | 485 P.2d 650 (1971)
STATE of Oregon, Respondent,
v.
John Calvin GODDARD, Appellant.
Court of Appeals of Oregon, Department 1.
Argued and Submitted April 23, 1971.
Decided May 28, 1971.
*651 Mike Dye, Salem, argued the cause for appellant. With him on the brief were Kleen & Dye, Salem.
Gary D. Gortmaker, Dist. Atty., Salem, argued the cause and filed the brief for respondent.
Before SCHWAB, C.J., and FOLEY and FORT, JJ.
FORT, Judge.
Following conviction for a felony in 1967, defendant was subjected to an enhancement of penalty under the Habitual Criminal Act, ORS 168.085. He appeals, citing as error: (1) the failure of the trial court to allow defendant to collaterally attack his prior felony convictions, and (2) selective enforcement of the Habitual Criminal Act against men only, and not women, violated the defendant's right to equal protection and due process of law. We consider them in order.
In 1963, following a felony conviction, Habitual Criminal Proceedings were regularly brought against the defendant. At that time, a prior sentence of five years in the Oregon State Penitentiary was vacated and defendant was sentenced to serve an enhanced penalty.
On December 19, 1967, defendant was convicted of Escape from Official Detention and sentenced to 15 years. Thereupon a second Habitual Criminal Proceeding against him was instituted. The last mentioned sentence was vacated, and defendant was ordered imprisoned for a period not to exceed his natural life. Defendant has appealed from that conviction.
In the second Habitual Criminal Proceeding, the district attorney filed an Information of Previous Convictions which listed the defendant's previous felony convictions. The defendant filed a motion asking for leave to collaterally attack the listed prior convictions upon the ground that they were not constitutionally valid on the grounds of "absence of counsel, coerced waiver of indictment, and other denials of due process."[1] The court denied the motion.
*652 In the trial phase of the Habitual Criminal Proceeding the court denied the defendant's request to collaterally attack on the grounds that the defendant had already been accorded that privilege in his 1963 Habitual Criminal Proceedings; that since the issues and parties were the same, the validity of those prior convictions had been established and that determination was res judicata unless there had been some change in the law which would raise constitutional issues which the defendant had had no opportunity to raise in the first Habitual Criminal Proceeding.
A defendant, if charged under ORS 168.055 with being an habitual criminal, may allege constitutional defects and thereby call into question one or more of his prior convictions. Clark v. Gladden, 247 Or. 629, 637, 432 P.2d 182 (1967).
Is the defendant by reason of the earlier 1963 Habitual Criminal Proceeding now foreclosed from inquiring into the constitutional validity of his previous convictions? In Clark v. Gladden, supra, the court was faced with an analogous situation. A prisoner was serving an enhanced sentence as an habitual criminal. In the Habitual Criminal Proceeding, the defendant, being represented by counsel, did not see fit to challenge any of his prior felony convictions and admitted the truth of the previous convictions. Later the defendant filed a post-conviction petition alleging that the prior convictions were invalid because of denial of counsel and other constitutional defects. The issue was whether the defendant had waived (ORS 168.075) his right to challenge his prior convictions by failing to raise them at the hearing. The court held that despite admission by the defendant at the time of the original enhancement of penalty proceeding that the allegations of conviction were true, the alleged defects in the convictions had not been waived by the mere failure of the defendant to challenge the prior convictions at that time.
Clark v. Gladden, supra, involved an appeal from a single Habitual Criminal Proceeding. However, the court also discussed ORS 138.510(1) and 138.550(1) and (2). The court stated:
"Under ORS 138.510(1) a prisoner has a statutory right, however tardily he may act, to petition for redress of constitutional grievances so long as the questions presented were not actually decided in his former proceedings nor otherwise barred by express terms of the statute. See ORS 138.550(1), (2)." 247 Or. at 635, 432 P.2d at 185.
(Emphasis supplied.)
Here the defendant contends that the validity of his prior convictions was never actually challenged in the 1963 proceedings and, further, that he plead guilty at that time on the advice of his attorney, just as in Clark v. Gladden, supra. Defendant's specific contention in this appeal is that he wishes to attack two of his prior felony convictions prior to the 1963 proceeding solely on the ground that his waiver of indictment in those earlier cases was made without the advice of counsel. Since the present case was decided in 1967, this issue was not available to him in the 1963 Habitual Criminal Proceeding since Clark v. Gladden, supra, had not yet been decided. We note also that Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, 93 A.L.R. 2d 733, was handed down on March 18, 1963, and that the defendant's first Habitual Criminal Proceeding took place on January 18, 1963. Thus we think that the defendant here was entitled to collaterally attack in the 1967 proceeding the earlier convictions which he now seeks to challenge.
However, before one may obtain post-conviction relief, he must show that he has suffered some prejudice in the criminal process. Dixon v. Gladden, 250 Or. 580, 444 P.2d 11 (1968).
In State v. Miller, 254 Or. 244, 458 P.2d 1017 (1969), the defendant, while unrepresented by counsel, waived his right to be indicted by the grand jury and consented to the filing of an information. Later, the defendant contended that the information *653 was invalid because of lack of counsel at the time of waiver of indictment. The court held the information valid, saying:
"* * * If waiver of indictment is a `critical stage' in the proceedings, he was entitled to be represented, prejudice is presumed, and his contention is correct. Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114 (1961).
"* * *
"* * * We do not believe that waiver of indictment is a critical stage in the proceedings because of any possible danger that informations will be filed under circumstances in which an indictment could not have been secured. We believe that Hamilton requires, in the absence of an intelligent and knowing waiver of counsel, legal representation for an accused at a time when he must take steps or make a choice which is likely to have a substantial effect on the prosecution against him. We do not perceive that waiver of grand jury is such a choice, as we do not believe that such a waiver is actually determinative of whether criminal proceedings could or would be brought." 254 Or. at 248-249, 458 P.2d at 1018-1019.
We are bound by that opinion. Accordingly, since no prejudice resulted, it follows then that the first assignment of error is without merit.
In Bailleaux v. Gladden, 230 Or. 606, 370 P.2d 722 (1962), the petition in a post-conviction case alleged that state officials followed a fixed, continuous and concerted plan not to enforce the habitual criminal laws against non-whites, claiming deliberate discriminatory intent in violation of the Fourteenth Amendment, the court said:
"* * * It is not a denial of equal protection that one person amenable to an enhanced penalty under the Habitual Criminal Act has his penalty increased and the act is not applied to other previously-convicted felons * * *." 230 Or. at. 611, 370 P.2d at 724.
Sh. 1635, 479 P.2d 245, Sup.Ct. review denied (1971), the issue was the exact one urged by the defendant in this case selective enforcement against men only. The court, in a memorandum decision based on Bailleaux v. Gladden, supra, held the contention without merit. We adhere to that rule.
Judgment affirmed.
NOTES
[1] We note that the transcript sets forth defendant's contentions:
"THE COURT: What is the basis of your attack on these?
"MR. GODDARD: Escobedo.
"THE COURT: Escobedo?
"MR. GODDARD: Yes, sir, the right to counsel, to be advised of my rights, signing a waiver of indictment without knowing I had a right to counsel before I signed it. I didn't know I could have an attorney in those days."
And, referring to the first two of the defendant's prior convictions, his attorney stated:
"* * * [T]he defendant claims he waived indictment without the advice of counsel at that time. * * *" | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1658829/ | 671 So. 2d 1093 (1996)
Christopher JOHNSON, Plaintiff-Appellee,
v.
CONCORDIA BANK & TRUST CO., Defendant-Appellant.
No. 95-1187.
Court of Appeal of Louisiana, Third Circuit.
March 27, 1996.
*1095 Harry James Lossin Sr., Jonesville, for Christopher Johnson.
Virgil Russell Purvis Jr., Jonesville, Raymond Landry, Metairie, for Concordia Bank & Trust Co.
Before PETERS, AMY and SULLIVAN, JJ.
SULLIVAN, Judge.
Plaintiff, Christopher George Johnson, sued defendant, the Concordia Bank and Trust Company (Concordia Bank), alleging that the defendant wrongfully disbursed interest accrued from his certificate of deposit during his tutorship to his tutrix, Bessie Adams, in violation of the judgment of tutorship. In its answer, Concordia Bank denied having any actual knowledge of the tutorship judgment and denied any liability to Johnson. Defendant also filed a third-party demand against Adams.
Johnson filed a motion for summary judgment, and Concordia Bank filed a peremptory exception of prescription. After conducting separate hearings on these two matters, the trial court rendered judgment denying defendant's exception of prescription and granting plaintiff's motion for summary judgment. Concordia Bank appeals, asserting that the trial court erred in these two rulings. For the following reasons, we affirm the trial court's denial of defendant's exception of prescription and reverse the trial court's grant of summary judgment in favor of plaintiff.
FACTS
Johnson's mother, Janet Graves, died as a result of an accident which occurred on September 25, 1981. At the time, Johnson was six years old. Adams, Graves' mother and Johnson's grandmother, was appointed his tutrix by the trial court. She then brought suit on Johnson's behalf against various defendants for the wrongful death of his mother. The litigation was settled for $159,626.67. After the payment of his attorney fees and litigation costs, Johnson netted $99,328.09 from the settlement. By judgment rendered and signed on December 6, 1982, Adams was ordered to deposit these funds "for the use and benefit of ... Johnson, the said funds not to be withdrawn prior to the emancipation or majority of ... Johnson, without further orders of this court."
A second judgment, which the trial court also rendered and signed on December 6, 1982, authorized Adams to borrow $671.91 to increase the assets to $100,000.00, which Adams was to invest in a six-month certificate of deposit with Concordia Bank at the highest interest rate available. The trial court also authorized Adams to borrow an additional $2,500.00 to purchase the undivided one-half interest of Grady Graves, the deceased's widower, in a lot owned in indivision by Graves and Johnson (as his mother's sole heir). In the final paragraph of the judgment, the trial court ruled as follows:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that ½ of the interest on the certificate of deposit be withdrawn monthly and paid to Bessie Adams for the use and benefit of Christopher George Johnson, and the other ½ of the interest earned be paid on the note for the $2,500.00 plus the $671.91 until that note is paid in full; thereafter, that ½ interest be re-invested in the Certificate of Deposit.
Adams invested the $100,000.00 in a six-month certificate of deposit at Concordia Bank. Each certificate of deposit was renewed after its term expired. During Johnson's minority, the Concordia Bank issued monthly checks to Adams representing the total amount of interest earned on the certificates *1096 of deposit. The interest earned averaged approximately $600.00 per month.
Johnson attained the age of majority on May 17, 1993. He contacted Concordia Bank to withdraw his money. The defendant issued Johnson a check for $100,000.00. Johnson expected the amount to be higher as a result of the reinvestment of interest earned after the loans were paid. Concordia Bank informed him that no interest earned was reinvested into the certificate of deposit. After the loans were paid off, Concordia Bank had continued to issue a monthly check to Adams for the total amount of interest earned.
On April 13, 1994, Johnson sued Concordia Bank seeking recovery of one-half of the interest accrued from December 7, 1982 through May 17, 1993 on the certificates of deposit and interest which would have accrued on the reinvested, accrued interest, less payment of the initial loans which were approved by the trial court. He also sought attorney fees and penalties. In his petition, Johnson alleged that Concordia Bank had actual knowledge of the judgments authorizing Adams to invest his money into the Concordia Bank certificate of deposit. He further asserted that, in violation of the trial court's directive, Concordia Bank wrongfully disbursed one-half of the accrued interest which was ordered to be reinvested. Johnson additionally alleged that Concordia Bank violated the provisions of the Uniform Fiduciaries Law by making personal loans to Adams, which were paid off with interest earned on the certificates of deposit, without prior court approval. He asked for an award of attorney fees, penalties and interest for the wrongful conversion and mismanagement of his funds.
In its answer, Concordia Bank denied having knowledge of the tutorship judgments and denied being liable to Johnson under any theory of recovery asserted in his petition. As part of its answer, Concordia Bank named Adams as a third-party defendant. Defendant also asserted peremptory exceptions of no cause of action, no right of action, and liberative prescription. In addition, Concordia Bank alleged the affirmative defenses of setoff, failure to mitigate damages, and the third-party fault of Adams. In support of its defense of setoff, Concordia Bank attached as an exhibit an accounting of the tutorship filed by Adams in those proceedings. Therein, Adams attested that all money sent to her by Concordia Bank was used "for the use, benefit and care of Christopher George Johnson."
On January 11, 1995, Johnson filed his motion for summary judgment. In support of his motion, he filed his affidavit in which he stated that he was not supplied with copies of the interest checks from December 7, 1982 to May 17, 1993. Johnson asserted that he did not receive the use or benefit of the one-half of the interest earned. He also pointed out, with reference to notations appearing on the backs of the interest checks, that the interest was applied to the court-approved loans and other unapproved loans to Adams, with the balance being paid to Adams. Johnson further asserted that this interest, coupled with Adams' Social Security check and Johnson's Social Security survivor benefit check, "was more than sufficient to provide him ... with support and education. As a matter of fact, there was a surplus, which was used to support the other relatives who lived in the mobile home."
Concordia Bank filed a memorandum in opposition to Johnson's motion for summary judgment. Therein, defendant asserted that disputed issues of material fact should preclude the court from granting summary judgment. Concordia Bank then filed its exception of prescription. It alleged that plaintiff's suit is untimely because he accused the defendant of committing the tort of conversion, to which the one-year prescriptive period for delictual actions applies. Concordia Bank asserted that Johnson's action for wrongful disbursement (conversion) arising from transactions which occurred prior to January 5, 1993, one year prior to the date on which this suit was filed, had prescribed.
On February 13, 1995, the trial court conducted a brief hearing on plaintiff's motion for summary judgment. The trial court took the matter under advisement.
On February 15, 1995, the parties took the deposition of Adams. She stated that, after *1097 Johnson's mother died, he lived with Adams and her husband, George, and their two children, Michael and Melissa. According to Adams, George worked as a crane operator in the construction industry. Sometimes, he did not work because he was laid-off or due to weather conditions. When George did not work, the family was supported by Johnson's Concordia Bank interest check and his Social Security survivor benefit check. Adams stated that the Social Security survivor benefit check amount was between $200.00 and $300.00 per month. George died in 1988, and thereafter, Adams began collecting a monthly Social Security survivor benefit check of approximately $500.00.
Adams explained that, most of the time, she would pick up the monthly interest check at Concordia Bank. From the amount collected, she would pay the household's electric bill, which averaged between $120.00 and $140.00 per month. She stated that the interest money was used to feed, clothe, keep warm and shelter Johnson. According to Adams, Johnson ate meals only at their home. She spent approximately $100.00 per week for food. Adams stated that the money was also used for Johnson's education and routine medical expenses, along with the payment of the mobile home note. She denied ever buying herself any personal items with the interest money, which was spent on Johnson and the rest of the household because Johnson needed a place to live. Adams explicitly disagreed with the proposition that the certificate of deposit interest proceeds and the Social Security check were more than sufficient to support and educate Johnson. She denied that a surplus existed after the payment of Johnson's necessary expenses. She also disagreed with Johnson's assertion that he did not get the use or benefit of the certificates of deposit during his tutorship.
On April 13, 1995, the trial court conducted a hearing on Concordia Bank's exception of prescription. At the close of the hearing, the trial court took the matter under advisement.
On July 6, 1995, the trial court rendered judgment in this matter denying Concordia Bank's exception of prescription and granting Johnson's motion for summary judgment.
In the judgment, the trial court awarded Johnson:
[T]he full amount of one-half (½) of the interest accrued from December 7, 1982 through May 17, 1993 on the $100,00.00 [sic] Certificate of Deposit, plus interest which would have accrued on the interest reinvested on a monthly basis, less payment of the initial loans approved by Court Order, plus legal interest from date of judicial demand and all costs of these proceedings.
The trial court did not render any written or oral reasons for its ruling. It is from this judgment that Concordia Bank now appeals.
PRESCRIPTION
Concordia Bank contends on appeal that Johnson's claim is based on the tort of conversion, to which the one-year prescriptive period for delictual actions applies. Johnson counters that, in disbursing his funds to Adams, Concordia Bank was acting pursuant to a court-approved contractual relationship whereby the bank held his funds in trust. As such, Johnson argues that the ten-year prescriptive period for contractual actions should apply to this case.
The nature and character of an action as disclosed by the pleadings must be determined before we can decide which prescriptive period is applicable to that action. Starns v. Emmons, 538 So. 2d 275 (La.1989); Hampton v. Hibernia National Bank, 598 So. 2d 502 (La.App. 2 Cir.1992). The nature and character of the action is determined by examining the allegations and prayer of the petition. State v. Ferek, 94-0383 (La.App. 1 Cir. 3/3/95), 652 So. 2d 597.
Plaintiff alleges that Concordia Bank wrongfully disbursed his earned interest to Adams in derogation of a previously existing court order and in violation of the Uniform Fiduciaries Law. In Labbe v. Premier Bank, 618 So. 2d 45, 46 (La.App. 3 Cir.1993), this court reasoned as follows:
A conversion consists of an act in derogation of the plaintiff's possessory rights, and any wrongful exercise or assumption of authority over another's goods, depriving him of the possession, permanently or *1098 for an indefinite time, is a conversion. issues of fault, intent, negligence, knowledge or ignorance, and/or good faith are not involved in actions for tortious conversion. Hagberg v. Manuel, 525 So. 2d 19 (La.App. 3d Cir.1988).
See also Simon v. Fasig-Tipton Co., 92-173 (La.App. 3 Cir. 3/22/95), 652 So. 2d 1351, writs denied, 95-1010, 1013 (La. 6/2/95), 654 So. 2d 1111 and Hampton, 598 So. 2d 502.
Clearly, the allegations of plaintiff's petition and his prayer for relief contemplate that he is seeking redress for conversion, an act in derogation of his possessory rights, on the part of Concordia Bank. Since conversion is a tort, the prescriptive period for delictual actions applies to plaintiff's action.
La.Civ.Code art. 3492 provides:
Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained. It does not run against minors or interdicts in actions involving permanent disability and brought pursuant to the Louisiana Products Liability Act or state law governing product liability actions in effect at the time of the injury or damage.[1]
Prescription runs against all persons, including minors, unless an exception is established by legislation. La.Civ.Code arts. 3467, 3468. It is suspended as between "tutors and minors during tutorship." La.Civ.Code art. 3469. However, Revision Comment (c) to Article 3469 provides as follows:
The suspension of prescription is effective only as between spouses, parents and children, tutors and minors, and curators and interdicts. There is no suspension of prescription vis-a-vis third persons. Thus liberative prescription, acquisitive prescription, and prescription of nonuse may accrue in favor of a third person to the prejudice of a spouse, a minor, or an interdict.
[Emphasis added.]
Concordia Bank contends that, as a third party to the tutorship relationship, liberative prescription is not suspended in favor of Johnson by operation of this article. We agree. In the context of the facts presented, Article 3469 only suspended prescription between Johnson and Adams during his tutorship. The article has no effect on prescription vis-a-vis Concordia Bank.
The prescription article at issue, La. Civ.Code art. 3492, is to be "strictly construed against prescription and in favor of the obligation sought to be extinguished by it." Doe v. Roman Catholic Church, 94-1476, p. 3 (La.App. 3 Cir. 5/3/95), 656 So. 2d 5, 7, writ denied, 95-2076 (La. 11/13/95), 662 So. 2d 478. In the event that the petition reveals on its face that prescription has run, the claimant has the burden of proving why the claim has not prescribed. He may rely on three theories in this regard: suspension, interruption and renunciation. Bouterie v. Crane, 616 So. 2d 657 (La.1993).
Although the Civil Code articles are clear that prescription runs against all persons unless a legislative exception is established, the courts of this state have nevertheless established the doctrine of contra non valentem agere nulla currit prescriptio, which means "prescription does not run against a party unable to act." This jurisprudential principle is considered an exception to the legislative rules governing the suspension of prescription. The principles of equity and justice, upon which contra non valentem is based, demand that in certain instances prescription be suspended because the plaintiff was effectually prevented from enforcing his own rights due to reasons external to his own will. Id.; Corsey v. State, Through Department of Corrections, 375 So. 2d 1319 (La.1979). In Doe, 94-1476, p. 4, 656 So.2d at 8, this court restated the situations to which contra non valentem applies as follows:
Generally, the doctrine of contra non valentem suspends prescription where the circumstances of the case fall into one of the following four categories:
*1099 1. Where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff's action;
2. Where there was some condition coupled with a contract or connected with the proceedings which prevented the creditor from suing or acting;
3. Where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and
4. Where some cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant.
Rajnowski v. St. Patrick's Hospital, 564 So. 2d 671, 674 (La.1990); Whitnell v. Menville, 540 So. 2d 304 (La.1989); Plaquemines Parish Com'n Council v. Delta Development Co., Inc., [502 So. 2d 1034 (La.1987)]; Corsey v. State, through Dept. of Corrections, 375 So.2d at 1321-1322; but see Bouterie v. Crane, supra [Bouterie's claim did not squarely fit into any of these 4 categories but was closely analogous to the second category; therefore prescription was suspended.].
In the case sub judice, Johnson was a minor when every one of Concordia Bank's alleged wrongful disbursements took place. Therefore, because Johnson was deemed by law to be incapable of administering his own affairs, Concordia Bank issued the monthly interest checks to Adams, his tutrix. Adams spent the money to benefit Johnson, herself and the other members of her household. Coincidentally, she was the only person who could have brought this action on behalf of Johnson during his minority. It is unreasonable to consider that she would have made such a demand on Concordia Bank or filed such an action at any time during Johnson's minority, given the fact that she and her family were benefiting from the interest disbursements.
We conclude that, under the particular facts and circumstances of this case, tenet number two, above, of the doctrine of contra non valentem applies. The fact that his tutrix was accepting these allegedly wrongful disbursements on his behalf qualifies as a condition connected with the proceedings which prevented Johnson from suing Concordia Bank. He reasonably trusted and relied upon Adams to manage his affairs and had no reason to doubt that she was not following the mandates of the court orders in the tutorship proceedings. Consequently, Johnson, during his minority, reasonably believed that the interest accrued after payment of the loans was being reinvested into the Concordia Bank certificate of deposit, not paid in full to Adams. Ironically, Johnson was, for all practical purposes, precluded from suing Concordia Bank by the very structure of his tutorship.
Under these circumstances, we conclude that prescription was suspended during Johnson's tutorship. Therefore, his action against Concordia Bank is not prescribed because he filed suit within one year of attaining majority.
SUMMARY JUDGMENT
On appeal, Concordia Bank contends that the trial court erred in granting summary judgment in favor of Johnson because material factual issues are in dispute. For the following reasons, we agree with this position.
La.Code Civ.P. art. 966(B) provides the criterion by which the court is to evaluate a motion for summary judgment. It reads, in pertinent part, as follows:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.
The standard of review for summary judgments is de novo. In other words, an appellate court must apply the same criterion as does the trial court in determining whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, 93-2512 (La. 7/5/94), 639 So. 2d 730. The supreme court in Smith, 93-2512, pp. 28-29, 639 So.2d at 750-752, presented an authoritative and exhaustive review of the jurisprudential rules applicable *1100 to summary judgments. Within its discussion, the court explained the mover's burden of proof as follows:
Procedurally, the court's first task on a motion for summary judgment is determining whether the moving party's supporting documentspleadings, depositions, answers to interrogatories, admissions and affidavitsare sufficient to resolve all material factual issues. LSA-C.C.P. Art. 966(B); Sanders v. Hercules Sheet Metal, Inc., 385 So. 2d 772, 775 (La.1980). "To satisfy this burden, the mover must meet a strict standard of showing that it is quite clear as to what is the truth and that there has been excluded any real doubt as to the existence of a genuine issue of material fact." Industrial Sand and Abrasives, Inc. v. Louisville and Nashville Railroad Co., 427 So. 2d 1152, 1154 (La.1983). In making this determination, the mover's supporting documents must be closely scrutinized and the non-mover's indulgently treated. Vermilion Corp. v. Vaughn, 397 So. 2d 490, 493 (La.1981). Since the moving party bears the burden of proving the lack of a material issue of fact, inferences to be drawn from the underlying facts before the court must be viewed in light most favorable to the non-moving party. Schroeder v. Board of Supervisors of Louisiana State University, 591 So. 2d 342, 345 (La.1991); Vermilion, 397 So.2d at 493; Pace [v. Zilka], 484 So.2d [771] at 773 [(La.App. 1 Cir.), writ denied, 488 So. 2d 691 (La.1986.)].
If the court determines that the moving party has met this onerous burden, the burden shifts to the non-moving party to present evidence demonstrating that material factual issues remain. Sanders, supra.
Id. at 752.
"A fact is material if its existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery. Material facts are those which potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of a legal dispute." Faul v. Bank of Sunset & Trust Co., 93-1080, p. 6 (La.App. 3 Cir. 4/6/94), 635 So. 2d 573, 577, writs denied, 94-1627 (La. 9/30/94), 642 So. 2d 879 and 94-1659 (La. 9/30/94), 642 So. 2d 880. A material fact is one that would matter at trial on the merits. Smith, 639 So. 2d 730.
It is also well settled that whether a summary judgment is properly granted is to be determined with reference to the applicable substantive law. In this regard, we note that plaintiff is not entitled to restoration of those funds which were in fact applied to his benefit in providing support or education. See Deville v. Federal Savings Bank of Evangeline Parish, 93-1853 (La. 4/11/94), 635 So. 2d 195. After reviewing Johnson's petition and affidavit supporting his motion and the substance of Adams' deposition and her affidavit in support of the tutorship accounting, we conclude that material factual issues remain in dispute. These include the degree of Concordia Bank's knowledge with regard to the tutorship judgments and the monetary percentage of the allegedly wrongfully disbursed interest checks which were in fact used by Adams to benefit Johnson during his tutorship. These are facts which will affect Johnson's recovery, if any, and may in fact insure or preclude his recovery. Therefore, the trial court erred in granting summary judgment in favor of Johnson.
DECREE
For these reasons, we reverse the summary judgment rendered by the trial court in favor of plaintiff-appellee, Christopher Johnson, and affirm the trial court's denial of Concordia Bank's exception of prescription. We further remand this case to the trial court for further proceedings in accordance with this opinion. Costs of these proceedings are assessed equally to both parties.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
AMY, J., concurs in part and dissents in part and assigns reasons.
AMY, Judge, concurring in part and dissenting in part.
I agree with the majority's resolution of the summary judgment issue; however, I respectfully disagree with the majority's decision to affirm the denial of the exception of prescription. In my view, the doctrine of *1101 contra non valentem does not operate, under the facts of this case, to suspend prescription as to Christopher Johnson's tort action against Concordia Bank & Trust Co. Accordingly, I would reverse the trial court and grant the exception of prescription.
NOTES
[1] This article was enacted in 1983 by Act No. 173, effective January 1, 1984. According to Revision Comment (a), the first two sentences reproduce the substance of pre-revision La.Civ. Code arts. 3536(1) and 3537(2), respectively, and do not change the law. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1875909/ | 490 So. 2d 565 (1986)
SAFECO INSURANCE COMPANY, Plaintiff-Appellant,
v.
FARM BUREAU INSURANCE COMPANIES, et al., Defendants-Appellees.
No. 85-579.
Court of Appeal of Louisiana, Third Circuit.
June 6, 1986.
*566 Carolyn Pratt Perry, Baton Rouge, for plaintiff-appellant.
Fruge & Vidrine, Jack C. Fruge, Sr. and Richard Vidrine, Platte, for defendants-appellees.
Before DOUCET, LABORDE and BOND[*], JJ.
*567 W. ELLIS BOND, Judge Pro Tem.
This is an action by Safeco Insurance Company against Farm Bureau Insurance Company and its insured, J. Curtis Guidry, d/b/a Guidry Farms, Inc. (sic) to recover or to obtain contribution for workmen's compensation benefits allegedly paid in error.
Most of the facts are not in dispute. The essential dispute is causation of the workmen's compensation claimant's present disability and whether or not an accident or aggravation of a preexisting back condition caused or contributed to the necessity for claimant's third back operation. There is not known to be any suit pending by the claimant, David K. Guidry, and he is not a party to this action. We will refer to him hereinafter as Guidry, not to be confused with his father, J. Curtis Guidry, or Guidry Farms.
The evidence shows that Guidry sustained a back injury while employed by his father in December 1976, while defendant, Farm Bureau, provided workmen's compensation benefits for Guidry Farms. Conservative treatment by Dr. Rafes, a neurosurgeon of Beaumont, Texas, over a period of about four months, proved inadequate and surgery was then performed on the L5-S1 disc. Some months thereafter he reinjured his back while assisting on the farm and while still disabled. After considerable medical treatment and testing procedures, surgery was performed upon Guidry's low back by Dr. S. Henry LaRocca in New Orleans on November 15, 1978. Additional disc material was removed at the L5-S1 level and a fusion of vertebrae L4 to the sacrum was performed. Dr. LaRocca pronounced Guidry able to work as of January 29, 1980, finding that the fusion had taken and become solid.
Guidry has never filed a lawsuit against Farm Bureau and it is not known if he ever consulted an attorney. In any event, Dr. LaRocca testified he was never asked to assign a percentage of disability to Mr. Guidry, but had he been asked, he would have "put him as total permanent disability regarding physical labor."
Guidry then worked nearly a year for Oilfield Construction Company in the Eunice, Louisiana area, operating a bulldozer. He testified he never missed a day of work due to his back, but did experience some back pain after working a long day, more in the nature of tiredness. Thereafter, he worked for about four months in the Baton Rouge, Louisiana area, for B & K Construction Company, whose workmen's compensation insurer was Safeco.
It is this period of time that Guidry's condition is at issue. He has testified that he considered himself well and able to do heavy work while working from January 1980, until early January 1981. He claims that on or about January 6, 1981, he slipped on the wet track of a bulldozer and hurt his back in an effort to keep from falling. He described the pain as sharp, like a pulled muscle. He ignored it, but it continued to get worse. It was a different pain from what he experienced while working for Oilfield Construction. He states that he definitely did have an accident at that time and returned to see Dr. LaRocca when the pain kept getting worse.
Dr. LaRocca testified that he saw Guidry on July 25, 1980, at which time his notes show, "Patient is cautioned against any heavy physical activity but probably could resume some form of work." He stated he thought Guidry's disability to be permanent from the first time he saw him.
Guidry next saw Dr. LaRocca on January 14, 1981, and at that time told the doctor he had been working on a bulldozer and got pain into his back and right lower extremity without a specific injury; that he had a one month history of recurrent pain in the back and right leg, getting worse with time and activity. The doctor's findings on that date indicated a new ruptured disc, but X-ray examination showed the fusion to be intact. Guidry was told that he had to quit work, but he couldn't just then for economic reasons. Dr. LaRocca said, "We began talking about getting him off the job, and he was started on medication at that time." When asked again if Guidry related that problem to any new injury, the doctor replied, *568 "No new injury. No. It was something that developed as he worked on the job. Further, I would have thought him incapable of doing that job for any significant length of time without having problems recur and, in point of fact, that's exactly what happened, ............. a spine which has this characteristic is simply not going to hold up under physical labor."
Dr. LaRocca's office record of the January 14, 1981, visit by Guidry notes, "...... had done remarkably well getting back to work on a bulldozer until approximately one month ago when he noted increasing axial low back pain with some return of his siatic-type of right leg pain. Also, problem # 2 is right knee anterior cruciate deficit. With an old football injury history and an operation the patient was getting off his bulldozer yesterday when his knee gave way."
Dr. LaRocca treated Guidry on February 13, 1981, and March 24, 1981. He continued to have pain and was sent to Touro Infirmary on April 13, 1981, for a myelogram which turned out normal. He was seen by Dr. LaRocca on June 6, July 21, September 1, November 9 and December 21, 1981. He wore a Raney jacket, or back brace, during most of that time.
Mr. Guidry testified he first reported an accident to his employer in April of 1981.
Mr. Guidry stopped seeing Dr. LaRocca after the December 21, 1981, visit. On January 15, 1982, Dr. John D. Jackson of Metairie, Louisiana, performed surgery on Guidry's back. The doctor's discharge summary, Safeco-7 shows that he found a free fragment of bone, rounded and jagged, pressed beneath the lamina on top of the nerve root. He found some bulging disc material, but did not think it was causing a great deal of difficulty, though he removed it anyway.
Mr. Guidry remains disabled from performing any type of heavy labor and now works as a car and truck salesman. Farm Bureau paid workmen's compensation benefits to Guidry through March 24, 1980. It appears that Guidry continued to draw benefits for about two months after he went to work, apparently not having bothered to notify Farm Bureau of his employment. They received a report from Dr. LaRocca on April 1, 1980, advising that Guidry could return to work as of January 29, 1980, and discontinued weekly benefits at that time. They continued to pay medical expenses until March 13, 1981, including his visits to Dr. LaRocca after his claimed injury in January 1981. They received a report from Dr. LaRocca in early May of 1981, that alerted them Guidry was again unable to work. They then contacted Guidry and learned that Safeco was paying the medical expenses and weekly benefits. The adjuster, Mr. LeBleu, persuaded Guidry not to let Safeco know of their involvement.
Safeco learned of Mr. Guidry's prior injuries and operations in August of 1981. A letter request by Safeco to Farm Bureau on August 18, 1981, for information did not result in a response until July 30, 1982.
The trial court rendered judgment in favor of Farm Bureau and against Safeco, rejecting the plaintiff's demands. No written reasons for judgment were rendered. The preamble of the judgment states:
"This matter, having been submitted to the court based on plaintiff's elicitation of testimony on February 1, 1984, and on the oral deposition of William Briggs, taken on June 8, 1984, the court considering the law and the evidence to be in favor of the defendants, Farm Bureau Insurance Company and J. Curtis Guidry, d/b/a Guidry Farms, Inc., for the reasons assigned in defendants' memorandum dated October 18, 1984."
Manifest error is committed when the trial court assigns as reasons for judgment the argumentative brief of counsel, making it obvious it has not adequately weighed the evidence before it. Cashio v. Holt, 425 So. 2d 820 (La.App. 5th Cir. 1982), writ denied 430 So. 2d 94 (La.1983). We find that defendants' post trial brief to the trial court was not only highly argumentative but did not recite all of the relevant facts and law.
*569 We therefore hold that manifest error was committed by the trial court and it is appropriate for us to resolve the issues, insofar as possible, from the record before us.
An accident, within the meaning of the workmen's compensation law, could result from aggravation of a preexisting physical condition. The chain of causation required by La.R.S. 23:1031 is that the employment causes the accident, the accident causes injury and the injury causes disability. Robichaux v. Terrebonne Parish School Board, 426 So. 2d 241 (La.App. 1st Cir.1983).
The determination as to whether there was or was not an accident may be made from the uncontroverted testimony of the claimant. Daney v. Argonaut Ins. Co., 421 So. 2d 331 (La.App. 1st Cir.1982).
Guidry did not report an accident to his employer until April 10, 1981. He had, however, seen Dr. LaRocca not only on January 14th but also on February 13th and March 24th. Dr. LaRocca's medical report, dated April 9th, one day before Guidry reported an accident, shows that hospitalization was already scheduled for a myelogram which was in fact performed on April 13, 1981.
We believe that Guidry's testimony concerning the occurrence of an accident in early January 1981 is controverted by his statements to Dr. LaRocca. His failure to notify his employer of such an accident, even though he was being treated by a physician, further detracts from his credibility.
The issue as to whether or not the claimant's condition is an aggravation of a preexisting condition is resolved by the finding of a bone fragment by Dr. Jackson in the subsequent surgery. Portions of bone, lamina, had been removed from Guidry's spinal column in the course of the two prior surgeries, as well as a fusion of the vertebrae below that area. The record is devoid of any showing of any accidental blows to Guidry's low back area while employed by B & K Construction Company that could indicate a fracturing off of a piece of bone.
The bone fragment found to be pressing upon the nerve root at the L5-S1 interspace was the cause of Guidry's disability during that period of time. Considering all the medical information available, we determine that it is more probable than not that the bone fragment was residue from and the result of prior surgeries necessitated by the claimant's initial injury while employed by Guidry Farms. It was not the result of aggravation of a preexisting condition during the course of claimant's employment by B & K Construction Company.
Consequently, the responsibility for workmen's compensation benefits rested upon Farm Bureau since the disability related back to Guidry's initial injury while employed by its' insured. Safeco has properly paid benefits pending a judicial determination of liability, and Farm Bureau has been unjustly enriched at Safeco's expense.
The action for unjust enrichment, or "action de in rem verso" has five elements:
"1. An enrichment.
2. An impoverishment.
3. There must be a connection between the enrichment and the impoverishment.
4. There must be an absence of cause or justification for the enrichment and impoverishment.
5. There is no other remedy at law; i.e., the action is subsidiary or corrective in nature."
LSA-C.C. art. 3499 (formerly C.C. art 3544). Minyard v. Curtis Products, Inc., 251 La. 624, 205 So. 2d 422 (1967).
Safeco's action herein meets all of those elements and it is entitled to recover the workmen's compensation benefits it has paid for which Farm Bureau was responsible.
An exception of prescription is found in the record, upon which no ruling of the trial court has been made. The *570 judgment on the merits appears to overrule it without comment. The exception is without merit. The action for unjust enrichment is prescribed by ten years. Bazile v. Arnaud Coffee Co., 465 So. 2d 111 (La.App. 4th Cir.1985), writ denied 468 So. 2d 1212 (La.1985).
For the reasons herein assigned, we hold that Safeco is entitled to indemnification from defendants-appellees for all sums paid to or on behalf of David K. Guidry as workmen's compensation benefits or medical expenses as a result of an alleged work related accident on January 6, 1981. Plaintiff-appellant is entitled to indemnification for all such payments made prior to the date of judicial demand made on March 23, 1983, together with judicial interest at the rate of 12% per annum from that date, until paid. It shall recover the amount of all such payments made subsequent to March 23, 1983, with judicial interest from the date of said payments, until paid.
Costs in the trial court and of this appeal are taxed to defendants-appellees.
REVERSED AND RENDERED.
NOTES
[*] Judge W. Ellis Bond of the 14th Judicial District Court appointed to this court pro tempore by the Supreme Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610293/ | 485 P.2d 737 (1971)
82 N.M. 626
CITY OF LAS VEGAS, Plaintiff-Appellee,
v.
Leland James MOBERG, Defendant-Appellant.
No. 639.
Court of Appeals of New Mexico.
May 14, 1971.
*738 Leon Karelitz, Las Vegas, for defendant-appellant.
Roberto L. Armijo, Las Vegas, for plaintiff-appellee.
OPINION
SPIESS, Chief Judge.
The defendant, Moberg, was convicted by the municipal court of the City of Las Vegas of violating the city ordinance No. 3-3, which reads as follows:
"DEADLY WEAPONS. It shall be unlawful for any person to carry deadly weapons, concealed or otherwise, on or about their persons, within the corporate limits of the City of East Las Vegas. Deadly weapons shall consist of all kinds of guns, pistols, knives with blades longer than two and half inches, slingshots, sandbags, metallic knuckles, concealed rocks, and all other weapons, by whatever name known, with which dangerous wounds can be inflicted."
The complaint charged the defendant with the violation of the ordinance by number and specifically by "carrying a concealed and deadly weapon." Following conviction by the municipal court, defendant appealed to the district court and was there accorded a trial "de novo" (§ 38-1-13, N.M.S.A. 1953, (Rpl. Vol. 6).
The evidence presented at the trial in the district court established, without dispute, that defendant went to the booking room of the city police department of the city of Las Vegas to report the theft of certain items from his automobile. At the time, defendant was carrying a pistol in a holster. The pistol was in plain view at all times. It appears that both parties at the trial in the district court treated the complaint as charging simply the carrying of a deadly weapon. No contention is made that the evidence supported the carrying of a concealed weapon. Defendant was found guilty by the district court of violating the particular ordinance through carrying a deadly weapon, which, in this case, as stated, was in plain view. Sentence was imposed.
Defendant has appealed and challenges the constitutionality of the ordinance as it is applied to carrying arms openly and in plain view. He asserts that in this respect the ordinance is repugnant to Article II, Section 6 of the Constitution of the State of New Mexico. This section provides:
"The people have the right to bear arms for their security and defense, but nothing herein shall be held to permit the carrying of concealed weapons."
It is a generally accepted principle that a municipal ordinance which denies rights protected by constitutional guaranty is void to the extent, at least, that it purports to deny such rights. Berger v. City and County of Denver, 142 Colo. 72, 350 P.2d 192 (1960); City of Fort Worth v. Atlas Enterprises, 311 S.W.2d 922 (Tex.Civ. App. 1958); State v. Hart, 66 Idaho 217, 157 P.2d 72 (1945). 5 E. McQuillin, Municipal Corporations, § 19.03, (1969 Revised Edition).
Ordinances prohibiting the carrying of concealed weapons have generally been held to be a proper exercise of police power. State v. Hart, supra; Davis v. State, 146 So. 2d 892 (Fla. 1962).
Such ordinances do not deprive citizens of the right to bear arms; their effect is only to regulate the right. As applied to arms, other than those concealed, the ordinance under consideration purports to completely prohibit the "right to bear arms."
It is our opinion that an ordinance may not deny the people the constitutionally guaranteed right to bear arms, and to that extent the ordinance under consideration is void. State v. Rosenthal, 75 Vt. 295, 55 A. *739 610 (1903); and see In re Brickey, 8 Idaho 597, 70 P. 609 (1902); State v. Woodward, 58 Idaho 385, 74 P.2d 92 (1937); State v. Kerner, 181 N.C. 574, 107 S.E. 222 (1921).
The case against defendant should be dismissed and defendant discharged.
It is so ordered.
WOOD and SUTIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1903688/ | 807 So.2d 842 (2002)
John E. DUHON
v.
Scurlock PERMIAN.
No. 2001-C-2971.
Supreme Court of Louisiana.
January 25, 2002.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2252423/ | 702 F.Supp. 461 (1988)
CHRISTINA CANADA, INC., Plaintiff,
v.
WIOR CORPORATION, Defendant.
No. 88 Civ. 4268 (RWS).
United States District Court, S.D. New York.
December 16, 1988.
*462 Nims, Howes, Collison & Isner, New York City, for plaintiff; Oliver P. Howes, Jr., of counsel.
Darby & Darby, New York City, for defendant; Robert Berliner, Beverly B. Goodwin, Melvin C. Garner, of counsel.
OPINION
SWEET, District Judge.
Defendant Wior Corporation ("Wior") has moved pursuant to 28 U.S.C. § 1404(a) to transfer this action from the Southern District of New York to the Central District of California. For the reasons set forth below, Wior's change of venue motion is denied.
The Parties
Plaintiff Christina Canada, Inc. ("Christina Canada") is a Canadian corporation with its principal place of business in Montreal, Quebec, Canada. It designs and manufactures swimwear in Canada for sale in Canada and the United States. Christina Canada's sister corporation, Christina U.S.A., Inc. ("Christina U.S.A."), is a Delaware corporation with its principal place of business in New York City. Christina U.S.A. markets Christina Canada's swimwear in the United States, but has not been named as a party to this action. Laurent Balit serves as president of both Christina Canada and Christina U.S.A.
Wior is a family-owned apparel corporation with its principal place of business in Los Angeles, California. It has several divisions, including the Nicole Wior Division ("Nicole"), which manufactures and markets swimwear, the Luci Pellini Division ("Luci"), which sells dresses, and the David Brown Division ("David"), which sells bathrobes and loungewear.
The Facts
Wior, through its Nicole Division in Los Angeles, manufactures and markets swimwear under the trademark "The Slim Suit" that is covered by United States Letters Patent No. 4,571,742 ("patent"). To emphasize the slimming effect of its swimwear, Wior promotes "The Slim Suit" through advertisements that feature tape measures as part of their copy and attaches a tape measure to each swimsuit it sells.
Christina Canada manufactures and markets a line of swimwear called "Simply Slim." It too sells the swimsuit with a tape measure attached and promotes its product with advertisements featuring a tape measure. Both companies sell their swimwear lines in New York City.
Christina Canada alleges that, beginning in January of 1987, Wior sent it several letters claiming patent and trademark infringement and threatening a lawsuit. Christina Canada also asserts that Wior has attempted to enforce its patent and trademark by threatening suit against sellers, dealers, or users of Christina Canada swimwear in New York City.
In response, Christina Canada brought this action in the Southern District of New York. It sought a declaratory judgment pursuant to 28 U.S.C. §§ 2201, 2202 that Wior's patent for "The Slim Suit" is invalid and that Christina Canada's "Simply Slim" swimwear does not infringe the patent. It *463 also charged Wior with unfair competition for threatening suit against sellers, dealers, and users of Christina Canada Swimwear with the predatory intent of injuring Christina Canada's business.
Wior filed an answer, counterclaims for patent infringement and unfair competition and trademark infringement, and this motion for change of venue.
Change of Venue
A change of venue is authorized by 28 U.S.C. § 1404(a), which states:
For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.
The moving party in this case, Wior bears the burden to justify a change of venue. See Factors, etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir.1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979); Troyer v. Karcagi, 488 F.Supp. 1200, 1207 (S.D.N.Y.1980). That burden is heavy: "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947); see also Ayers v. Arabian Amer. Oil Co., 571 F.Supp. 707, 709 (S.D. N.Y.1983) ("`[a]bsent a clear and convincing showing' that the balance of convenience favors the ultimate forum, discretionary transfers are not favored").
Several factors determine whether the defendant has met its burden on a motion to change venue. These include (a) plaintiff's choice of forum; (b) convenience of the parties; (c) convenience of the witnesses; (d) the relative ease of access to the sources of proof; (e) the availability of process to compel attendance of unwilling witnesses; (f) consideration of trial efficiency; and (g) the furtherance of the interest of justice. See Town of Warwick v. New Jersey Dep't of Environmental Protection, 647 F.Supp. 1322, 1323 (S.D.N.Y. 1986); see also O'Neill v. Stanwood Corp., 577 F.Supp. 1001, 1003 (S.D.N.Y.1984).
Wior offers several reasons why transferring this action to the Central District of California would be more convenient for the parties and witnesses and would serve the interests of justice. First, Wior itself is based in California. All of Wior's officers and employees work and reside in or around Los Angeles. The company's business records and its corporate bank account are located in Los Angeles. Wior makes all advertising and promotion decisions, processes all orders, and ships all products relating to its swimwear line from Los Angeles.
Second, Wior's contacts with New York are minimal, particularly as they relate to the issues in this lawsuit. Its David division has some contacts with New York it leases a showroom, employs two to four employees, and maintains a corporate bank account in New York. But it does so almost exclusively for selling robes and loungewear. Only occasionally does the facility accommodate visitors for purposes of marketing swimwear. Not until July of 1988 did the company lease space to display swimwear, and this facility employs only one person.
Third, Christina Canada has ties principally to Canada, not the Southern District of New York. Christina Canada designed and developed its Simply Slim swimwear line in Canada. It makes all final decisions regarding sales, merchandising, and promotion of the line in Canada and performs all accounting and bookkeeping functions in Canada. Although Christina U.S.A. has more substantial dealings in New York City, the complaint does not name that company as a party.
Most importantly, Wior contends, most of the activities and evidence relating to the issues in this case are based in California or Canada, not New York City. Wior conceived and reduced to practice the design for "The Slim Suit" in Los Angeles and Christina Canada did the same for the "Simply Slim" line in Canada. The persons who participated in this endeavor and who likely will be called to testify at trial including graphic artists, designers, cutters, fitters, and models work and reside in Los Angeles or in Canada. Virtually all the documents and records relating to this case are maintained in Los Angeles or in Canada.
*464 Wior also has identified several third party witnesses over whom this court would not have jurisdiction to compel them to testify at trial. At least three persons who have since left Wior's employ may have information relating to conception and reduction to practice of the patent. Wior retains an independent accountant residing in Los Angeles whom it might call to testify regarding sales, earnings, and profitability.
Christina Canada contends that this court should respect the plaintiff's choice of forum for several reasons. First, Christina Canada has substantial ties to New York City. Christina Canada markets its swimwear in the United States through Christina U.S.A., which exists legally as a separate corporation but operates under the control of Christina Canada. Christina U.S.A. has three full-time employees and is the sole distributor of Christina Canada swimwear in the United States, handling all shipments, returns, and customer complaints for the American market out of its New York office. Christina U.S.A. has significant receipts from sales in New York City and maintains a corporate bank account in New York City. The records for Christina Canada's American Swimwear sales are located in New York City. Christina Canada employees routinely visit Christina U.S.A.'s New York City office to assist in sales, promotions, merchandising, and other related industry events.
Second, Christina Canada asserts that Wior has substantial business ties to New York City. Two of its divisions maintain offices in New York; the company operates a showroom in New York to display its swimwear; it has at least six New York employees; Wior has had a listing for a New York telephone number since at least 1986; and the company has receipts from New York sales of the merchandise that is the subject of this lawsuit.
Finally, Christina Canada argues that the Southern District of New York is the best forum for hearing its unfair competition claim, which arises from the two parties efforts to sell their competing swimwear lines in New York stores. Christina Canada has identified four witnesses with knowledge of this claim, all of whom live in New York City. It also expects discovery to disclose the identity of other New York residents it may call as witnesses at trial.
Wior has failed to meet its heavy burden to establish the need to transfer this case to the Central District of California. The alleged unfair competition occurred in New York City. Both companies market the swimwear that is the subject of the patent and trademark claims in New York City. Both parties maintain facilities and have employees here. Several party and third-party witnesses reside or work in New York City. Some of the records relating to the suit notably, Christina Canada's sales records are located here. Christina Canada employees must travel to participate in this suit in any event, but it is far easier for them to travel from Montreal to New York City than from Montreal to Los Angeles.
In light of these factors, transfering this case to the Central District of California would not be sufficiently more convenient for the parties or witnesses to justify disturbing Christina Canada's choice of forum.
Conclusion
For the reasons set forth above, Wior's motion to transfer venue to the Central District of California is denied.
It is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1808773/ | 988 So.2d 1157 (2008)
Mary Therese CHARLES, etc., Appellant,
v.
FLORIDA FORECLOSURE PLACEMENT CENTER, LLC., etc. et al., Appellees.
Nos. 3D07-3205, 3D07-3134.
District Court of Appeal of Florida, Third District.
August 6, 2008.
*1158 James Jean-Francois, for appellant.
Bradford J. Beilly and John Strohsahl, Ft. Lauderdale, for appellees Envision Funding, LLC and Cesar Jose; Bogert & Rembold and Jeffrey F. Bogert, Coral Gables and Mark D. Bohm, Miami, for appellee Quantum Title Services, LLC.
Before WELLS, ROTHENBERG, and SALTER, JJ.
WELLS, Judge.
In this consolidated appeal, Mary Therese Charles appeals separate orders dismissing her action against Quantum Title Services, LLC, Envision Funding, LLC, and Cesar Jose, Envision's principal, for failure to state a cause of action. Because the complaint alleges sufficient facts to state at least one cause of action against each of these parties, we reverse.
We review the instant dismissal orders de novo. Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So.2d 204, 206 (Fla. 3d DCA 2003) ("Because a ruling on a motion to dismiss for failure to state a cause of action is an issue of law, it is *1159 reviewable on appeal by the de novo standard of review."). The facts as stated in the complaint, which must be accepted as true and viewed in a light most favorable to Charles, are as follows:
Charles, a seventy-two-year-old widow, is the owner of a home that she purchased in 1975. In 2003, Charles mortgaged her home, which had been unencumbered since 1989, to secure an $81,000 loan. Two years later, she mortgaged it again to secure an additional $35,000 debt. Foreclosure proceedings were instituted against Charles in January 2006 after she defaulted on this second mortgage.
Shortly after the foreclosure action was filed, Charles received an unsolicited visit from an individual named Winston who represented himself as an agent of Florida Foreclosure Placement Center ("FFPC"). According to the complaint, Winston assured Charles that FFPC was not a mortgage broker or realtor and that FFPC could help her save her home without losing ownership. After agreeing to FFPC's help, Charles accompanied Winston to a Notary Public located near her Liberty City home where she signed a power of attorney in favor of FFPC. Two months later, Winston sent Charles to Quantum to execute documents that purportedly would save her home from foreclosure without jeopardizing her ownership. Charles did not, however, execute documents that would preserve her ownership interest, but executed instead documents prepared by Quantum closing the sale of, and transferring title to, Charles' home to Jacqueline Pierre-Andre, an individual who Charles had never heard of or met and who was not present at the closing of this sale. This "sale" was financed with the proceeds of two loans in the total amount of $165,000 brokered by Cesar Jose, the principal of Envision.[1]
On learning that she no longer owned her home, Charles sued all those involved in this transaction.[2] As to Quantum, the title agency that prepared the documents for and conducted the closing of the sale of her home, Charles sought to recover for claims sounding in negligence, fraud, and conspiracy to defraud. As to the mortgage broker, Envision, which secured the new loans so that Pierre-Andre could purchase Charles' home, Charles sought to recover for claims sounding in negligence, fraud, and conspiracy to defraud. As to Envision's principal, Cesar Jose, Charles sought to recover for claims sounding in fraud and conspiracy to defraud. The court below dismissed all of these claims for failure to state a cause of action and dismissed the action with prejudice as to all three defendants.[3] While we agree that the complaint is inartfully drafted, it adequately states at least one cause of action against each defendant so as to preclude their dismissal from this action with prejudice.
1. Conspiracy to defraud
Specifically, the complaint alleges sufficient facts to state a cause of action for conspiracy to defraud against all three of these parties. "A civil conspiracy requires: (a) an agreement between two or more parties, (b) to do an unlawful act or *1160 to do a lawful act by unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts done under the conspiracy." Raimi v. Furlong, 702 So.2d 1273, 1284 (Fla. 3d DCA 1997); see Witmer v. Dep't of Bus. & Prof'l Regulation, Div. of Pari-Mutuel Wagering, 631 So.2d 338, 342 (Fla. 4th DCA 1994) (observing that an "[a]greement is a necessary element of the crime of conspiracy, which is defined as an express or implied agreement of two or more persons to engage in a criminal or unlawful act"); Nicholson v. Kellin, 481 So.2d 931, 935 (Fla. 5th DCA 1985) (stating that "[a] conspiracy is a combination of two or more persons by concerted action to accomplish an unlawful purpose or to accomplish some purpose by unlawful means"). Each coconspirator need not act to further a conspiracy; each "need only know of the scheme and assist in it in some way to be held responsible for all of the acts of his coconspirators." Donofrio v. Matassini, 503 So.2d 1278, 1281 (Fla. 2d DCA 1987) (also stating that "[t]he existence of a conspiracy and an individual's participation in it may be inferred from circumstantial evidence"); see also Nicholson, 481 So.2d at 935 (confirming that an act done in pursuit of a conspiracy by one conspirator is an act for which each other conspirator is jointly and severally liable).
In this case, Charles alleges that FFPC (and its agent Winston) lied to her when it told her that it was going to save her home without affecting title, while really intending to defraud her of the substantial equity (approximately $55,000) in that home. Blatt v. Green, Rose, Kahn & Piotrkowski, 456 So.2d 949, 950 (Fla. 3d DCA 1984) ("The gist of a civil action for conspiracy is not the conspiracy itself, but the civil wrong which is done pursuant to the conspiracy and which results in damage to the plaintiff."); see also Raimi, 702 So.2d at 1284 (finding that "an actionable conspiracy requires an actionable underlying tort or wrong"). According to the complaint, FFPC carried out the intended fraud by enlisting the agreement and assistance of a straw buyer (Pierre-Andre), a mortgage broker (Envision and its principal), and a closing agent (Quantum Title), all of whom or which acted in concert with FFPC by participating in a sham "sale" that satisfied Charles' existing debts and replaced them with new financing which generated fees, costs and net proceeds pocketed by the co-conspiratorsbut not by Charles. Because we believe this is enough to state a claim for conspiracy to defraud, we reverse dismissal of this claim and remand for reinstatement of this action against all three defendants.
2. Fraud
We also find the facts alleged sufficient to withstand dismissal of the fraud counts against these defendants. See Lopez-Infante v. Union Cent. Life Ins. Co., 809 So.2d 13, 15 (Fla. 3d DCA 2002) (stating that fraud is an intentional misrepresentation of a material fact made for the purpose of inducing another to rely, and on which the other reasonably relies to his or her detriment); Ward v. Atl. Sec. Bank, 777 So.2d 1144, 1146 (Fla. 3d DCA 2001) (concluding that fraud may be predicated on an intentional omission of a material fact). The complaint essentially alleges that Quantum knowingly concealed the nature of the documents that Charles was signing and, knowing that she believed that she was preserving her ownership interest, intentionally failed to disclose that the documents she was signing would transfer ownership to a straw buyer, all for the purpose of depriving her of the equity in her home. Even if somewhat inartfully stated, we find that the allegations of the complaint were sufficient to *1161 survive dismissal with prejudice, and, at a minimum, Charles should have been allowed to cure any defects. See Aspsoft, Inc. v. WebClay, 983 So.2d 761, 768 (Fla. 5th DCA 2008) (finding that claims should not have been dismissed with prejudice where defects in the claims could be cured by future amendment); Gandy v. Trans World Computer Tech. Group, 787 So.2d 116, 118 (Fla. 2d DCA 2001) ("A complaint should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff could prove no set of facts that would entitle him to relief."); Drakeford v. Barnett Bank of Tampa, 694 So.2d 822, 824 (Fla. 2d DCA 1997) ("Where it appears from a conclusory allegation that a cause of action can be stated and the complaint cured by amendment, a trial court should not dismiss with prejudice."); Kairalla v. John D. & Catherine T. MacArthur Found., 534 So.2d 774, 775 (Fla. 4th DCA 1988) (finding that "a dismissal with prejudice should not be ordered without giving the plaintiff an opportunity to amend the defective pleading, unless it is apparent that the pleading cannot be amended to state a cause of action").
The fraud claim against Envision and its principal also should not have been dismissed with prejudice at this stage of the proceedings. The gist of that claim is that these defendants participated in the fraud on Charles by securing loans for a known straw buyer who would "refinance" Charles' debt and take title to Charles' home, generating approximately $55,000 in equity (the difference between Charles' existing mortgages and the two new loans) in which Envision and its principal, but not Charles, would share. Although the complaint may not state a cause of action against Envision and Cesar Jose for fraud as currently drafted, we see no reason why Charles should not be afforded the opportunity to amend her complaint to state such a claim either now or at some future point in this litigation.
3. Negligence
It likewise does not appear that the complaint as currently drafted states a cause of action against Envision and its principal for negligence. See Williams v. Davis, 974 So.2d 1052, 1056 (Fla.2007) (stating the essential elements of a negligence claim as: (1) a duty, recognized by law, requiring the defendant to conform to a certain standard of conduct for the protection of others against unreasonable risks; (2) breach of duty by the defendant; (3) a reasonably close causal connection between the nonconforming conduct and the resulting injury to the claimant; and (4) actual harm). However, we see no reason why the complaint cannot be amended to adequately allege such a claim.
The negligence count as to Quantum does, however, state a cause of action and should not have been dismissed. That count states that Quantum, a title insurance agency, acted as the closing agent for this "sale." As such, it had a duty to act in a reasonably prudent manner by at least identifying what Charles was signing, specifically that one of the documents she signed was a closing statement for the sale of her property and that another was a deed to her property. See Land Title of Cent. Fla., LLC v. Jimenez, 946 So.2d 90, 93 (Fla. 5th DCA 2006) (finding that a title insurance agency which acts as a closing agent owes a duty to conduct the closing in a reasonably prudent manner); Sommers v. Smith & Berman, P.A., 637 So.2d 60, 61 (Fla. 4th DCA 1994) (same); Askew v. Allstate Title & Abstract Co., 603 So.2d 29, 31 (Fla. 2d DCA 1992) ("It is well-established that a title insurance company acting as a closing agent has the duty to supervise a closing in a `reasonably prudent manner.'" (quoting Fla. S. Abstract *1162 & Title Co. v. Bjellos, 346 So.2d 635, 636 (Fla. 2d DCA 1977))).
While it is clear that Quantum had no duty to explain the legal ramifications of these documents, it did have an obligation to at least identify them. See Fla. Bar v. Coastal Bonded Title Co., 323 So.2d 562, 563 (Fla.1975) (agreeing that a title company "shall not hold themselves out by words or conduct as having legal expertise in real property transactions or other legal matters and, furthermore, when questioned as to legal rights and/or duties by a party to any real estate transaction shall affirmatively represent that they do not represent their legal rights and that only a licensed attorney-at-law can perform that function on their behalf"); Fla. Bar v. McPhee, 195 So.2d 552, 554 (Fla.1967) (finding that a title insurance company may conduct real estate closings incident to fulfilling conditions in the title insurance commitment, but that it may not "giv[e] advice, orally or in writing, relating to the methods of taking title or concerning the legal effect of any document"); Bjellos, 346 So.2d at 637 (finding that the title company owed a duty under the particular circumstances of the case, but stating "[w]e do not suggest that the appellant was obliged to render a legal opinion upon the sufficiency of whatever documentation was furnished at closing"). Not only does the complaint allege that Quantum failed to identify what Charles signed, but also it alleges that had Charles been told that she was executing a deed and a closing statement for the sale of her home, she would not have executed these documents. Taken as a whole, the complaint states a claim against Quantum for negligence. We therefore reverse dismissal of this claim and remand for its reinstatement.
Conclusion
As stated in Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489, 501 (Fla. 4th DCA 2001):
[T]he Plaintiffs have amended their complaint only twice, not the four to ten times sometimes seen in other cases. The Plaintiffs have not abused the pleading process. Moreover, it appears the Plaintiffs either have, or could with minor change, state a cause of action upon the facts they have alleged. The Plaintiffs' interest in resolving this case on the merits outweighs any "time, effort, energy, and expense" [Defendant] might incur by continuing to defend itself at this juncture.
(Citations omitted).[4]
Accordingly, we reverse the instant dismissal orders and remand with instructions to reinstate this action as to all three defendants as stated herein.
NOTES
[1] Although this "sale" netted approximately $55,000, not one cent was paid to Charles because she had previously signed a document assigning the proceeds to FFPC.
[2] Charles alleges that Quantum failed to provide her with copies of the documents that she signed at the closing and that she did not learn that she had sold her property and assigned away the sale proceeds until a later date.
[3] The pleading dismissed with prejudice was only the Second Amended Complaint. The claims against FFPC and the other defendants remain pending in the lower court.
[4] Although we have said that amendments to pleadings should be liberally allowed "so that cases may be concluded on their merits," Alvarez v. DeAguirre, 395 So.2d 213, 216 (Fla. 3d DCA 1981), we have also recognized that "as an action progresses, the privilege of amendment progressively decreases to the point that the trial judge does not abuse his discretion in dismissing with prejudice." Kohn v. City of Miami Beach, 611 So.2d 538, 539 (Fla. 3d DCA 1992); Alvarez, 395 So.2d at 216 (stating that "a trial judge may deny further amendments where a case has progressed to a point that liberality ordinarily to be indulged has diminished"). Therefore, to the extent that Charles should choose to amend her pleadings on remand to state these or any other causes of action against the defendants, she should take great caution not to abuse the amendment privilege. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4561319/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 123 MM 2020
:
Respondent :
:
:
v. :
:
:
DEJEREK BASIL SMALLWOOD, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 28th day of August, 2020, the Application for Leave to File a
Petition for Allowance of Appeal Nunc Pro Tunc is GRANTED. Counsel is DIRECTED to
file a Petition for Allowance of Appeal within 15 days. | 01-03-2023 | 08-28-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3098601/ | COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
'
PATRICK DE LA CRUZ MORENO, No. 08-12-00027-CR
'
Appellant, Appeal from
'
v. 112th District Court
'
THE STATE OF TEXAS, of Pecos County, Texas
'
Appellee. ' (TC # 3061)
MEMORANDUM OPINION
This appeal is before the Court on its own motion to determine whether it should be
dismissed for want of jurisdiction. Patrick De La Cruz Moreno filed notice of appeal in two
criminal cases, cause numbers 3061 and 3156, but his attorney has since advised the Court that
he mistakenly filed notice of appeal in cause number 3061. Finding that there is no final
judgment or appealable order in the instant case, we dismiss the appeal for want of jurisdiction.
Generally, we only have jurisdiction to consider an appeal by a criminal defendant where
there has been a final judgment of conviction. See Workman v. State, 170 Tex. Crim. 621, 343
S.W.2d 446, 447 (1961); Bridle v. State, 16 S.W.3d 906, 907 (Tex.App.--Fort Worth 2000, no
pet.). An appellate court does not have jurisdiction to review interlocutory orders, unless that
jurisdiction has been expressly granted by law. See TEX.CODE CRIM.PROC.ANN. art. 44.02
(West 2006); Bridle, 16 S.W.3d at 907. A final judgment has not been entered in this case and
Appellant does not allege that there is an appealable interlocutory order. In fact, Appellant’s
attorney has notified the Court that Appellant was not convicted in cause number 3061 because
the case was re-indicted and Appellant was subsequently convicted in cause number 3156. The
appeal from that conviction will proceed in Patrick De La Cruz Moreno v. State, cause number
08-12-00028-CR. We therefore dismiss the appeal arising out of cause number 3061 for want of
jurisdiction.
May 9, 2012 ________________________________________________
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rivera, and Antcliff, JJ.
(Do Not Publish)
-2- | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1292121/ | 506 F.3d 635 (2007)
UNITED STATES of America, Appellee/Cross-Appellant,
v.
Lester John WHITE, Jr., Appellant/Cross-Appellee.
Nos. 06-3781, 06-3886.
United States Court of Appeals, Eighth Circuit.
Submitted: June 12, 2007.
Filed: November 2, 2007.
*636 *637 AFPD Angela Campbell, argued, Des Moines, IA (Nicholas Drees, AFPD, on the brief), for appellant/cross-appellee.
AUSA Craig Peyton Gaumer, argued, Des Moines, IA, for appellee/cross-appellant.
Lester John White, Jr., Garden Grove, IA, pro se.
Before BYE, RILEY, and BENTON, Circuit Judges.
BYE, Circuit Judge.
Following a bench trial, the district court[1] found Lester White, Jr., guilty of receiving and distributing child pornography in violation of 18 U.S.C. § 2252(a)(2) and possessing child pornography in violation of 18 U.S.C. § 2252(a)(4), and sentenced him to a term of imprisonment of seventy-two months. White appeals his convictions contending the evidence was insufficient. He also appeals his sentence contending the district court improperly imposed two sentencing enhancements when calculating the advisory guideline range of 108 to 135 months. The government cross appeals the district court's downward variance from the advisory guideline range. We affirm.
I
On December 20, 2001, an employee of the Iowa Department of Human Services (DHS), opened an anonymous letter containing a photograph of a naked female child and a male penis. The back of the image contained an inscription purportedly identifying the female child (hereinafter A.M.) and indicating A.M.'s mother took the photograph. The letter included A.M.'s address, and the photo implied A.M.'s father was the man in the picture. The photo was immediately turned over to a DHS child intake worker for investigation. The same day, United States Postal Inspector Kevin Marshall received a call from DHS about the mailing and met with *638 Osceola, Iowa, police officer Charles Beeker to begin an investigation into the matter. After going to A.M.'s school and meeting her, Inspector Marshall thought the image was similar to the little girl, but was not convinced it was her.
Inspector Marshall and Officer Beeker met with A.M.'s parents, who denied taking the picture and said the girl portrayed in the image was not their daughter. A.M.'s parents allowed the officers to search their home. No computers, cameras, or anything connecting the parents to the mailing was found. Due to previous disputes between themselves and White and his wife (the two couples had accused each other of child abuse on several occasions), A.M.'s parents suspected the photo had been sent by White.
Inspector Marshall determined the purported picture of A.M. was as known in law enforcement circles part of the "Heather" series of child pornography images and not A.M. On December 27, 2001, the Osceola police contacted Inspector Marshall and told him the city attorney had recently received a letter from White with print and typing similar to the inscription on the back of the Heather picture sent to DHS. A warrant was then issued to search White's house.
On December 28, 2001, White was at his home when the search warrant was executed. White admitted to sending the Heather photo to DHS, claiming he had found it on his computer and thought it looked like A.M. He said he sent the photo anonymously because he had reported prior concerns to DHS about A.M.'s family, but those complaints had gone unheeded. He believed an anonymous report would get more attention.
White acknowledged the Heather picture was still on his computer. He provided step-by-step instructions on how to locate the Heather photo stored on his computer's hard drive. White admitted he saved the Heather photo to his computer, but had no explanation as to why he would need to save the image as proof when it was reported to DHS anonymously and no one could track it to him. White then told Inspector Marshall he would find other images of child pornography, besides the Heather picture, stored on the computer's hard drive. White again instructed the officers, step-by-step, on how to access a computer subfolder called "checking," which contained multiple images of child pornography.
A forensic analysis of White's computer revealed images of child and adult pornography. Additionally, the investigation uncovered two computer disks labeled "Adults Only. Keep Out!" and "XXX Newsgroup." White created both disks and admitted he created the "Girls" subdirectory on the latter disk. He told Inspector Marshall verbally and in a written confession he had downloaded the images of child pornography found on the hard drive. White admitted writing the "XXX" on the "XXX Newsgroup" computer disk, as well as "Photos from Newsgroup" inside the case holding the disk. White further admitted writing "Adults Only. Keep Out!" on the second computer disk, but claimed to have no idea what was on the disk. All told, the authorities discovered approximately fifty images of child pornography.
Much of the child pornography had been downloaded from Outlook Express Newsgroups to which White was a subscriber. The forensic examination revealed the computer had been used to subscribe to dozens of newsgroups, including pedophilia.box.dbx, pedophilia. girls. dbx, alt.pedophilia.pictures.dbx, and alt.sex.incest.dbx, among others. At one point White claimed the only thing on his computer were "adults-only materials," later claiming numerous family photos were on the *639 computer. On both of the computer disks described above, no files other than child or adult pornography were found.
As a result of White mailing the Heather photo to DHS, A.M. was subjected to a physical examination and interview with officers to determine whether her parents were sexually abusing her. A.M.'s parents had their children taken away from them overnight.
A federal grand jury charged White in a three-count indictment with receiving, possessing, and distributing child pornography. Following White's waiver of his right to a jury trial, the government consented to a bench trial. At trial, White denied knowing about any child pornography on his computer, other than the Heather image, and denied showing the investigators the Heather photo on his computer. He also denied any knowledge of the two computer disks found during the search of his home. Following the bench trial, the district court found White guilty on all three counts of the indictment.
At sentencing, A.M.'s victim impact statement indicated she continued to suffer from the incident, such as being afraid to have her picture taken by a video camera, being embarrassed about going to the doctor, and having nightmares about White.
The district court calculated White's advisory guideline range as follows. Pursuant to United States Sentencing Guidelines (U.S.S.G.) § 2G2.2 (2001),[2] the base offense level for White's offense conduct was seventeen. To this, the district court added
a two-level enhancement under U.S.S.G. § 2G2.2(b)(1) because the Heather image distributed to DHS depicted a minor under the age of twelve years;
a four-level enhancement under U.S.S.G. § 2G2.2(b)(3) because the Heather image portrayed sadistic or masochistic conduct (vaginal rape by an adult male);
a two-level enhancement under U.S.S.G. § 2G2.2(b)(5) because a computer was used for the transmission of the pornographic material; and
a two-level enhancement under U.S.S.G. § 3C1.1 for obstruction of justice based on the district court's finding White's trial testimony was inconsistent with the statements he made at the time of the search of his home.
In addition, as relevant to the issues raised on appeal, the district court imposed
a two-level enhancement under U.S.S.G. § 3A1.1 after determining A.M. was a vulnerable victim of the offense; and
a two-level enhancement under U.S.S.G. § 2G2.2(b)(2)(E) because the offense involved distribution of child pornography.
White's final advisory guideline range was 108 to 135 months (Offense Level 31 under Criminal History Category I). Absent the two enhancements White challenges on appeal, the advisory guideline range would have been 70 to 87 months (Offense Level 27 under Criminal History Category I).
White requested a downward variance from the advisory guideline range based on several factors, including his age, medical condition, lack of a criminal record, community service, and the fact he possessed relatively few images of child pornography and distributed just a single *640 image. The government requested an upward variance based on the fact White used an image of child pornography to make a false report to DHS authorities in an attempt to frame A.M.'s parents for sexually abusing her. The district court denied the government's request for an upward variance, and granted White's request for a downward variance. In denying the government's request and granting White's, the district court considered the arguments made by both parties:
The guidelines here I've made every finding against the Defendant in favor of the Government with regard to the guideline calculations. Some of those were very close findings, but I think under the guidelines they are the correct finding.
With regard to the Government's motion for upward departure, I find there's no basis for departure upward, and I will deny that motion. I think the conduct we're talking about here, while reprehensible, is adequately dealt with in the calculation of the guidelines. And what we're talking about is a guideline sentence of between nine and eleven years, which is going to be whatever the sentence is, Mr. White is going to go to jail and spend a very significant part of his remaining life behind bars.
But I find in evaluating the conduct and the guideline calculation that a sentence at the low end of the guideline range is the appropriate guideline sentence. And my guideline sentence will be nine years, one hundred eight months. The remaining factor for me to consider is whether or not, then, there is a downward departure for consideration under 3553(a).
I think we all know the factors that I need to consider. I've already stated that although I recognize his community service as reflected in the record, I do not find that is a ground for any variance and will not consider that.
With regard to his variance, obviously, factors that were not recognizable as matters for departure under the guidelines can and should be evaluated in reaching a fair and equitable sentence to both the Defendant and the Government. And things like the Defendant's age, his minimal criminal record, his medical condition are factors that can and should be considered.
Mr. White is 51 years old. . . . At the present time, he does have a deteriorating medical condition between his diabetes, his high blood pressure, weakness in his extremities and difficulty in walking. And although I agree with the Government that medical conditions can and will be treated well in the Bureau of Prisons, they're still a factor in determining the appropriate length of sentence. All of these factors play into the Court's consideration of possible variance downward.
The big factor to me is to weigh the nature and circumstances of this offense. This is a very unusual offense. The distribution that we're normally talking about in this kind of case is one of distribution through a computer and sending images out across the internet to hundreds and perhaps thousands of other individuals.
We don't have that here. We have one The distribution count is centered on one isolated event. Although very serious and damaging and traumatic, it was one isolated event. And I think that is important in evaluating a variance.
Counterproductive against that, of course, is the hateful nature of the event. I don't think you were doing it to protect the child, I think you were doing it as part of a vindictive action *641 against the parents you were having strong disagreements with. So that counterbalances the extent of the departure, but I think extent of the variance. But I still think there is grounds for a variance because of the nature of the distribution that occurred here.
Again, 50 images on the computer is extremely low, as far as I'm concerned. The typical case I have there are literally hundreds and often thousands of images located on the computer. And again, I think although I recognize it's still a violation of the law to download any child pornography, obviously the amount of it has to factor into the psychological concern and problem that the individual has with regard to child pornography. And here I find the fact that there were only 50 images is an appropriate factor to consider in a downward variance[.]
Sent. Tr. 35-38.
White filed a timely appeal challenging the sufficiency of the evidence in support of the convictions, and further challenging the district court's use of the vulnerable victim enhancement under U.S.S.G. § 3A1.1 and the child pornography distribution enhancement under U.S.S.G. § 2G2.2(b)(2)(E). The government filed a timely cross appeal challenging the district court's downward variance, but did not cross appeal the district court's denial of the motion for an upward variance.
II
White contends the evidence was insufficient to support his convictions. When considering a sufficiency challenge, "we review the evidence in the light most favorable to the government and accept all reasonable inferences that support the jury's verdict." United States v. Allen, 440 F.3d 449, 450 (8th Cir.2006). "In reviewing the sufficiency of the evidence after a bench trial, we apply the same standard that we apply when reviewing a jury verdict." United States v. Vaughn, 410 F.3d 1002, 1004 (8th Cir.2005). This court "may reverse convictions based upon insufficiency of the evidence only upon a demonstration that a rational jury would have had no choice but reasonably to doubt the existence of an element of a charged crime." United States v. Williams, 181 F.3d 945, 950 (8th Cir.1999) (internal quotations and citations omitted).
A
The convictions for receipt and possession of child pornography turn on essentially the same requirements and evidence, and thus will be discussed together. The elements of receipt under 18 U.S.C. § 2252(a)(2) require the defendant to knowingly receive an item of child pornography, and the item to be transported in interstate or foreign commerce. The elements of possession under 18 U.S.C. § 2252(a)(4)(B) require the defendant to knowingly possess an item of child pornography, and the item to be transported in interstate or foreign commerce by any means.
White contests the evidence was insufficient to show he "knowingly" received and possessed child pornography. "If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." United States v. Tucker, 243 F.3d 499, 506 (8th Cir.2001) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985)).
In this case, the evidence was more than sufficient to support the district court's finding White knowingly received and possessed *642 child pornography. Images of child pornography were found on White's computer. White admitted creating the two computer disks, and to creating the subdirectory "girls" which contained the images of child pornography. In addition, White admitted writing the words "Photos from Newsgroups" on the inside cover of one of the two computer disks.
White claims he unknowingly transferred the child pornography from his computer to the disks he created while backing up his computer. White stated he transferred data to the disks in complete files and not image-by-image, and while he was transferring adult pornography to the "XXX" disk, he unknowingly transferred the child pornography. However, when Inspector Marshall asked if there was any child pornography on his computer, White admitted there was and provided step-by-step instructions for Inspector Marshall to locate the images. This evidence belies White's claim he was unaware of any child pornography existing on his computer's hard drive or the two computer disks he created.
Furthermore, White's computer reflected subscriptions to various child pornography-related newsgroups. White contends there were eight other individuals who had unfettered access to the family computer, and any one of those individuals could be responsible for the child pornography present on the computer. However, this does not explain how White himself was able to provide step-by-step instructions on accessing the child pornography on the computer.
With respect to the possession conviction, White argues 18 U.S.C. § 2252(c) should apply. Section 2252(c) sets forth an affirmative defense to a charge of possession if a defendant possesses less than three matters containing a visual depiction of child pornography, and
promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any visual depiction or copy thereof (A) [takes] reasonable steps to destroy each such visual depiction; or (B) report[s] the matter to a law enforcement agency and afford[s] that agency access to each such visual depiction.
18 U.S.C. § 2252(c)(2)(A)-(B).
White is not entitled to the affirmative defense for several reasons. First, he possessed more than three images of child pornography. Second, he retained all of the images involved in the charged offenses, rather than taking reasonable steps to destroy them. Third, even assuming DHS was a "law enforcement agency" for purposes of the defense, White only provided DHS a copy of a single image of those involved to DHS, and by doing so anonymously did not afford DHS access to the visual depiction itself, which he retained. Finally, the affirmative defense requires a defendant to act in good faith. The district court rejected White's claim he sent the Heather image to DHS because he truly believed it depicted A.M. being sexually abused by her parents, and instead found White sent the image to DHS "as part of a vindictive action against [A.M.'s] parents." This does not constitute good faith. In sum, White did not meet any requirements of § 2252(c)'s affirmative defense.
B
We next discuss the sufficiency of the evidence in support of the distribution conviction. White does not dispute his act of mailing the Heather photo to DHS constitutes "distribution" of child pornography under 18 U.S.C. § 2252(a)(2), but rather contends that holding him "legally accountable for this `distribution' would undermine *643 Iowa's child abuse reporting procedures and overstep the purpose of the distribution statute." We disagree. White's contention is premised on his claim he sent the image to DHS out of concern for A.M. The district court rejected this claim, finding White's conduct was a vindictive act against A.M.'s parents. The evidence supports the district court's findings. We fail to see how holding White accountable for his attempt to frame A.M.'s parents with a false report of child abuse will undermine Iowa's child abuse reporting procedures or overstep the purpose of the federal statute.
III
White challenges his sentence by claiming the district court improperly calculated the advisory guideline range. We review this challenge de novo. United States v. Grinbergs, 470 F.3d 758, 760 (8th Cir. 2006). Any findings of fact the district court made to support its calculation of the advisory guideline range are reviewed for clear error. Id.
A
White argues the district court improperly applied a two-level enhancement under U.S.S.G. § 3A1.1. White argues § 3A1.1 does not apply "if the factor that makes the person a vulnerable victim is incorporated in the offense guideline. For example, if the offense guideline provides an enhancement for the age of the victim, this subsection would not be applied unless the victim was unusually vulnerable for reasons unrelated to age." U.S.S.G. § 3A1.1 cmt. n. 2 (2001). White contends the vulnerable victim factor was already incorporated in his offense guideline because he received a two-level enhancement pursuant to U.S.S.G. § 2G2.2(b)(1) (2001) which applies when "the material involved a prepubescent minor or a minor under the age of twelve years."
The district court based the § 3A1.1 enhancement on A.M.'s victimization and vulnerability, while the § 2G2.2(b)(1) enhancement was based on age of the child depicted in the Heather image. It was not improper for the district court to impose the § 3A1.1 enhancement based on A.M.'s age-related vulnerability, while also imposing the § 2G2.2(b)(1) enhancement based on the age of the child depicted in the Heather image, because the enhancements were based on two separate victims. The factors that made A.M. a vulnerable victim under § 3A1.1 were not taken into account in the age-related enhancement White received under § 2G2.2(b)(1).
White further contends A.M. was not a victim of his conduct. White's conduct, however, caused A.M. to be taken out of school by police officers and questioned about whether her father had sexually abused her. White's conduct resulted in A.M. being subjected to a physical examination to determine whether she was the victim of sexual abuse. A.M. and her siblings were removed temporarily from their parents' custody. A.M.'s victim impact statement indicates she is afraid to have her picture taken by a video camera, is embarrassed about going to the doctor, and has nightmares about White. Based on this record, the district court did not clearly err in finding A.M. was a victim of White's criminal conduct.
B
White also contends the district court improperly applied a two-level enhancement under U.S.S.G. § 2G2.2(b)(2)(E) for distribution of child pornography. Under § 2G2.2(b)(2)(E), a two-level enhancement applies whenever "[d]istribution other than distribution described in subdivisions (A) through (D)" occurs. Subdivisions (A) *644 through (D) set forth higher level enhancements when the distribution is for such things as pecuniary gain (at least five levels), in exchange for something of value other than money (five levels), to a minor (five levels), or to a minor in an attempt to have the minor engage in prohibited sexual conduct (seven levels). See U.S.S.G. § 2G2.2(b)(2) (2001). In other words, at a minimum, a two-level enhancement applies whenever distribution is involved, with the possibility of higher enhancements when certain aggravating factors are present. Because White's conduct involved distribution, but did not involve any of the aggravating factors set forth in subdivisions (A) through (D), the district court properly applied the minimum two-level enhancement under subdivision (E). White's contention the enhancement was improper is meritless.
IV
The government's cross appeal challenges the district court's downward variance from the advisory guideline range. "We review a district court's variance from the advisory guidelines range under a reasonableness standard that is similar to an abuse of discretion review." United States v. Pool, 474 F.3d 1127, 1129 (8th Cir.2007) (citing United States v. Plaza, 471 F.3d 876, 878 (8th Cir.2006)). An abuse of discretion may occur "if a sentencing court fails to consider a relevant factor that should have received significant weight, gives significant weight to an improper or irrelevant factor, or considers only appropriate factors but nevertheless commits a clear error of judgment by arriving at a sentence that lies outside the limited range of choice dictated by the facts of the case." United States v. Haack, 403 F.3d 997, 1003 (8th Cir.2005). In reviewing whether the district court's variance fell outside the range of choice dictated by the facts of the case, we are mindful of the fact that "[t]he sentencing judge has access to, and greater familiarity with, the individual case and the individual defendant before him than the [Sentencing] Commission or the appeals court." Rita v. United States, ___ U.S. ___, 127 S. Ct. 2456, 2469, 168 L. Ed. 2d 203 (2007).
The government first contends White's sentence was unreasonable because the district court based the variance in part on some factors ordinarily considered irrelevant in calculating the advisory guideline range, namely, White's age and medical condition. This argument is not well-taken. Under the post-Booker[3] advisory guideline regime, district courts are not only permitted, but required, to consider "the history and characteristics of the defendant." 18 U.S.C. § 3553(a)(1). This mandate includes consideration of a defendant's age and medical condition. See United States v. Ryder, 414 F.3d 908, 920 (8th Cir.2005) (finding Booker error and remanding for resentencing where the district court believed it was without discretion to vary from the guidelines based on the defendants' health and ages); see also United States v. Lamoreaux, 422 F.3d 750, 756 (8th Cir.2005) (concluding the district court properly anticipated Booker by considering non-Guidelines sentencing factors such as prior military service, the defendant's wife's pregnancy, his need to care for other children, and his entrepreneurial spirit).
The government next argues the district court's variance was impermissibly based on factors already taken into consideration in the calculation of the advisory guideline range, namely, White's lack of a criminal history and the limited number of *645 pornographic images he distributed. This argument is also not well-taken. Pursuant to § 3553(a), a district court may consider factors already taken into account in calculating the advisory guideline range. See, e.g., United States v. Beal, 463 F.3d 834, 837 (8th Cir.2006) (discussing the reasonableness of a variance based on criminal history).
The government also contends the thirty-three percent downward variance in this case is extraordinary, and thus must be supported by extraordinary circumstances. For this proposition, the government cites United States v. Bradford, 447 F.3d 1026 (8th Cir.2006), identifying Bradford as a case which involved a thirty-six percent downward variance. In fact, the variance recognized as extraordinary in Bradford was "a sixty-seven percent downward variance from the bottom of the applicable guideline range." 447 F.3d at 1028 (emphasis added). The only reason given by the district court for departing sixty-seven percent was an overstated criminal history, which resulted in Bradford receiving a criminal history category of VI under the guidelines. Id. In discussing the extraordinariness of a sixty-seven percent variance based solely on an overstated criminal history, the court noted "even if Bradford had no criminal history and were placed in a criminal history category of I . . . [t]he thirty-six month sentence imposed would still be a thirty-six percent variance from the bottom of the guideline range." Id. at 1028-29. The Bradford court never identified this hypothetical thirty-six percent variance as extraordinary. We have, however, specifically identified an actual thirty-six percent variance as being within the permissible "range of choice" available to a district court. United States v. Kicklighter, 413 F.3d 915, 918 (8th Cir.2005) (citing Haack, 403 F.3d at 1004). We therefore reject the government's contention the variance involved in this case must be supported by extraordinary circumstances.
Finally, the government contends the sentence of seventy-two months is unreasonable when considering the overall facts of this case, that is, the district court "fail[ed] to consider a relevant factor that should have received significant weight, [gave] significant weight to an improper or irrelevant factor, or consider[ed] only appropriate factors but nevertheless commit[ted] a clear error of judgment by arriving at a sentence that lies outside the limited range of choice dictated by the facts of the case." Haack, 403 F.3d at 1003. More specifically, the government contends there is nothing about the factors the district court considered in granting the variance (age, medical condition, lack of a criminal record, and limited number of pornographic images possessed and distributed) which actually merits a variance. In addition, the government claims the atypical nature of White's offense, in distributing child pornography to falsely implicate A.M.'s parents of child abuse, "strongly militates against the award of a downward deviation[.]"
While the district court indicated White's age (fifty-one years), his health problems (diabetes, high blood pressure, weakness in his extremities, and difficulty walking), and his lack of a criminal record were "factors" that played into consideration of a possible variance downward, it stated the "big factor" considered was the unusual nature of this particular offense. Sent. Tr. 37. The district court identified four aspects of this case which it believed were unusual three mitigating in nature and one aggravating in nature: 1) the distribution count involved "one isolated event," 2) the single act of distribution was "very serious and damaging and traumatic," 3) the "50 images on the computer *646 [was] extremely low," and 4) the low number of images involved "has to factor into the psychological concern and problem that the individual has with regard to child pornography." Id. at 37-38.[4]
The district court then compared those aspects of this case to the "typical case" it encountered, where "[t]he distribution that we're normally talking about in this kind of case is one of distribution through a computer and sending images out across the internet to hundreds and perhaps thousands of other individuals" and where the possession involved "literally hundreds and often thousands of images located on the computer." Id. at 37. And while the district court did not specifically identify the "typical case" as one involving a defendant who posed a risk of committing sexual offenses against children, this seems implicit in the district court's recognition of the lack of "psychological concern" White posed as reflected by the record. After conducting this comparison between White's unusual case and the "typical case" encountered, the district court determined a downward variance was appropriate, taking into account White's age, medical condition, and lack of a criminal record, as well as the three mitigating aspects of the case.
The government argues the limited number of images possessed by White supports an upward, rather than downward, variance because White would receive a two-level enhancement under the current guidelines. See U.S.S.G. § 2G2.2(b)(7)(A) (2006) ("If the offense involved . . . at least 10 images, but fewer than 150, increase by 2 levels."). We disagree. It would be unconstitutional under the ex post facto clause to apply the current version of the guidelines to White's conduct, which is why the district court utilized the 2001 version of the guidelines. The 2001 version of the guidelines made no adjustments for the number of images involved; thus, without a variance White's conduct in distributing just a single image and possessing a limited number of images would be treated the same for sentencing purposes as the "typical" defendant identified by the district court who distributed and possessed hundreds if not thousands of pornographic images. Because the 2001 version of the guidelines applied, the district court was within its discretion to treat White differently than the "typical" defendant would be treated under that version of the guidelines.
In support of the district court's variance, White calls our attention to United States v. Gray, 453 F.3d 1323 (11th Cir. *647 2006). In Gray, the defendant sent three e-mails containing child pornography to an undercover agent. When authorities searched Gray's home they found 300 images of child pornography on his computer. Gray admitted he had distributed additional images other than the three sent to the undercover agent over the Internet to other individuals. Gray was charged with possession and distribution of child pornography, and pleaded guilty to the distribution charge. Gray's advisory guideline range was 151 to 188 months. At sentencing, Gray noted he was sixty-four years old, had a history of health problems, had never molested a child, and had a minimal criminal history. Based on these factors, the district court varied downward from the advisory guideline range and sentenced Gray to 72 months of imprisonment. The government appealed the sentence arguing it was unreasonable, but the Eleventh Circuit affirmed, stating:
Here, the district court gave specific, valid reasons for imposing a sentence that was lower than the guidelines range. The court's statements at sentencing reflect that it took into account Gray's age, his prior minimal criminal record, and his medical condition. These are all valid considerations because they relate to the "history and characteristics of the defendant." The court weighed these factors against "the nature and circumstances of the offense" and decided to impose a non-guidelines sentence. There is no indication that the court imposed the lower sentence solely because it disagreed with the guidelines. Rather, the court's statements show that it believed the 72-month sentence to be reasonable. Although Gray's sentence is less than half the 151 months that defines the bottom of the guidelines range, under the circumstances and given the district court's explanation we cannot say that is unreasonable in light of the § 3553(a) factors.
Gray, 453 F.3d at 1325 (internal citations omitted).
We agree this case has many similarities to those involved in Gray. Like Gray, White is an older man with a deteriorating medical condition who has never molested a child. Gray had a limited criminal history, White has no criminal history. Added to this case is the fact that medical experts for both the government and defense identified White has a defendant who poses a low risk of recidivism. The number of images White distributed (one) and possessed (fifty) was lower than the number of images Gray distributed (more than three) and possessed (300). Finally, the percentage of variance White received (thirty-three percent) was well below the percentage Gray received (more than fifty percent). Although our court may not have affirmed the level of variance involved in Gray, like the Eleventh Circuit, we conclude all the factors the district court considered here were valid considerations, the district court carefully weighed those factors against "the nature and circumstances of the offense," and the resulting thirty-three percent variance from the advisory guideline range was within the range of choices available to the district court.
Furthermore, while we recognize there are some inherent aggravating factors present in White's distribution of child pornography (discussed below), there are some mitigating aspects to White's single act of distribution as well. Typically, when a defendant distributes child pornography to others, the child depicted in the image is victimized repeatedly, because those who receive the image are likely to distribute the image to others who have a deviant interest in child pornography, who in turn distribute the image to others, and so on. *648 The probability of repeated victimization is increased when the image is distributed over the Internet. White's single act of distribution did not take place over the Internet. In addition, White distributed the image to a state agency charged with the protection of children. Such a distribution virtually guarantees there will be no further distribution of that particular image to others, and thus the repeated victimization of the child normally present in the typical case is absent here.
With respect to the aggravating factor the government argues should negate any downward variance the fact the single act of distribution involved a false report of child abuse against A.M.'s parents the district court determined that the conduct "while reprehensible, is adequately dealt with in the calculation of the guidelines." Sent. Tr. 35. We agree.
If White had been charged with making a false report of child abuse against A.M.'s parents under Iowa law,[5] the charge would have been a simple misdemeanor[6] punishable by a fine and/or no more than thirty days in jail.[7] In contrast, under the district court's calculation of the advisory guideline range, White received several enhancements which related exclusively to White's conduct of falsely accusing A.M.'s parents of child abuse, i.e., the single act of distribution. The two-level enhancement White received under § 2G2.2(b)(2)(E) related exclusively to the single act of distribution, as did the two-level enhancement White received under § 3A1.1 for victimizing A.M. by falsely accusing her parents of child abuse. All told, then, White received guideline enhancements due to the single act of distribution which increased his advisory guideline range four levels, from 70-87 months up to 108-135 months, an increase of 38-48 months.
We do not mean to downplay the reprehensible nature of White's false allegation against A.M.'s parents. We do believe, however, the gravamen of the false report of child abuse was the harm done to A.M., a harm taken into account in the § 3A1.1 enhancement. And while the federal guidelines have no specific enhancement to neatly capture and account for the additional harm done to A.M.'s parents as a result of the single act of distribution, we do believe the district court was within its discretion to determine the total harm which flowed from the false report of child abuse an act which would have warranted no more than one month in jail under state law was adequately dealt with by the 38 to 48 month increase in the advisory guideline range as a result of enhancements related exclusively to the single act of distribution.
In sum, the district court considered factors that were appropriate for it to consider in varying downward from the advisory guideline range, provided adequate reasons for its downward variance, and concluded a sentence of seventy-two months was "sufficient, but not greater than necessary" to punish White. 18 U.S.C. § 3553(a). When reviewing all the factors and the particular circumstances *649 involved in this case, we cannot say a sentence of six years for the conduct at issue is unreasonable.
V
We affirm the district court's decision in all respects.
RILEY, Circuit Judge, concurring in part and dissenting in part.
I concur in the court's opinion except with respect to the affirmance of the downward variance. The district court properly calculated an advisory Guideline sentencing range of 108 to 135 months' imprisonment, yet it only imposed a sentence of 72 months' imprisonment. By varying downward four levels, the district court imposed a sentence that is not reasonable under the unique and disturbing facts of this case.
In calculating a downward variance, the district court considered several factors under 18 U.S.C. § 3553(a), including White's age, health, and lack of criminal history. The "big factor" for the district court was "to weigh the nature and circumstances of [White's] offense." The nature and circumstances of White's offense do not support the extent of the district court's downward variance.
White downloaded approximately fifty images of child pornography. White then printed an image of child pornography, falsely labeled it as an image of A.M. taken by A.M.'s mother, and anonymously mailed it to the Iowa Department of Human Services. In the context of deciding whether to apply the vulnerable victim enhancement, the district court found White should have known this course of action would cause A.M. and A.M.'s family "terrible emotional stress," and the district court correctly concluded "it was a vicious, vindictive act."
Generally, child pornography causes much harm, including:
(1) the use of children in the production of sexually explicit material is a form of sexual abuse that can result in physical or psychological harm, or both, to the children involved;
(2) child pornography permanently records the victim's abuse, and its continued existence causes the child victims of sexual abuse continuing harm by haunting those children in future years;
(3) child pornography is often used as part of a method of seducing other children into sexual activity; a child who is reluctant to engage in sexual activity with an adult, or to pose for sexually explicit photographs, can sometimes be convinced by viewing depictions of other children "having fun" participating in such activity;
(4) child pornography is often used by pedophiles and child sexual abusers to stimulate and whet their own sexual appetites, and as a model for sexual acting out with children; such use of child pornography can desensitize the viewer to the pathology of sexual abuse or exploitation of children, so that it can become acceptable to and even preferred by the viewer;
(5) the existence of and traffic in child pornography creates the potential for many types of harm in the community; presents a clear and present danger to all children; and inflames the desires of child molesters, pedophiles, and child pornographers who prey on children, thereby increasing the creation and distribution of child pornography; and
(6) the sexualization and eroticization of minors through any form of child pornography has a deleterious effect on all children by encouraging a societal perception of children as sexual objects and leading to further sexual abuse and exploitation *650 of them, and it creates an unwholesome environment that affects the psychological, mental, and emotional development of children and undermines the efforts of parents and families to encourage the sound mental, moral, and emotional development of children.
Child Pornography Prevention Act of 1996, Pub.L. No. 104-208, § 121, 110 Stat. 3009, 3009-26 (1996).
By receiving, distributing, and possessing child pornography, White harmed (1) the child victim by viewing the recording of the child's abuse, (2) himself by desensitizing himself to the sexual abuse of children, by thinking of children as sexual objects, and by inflaming his own desire for child pornography, and (3) other children (and more generally, the community at large) by providing demand for the production of child pornography. White is neither less culpable nor less deserving of punishment than the typical defendant who receives, distributes, and possesses child pornography. Rather, White is at least as deserving of punishment (and possibly more so) as the typical defendant who receives, distributes, and possesses child pornography because White distributed child pornography with the specific intent to cause harm to A.M.'s family directly and A.M. indirectly.
As a direct result of White's course of action, A.M. (1) was taken from school, (2) physically examined and questioned by a doctor, and (3) temporarily removed, together with her siblings, from her parent's home and care. A.M. now is embarrassed in front of her doctor. She reports related nightmares. She is afraid of having her picture taken, and she feels angry, fearful for herself and her siblings, unsafe, sad, scared, and confused. In addition to all of the well recognized abstract harms caused by child pornography, White's distribution of child pornography specifically harmed A.M. and A.M.'s family in a manner that is uniquely deserving of punishment.
The panel opinion correctly observes White received two 2 level enhancements due to White's distribution of child pornography. The 4 level downward variance offsets the two 2 level enhancements, effectively not holding White responsible for "a vicious, vindictive act" of distributing child pornography.
In addition, besides being convicted of one count of distributing child pornography, in violation of § 2252(a)(2), White was convicted of one count of receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2), and one count of possessing child pornography, in violation of § 2252(a)(4). Both the district court and the panel majority place emphasis on the atypical nature of White's distribution of child pornography. Although a conviction for distributing child pornography to the Iowa Department of Human Services is atypical, there is nothing about White's convictions for receiving and possessing child pornography that justifies a downward variance. By varying downward based on the atypical nature of White's distribution of child pornography, both the district court and the panel majority ignore the seriousness of White's receipt and possession convictions.
At sentencing, the district court noted White only possessed approximately fifty images of child pornography. The 2001 version of the Guidelines contained no enhancement based on the number of images of child pornography involved in the offense. See U.S.S.G. app. C. amend. 649 (2003); compare U.S.S.G. § 2G2.2(b) (2001), with U.S.S.G. § 2G2.2(b)(7)(A) (2006) ("If the offense involved . . . at least 10 images, but fewer than 150, increase by 2 levels."). In comparison to the defendants with only a single image of child pornography, the defendants with hundreds *651 of images deserve more punishment due to the nature and circumstances of the offense as well as the need for the sentence to reflect the seriousness of the crime, to promote respect for the law, and to provide just punishment for the offense. See 18 U.S.C. § 3553(a)(1), (2)(A). That the defendants with hundreds of images deserve relatively more harsh sentences only logically supports the conclusion that the defendants with only a single image deserve relatively less harsh sentences; it does not logically support a conclusion that a defendant with fifty images deserves leniency in the form of a downward variance. Cf. United States v. Feemster, 483 F.3d 583, 589 (8th Cir.2007) ("The absence of grounds that justify further punishment is not a ground for a downward variance.").
The district court varied downward based on several other factors, including White's age at the time of sentencing. Although the Guidelines are no longer mandatory, the Guidelines policy statements must be considered in imposing a sentence. See 18 U.S.C. § 3553(a)(5)(A). The Guidelines provide "[a]ge . . . is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range." U.S.S.G. § 5H1.1, p.s. Significant variances based on a defendant's age produce unwarranted sentencing disparities because judges do not uniformly treat age as a mitigating factor. See United States v. Maloney, 466 F.3d 663, 669 (8th Cir.2006); see also 18 U.S.C. § 3553(a)(6). A sentencing judge reasonably could conclude White's age of 51 should reflect more maturity and intelligence when dealing with child pornography, and that judge also reasonably could enhance White's sentence due to his age. Although relevant to the inquiry conducted under § 3553(a) as a characteristic, White's age does not justify the extent of the downward variance. See Feemster, 483 F.3d at 590.
The district court also varied downward in part based on White's poor health, specifically, White's diabetes, high blood pressure, weak extremities, and difficulty in walking. Again, although no longer mandatory, the Guidelines provide "[p]hysical condition . . . is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range." U.S.S.G. § 5H1.4, p.s. Moreover, despite his health, White has painted signs, repaired a garbage truck, occasionally hauled garbage, and annually set up and torn down a haunted house. White's health has little, if any, relevance and is not so extraordinary as to justify the extent of the downward variance. See United States v. Ture, 450 F.3d 352, 359 (8th Cir.2006).
Finally, the district court varied in part based on White's lack of criminal history. White's criminal history calculation used in the advisory Guideline sentencing range expressly accounted for White's lack of criminal history and likelihood of recidivism.[8]See United States v. Garate, 482 F.3d 1013, 1017 (8th Cir.2007), petition for cert. filed, (No. 07-5051) (June 28, 2007); United States v. McDonald, 461 F.3d 948, 953 (8th Cir.2006), petition for cert. filed, (No. 06-8086) (Nov. 28, 2006). The district court's downward variance based on White's lack of criminal history and likelihood *652 of recidivism places undue weight on factors already accounted for by the Guidelines.
The panel opinion also compares White's actions to what charges could be filed against White in Iowa state courts. A hypothetical conviction under Iowa law is not a relevant consideration in deciding the reasonableness of White's federal sentence. See United States v. McCormick, 474 F.3d 1012, 1014 (8th Cir.2006); United States v. Jeremiah, 446 F.3d 805, 807-08 (8th Cir.2006).
Thus, I respectfully dissent.
NOTES
[1] The Honorable Ronald E. Longstaff, United States District Judge for the Southern District of Iowa.
[2] Due to ex post facto concerns, the district court used the guidelines manual effective November 1, 2001. Unless otherwise noted, all guidelines' references are to the guidelines manual effective November 1, 2001.
[3] United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
[4] With respect to this fourth factor, it is significant White was subjected to psychosexual examinations at the request of both the government and his own attorney, and both experts agreed White did not fit the profile of a typical sexual offender in that he was at a low risk of committing another sexual offense. Dr. Jason Smith, the government's expert, indicated in his report:
Mr. White appears to be low on these instruments that measure both the anti-social dimension of sexual offending and the erotic as well. In short, he has a low antisocial orientation with low risk of sexual offending against children.
Similarly, the report prepared by White's expert, Dr. Luis Rosell, indicates:
Mr. White has many factors that make lower his risk. These include Mr. White's lack of criminal history, nonexistent sex offending history, time in the community without engaging in any sexually inappropriate or illegal behavior, family support, resides in small town where everyone is aware of his situation and decreased sex drive due to his medical condition. Given all the factors that make him a low risk to engage in future inappropriate sexual behavior, as well as social support it appears that Mr. White does not require sex offender specific treatment at this time.
[5] There does not appear to be any federal statute specifically targeting the act of providing a false report of child abuse.
[6] See Iowa Code Ann. § 232.75(3) ("A person who reports or causes to be reported to the department of human services false information regarding an alleged act of child abuse, knowing that the information is false or that the act did not occur, commits a simple misdemeanor.").
[7] See Iowa Code Ann. § 903.1(1)(a) ("For a simple misdemeanor, there shall be a fine of at least sixty-five dollars but not to exceed six hundred twenty-five dollars. The court may order imprisonment not to exceed thirty days in lieu of a fine or in addition to a fine.").
[8] In passing, the district court briefly noted a "psychological concern." The panel opinion interprets this reference to mean the district court concluded White had a low likelihood of recidivism. At sentencing, the district court never specifically addressed the psychological reports discussed in the panel opinion's footnote 4. Moreover, Dr. Smith concluded White was "at the low to moderate risk level" and the district court recommended White be considered to participate in the sex offender treatment program, although Dr. Rosell concluded White was a low risk and did not require sex offender specific treatments. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1138720/ | 785 P.2d 390 (1989)
STATE of Utah, Plaintiff and Appellee,
v.
Gerald Glen BELL, Defendant and Appellant.
No. 870150.
Supreme Court of Utah.
November 28, 1989.
*391 M. Cort Griffin, Pleasant Grove, for defendant and appellant.
David L. Wilkinson, Sandra L. Sjogren, Salt Lake City, for plaintiff and appellee.
HALL, Chief Justice:
Defendant appeals his convictions of attempted second degree murder[1] and aggravated robbery[2] and the dual sentences imposed. The principal issues on appeal are (1) whether intent is an element of proof of attempted second degree felony-murder, and (2) whether the statutory procedure which permits the prosecution of juveniles as adults is constitutional.
In October 1986, defendant and D.P., both seventeen years of age, stopped at a service station in Fillmore, Utah, for the purpose of committing a theft. Defendant put gas in the car and then went inside with a gun concealed in his waistband. He took a six-pack of soda pop out of the cooler and placed it on the sales counter along with a package of cigarettes. He then asked the attendant, Carley Penney, for another package of cigarettes from the shelf behind her. When she turned around with the cigarettes, defendant shot her in the head. The gun used was a single action Ruger pistol which is normally fired by first pulling the hammer back to cock it and then pulling the trigger. However, the *392 pistol can also be fired by holding the trigger back while releasing the hammer.
Defendant left, taking the products without paying for them. When he got back in the car, D.P. asked, "What happened?" Defendant responded, "I shot her." When asked "Where?" he said, "In the head." D.P. asked if she was dead, and defendant answered, "Yeah, I think so." The station attendant did not die, nor did her unborn child, which was taken by Caesarean section. Defendant and D.P. were arrested later in the evening in Cedar City, Utah.
Defendant was initially charged, directly in the district court,[3] with one count of aggravated robbery[4] and two counts of attempted first degree murder during the commission of a robbery.[5] The juvenile court thereafter denied defendant's motion to recall jurisdiction,[6] and the State subsequently amended the information to charge defendant with one count of attempted second degree felony-murder[7] and one count of aggravated robbery.[8]
Following a bench trial which proceeded on the basis of the stipulated facts hereinabove recited, the trial judge concluded that the shooting was intentional. Thereafter, he sentenced defendant to a term of one to fifteen years for the attempted murder and to a term of five years to life for the aggravated robbery, the sentences to run concurrently.
I
Defendant moved to vacate the conviction and sentence for aggravated robbery, in part relying upon this Court's decision in State v. Shaffer[9] for the proposition that robbery was a predicate offense that merged into the offense of attempted felony-murder. This apparently prompted the State to seek and obtain a further amendment of the information, charging defendant with the intentional offense of attempted second degree murder,[10] so as to conform the information with the convictions and sentences already imposed by the court. The facts of this case differ significantly from those in Shaffer, inasmuch as in Shaffer the offense of murder was in fact committed, not merely attempted. For that reason, Shaffer is not supportive of defendant's position.
Utah Code Ann. § 76-5-203 (Supp. 1989) provides in pertinent part:
(1) Criminal homicide constitutes murder in the second degree if the actor:
(a) intentionally or knowingly causes the death of another;
...;
(d) while in the commission [or] attempted commission ... of aggravated robbery... .
(2) Murder in the second degree is a felony of the first degree.
Utah Code Ann. § 76-4-101(1) (1978) provides that a person is guilty of an attempt to commit the crime if, acting with the kind of culpability otherwise required for the commission of the offense, he or she engages in conduct constituting a substantial step toward the commission of the offense.
In the instant case, the State elected to charge and try defendant for attempted second degree felony-murder in violation of section 76-5-203(1)(d) rather than for the *393 intentional offense of attempted second degree murder as provided by section 76-5-203(1)(a). It is apparent from the record that this was done in an effort to avoid the burden of having to prove intent to kill. This is to be seen in that prior to trial, the judge made the observation that it would seem that attempt crimes could only be committed with requisite intent. However, counsel on both sides were of the view that intent was not an issue or an element of proof of the offense of attempted second degree felony-murder as charged. Indeed, defense counsel took the position that although defendant intentionally pointed the gun at the victim, he did not intend to fire it and that if the State were to prove that the shooting was intentional, it would simply have proven more than was required to convict of attempted second degree felony-murder as charged. Defendant cited and relied upon State v. Hansen[11] in support of his position. The State also relied upon the felony-murder doctrine espoused in Hansen for the proposition that intent is not an element of proof of felony-murder.
The facts of this case are also materially different from those of Hansen, because in Hansen, as in Shaffer, the offense of felony-murder was in fact committed. The issue thus presented is whether the principles of felony-murder applied in Shaffer and Hansen have equal application to the offense of attempted murder. We conclude that they do not.
The crime of attempted murder does not fit within the felony-murder doctrine because an attempt to commit a crime requires proof of an intent to consummate the crime,[12] and numerous courts have held that the crime of attempted murder requires proof of intent to kill.[13] At least two other states with attempt statutes similar to Utah's have determined that attempted murder requires a specific intent to kill. In State v. Huff,[14] the Supreme Court of Maine interpreted its attempt statute, which provides in part:
A person is guilty of criminal attempt if, acting with the kind of culpability required for the commission of the crime, and with the intent to complete the commission of the crime, he engages in conduct which, in fact, constitutes a substantial step toward its commission.[15]
(Emphasis added.) The court held:
Where a discrepancy exists in the culpable mental states between criminal attempt and the offense attempted, the criminal attempt to commit such a crime is a "logical impossibility." ... Before a person can be convicted of attempted murder, he must act with the intent to cause the death of another human being.[16]
Likewise, in Head v. State,[17] the Supreme Court of Indiana interpreted an attempt statute similar to Utah's:
A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of *394 the crime.[18]
In that case, an attempted murder was committed during the course of a robbery. The court analyzed the history and purpose of the felony-murder rule and concluded:
[W]hether the underlying felony has been completed or attempted, the felony-murder rule cannot be applied unless the death of another occurred by virtue of the commission or attempted commission of the underlying felony. In other words, absent death the applicability of the felony-murder rule is never triggered... .
... .
... We do not believe the fact that bodily injury has occurred in the commission or attempted commission of one of [the felonies which trigger the felony-murder rule] warrants the presumption that, as a matter of law, the perpetrator possessed the mens rea requisite to murder... .
... .
... It does not follow that in purely arbitrary circumstances, the legislature intended to create a discretionary vehicle whereby the state could seek a conviction for attempted murder without an obligation to prove the intent to kill.[19]
Other courts have also held that the crime of attempted felony-murder does not exist.[20] Indeed, in the face of logic, the conclusion is inescapable that the crime of attempted murder requires proof of intent to kill. Therefore, we also hold that attempted felony-murder does not exist as a crime in Utah.
The trial in this case did not proceed in the usual fashion. Rather, defendant was tried on stipulated facts presented to the trial judge. After evaluating the facts and hearing arguments from both sides, the court found defendant guilty of attempted second degree murder, but not on the basis of the felony-murder doctrine alleged in the information. In issuing his ruling, the trial court stated:
The Court also finds that the defendant is guilty of the alleged offense of Attempted Murder in the Second Degree... .
... .
And also the Court finds that the Attempted Second Degree Homicide was committed by the defendant in that at the time he was in the course of committing the robbery offense, he pointed a loaded .22 pistol at the head of the [victim] and caused the same to be discharged while so pointing it, which leaves the Court to conclude that that was an act done intentionally, intending to shoot her and cause her death.
And the Attempted Second Degree Homicide offense is complete by that finding.
As to whether or not there would be a sufficient Attempt provided for through the operation of a felony in the murder doctrine, of course, the Court is not taking any position on that.
But the Court is convinced that the act of the shooting was an intentional act. Therefore, the Attempted Second Degree Homicide charge is established and the Court finds the defendant guilty.
(Emphasis added.) The court entered written findings and conclusions which paralleled the verbal ruling.
This Court's standard of review is that a trial court's findings should not be set aside unless clearly erroneous.[21] Application of that standard in the instant case requires that the findings of the trial court remain intact.
*395 The trial court concluded from the stipulated facts, admitted by defendant, that defendant intended to shoot the victim and cause her death. Although defendant was charged with attempted murder in the commission of aggravated robbery, the stipulated facts support the court's finding that the attempted murder was intentionally committed. Thus, unlike Shaffer, the aggravated robbery in this case was not a predicate offense and was therefore not an element of the charged offense of attempted murder.
Following the conviction, the State was allowed to amend the information to conform to the findings of the trial court. Rule 4 of the Utah Rules of Criminal Procedure, which allows such amendment, provides in part:
(d) The Court may permit an indictment or information to be amended at any time before verdict if no additional or different offense is charged and the substantial rights of the defendant are not prejudiced. After verdict, an indictment or information may be amended so as to state the offense with such particularity as to bar a subsequent prosecution for the same offense upon the same set of facts.
Ordinarily, such a significant amendment as was made here may infringe on a defendant's right to be informed of the nature of the accusations against him. However, due to circumstances unique to this case, the amendment did not violate the notice requirements.
As previously indicated, this case was tried to the bench on the basis of stipulated facts. Those stipulated facts, which were signed by the prosecutor, defense counsel, and defendant, provided the basis for the trial court's findings. The stipulated facts were prepared before the trial, and the record indicates that they were reviewed by defendant prior to being presented to the trial court and that his signature on the stipulation amounted to an admission of the facts. Therefore, defendant could hardly claim a notice violation when the information was amended to conform to facts of which defendant was fully aware before they were ever presented to the trial court and his attorney was afforded an opportunity to argue the issue of intent to the court. Furthermore, defendant was originally charged with two counts of attempted capital homicide, which requires that a defendant act intentionally.[22] Defendant was bound over to stand trial on those charges. Therefore, he had ample notice of the nature of the charges. The post-conviction amendment of the information was merely pro forma.
We therefore conclude that the separate convictions and sentences should stand undisturbed.
II
Defendant also challenges the constitutionality of the statutory provisions which permit his prosecution as an adult. He contends that the procedure violates rights to due process and equal protection of the law afforded by both the federal and state constitutions.[23] The applicable statute, Utah Code Ann. § 78-3a-25 (1987), provides in pertinent part:
*396 (1) If the petition in the case of a person 14 years of age or older alleges that he committed an act which would constitute a felony if committed by an adult, and if the court after full investigation and a hearing finds that it would be contrary to the best interests of the child or of the public to retain jurisdiction, the court may enter an order certifying to that effect and directing that the child be held for criminal proceedings in the district court, with a hearing before a committing magistrate to be held as in other felony cases. The provisions of § 78-3a-35 and other provisions relating to proceedings in children's cases are, to the extent they are pertinent, applicable to the hearing held under this section.
(2) In considering whether or not not [sic] to waive jurisdiction over the juvenile, the juvenile court shall consider the following factors:
(a) the seriousness of the offense and whether the protection of the community requires isolation of the child beyond that afforded by juvenile facilities;
(b) whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;
(c) whether the alleged offense was against persons or property, greater weight being given to offenses against persons;
(d) the maturity of the juvenile as determined by considerations of his home, environment, emotional attitude, and pattern of living;
(e) the record and previous history of the juvenile;
(f) the likelihood of rehabilitation of the juvenile by use of facilities available to the juvenile court; and
(g) the desirability of trial and disposition of the entire offense in one court when the juvenile's associates in the alleged offense are adults who will be charged with a crime in the district court.
(3) The amount of weight to be given to each of the factors listed in Subsection (2) is discretionary with the court.
(4) The juvenile court judge may enter an order certifying a juvenile to stand trial as an adult upon making a finding of any one or more of those factors set forth in Subsection (2).
(5) Written reports and other materials relating to the juvenile's mental, physical, educational, and social history shall be considered by the court, but the court, if requested by the child, his parent, guardian, or other interested party, shall require the person, if reasonably available, or agency preparing the report and other material to appear and be subject to both direct and cross-examination. The certification hearing is a dispositional proceeding, and while the juvenile court may hear evidence of the crime to establish that there is a reasonable relationship between the charge and the juvenile, the court need not hold a preliminary hearing to establish probable cause that the juvenile committed the offense.
(6) When a petition in the case of a person 16 years of age or older alleges any class of criminal homicide or attempted criminal homicide, aggravated robbery, or forcible sodomy, aggravated arson, aggravated sexual abuse of a child, aggravated sexual assault, aggravated burglary, or aggravated kidnapping, the juvenile is subject to the jurisdiction of this court under § 78-3a-16, unless an indictment on the charge is returned by the grand jury or a criminal information is filed by the county attorney, in which event this court is divested of jurisdiction under § 78-3a-16, the charge shall be made, and the proceedings regarding the charge shall be conducted in every respect as if the juvenile were an adult. A copy of the information or indictment shall also be filed forthwith in the juvenile court as notice to that court.
(7) When a criminal information or indictment is filed in a court of competent jurisdiction before a committing magistrate, charging the child or person, the jurisdiction of the Division of Youth Corrections and the jurisdiction of the juvenile court over him is terminated regarding that offense and any subsequent misdemeanors or felonies charged against *397 him, except as provided in Subsection 78-3a-25(9).
(8) Upon conviction a magistrate may impose the penalties set forth in the criminal code or, with the approval of the Division of Youth Corrections, commit the juvenile to the care, custody, and jurisdiction of the Division of Youth Corrections under the conditions specified by the division. A juvenile may be convicted under this section on the charges filed or on any other offense arising out of the same criminal episode.
(9) The juvenile court regains jurisdiction under § 78-3a-16 and any authority which was previously exercised over the juvenile when: (a) a magistrate of the circuit court determines there is insufficient probable cause for the juvenile to stand trial on the allegation or amended allegation; or (b) there is an acquittal or finding of not guilty or dismissal of the charges; or (c) the juvenile court judge files a request for a return of jurisdiction in the court where the allegations are pending. The request shall be filed within ten calendar days from the date a copy of the indictment or information is filed with the juvenile court. Upon receipt of the request, jurisdiction vests with the juvenile court. The child or his guardian may move the juvenile court to recall jurisdiction by filing a motion and requesting a hearing before a juvenile court judge. The motion shall be filed and hearing held within ten calendar days from the date of the filing of the information. In determining whether or not to request a return of jurisdiction the juvenile court judge shall consider the juvenile's age, legal record, and the seriousness of the charge. When the juvenile court regains jurisdiction under this subsection, the minor shall be returned to the juvenile court for further proceedings, which may include certification.
Two means are thus provided by which a juvenile may be prosecuted as an adult, namely, by the juvenile court's waiver of jurisdiction and certification to the district court or by the direct filing of a grand jury indictment or an information in the district court.
In challenging the statute's constitutionality based upon an equal protection claim, defendant does not dispute that the State has a compelling interest in dealing with juveniles over the age of sixteen who are charged with the offenses enumerated in section 78-3a-25(6). Instead, he contends that because the statute does not require all juveniles alleged to have committed the offenses set forth therein to be treated the same, the legislation is not precisely tailored to further the State's compelling interest. In essence, defendant asserts that the discretionary direct filing process allowed under the statute violates principles of equal protection by infringing upon a fundamental right, namely, the right to personal liberty. This claim is without merit.
In reviewing defendant's contentions, it is necessary to begin with the principle that "the prerogative of the legislature as the creators of the law is to be respected."[24] Consequently, its enactments are afforded a presumption of validity, and a legislative act will not be stricken unless the interests of justice require the same because the law is clearly in conflict with that set forth in the constitution.[25] Indeed, this Court has a duty to construe a statute whenever possible so as to effectuate legislative intent and avoid and/or save it from constitutional conflicts or infirmities.[26] As we have heretofore stated:
[W]hatever may or may not be the conviction of mind, or the personal desires of this [C]ourt, or the justices thereof, to determine such policy, our commitment is to the principle of judicial restraint, necessary and desirable under our system, *398 which honors the doctrine of separation of powers of the three branches of our government. Therefore, it is not within the province of the courts to intrude upon the legislative prerogative and declare a statute unconstitutional unless it is determined to be so beyond a reasonable doubt.[27]
Regarding the fundamental principles of equal protection, it has been repeatedly noted that such constitutional provisions do not require that things different in fact be treated in the law as though they were the same[28] or that equal treatment be afforded all persons without recognition of differences in relevant and reasonable circumstances.[29] A statute does not offend the constitution merely because in practice it subjects some persons to disparate treatment which is more oppressive than others must bear. Were it otherwise, the government would be stripped of its power to legislate intelligently.[30]
Instead, when classifications are created, the pertinent inquiry for purposes of equal protection is whether some reasonable nexus exists between the classification implemented and a valid governmental objective.[31] Applying these principles, equal protection safeguards are offended only if it is determined that the subject classification rests upon grounds wholly irrelevant to the achievement of the government's purpose.[32] Since it must be presumed that the legislative branch acted within its constitutional power in creating law, despite any inequality which results in its practice, "statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it."[33]
Given the above guidelines, it is necessary to determine which standard of review should be applied in examining the challenged legislation.[34] Traditionally, this determination has involved a dual approach to equal protection analysis. One approach requires a determination whether a rational basis exists between the legislative purpose and the challenged classification.[35] If such a basis is found, the challenged classification "does not offend the Constitution simply because the classification `is not made with mathematical nicety or because in practice it results in some inequality.'"[36]
An alternate examination is referred to as the "strict scrutiny test." This approach is used if a challenged classification is "suspect" or if a "fundamental interest" is involved.[37] Classifications which have been deemed "suspect" for purposes of equal protection analysis include those based upon alienage, origin, and race. In contrast, interests which have been classified as "fundamental" include voting, travel, procreation, the right of free speech, the right of a defendant to appeal a criminal *399 conviction, and perhaps the right of privacy.[38] Application of the strict scrutiny test requires the court to determine whether the challenged statute "is promoting a compelling state interest."[39]
In recent years, courts have also employed an intermediate standard of review for legislative classifications which are not "facially invidious" but may nonetheless concern "recurring constitutional difficulties."[40] Application of this standard involves inquiring whether the classification may be viewed as furthering a substantial state interest.[41]
Upon consideration of these standards of review and the relevant cases applying the same, defendant's claims do not merit a strict scrutiny or a substantial interest analysis. Regarding the former, the classification and issue herein do not involve those concepts traditionally invoking strict scrutiny review. Additionally, age has not been determined to be, and defendant does not claim that it is, a suspect classification.[42] Rather, defendant asserts that he was denied equal protection since he was not afforded treatment as a youthful offender. As noted, he urges invocation of a strict scrutiny analysis on the theory that "liberty" is a fundamental right. These assertions will not withstand analysis.
A juvenile has no right to treatment in the juvenile system[43] or "to be specially treated as a juvenile delinquent instead of a criminal offender."[44] This concept is well established. As was observed in People v. Mason,[45] "`There is no constitutional right to youthful offender status and such treatment is entirely a gratuitous creature of the legislature subject to such conditions as the legislature may impose without violating constitutional guarantees.'"[46] That court thereafter considered the defendant's assertion that it should apply the strict scrutiny test since the fundamental right of the defendant's liberty was involved. In concluding that such contention did not withstand analysis, the court stated that because a deprivation of liberty occurs only upon the defendant's conviction of a crime for which he is criminally responsible, and since there is no constitutional right to youthful offender treatment, a defendant cannot assert a valid claim of denial of liberty if he or she is charged and sentenced as an adult in accordance with the law.[47]
*400 This conclusion is persuasive. Since the State may rightfully charge and prosecute as adults all juveniles meeting the qualifications and committing the offenses enumerated in section 78-3a-25, a particular defendant suffers no deprivation of liberty because the State exercises this right, notwithstanding the fact that if the State decided not to do so, through information or indictment (or based upon the court's certification decision), in the same or in any other case a defendant may receive a benefit. Similar to any benefit an adult offender might receive if the State charges or accepts a plea bargain to a lesser offense than that to which other defendants committing the same or similar crimes may be charged and prosecuted or the parole benefit a particular defendant may receive if his or her circumstances merit treatment different from other defendants committing the same or similar crimes, the mere fact that a particular juvenile may receive a benefit from not being prosecuted as an adult in a particular case neither makes the benefit a fundamental right nor invokes the liberty interest of the non-benefited juvenile (or adult) similarly situated. Accordingly, the strict scrutiny test does not apply.
Also, a middle ground test, as urged by defendant, is inappropriate in this case. The classification does not necessarily "give rise to recurring constitutional difficulties,"[48] nor does it approach the level of other traditional classifications meriting substantial state interest analysis.[49] This is not to say that a defendant's liberty interest may not be at issue in other types of cases or that such interest may not be fundamental or merit sensitive review by this Court as individual circumstances demand.[50] However, concluding as defendant urges us to do would require reaching issues not properly before us and would serve to implicitly trample upon the constitutional doctrine of separation of powers and the prosecution's general discretion to consider the individual particulars of each case involving criminal activity,[51] conduct appropriate plea bargaining, and prosecute co-defendants and all other similarly situated offenders differently.[52]
Therefore, having determined that defendant's liberty interest is not at issue here and that the rational basis approach is the appropriate analysis in this case, it is necessary to consider whether the legislation is rationally based upon some conceivable and valid state interest or objective.[53] The principles of such analysis involve the following:
"(1) The equal protection clause of the 14th Amendment does not take from the state the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary.
"(2) A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety, or because in practice it results in some inequality.
"(3) When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed.
*401 "(4) One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary."[54]
Applying these standards, it need be initially noted that the stated purpose of the Juvenile Courts Act is
to secure for each child coming before the juvenile court such care, guidance, and control ... as will serve his welfare and the best interests of the state; to preserve and strengthen family ties whenever possible; to secure for any child who is removed from his home the care, guidance, and discipline required to assist him to develop into a responsible citizen, to improve the conditions and home environment responsible for his delinquency; and, at the same time, to protect the community and its individual citizens against juvenile violence and juvenile lawbreaking. To this end this act shall be liberally construed.[55]
The United States Supreme Court has stated:
Save as limited by constitutional provisions safeguarding individual rights, a State may choose means to protect itself and its people against criminal violation of its laws. The comparative gravity of criminal offenses and whether their consequences are more or less injurious are matters for its determination.[56]
Understanding that the legislative classification is entitled to a presumption of validity which may be set aside only if there are no grounds which can be conceived to justify it,[57] we conclude, as have other courts, that the legislature doubtless considered both the "rise in the number of crimes committed by juveniles as well as the growing recidivist rate among this group" and, in doing so, was entitled to determine that (1) the parens patriae function of the juvenile system would no longer work for certain offenders; (2) society demanded greater protection from certain juvenile offenders than that provided by the juvenile system; and (3) providing different means whereby juveniles could, through the proper exercise of discretion, be prosecuted as adults was thus necessary and reasonable.[58] Certainly, the legislature could reason that application of the statute at issue would result in most, if not all, juveniles sixteen years of age or older committing the enumerated crimes being charged and tried as adults.[59] As the Oklahoma Court of Criminal Appeals stated:
It is clear from the statute that the Legislature intended most 16 and 17-year-old persons charged with any of the enumerated offenses should be tried as adults. This is apparent from the different criteria used in making the reverse certification decision greater weight to be given by the judge to the gravity of the offense charged, and notably absent is consideration of the sophistication and maturity and capability of distinguishing right from wrong and the likelihood of reasonable rehabilitation ... required for regular certification... . Contrary to the [district court judge's] holding that consideration of these omitted guidelines is required by Kent v. United States, an examination of Kent fails to support this holding, and we expressly reject it.[60]
*402 To effectuate this purpose and intent, certain serious offenses were enumerated, which if charged by the prosecution in the appropriate exercise of its discretion,[61] merited a juvenile's treatment as an adult absent recall into the juvenile system.[62] This classification roughly approximates the nature of the legitimate problems perceived, fairly accommodates competing public and private concerns, and accounts for limitations on the state's ability to remedy every ill.[63]
Additionally, as with similar statutes in other states, although the potential punishment of some youngsters may be increased through the exercise of the prosecution's discretion, "ameliorative provisions in the legislation" serve to protect the juvenile. Indeed, by providing for the possible removal of the case to the juvenile court and for the possible commitment of the juvenile to the Division of Youth Corrections, this statute is more favorable to the accused than direct filing statutes utilized and upheld as constitutional in other states.[64]
Notwithstanding the above, defendant essentially contends that the statute is not precisely tailored to further the state's interest since the prosecution has unbridled discretion to determine which child will be treated as an adult.[65] We disagree.
The general rule is that prosecutors are given broad discretion in determining whether and in what manner to prosecute each case. Indeed, as long as the prosecution has probable cause to believe that an offense has been committed, the decision regarding whether and in what manner to prosecute "`generally rests entirely in [its] discretion.'"[66] Regarding such, this Court has heretofore stated:
*403 "It is not a function of the courts to review the exercise of executive discretion, and we cannot say that it was error for the prosecutor to treat the defendants in a different manner, and we cannot review the prosecutor's decision to proceed against one defendant under an information charging him with a felony and reducing the charge against the codefendant to a misdemeanor."[67]
Similarly, the United States Supreme Court has held:
"In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. Within the limits set by the legislature's constitutionally valid definition of chargeable offenses, `the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation' so long as `the selection was [not] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.'"[68]
The importance of such discretion was explained in another context by Circuit Judge Jones of the United States Fifth Circuit Court of Appeals:
The discretionary power of the attorney for the United States in determining whether a prosecution shall be commenced or maintained may well depend upon matters of policy wholly apart from any question of probable cause. Although as a member of the bar, the attorney for the United States is an officer of the court, he is nevertheless an executive official of the Government, and it is as an officer of the executive department that he exercises a discretion as to whether or not there shall be a prosecution in a particular case. It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions.[69]
A majority of courts addressing this issue have confirmed this latter position in concluding that judicial review of the prosecution's discretion in deciding when and whether to institute criminal proceedings in a juvenile case is generally inappropriate.[70]
Indeed, as recently as 1982, the Colorado Supreme Court rejected a juvenile's claim that he was denied equal protection of the law because the prosecutor chose to file a criminal action against him whereas another individual in the juvenile's same circumstances could be treated as a juvenile and charged with delinquency.[71] In acknowledging that there was no contention that the district attorney abused its discretion in considering suspect factors or arbitrary classifications in deciding that the defendant should be tried as an adult, the court noted that the criteria considered in transferring an individual from the juvenile court, together with the purpose of the juvenile code, and the standards governing the duties of the prosecutor's office were available as an aid in helping the prosecutor decide whether to proceed against the juvenile as an adult.[72]
Likewise, when confronted with a similar prosecutorial discretion issue, the Florida Supreme Court reiterated:
[T]he legislature has, by these statutory exceptions to the juvenile division's general *404 jurisdiction over children, returned to the state attorney his traditional prerogative of deciding who [sic] to criminally charge with what offense... .
... .
... [T]he discretion of a prosecutor in deciding whether and how to prosecute is absolute in our system of criminal justice... . But, defendants counter, the traditional role of the prosecutor is to determine the crime to be charged, not the status in which a person is treated. This last point overlooks the statutory provision [previously] upheld... . The state attorney in seeking an indictment is, if successful, necessarily determining the status in which a juvenile will be treated as well as the offense with which he will be charged.[73]
In explaining the purpose behind this historical principle, the Nebraska Supreme Court stated:
The discretion so vested in the prosecuting attorney [to decide whether a juvenile will be prosecuted as an adult] is akin to that permitting him to determine whether or not to prosecute, what charge should be made, and whether or not to dismiss, apply for immunity, or accept a plea to a lesser offense. All these matters represent necessary and essential decisions of an administrative character which of necessity are determined under varying factual circumstances. To fix reasonable legislative standards of the determination of such matters would be difficult and probably impossible due to the multiplicity of factual situations encountered... . "... We do not find it constitutionally objectionable that the legislature has seen fit to grant discretion to the State's Attorney in removal matters under the Juvenile Court Act, particularly in view of the fact that the purpose of the Act * * * can be presumed to be considered by State's Attorneys in making determinations in these matters."[74]
The rationale of these cases is persuasive. This jurisdiction has long recognized the vital role of the prosecution and the importance of affording that body the discretion, within permissible limits,[75] to exercise its function. Certainly, we are compelled, as are our sister states, to recognize this discretion as it preserves the constitutional concept of separation of powers.[76] Also, it must be recognized that the prosecutor has at his or her disposal in making such a decision the criteria provided for elsewhere in the statute,[77] the purpose of the Juvenile Courts Act,[78] and the standards governing the duties of his or her office.[79]
Further, our decision is supported by the crucial fact that under the statute in question, the juvenile court has the right and retains the power in the final regard to "recall control" over the child and bring him or her back into the juvenile system. The fact that the court decided in its discretion that recall was inappropriate in this case does not negatively affect this safeguard in the juvenile system or the constitutionality of the legislation.
Accordingly, in the absence of any arbitrary classifications such as race or *405 religion, we uphold the statutory scheme vesting the discretion to charge juveniles as adults solely with the prosecution and conclude that the exercise of this discretion resulting in some selectivity in prosecution is not in itself a constitutional violation.[80] The legislation which gives effect to the statute's stated purpose is rational and reasonable, and any resulting discrepancies in treatment do not amount to a denial of equal protection under either the federal or state constitution.[81]
III
Defendant also contends that the recall provision of the juvenile statute is inadequate and denied him due process of law. However, because of the posture of this case, we do not address the merits of defendant's claims.[82]
It is a fundamental principle of constitutional law that a reviewing court will refrain "`from passing on the constitutionality of a statute until a case involving it has reached a stage where the decision of a precise constitutional issue is a necessity.'"[83] Additionally, we may affirm a trial court's decision based on any appropriate grounds.[84]
In State in re Atcheson,[85] this Court held that a certification order of the juvenile court is a final appealable order. In concluding such, we considered and found supportive the language of the juvenile certification statute itself indicating that jurisdiction is terminated by the statutory provisions at such time as a criminal complaint is filed and the fact that the various legislative and judicial protections provided for juveniles are effectively foreclosed by a certification order.[86] This precedent is controlling as it involves the final appealable nature of an order based upon a petition or hearing for recall.
As noted above, pursuant to Utah Code Ann. § 78-3a-25(6) (1987), a juvenile committing certain offenses is subject to the jurisdiction of the juvenile court under section 78-3a-16 unless an indictment is returned or a criminal information is filed against the individual. In such event, the juvenile court is generally divested of exclusive jurisdiction and the juvenile is subject to the jurisdiction of the district court.[87] However, under section 78-3a-25(9), the juvenile court regains exclusive *406 jurisdiction when (1) the court determines there is insufficient probable cause for the juvenile to stand trial on the allegation; (2) there is an acquittal or finding of not guilty or dismissal of the charges against the juvenile; or (3) the juvenile court files a request for a return of jurisdiction in the court where the allegations are pending.
Regarding this latter method, the statute specifically allows motions to be filed and a recall hearing to be held and requires the juvenile court to consider the juvenile's age, his or her legal record, and the seriousness of the charge.[88] At such time as the juvenile court enters an order denying a petition to recall exclusive jurisdiction, its exercise of jurisdiction over the juvenile is terminated by the statutory provisions and exclusive jurisdiction over the juvenile remains in the district court. Thereafter, the various legislative and judicial protections provided for the juvenile are effectively foreclosed,[89] just as they are in situations involving certification orders.
Accordingly, the juvenile court's decision based upon a petition for recall of exclusive jurisdiction is a final appealable order. Therefore, because no appeal was taken from this final order and since the substance of the juvenile recall hearing and the record of the same are not before us on appeal, we do not reach the merits of defendant's present contentions.
Furthermore, we decline defendant's invitation to consider his claims on appeal as unsuccessful challenges to the district court's jurisdiction based upon the constitutionality of the subject statutory provisions. In order to find that the issues are properly before us from the district court's determination in this case, we must conclude that the district court could have properly exercised appellate review over the orders of the juvenile court and effectively forced the same to accept and exercise jurisdiction over defendant were the district court to find that the statutory provisions at issue were unconstitutional. Such conclusion is inappropriate under both statute and constitution and does not recognize or uphold the authority of the juvenile court in such instances.[90]
Finally, even if we were to conclude that the recall proceedings were constitutionally flawed, a nunc pro tunc recall hearing satisfying defendant's due process claims[91] would be inappropriate in this case just as it was in State in re Schreuder,[92] wherein we held that even assuming constitutional violations, a nunc pro tunc certification hearing is required "only if the juvenile court, in a flawless hearing, might have retained jurisdiction."[93] Inasmuch as the overwhelming weight of the evidence in this case supports the finding "`to a moral and legal certainty' that no juvenile court could properly have retained jurisdiction,"[94] defendant's claims lack merit.
*407 IV
Defendant finally contends that "section 78-3a-25(8) impermissibly conditions a sentencing alternative of the court on the approval of the Division of Youth Corrections and therefore violates the doctrine of the separation of powers."
In State v. Bishop,[95] we reiterated:
"That the Legislature of this state has the sole power to fix the punishment to be inflicted for a particular crime, with the limitation only that it be not cruel or excessive, will not be questioned. That it may fix any punishment, subject to the above limitation, and leave no discretion whatever in the courts as to the extent or degree of punishment is a well-recognized and universally accepted doctrine, and under a statute fixing a definite period the court has no more discretion as to the punishment than the police officer whose duty it is to carry the punishment into effect... ."[96]
Although stated in a different context, this rationale duly recognizes the power that lies in the legislature to determine the appropriate sentencing alternatives that will be available to the courts upon convicting a juvenile.
In the instant case, the legislature has delegated to the Division of Youth Corrections, after the latter considers the interest of the juveniles and the public, the power to determine the appropriate placement of juveniles in instances where the trial court, in the exercise of its discretion, decides to commit the juvenile to the care, custody, and jurisdiction of that division. Inasmuch as there is no right to be treated as a juvenile,[97] the legislature could properly delegate to the executive branch the discretion to choose the proper placement of juveniles on an individual basis in particular circumstances where the court considers it appropriate.
Furthermore, we note that defendant was not referred to youth corrections after sentencing. Instead, the district court chose to sentence him as an adult. Defendant's sentence and subsequent placement were therefore not contingent upon the approval of the Division of Youth Corrections. Accordingly, we conclude that defendant's claim is without merit.
We have reviewed defendant's other contentions and find them also to be without merit. The judgment of the trial court is affirmed.
HOWE, Associate C.J., concurs.
STEWART, Justice (concurring and concurring in the result):
I concur in Part I of the majority opinion, and I concur in the result in Parts II, III, and IV.
DURHAM, Justice (concurring and dissenting):
I concur with part I of the majority decision, but dissent from part II because I am persuaded that the statutory scheme under examination results in a violation of the concept of equal protection guaranteed by the uniform operation of the laws provision of the Utah Constitution.[1]
"Whether a statute meets equal protection standards depends in the first instance upon the objectives of the statute and whether the classifications established provide a reasonable basis for promoting those objectives." Malan v. Lewis, 693 P.2d 661, 670 (Utah 1984).
Article I, section 24 protects against two types of discrimination. First, a law must apply equally to all persons within a class. Second, the statutory classifications and the different treatment given the classes must be based on differences that have a reasonable tendency to further the objectives of the statute.
*408 Id. (citations omitted). We recently described the analytic process in Blue Cross & Blue Shield v. State of Utah, 779 P.2d 634 (Utah 1989):
Article I, section 24 of the Utah Constitution commands that "[a]ll laws of a general nature shall have uniform operation." Utah Const. art. I, § 24. The concept underlying this provision is "the settled concern of the law that the legislature be restrained from the fundamentally unfair practice" of classifying persons in such a manner that those who are similarly situated with respect to the purpose of a law are treated differently by that law, to the detriment of some of those so classified. In scrutinizing a legislative measure under article I, § 24, we must determine whether the classification is reasonable, whether the objectives of the legislative action are legitimate, and whether there is a reasonable relationship between the classification and the legislative purposes.
Id. at 637 (citations omitted).
The class created by the statute in question is not limited to juveniles against whom the prosecutor has filed an information. Rather, all juveniles over sixteen named in petitions alleging certain crimes (criminal homicide, aggravated robbery, forcible sodomy, aggravated arson, aggravated sexual abuse of a child, aggravated sexual assault, aggravated burglary, or aggravated kidnapping) constitute the initial class. The class is then subdivided by the statute into those over whom jurisdiction is retained by the juvenile court and those against whom "an indictment on the charge is returned by the grand jury or a criminal information is filed by the county attorney." As to the second subclass, the juvenile court is automatically "divested of jurisdiction." Utah Code Ann. § 78-3a-25(6) (1987).
Those juveniles against whom indictments or informations are filed are indistinguishable under the statute from those who remain in the jurisdiction of the juvenile court, with all of the attendant benefits the latter disposition implies. While it is true, as the majority observes, that there is no right to treatment as a juvenile, that does not permit arbitrary and irrational statutory divisions between identically situated juveniles.
The differences in treatment under the statutory system at issue here are significant. In Utah, one of three things can happen to a person between the ages of sixteen and eighteen alleged to have committed any of the offenses enumerated in section 78-3a-25(6). First, the person may be left in the juvenile system. If this occurs, the prosecutor may not proceed in the adult system against such a juvenile and the juvenile will therefore be subject only to the relatively lenient procedures of the juvenile court. See Utah Code Ann. §§ 78-3a-22, -23, -24, -29, -30, -33, -35 (1987). Proceedings in juvenile cases are regarded as civil proceedings, with the juvenile court able to exercise equitable powers. Utah Code Ann. § 78-3a-44(1) (1987). Furthermore, a juvenile kept in the juvenile court system who is adjudged in need of incarceration is committed to the Division of Youth Correction, not to the state prison system. Any juvenile offender who has been committed to a secure facility under the direction of the Division of Youth Corrections must be released from that facility when he attains the age of twenty-one or sooner if he is paroled or discharged. Utah Code Ann. § 62A-7-108(1) (Supp. 1988). See generally Utah Code Ann. tit. 62A, ch. 7.
Second, the person may be charged by petition in the juvenile court under section 78-3a-25(1). In that case, the prosecutor may seek a certification hearing. At the certification hearing, the juvenile court is required to consider all of the factors enumerated in section 78-3a-25(2). Any of the factors enumerated in that subsection could be grounds for the juvenile court to retain jurisdiction over the juvenile and keep that juvenile in the juvenile system. Furthermore, at the certification hearing, all of the rights guaranteed by section 78-3a-25(5) would inure to the juvenile.
Finally, the juvenile may be charged by information or grand jury indictment directly in the adult system at the sole discretion *409 of the prosecutor in the case. In that situation, the juvenile court is divested of jurisdiction and the only involvement of the juvenile court comes if the juvenile requests that a recall hearing be held.
The purposes of the Juvenile Courts Act, namely to serve the welfare of the child and the best interest of the state, particularly the protection of the public against juvenile crime and violence are legitimate state objectives. Utah Code Ann. § 78-3a-1 (1987). The majority correctly observes that the legislature was justified in believing that permitting certain juvenile offenders to be prosecuted as adults was necessary and reasonable. The problem arises in the arbitrary distinction made between some violent juvenile offenders charged with specific offenses against whom a grand jury indictment is successfully sought or an information filed and other violent offenders charged with those same offenses who are left in the juvenile system and still others charged with the same offenses for whom a waiver of jurisdiction is sought pursuant to section 78-3a-25(2). I do not see how these distinctions further the legitimate state objectives of the Juvenile Courts Act. Nothing in the statute suggests any basis, legitimate or otherwise, for the differences in treatment between juvenile offenders assigned to any of the different possible statutory paths.
For the juvenile, the consequences of the statutory path to which he or she is consigned are enormous. Those consequences include the allocation of the burden of proof, the statutory standards to be applied, and even the availability of a hearing on the disposition-track issue. Furthermore, the sentencing options after conviction and the location and length of any incarceration are very different in the adult and the juvenile systems.
This is not a traditional "prosecutorial discretion" case; it is an unusual case in which the statutory scheme itself takes one class of persons in identical circumstances and subdivides it into subclasses indistinguishable from one another. There is no basis for the subdivision except the prosecutor's arbitrary and standardless choice between filing options for the same criminal charges. This is not a classic "charging" option where the prosecutor decides which criminal statute best suits the circumstances of the crime and the offender. Nor is it a plea-bargaining option or a sentencing or diversion procedure, all of which entail court supervision. It is an option which creates two parallel but unequal disposition tracks for the same statutory class of offenders but permits assignments to one or the other of the tracks without a rational basis. Although it is the prosecutor's choice of where to file that triggers the arbitrary operation of the statute, the capriciousness is in the statute itself. The juveniles who end up in district court are statutorily indistinguishable from those who remain in juvenile court.
While a number of cases from other jurisdictions have upheld similar statutes against constitutional claims (maj. op. at note 22), each one of those cases is in some way distinguishable from the current case.[2]*410 None of the cases clearly appears to involve the unequal, multiple-choice statutory process we have here, which seems to be unique to Utah. Rather they involve statutes which treat all similarly situated juveniles alike. The prosecutorial discretion discussed in the majority of these cases is discretion to charge or not to charge a specific offense that will uniformly trigger the differential statutory treatment. All juveniles charged with the same offense are treated alike by these statutes.
The distinctions between the type of case referred to above and the instant case are critical. Jones v. State, 654 P.2d 1080 (Okla. Crim. App.), for example, is a typical prosecutorial discretion case. That opinion discusses prosecutorial discretion at length and with approval. But the Jones court was dealing with discretion to choose what offense to charge, a choice traditionally permitted the prosecution. The statute at issue in Jones provided that a sixteen- or seventeen-year-old who was charged with an enumerated felony "shall be considered as an adult," so that, once charged, all juveniles were treated alike. 10 Okla. Stat. tit. 10, § 1104.2 (1981). Under the Utah statute, by way of contrast, identically charged juveniles may be treated entirely differently and unequally.
In Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), the United States Supreme Court held that the determination of whether to transfer a child from the juvenile court to the criminal process of the adult court is a "critically important" proceeding, that it must satisfy basic requirements of due process and fairness, and that it is incumbent on the juvenile court, after a hearing, to accompany a waiver of jurisdiction with a statement of the reasons for the waiver. 383 U.S. at 560-61, 86 S.Ct. at 1056-57. Under the Utah law in question here, that "critically important" decision concerning which court has jurisdiction over a juvenile offender is accompanied by numerous constitutional safeguards for some juveniles and not for others, even though all are identically situated vis-a-vis the statute. For example, the decision of a juvenile court judge in Utah to certify a juvenile as an adult is governed by numerous guidelines and is subject to appellate review as a final order.[3] However, *411 under the statute in question here the same decision may be cursorily made, without standards and without benefit of the record, by a prosecutor. As Judge Skelly Wright observed in his dissent in United States v. Bland, 472 F.2d 1329 (D.C. Cir.1972), cert. denied, 412 U.S. 909, 93 S.Ct. 2294, 36 L.Ed.2d 975 (1973),
The decision by a juvenile [court] judge or by the United States Attorney to treat the child as an adult for prosecution purposes marks the beginning of precisely the same process of adjudication. And it cannot be doubted that the United States attorney is certainly a less disinterested decision maker than the [j]uvenile [c]ourt judge. It would seem then that, in order to compensate for lack of neutrality,... procedural niceties should be more rather than less carefully observed when the prosecutor is the decision maker.
... .
It is, of course, still widely believed that prosecutors have a broad, unreviewable discretion to determine which offenders to charge and what crimes to charge them with, although even this notion is now widely challenged by the leading scholars... . But it should be readily apparent that the usual notions of prosecutorial discretion have nothing to do with this case. The defendant does not ask us to review the substance of the prosecutor's charging decision or to place limits on the scope of his discretion.
472 F.2d at 1344, 1347 (Wright, J., dissenting) (emphasis in original; citations omitted).
It is noteworthy that the statute in Bland, like those in Jones and almost all of the cases cited by the majority, provided for automatic exemption from the jurisdiction of the juvenile system for all juveniles over a certain age and charged with certain enumerated crimes. It seems likely to me that Judge Wright's dissent would have prevailed had the Bland court been dealing with a statute like ours.
While the State could choose to prosecute as adults all juveniles named in petitions pursuant to section 78-3a-25(6), the problem here is that the legislature has not chosen to do so. Instead it has permitted such prosecution of some but not others identically situated, and it has provided no rational basis (in fact, no basis at all) for telling which are which.
The direct filing/recall portion of Utah's statute does not apply equally to all persons within a class (i.e., persons between sixteen and eighteen who are alleged to have committed certain specified violent crimes). Furthermore, the statutory distinctions between persons assigned to different disposition tracks are not based on "differences that have a reasonable tendency to further the objectives of the statute." Malan v. Lewis, at 670. As currently written, section 78-3a-25 permits disparate treatment of similarly situated juveniles and constitutes a violation of article I, section 24 of the Utah Constitution.
ZIMMERMAN, J., concurs in the concurring and dissenting opinion of DURHAM, J.
NOTES
[1] In violation of Utah Code Ann. § 76-5-203(1)(a) (Supp. 1989) and § 76-4-101(1) (1978), a second degree felony pursuant to Utah Code Ann. §§ 76-5-203(2), 76-4-102(2) (Supp. 1989).
[2] In violation of Utah Code Ann. § 76-6-302 (1978) (amended 1989), a first degree felony.
[3] Pursuant to the provisions of Utah Code Ann. § 78-3a-25(6) (1987).
[4] In violation of Utah Code Ann. § 76-6-302 (1978) (amended 1989).
[5] In violation of Utah Code Ann. § 76-5-202 (Supp. 1989) and § 76-4-101(1) (1978), a first degree felony pursuant to Utah Code Ann. §§ 76-5-202(2), 76-4-102(1) (Supp. 1989).
[6] Pursuant to Utah Code Ann. § 78-3a-25(9) (1987).
[7] In violation of Utah Code Ann. § 76-5-203(1)(d) (Supp. 1989), a second degree felony pursuant to Utah Code Ann. §§ 76-5-203(2), 76-4-102(2) (Supp. 1989).
[8] A first degree felony in violation of Utah Code Ann. § 76-6-302 (1978) (amended 1989).
[9] 725 P.2d 1301, 1313-14 (Utah 1986).
[10] In violation of Utah Code Ann. § 76-5-203(1)(a) (Supp. 1989) and § 76-4-101(1) (1978), a second degree felony pursuant to Utah Code Ann. §§ 76-5-203(2), 76-4-102(2) (Supp. 1989). The charge of aggravated robbery was not modified in the latest amended information.
[11] 734 P.2d 421 (Utah 1986).
[12] See C. Torcia, 4 Wharton's Criminal Law § 741, at 565, § 743, at 571-72 (14th ed. 1981).
[13] See, e.g., People v. Collie, 30 Cal.3d 43, 62, 634 P.2d 534, 545, 177 Cal. Rptr. 458, 469 (1981) (specific intent to kill is an element of attempted murder); State v. Rodgers, 198 Conn. 53, 62, 502 A.2d 360, 366 (1985) ("The mental state associated with the crime of attempt to commit murder is the `intent to cause the death of another person'" (citation omitted).); People v. Mitchell, 98 Ill. App.3d 398, 402, 53 Ill.Dec. 867, 870, 424 N.E.2d 658, 661 (1981) ("[O]ffense of attempt (murder) requires the mental state of specific intent to commit murder."); State v. Strother, 362 So.2d 508, 509 (La. 1978) (attempt to commit either first or second degree murder requires specific intent to kill); Flanagan v. State, 675 S.W.2d 734, 741 (Tex. Crim. App. 1982) ("[A] specific intent to kill is a necessary element of attempted murder."); see R. Perkins & R. Boyce, Criminal Law, at 637-38 (3d ed. 1982); W. LaFave & A. Scott, Jr., Criminal Law, at 500-01 (2d ed. 1972); Note, Attempted Murder: Should Specific Intent to Kill be Required?, 31 Baylor L.Rev. 243 (1979).
[14] 469 A.2d 1251 (Me. 1984).
[15] Me. Rev. Stat. Ann. 17-A, § 152 (1983).
[16] 469 A.2d at 1253 (citation omitted).
[17] 443 N.E.2d 44 (Ind. 1982).
[18] Ind. Code § 35-41-5-1 (1985).
[19] 443 N.E.2d at 50-51; see Anderson v. State, 448 N.E.2d 1180, 1187 (Ind. 1983) ("[T]he crime of attempted felony murder does not exist.").
[20] See, e.g., People v. Viser, 62 Ill.2d 568, 581, 343 N.E.2d 903, 910 (1975) ("There can be no felony murder where there has been no death, and the felony murder ingredient of the offense of murder cannot be made the basis of an indictment charging attempt murder."); People v. Burress, 122 A.D.2d 588, 589, 505 N.Y.S.2d 272, 273, appeal denied, 68 N.Y.2d 810, 507 N.Y.S.2d 1027, 499 N.E.2d 876 (1986) ("[T]here can be no attempt to commit a crime that does not involve a specific intent"; defendant's conviction for attempted felony murder reversed.).
[21] Utah R.Civ.P. 52(a); State v. Kelly, 770 P.2d 98, 99 (Utah 1988).
[22] See Utah Code Ann. § 76-5-202(1) (Supp. 1989), § 76-4-101(1) (1978).
[23] The constitutionality of similar statutes has been raised through a myriad of forms and upheld in a majority of jurisdictions considering such claims. See, e.g., In re D.G., 733 P.2d 1199, 1200-03 (Colo. 1987) (en banc); People v. Thorpe, 641 P.2d 935, 937-40 (Colo. 1982) (en banc); State v. Cain, 381 So.2d 1361, 1363-68 (Fla. 1980), superseded on other grounds by statute as stated in Banks v. State, 520 So.2d 43 (Fla.App. 1987), review denied, 529 So.2d 693 (Fla. 1988); People v. Handley, 51 Ill.2d 229, 231-35, 282 N.E.2d 131, 134-35, cert. denied, 409 U.S. 914, 93 S.Ct. 247, 34 L.Ed.2d 175 (1972); State v. Grayer, 191 Neb. 523, 524-27, 215 N.W.2d 859, 860-61 (1974); People v. Mason, 99 Misc.2d 583, 584-89, 416 N.Y.S.2d 981, 983-86 (Sup.Ct. 1979); Jones v. State, 654 P.2d 1080, 1082-84 (Okla.Ct.Crim.App. 1982); In re N.H.B., 777 P.2d 487, 489-90 (Utah Ct.App. 1989); Jahnke v. State, 692 P.2d 911, 927-29 (Wyo. 1984). Defendant does not specifically demonstrate that the state and federal analyses differ. Therefore, we treat his claims as based only upon federal constitutional provisions. See State v. Lafferty, 749 P.2d 1239, 1247 n. 5 (Utah 1988); State v. Ashe, 745 P.2d 1255, 1257 n. 2 (Utah 1987).
[24] Zamora v. Draper, 635 P.2d 78, 80 (Utah 1981).
[25] Id.
[26] State v. Lindquist, 674 P.2d 1234, 1237 (Utah 1983); State v. Casarez, 656 P.2d 1005, 1008 (Utah 1982); In re Boyer, 636 P.2d 1085, 1088 (Utah 1981); accord People v. Williams, 100 Misc.2d 183, 185-86, 418 N.Y.S.2d 737, 739 (Cnty.Ct. 1979).
[27] Stone v. Department of Registration, 567 P.2d 1115, 1117 (Utah 1977) (footnotes omitted); see also Gray v. Department of Employment Security, 681 P.2d 807, 824 (Utah 1984) (Durham, J., concurring and dissenting) (operation of the "principle of prudent restraint").
[28] Smith v. State, 444 S.W.2d 941, 943-44 (Tex. Civ.App. 1969).
[29] Id.; State v. Bishop, 717 P.2d 261, 266 (Utah 1986); McGowan v. Maryland, 366 U.S. 420, 425-26, 81 S.Ct. 1101, 1104-05, 6 L.Ed.2d 393 (1961).
[30] Smith, 444 S.W.2d at 943.
[31] Id. at 944; Pyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786 (1982); see Bishop, 717 P.2d at 266; Mountain Fuel Supply Co. v. Salt Lake City Corp., 752 P.2d 884, 887 (Utah 1988); Thompson v. Salt Lake City Corp., 724 P.2d 958, 959 (Utah 1986).
[32] See McGowan, 366 U.S. at 426, 81 S.Ct. at 1105.
[33] Id. (citations omitted).
[34] Mason, 99 Misc.2d at 584, 416 N.Y.S.2d at 983; Bishop, 717 P.2d at 266.
[35] Mason, 99 Misc.2d at 584-87, 416 N.Y.S.2d at 983-84; Pyler, 457 U.S. at 216, 102 S.Ct. at 2394; J.J.N.P. Co. v. State ex rel. Div. of Wildlife Resources, 655 P.2d 1133, 1137 (Utah 1982).
[36] Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491, reh'g denied, 398 U.S. 914, 90 S.Ct. 1684, 26 L.Ed.2d 80 (1970) (quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369 (1911)), quoted in Mason, 99 Misc.2d at 585, 416 N.Y.S.2d at 984.
[37] Mason, 99 Misc.2d at 586, 416 N.Y.S.2d at 984; Pyler, 457 U.S. at 216-17, 102 S.Ct. at 2394-95; J.J.N.P. Co., 655 P.2d at 1137.
[38] Mason, 99 Misc.2d at 586, 416 N.Y.S.2d at 984 (citation omitted); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312 nn. 3-4, 96 S.Ct. 2562, 2566 nn. 3-4, 49 L.Ed.2d 520 (1976), and cases cited therein.
[39] Mason, 99 Misc.2d at 586, 416 N.Y.S.2d at 984.
[40] Pyler, 457 U.S. at 217-18, 102 S.Ct. at 2395; see Mason, 99 Misc.2d at 585, 416 N.Y.S.2d at 984.
[41] See Pyler, 457 U.S. at 217-18, 102 S.Ct. at 2395; Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981) (gender); Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978) (illegitimacy).
[42] Mason, 99 Misc.2d at 586, 416 N.Y.S.2d at 984; Purdie v. University of Utah, 584 P.2d 831, 833 (Utah 1978); see In re K.V.N., 116 N.J. Super. 580, 590, 283 A.2d 337, 343 (1971), and cases cited therein, aff'd, 60 N.J. 517, 291 A.2d 577 (1972); see also Lamb v. Brown, 456 F.2d 18, 20 (10th Cir.1972) (test applied in equal protection challenge to statute affording female juveniles benefit of juvenile court while limiting such benefit to males of same age).
[43] State in re Atcheson, 575 P.2d 181, 184 (Utah 1978); cf. Burnham v. Hayward, 663 P.2d 65, 67 (Utah 1983) (no right to certification hearing).
[44] Cain, 381 So.2d at 1363 (citing In re Gault, 387 U.S. 1, 16, 87 S.Ct. 1428, 1437, 18 L.Ed.2d 527 (1967)).
[45] 99 Misc.2d 583, 416 N.Y.S.2d 981.
[46] Id. at 586, 416 N.Y.S.2d at 984 (quoting People v. Drayton, 39 N.Y.2d 580, 584, 385 N.Y.S.2d 1, 3, 350 N.E.2d 377, 379 (1976)); Jahnke, 692 P.2d at 928-29, and cases cited therein; see Woodard v. Wainwright, 556 F.2d 781, 785 (5th Cir.1977), cert. denied, 434 U.S. 1088, 98 S.Ct. 1285, 55 L.Ed.2d 794 (1978); Cain, 381 So.2d at 1363; Williams, 100 Misc.2d at 186, 418 N.Y.S.2d at 740; see also State v. Anderson, 108 Idaho 454, 457, 700 P.2d 76, 79 (Ct.App. 1985) (defendant had no statutory right to be proceeded against as minor).
[47] Mason, 99 Misc.2d at 585, 416 N.Y.S.2d at 984. But see People ex rel. Wayburn v. Schupf, 39 N.Y.2d 682, 686, 385 N.Y.S.2d 518, 519, 350 N.E.2d 906, 908 (Ct.App. 1976) (pretrial detention impinges on fundamental liberty right).
[48] Pyler, 457 U.S. at 217, 102 S.Ct. at 2395.
[49] Mason, 99 Misc.2d at 585, 416 N.Y.S.2d at 984; supra note 41.
[50] See generally State v. Murphy, 760 P.2d 280 (Utah 1988); State v. Richards, 740 P.2d 1314 (Utah 1987).
[51] Cf. State in re Clatterbuck, 700 P.2d 1076, 1084 (Utah 1985) (defendant certified to district court based on individual particularities of case).
[52] See generally infra pages 402-405 (prosecutorial discretion discussed); Utah Const. art. VIII, § 16 (Supp. 1989) (responsibility of prosecutors).
[53] J.J.N.P. Co., 655 P.2d at 1137, Hart Health Studio v. Salt Lake County, 577 P.2d 116, 118 (Utah 1978); McGowan, 366 U.S. at 425-26, 81 S.Ct. at 1104-05, quoted in State ex rel. Coats v. Rakestraw, 610 P.2d 256, 259 (Okla.Ct.Crim.App. 1980); Mason, 99 Misc.2d at 585, 416 N.Y.S.2d at 984; Smith, 444 S.W.2d at 943-44.
[54] Utah Public Employees' Ass'n v. Utah, 610 P.2d 1272, 1273-74 (Utah 1980) (quoting Lindsley, 220 U.S. 61, 31 S.Ct. 337).
[55] Utah Code Ann. § 78-3a-1 (1987) (emphasis added) (repealed and reenacted 1988).
[56] State ex rel. Sullivan v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 60, 82 L.Ed. 43 (1937).
[57] Woodard, 556 F.2d at 785 (citing United States v. Bland, 472 F.2d 1329, 1333-34 (D.C. Cir.1972), cert. denied, 412 U.S. 909, 93 S.Ct. 2294, 36 L.Ed.2d 975 (1973)).
[58] Woodard, 556 F.2d at 785 (citing in part Bland, 472 F.2d at 1334); see Williams, 100 Misc.2d at 188, 418 N.Y.S.2d at 741.
[59] See Rakestraw, 610 P.2d at 259.
[60] Id. at 258 (citations and footnote omitted). While the United States Supreme Court has discussed the critical importance of the due process rights afforded juveniles in situations where the juvenile court is waiving jurisdiction, see Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), the majority of the cases noted that have discussed application of the Kent factors have distinguished the same in situations involving statutes and claims comparable to those in this case, including the claim that the prosecution is required to utilize those procedures necessary for due process. See, e.g., Burnham, 663 P.2d at 67; Woodard, 556 F.2d at 783-84 & nn. 12-13; Russell v. Parratt, 543 F.2d 1214, 1216-17 (8th Cir.1976); United States v. Quinones, 516 F.2d 1309, 1311 (1st Cir.), cert. denied, 423 U.S. 852, 96 S.Ct. 97, 46 L.Ed.2d 76 (1975); Cox v. United States, 473 F.2d 334, 335-36 (4th Cir.), cert. denied, 414 U.S. 869, 94 S.Ct. 183, 38 L.Ed.2d 116 (1973); Bland, 472 F.2d at 1336-37 & n. 26; United States v. Alexander, 333 F. Supp. 1213, 1215-16 (D.C.D.C. 1971); Thorpe, 641 P.2d at 939-40; Brown v. United States, 343 A.2d 48, 49-51 (D.C. 1975); Cain, 381 So.2d at 1365-67; Anderson, 108 Idaho at 457-458, 700 P.2d at 79-80; People v. Hawkins, 53 Ill.2d 181, 182, 290 N.E.2d 231, 232 (1972); Handley, 51 Ill.2d at 231-35, 282 N.E.2d at 134-35; Jones, 654 P.2d at 1082-84 & n. 3; Rakestraw, 610 P.2d at 258 & n. 1; State v. Berard, 121 R.I. 551, 555-59, 401 A.2d 448, 451-52 (1979); Jahnke, 692 P.2d at 928-29. This is the case notwithstanding the fact "that, from the defendant's viewpoint, the effect and consequences of the prosecutorial decision are the same as the effect and consequences of a judicial decision to waive juvenile court jurisdiction in a judicial system which provides such courts." Cox, 473 F.2d at 336; cf. State in re Clatterbuck, 700 P.2d 1076 (Kent standards considered in instance where trial court certified juvenile to be tried as adult). In Louisville Gas & Electric Co. v. Coleman, 277 U.S. 32, 41, 48 S.Ct. 423, 426, 72 L.Ed. 770 (1928) (Holmes, J., dissenting), quoted in Mason, 99 Misc.2d at 588-89, 416 N.Y.S.2d at 985-86, Justice Holmes stated:
When a legal distinction is determined, as no one doubts that it may be, between night and day, childhood and maturity, or any other extremes, a point has to be fixed or a line has to be drawn, or gradually picked out by successive decisions, to mark where the change takes place. Looked at by itself without regard to the necessity behind it the line or point seems arbitrary. It might as well or nearly as well be a little more to one side or the other. But when it is seen that a line or point there must be, and that there is no mathematical or logical way of fixing it precisely, the decision of the legislature must be accepted unless we can say that it is very wide of any reasonable mark.
[61] See supra notes 51-52 and accompanying text; supra pages 395-397; infra pages 402-405.
[62] Thorpe, 641 P.2d at 940; see Cain, 381 So.2d at 1364; People v. Santiago, 51 A.D.2d 1, 379 N.Y.S.2d 843, 854 (1975), superseded on other grounds by statute as stated in People v. Evelyn R., 85 Misc.2d 872, 379 N.Y.S.2d 1000 (Supp. 1976).
[63] Pyler, 457 U.S. at 216, 102 S.Ct. at 2394.
[64] See, e.g., Mason, 99 Misc.2d at 587, 416 N.Y.S.2d at 985; Rakestraw, 610 P.2d at 258-59; Utah Code Ann. § 78-3a-25(8)-(9) (1987).
[65] See Cain, 381 So.2d at 1362; Johnson v. State, 314 So.2d 573, 577 (Fla. 1975).
[66] State v. Geer, 765 P.2d 1, 3 (Utah Ct.App. 1988) (citing Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 1530, 84 L.Ed.2d 547 (1985), and quoting Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978)), cert. denied, 773 P.2d 45 (Utah 1989).
[67] State v. Garcia, 29 Utah 2d 52, 53, 504 P.2d 1015, 1015-16 (1972) (footnote omitted).
[68] Bordenkircher, 434 U.S. at 364, 98 S.Ct. at 668 (footnote omitted) (quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962)).
[69] United States v. Cox, 342 F.2d 167, 171 (5th Cir.) (footnotes omitted), cert. denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965); see Russell, 543 F.2d at 1214, 1216.
[70] See, e.g., Newman v. United States, 382 F.2d 479, 480 (D.C. Cir.1967), quoted in Russell, 543 F.2d at 1216; Thorpe, 641 P.2d at 939-40; Jones, 654 P.2d at 1082 (citing Bland, 472 F.2d 1329).
[71] Thorpe, 641 P.2d at 938-40.
[72] Id. at 940 n. 5.
[73] Cain, 381 So.2d at 1364, 1367-68 (footnote omitted).
[74] Grayer, 191 Neb. at 526, 215 N.W.2d at 861 (quoting Handley, 51 Ill.2d at 233, 282 N.E.2d at 135); see Cain, 381 So.2d at 1363-68, and cases cited therein; People v. Montgomery, 19 Ill. App.3d 206, 214, 311 N.E.2d 361, 367 (1974); Jones, 654 P.2d at 1082-83, and cases cited in n. 1 (following a majority of courts holding that "reverse certification statutes are not violative of either the separation of powers or due process").
[75] See supra notes 66-67 and accompanying text.
[76] Utah Const. art. V, § 1; see supra note 69 and accompanying text.
[77] See supra note 72 and accompanying text; Handley, 51 Ill.2d at 233, 282 N.E.2d at 134-35.
[78] Supra note 55 and accompanying text.
[79] The fact that the prosecution is not specifically required by statute to follow and make findings based upon enumerated criteria does not justify the conclusion that the prosecutorial discretion amounts to a constitutional violation. See generally Thorpe, 641 P.2d at 940 n. 5; Montgomery, 19 Ill. App.3d at 214, 311 N.E.2d at 367; supra notes 60 & 64 and accompanying text.
[80] See Bordenkircher, 434 U.S. at 364, 98 S.Ct. at 668; Bland, 472 F.2d at 1336, and cases cited therein; Thorpe, 641 P.2d at 939-40, and cases cited therein.
[81] Mason, 99 Misc.2d at 587, 416 N.Y.S.2d at 985.
[82] At trial, the court responded to similar issues by stating:
The recall hearing is entirely different in nature and need not be tied to the same factors used in a certification hearing... .
Bell has not indicated how the recall hearing held was less than a meaningful opportunity to be heard except by a bare statement that due process requires that a defendant be allowed to introduce all evidence in his favor. Counsel for the state asserts that counsel for Bell had the opportunity to cross-examine all witnesses, review all evidence and present argument at the hearing. This assertion is uncontroverted by Bell.
... .
A juvenile judge does not have absolute discretion in determining whether to recall jurisdiction. U.C.A. 78-3a-25(9) requires the judge to consider three factors: the juvenile's age, legal record, and seriousness of the charge. Given the serious nature of the crimes to which this statute applies, it could easily be found that the consideration of these factors is sufficient. As noted above, the substance of the recall hearing actually afforded Bell is not before us. If it is felt that the recall hearing was substantively deficient in allowing the juvenile to remain in an adult court's jurisdiction, the nature of Bell's hearing must be examined.
[83] Gray v. Department of Employment Sec., 681 P.2d 807 (Utah 1984) (Durham, J., concurring and dissenting) (quoting Sanks v. Georgia, 401 U.S. 144, 151, 91 S.Ct. 593, 597, 27 L.Ed.2d 741 (1971) (itself quoting United States v. Petrillo, 332 U.S. 1, 5, 67 S.Ct. 1538, 1541, 91 L.Ed. 1877 (1947))); supra notes 24-27 and accompanying text.
[84] State v. Gray, 717 P.2d 1313, 1316 (Utah 1986).
[85] 575 P.2d 181.
[86] Id. at 182-83.
[87] See id. at 183; see also State v. Schreuder, 712 P.2d 264, 267-68 (Utah 1985) (jurisdiction of district court to conduct preliminary hearing).
[88] See generally supra note 60 and accompanying text (discussion of criteria used in reverse certification decision).
[89] While the statute in question allows a magistrate the opportunity (subject to approval) to commit a juvenile convicted as an adult to the care, custody, and jurisdiction of the Division of Youth Corrections, Utah Code Ann. § 78-3a-25(8) (1987), such is also the case in situations involving certification orders, and our holding concerning a final appealable order, as controlled by Atcheson, 575 P.2d 181, is therefore appropriate.
[90] See generally Utah Code Ann. §§ 78-3a-3, -18, -25, -51 (1987); §§ -16, -39 (1987) (amended 1988 & 1989); § -40 (1987) (amended 1989); Utah Const. art. VIII, § 5 (Supp. 1989).
[91] See generally State in re L.G.W., 638 P.2d 527, 528 (Utah 1981) (essentials of due process); Rupp v. Grantsville City, 610 P.2d 338, 341 (Utah 1980) ("`[D]ue process' is not a technical concept with a fixed content unrelated to time, place and circumstances which can be imprisoned within the treacherous limits of any formula. Rather the demands of due process rest on the concept of basic fairness of procedure and demand a procedure appropriate to the case and just to the parties involved" (footnotes omitted).), cited in Nelson v. Jacobsen, 669 P.2d 1207, 1213 (Utah 1983), itself limited on other grounds by Hackford v. Utah Power & Light Co., 740 P.2d 1281, 1286-87 n. 3 (Utah 1987); supra note 23.
[92] 649 P.2d 19 (Utah 1982).
[93] Id. at 25 (citations omitted).
[94] Id. (quoting Brown v. Cox, 481 F.2d 622 (4th Cir.1973), cert. denied, 414 U.S. 1136, 94 S.Ct. 881, 38 L.Ed.2d 761 (1974)); see also Clatterbuck, 700 P.2d at 1082-83 (record contains ample evidence supporting adequacy of court's certification decision).
[95] 717 P.2d 261.
[96] Id. at 264 (quoting Mutart v. Pratt, 51 Utah 246, 250, 170 P. 67, 68 (1917)).
[97] See supra notes 43-46 and accompanying text.
[1] My position on the equal protection question makes it unnecessary for me to reach the issues treated in parts III and IV of the majority opinion. Therefore, I express no views on those questions.
[2] People in re D.G., 733 P.2d 1199 (Colo. 1987), dealt with a challenge to the sentencing provision of the Colorado Children's Code. The court determined that regardless of which of two courses the prosecution chose, the result would be the same. 733 P.2d at 1201. Furthermore, the court determined that under the sentencing provision in question, the juvenile court judge retained a great amount of sentencing discretion. 733 P.2d at 1203-04. In People v. Thorpe, 641 P.2d 935 (Colo. 1982), the court upheld the constitutionality of a statute which required prosecution as an adult of a juvenile committing certain enumerated crimes. 641 P.2d at 937-38. In State v. Cain, 381 So.2d 1361 (Fla. 1980), the court noted that the statute being challenged was part of a "logical progression of the statutory transfer scheme [which] demonstrates that, far from being arbitrary, the transfer scheme is entirely reasonable." 381 So.2d at 1364. Furthermore, the statute in question did provide some guidelines for the prosecutor before an information could be filed in adult court against a juvenile. 381 So.2d at 1364-65. People v. Handley, 51 Ill.2d 229, 282 N.E.2d 131, cert. denied, 409 U.S. 914, 93 S.Ct. 247, 34 L.Ed.2d 175 (1972), upheld the constitutionality of a statute which required the filing of removal petitions by the prosecutor with the juvenile court judge and a hearing at which the juvenile court judge had the opportunity to object to the removal of the case from the jurisdiction of the juvenile court. 51 Ill.2d at 233, 282 N.E.2d at 135. Furthermore, offenders were not sentenced to incarceration in adult facilities, but rather were committed to the Illinois Youth Commission for incarceration. 51 Ill.2d at 230, 282 N.E.2d at 133. In State v. Grayer, 191 Neb. 523, 215 N.W.2d 859 (1974), the court upheld the constitutionality of a statute which authorized each county attorney to file charges in either juvenile or criminal courts at his discretion without any guidelines. While this case at first seems indistinguishable from the current case, in that opinion the Nebraska Supreme Court stated that part of the basis for decision was the fact that in Nebraska, juvenile and adult courts had equal and concurrent jurisdiction. In other words, the juvenile courts are not courts of exclusive jurisdiction. 191 Neb. at 526, 215 N.W.2d at 861. Compare this with Utah Code Ann. § 78-3a-16(1) which, in all but a few cases, creates exclusive jurisdiction over juvenile offenders. Furthermore, Grayer has been legislatively altered because the county attorney in Nebraska is now required to consider nine different factors which serve as guidelines in determining which juveniles should be prosecuted in the juvenile court and which should be prosecuted in the adult system. Neb. Rev. Stat. § 43-276 (1988). In People v. Mason, 99 Misc.2d 583, 416 N.Y.S.2d 981 (Sup.Ct. 1979), the court upheld the constitutionality of legislation which made thirteen-, fourteen-, and fifteen-year-olds criminally responsible for certain enumerated felonies. 416 N.Y.S.2d at 983. However, the same legislation provided that such juvenile offenders were to be confined in separate facilities. 416 N.Y.S.2d at 985. Jones v. State, 654 P.2d 1080 (Okla. Crim. App. 1982), upheld the constitutionality of a statute which provided that someone sixteen- or seventeen-years-old charged with an enumerated felony "shall be considered as an adult." 654 P.2d at 1082 (emphasis added). Jahnke v. State, 692 P.2d 911 (Wyo. 1984), upheld the constitutionality of the statute which placed concurrent jurisdiction in juvenile and district courts for purposes of criminal prosecutions of minors charged with felonies. 692 P.2d at 928. However, in Jahnke, the juvenile received a full evidentiary hearing on her motion to transfer her case to the juvenile court and the district court applied the criteria suggested by Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), in reaching a decision that the juvenile should be prosecuted as an adult. 692 P.2d at 929.
[3] See State in re Clatterbuck, 700 P.2d 1076 (Utah 1985), where we held that orders under section 78-3a-25 "must contain a sufficiently detailed statement of facts to permit us to determine that a full investigation has been made and that each of the statutory factors has been considered." Id. at 1081. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1913846/ | 981 A.2d 916 (2009)
COM.
v.
DILLARD.
No. 1767 EDA 2008.
Superior Court of Pennsylvania.
June 30, 2009.
Affirmed. | 01-03-2023 | 10-30-2013 |
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