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https://www.courtlistener.com/api/rest/v3/opinions/2899193/ | NO. 07-09-0169-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JUNE 5, 2009
______________________________
In re BARRY DWAYNE MINNFEE,
Relator
_________________________________
ON ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Pending before this court is the application of Barry Dwayne Minnfee for a writ of
mandamus. He requests that we compel the “court to respond to further motion for
rehearing” concerning his request for DNA testing. We deny the application for the
reasons that follow.
First, rules of procedure obligate one seeking mandamus relief to accompany his
petition with an appendix. TEX . R. APP. P. 52.3(j). The latter must include, among other
things, a certified or sworn copy of the document showing the matter complained of. In this
case, the document showing the matter complained of would be the motion requesting
further rehearing from the trial court. This Minnfee failed to do.
Second, Minnfee did disclose in his application for writ of mandamus that he has
filed several prior motions for rehearing and that they had been “overruled.” Whether those
motions were mere reiterations of that at issue here is unknown for they too were not
included in an appendix. Nonetheless, he cites us to nothing that suggests, much less
requires, a trial court to act upon repetitious motions that are akin to motions for new trial.
With regard to the latter, they are considered overruled by operation of law if no action is
taken upon them within 75 days of the date the final order was signed. TEX . R. CIV. P.
329b(c). Given that a motion for rehearing which attempts to alter a final order is much like
one for new trial, see Edwards Lifesciences, L.L.C. v. Covenant Health Systems, 205
S.W.3d 687, 690 (Tex. App.–Amarillo 2006, no pet.) (stating that the substance of the
motion controls as opposed to its label), we see no reason to treat them differently here.
So, given that the allegations in and the file-mark on Minnfee’s application for writ leads
us to conclude that 1) more than 75 days has lapsed from the date upon which the trial
court entered its final order and 2) the trial court has yet to act on the motion, it can and
should be considered as overruled by operation of law.
Accordingly, the application for writ of mandamus pending before this court is
denied.
Per Curiam
2 | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2610110/ | 485 P.2d 391 (1971)
STATE CONSTRUCTION CORPORATION, an Oregon Corporation, Appellant,
v.
Patricia SCOGGINS and David Penney, Respondents. Patricia Scoggins, Respondent,
v.
State Construction Corporation, an Oregon Corporation, Appellant.
Supreme Court of Oregon, In Banc.
Argued and Submitted February 2, 1971.
Decided May 26, 1971.
Rehearing Denied July 14, 1971.
Robert W. Redding, Portland, argued the cause for appellant. With him on the brief were Black, Kendall, Tremaine, Boothe & Higgins, and David J. Krieger, Portland.
James M. Hafey, Portland, argued the cause for respondents. With him on the brief was Larry Landgraver, Portland.
*392 DENECKE, Justice.
Mrs. Scoggins brought a suit in equity to set aside a deed of property upon which her house was located. The deed was from the City of Portland to State Construction Corp. and was given because Construction Corp. purchased the property at a sale foreclosing the City's lien which secured a delinquent assessment for sidewalk construction.
In 1959 the City of Portland constructed a sidewalk upon the property of Mrs. Scoggins and her then husband. An assessment was made against the property and Mrs. Scoggins and her husband made several annual payments. Mrs. Scoggins was divorced in 1964; however, she remained upon the property. According to her testimony she thereafter received no notice of the annual installments and made no payments. The assessments became delinquent, the property was put up for sale, and was sold, all, according to Mrs. Scoggins' testimony, without any kind of notice to her.
In June 1965 the property was sold to State Construction Corp. for $225.44, the amount of the delinquency and the maximum which could be received by the City under ORS 223.525. The property is allegedly worth $10,000. In June 1968 the City delivered a deed to Construction Corp.
Mrs. Scoggins alleged in her complaint that she did not receive notice of the proceedings; that Construction Corp. would be unjustly enriched if it retained the property; and prayed for a decree that the deed to Construction Corp. be declared void. The trial court found for Mrs. Scoggins and Construction Corp. appeals.
The procedure is governed by ORS 223.505-223.595. The statutes provide for notice of sale to the delinquent owner, for public sale and a certificate of sale to the purchaser, and a one-year period of redemption which can be accomplished by paying the purchase price, interest and a penalty. If no redemption is had within the year, the City delivers a deed to the purchaser. ORS 223.575 provides:
"The effect of the deed shall be to convey to the grantee therein named the legal and equitable title in fee simple, to the real property described in the deed, excepting only the lien of the city on such assessments or liens as were not included in the foreclosure proceedings. The deed shall be prima facie evidence of title in the grantee, except as stated in this section, and that all proceedings and acts necessary to make such deed in all respects good and valid have been had and done. Such prima facie evidence shall not be disputed, overcome or rebutted, or the effect thereof avoided, except by satisfactory proof of either:
"(1) Fraud in making the assessment or in the assessment, or in the procuring of the lien.
"(2) Payment of the assessment or lien before sale or redemption after sale.
"(3) That payment or redemption was prevented by fraud of the purchaser.
"(4) That the property was sold for a lien or assessment for which neither the property nor its owner, at the time of sale, was liable, and that no part of the assessment or lien was assessed or levied upon the property sold."
This statute provides in essence that the deed is prima facie evidence that all notices required by statute, such as notice of foreclosure, sale, etc., have been given. The act also provides that this prima facie evidence cannot be disputed except for the four grounds set out in the statute.
At trial Construction Corp., in essence, introduced its deed from the City and rested. Since adequacy of notice is not in issue under the statute, Construction Corp. did not attempt to put in any evidence of what notice the City had given Mrs. Scoggins. Mrs. Scoggins testified that she had not received any notice of actions taken by the City. Mrs. Scoggins did not claim at trial or in this court that the failure to give notice deprived her of her property without due process of law.
The trial court reasoned that Construction Corp. knew or should have known *393 that Mrs. Scoggins would not have suffered her $10,000 house to be forfeited to pay $225 unless she was unaware of what was happening. For this reason the trial court was of the opinion that Construction Corp. had a duty to inform Mrs. Scoggins of the facts and its failure to do so constituted fraud within the meaning of the above-quoted statute and, therefore, the prima facie case made by the deed had been successfully rebutted.
The trial court was in error for two reasons: First, fraud was not pleaded nor made an issue in the trial court or this court. Second, there is no evidence of fraud. A trial or appellate court sitting as a court of equity is not free to disregard clear statutory requirements regardless of the apparent injustice of the result. Evans Products Co. v. Jorgensen, 245 Or. 362, 372, 421 P.2d 978 (1966).
Mrs. Scoggins alleged in her complaint that the City published notice of the sale in the Daily Journal of Commerce, a newspaper; however, Mrs. Scoggins was not apprised of the sale. She further alleged: "The defendant has been unjustly enriched in the approximate amount of $9,700.00 at the expense of plaintiff, who had no notice of the proceedings nor the opportunity to pay the lien."
Fraud is only one of many grounds for claiming that the other party was unjustly enriched. Restatement, Restitution, Table of Contents. The purpose of pleadings is to inform the parties of the issues. A pleading of unjust enrichment without pleading the alleged ground such as mistake, coercion, undue influence, or fraud does not adequately inform.
Even more important, in the trial court Mrs. Scoggins did not claim fraud. In oral argument in this court counsel was explicit in stating that he was not contending that she was entitled to relief upon any of the statutory grounds, including fraud. He stated that the reason he had gone into equity was to seek avoidance of the unjust result that the application of the statute would bring about. With fraud not being made an issue in the trial court, Construction Corp. would be prejudiced if we now considered the issue. At trial Construction Corp.'s attorney stated that he had checked the record and as far as he could see the City had given notice to Mrs. Scoggins in accordance with the statute; however, Mrs. Scoggins' contentions and the posture of the case in the trial court made that issue irrelevant.
Even if fraud, as that term is used in the statute, were in issue, there is no evidence of fraud.
In lieu of any evidence to the contrary, we must assume that the legislature was using "fraud" in its customary legal sense. "Fraud" in its customary legal sense does not encompass the failure of one in Construction Corp.'s position to notify one in Mrs. Scoggins' position that she must pay $225 within a certain period or lose her home.
A failure to disclose facts can be fraud; however, such a failure amounts to fraud only where there is a duty to disclose. The Comment to Restatement, Restitution § 8, p. 33, states: "Except in a few special types of transactions, such as insurance contracts and transactions between a fiduciary and his beneficiary, there is no general duty upon a party to a transaction to disclose facts to the other party. * * * [However], a person who, before the transaction is completed, knows or suspects that the other is acting under a misapprehension which, if the mistake were mutual, would cause the transaction to be voidable, is under a duty to disclose the facts to the others."
Comment b. to § 472, 2 Restatement, Contracts, pp. 897-898, provides:
"A party entering into a bargain is not bound to tell everything he knows to the other party, even if he is aware that the other is ignorant of the facts; and unilateral mistake, of itself, does not make a transaction voidable (see § 503). But if a fact known by one party and not the other is so vital that if the mistake were mutual the contract would be *394 voidable, and the party knowing the fact also knows that the other does not know it, non-disclosure is not privileged and is fraudulent."
Both of these sections concern a nondisclosure by one party to a bargain or transaction to the other party. Mrs. Scoggins and Construction Corp. were strangers and had no dealings with one another.
In a lengthy dissection of the subject W. Page Keeton outlines the instances in which a third party, not a party to the transaction, should have or has a duty to disclose. 15 Tex.L.Rev. 1, 7-11 (1936). None of these instances are comparable to the present case.
In most, if not all cases of fraud, one essential element is some sort of reliance by the party claiming to be defrauded; reliance upon a misrepresentation of the other party, whether that misrepresentation be an affirmative one or by a nondisclosure. Here, Mrs. Scoggins did not and could not in any way rely upon any thing Construction Corp. did or omitted doing.
Reversed with instructions to dismiss Mrs. Scoggins' suit and to enter a judgment for State Construction Corp. granting it possession of the premises.
BRYSON, Justice (dissenting).
I am unable to agree with the majority opinion and feel that it reaches a most unconscionable result.
This is a consolidated appeal of two cases. The majority opinion disposes only of the equity suit and grants possession of plaintiff's property to defendant corporation. It does not dispose of the law action appealed, and it would follow that the defendant corporation would also have judgment in its law action against Patricia Scoggins and David Penney for $2,325.00.
State Construction Corporation v. Scoggins and Penney is an action at law to gain possession of certain residential property situated in Multnomah county, Oregon. The defendant Scoggins was former owner of the property and Penney was living in the premises. State Construction purchased the property at an improvement lien foreclosure sale conducted by the city of Portland and claims title thereto under a deed issued by the city. State Construction also seeks damages in the amount of $2,325, the rental value of the property during the period it was allegedly wrongfully withheld by the defendants.
Scoggins v. State Construction Corporation is a suit in equity brought by Patricia Scoggins, a defendant in State Construction's law action, to have State Construction's deed to the property declared null and void and to have plaintiff declared the owner of the property. State Construction's answer admitted certain facts alleged in the complaint not at issue in the case and generally denied all other allegations.
The two cases were consolidated for trial in the sense that they were to be tried together, although each case remained distinct and separate dispositions were made of each. The parties stipulated that the suit in equity would be tried first. At the conclusion of the trial, the trial court found that State Construction had fraudulently prevented Scoggins's redemption of the property sold at the foreclosure sale. The trial court decreed that a constructive trust be imposed upon the property in favor of Scoggins, and that State Construction's deed thereto be annulled, pursuant to ORS 223.575(3)[1], upon payment by Scoggins to *395 State Construction of all sums which would have been due had the property been redeemed. As the decision reached in the equity suit disposed of the action at law, the trial court further ordered that judgment be entered in favor of defendants in State Construction's law action. State Construction appeals both the decree and the judgment. As the outcome of this appeal will turn on the correctness of the decree rendered in the suit in equity, they will hereafter be referred to as they appeared in that suit; that is, Scoggins as plaintiff and State Construction as defendant.
Defendant contends that the decree must be vacated in that the suit is barred by the running of the period of limitation contained in ORS 223.585[2], as well as by laches, and that the complaint fails to allege any of the four statutory grounds for relief contained in ORS 223.575[3]. These contentions must be disposed of before the correctness of the decree is considered on the merits.
Defendant's first contention is not well taken. The period of limitation prescribed in ORS 223.585 could be properly raised as a defense to plaintiff's suit, but the defense does not rise sua sponte; it is an affirmative defense which must be pleaded in the answer if, as here, the lapse of time does not appear on the face of the complaint. Hewitt v. Thomas et al., 210 Or. 273, 310 P.2d 313 (1957). See also 1 Bancroft, Code Pleading §§ 329, 330, at 485-87. Since the period of limitation was not affirmatively pleaded by the defendant nor otherwise properly brought to the trial court's attention, the defense cannot be considered by this court when raised for the first time on appeal.
The defendant also contends that one seeking equitable relief after the running of the period of limitation must plead and prove the absence of laches, citing as authority for the proposition, Corvallis Sand & Gravel Co. v. State Land Board, 250 Or. 319, 439 P.2d 575 (1968), and McIver v. Norman, 187 Or. 516, 205 P.2d 137, aff'd on rehearing 213 P.2d 144 (1949). Neither case so holds. Rather, they refer merely to earlier cases affirming the rule that when a complaint in equity shows on its face that the suit is brought after the legal period of limitation has run and the running of the period is raised by a demurrer, then the plaintiff must plead and prove the absence of laches. In this case, defendant could not raise the running of the period of limitation by demurrer because the running of the period did not appear on the face of the complaint. ORS 16.260. Furthermore, the defendant did not affirmatively plead the defense in its answer. Therefore, the contention that plaintiff must plead and prove the absence of laches is without merit.
Defendant's third contention is that the decree must be vacated in that the plaintiff failed to allege any of the four grounds for relief prescribed in ORS 223.575. As noted earlier, the trial court decreed that defendant's deed be annulled, being of the opinion that grounds for annulment had been proven under ORS 223.575(3). Defendant's contention is not that sufficient *396 ground for such relief has not been proven but that the ground itself has not been pleaded.
In construing a pleading for the purpose of determining its effect, its allegations are to be liberally construed with a view to doing substantial justice between the parties. ORS 16.120. This is especially true when, as here, a challenge to the sufficiency of a complaint is made for the first time on appeal. No objection to a complaint's sufficiency need be taken by answer or demurrer below in order to preserve the issue for appeal. ORS 16.330 and 16.340. Nevertheless, when a complaint reaches this court without having been demurred to or moved against, this court will indulge every reasonable inference from the allegations thereof to support it. Sterrett v. Hurlburt et al., 129 Or. 520, 275 P. 689, decree modified and rehearing denied 278 P. 986 (1929). See also Justice McBride's specially concurring opinion in State ex rel. Carson v. Kozer, 105 Or. 509, 210 P. 172 (1922); 1 Bancroft, supra, § 741, at 1043-044, and authorities there cited.
Thus, by liberally construing the complaint, it is found to allege that plaintiff is fee simple owner of the property to which defendant claims title; that the city of Portland had a bonded lien against that property and that plaintiff's payments against the lien's balance became delinquent; that the delinquent payments were because of the city's failure to notify plaintiff that the payments were due; that since the payments were in arrears, the city undertook to sell the property to recover the balance of the lien; that, prior to the sale, the only notice given to plaintiff that her property was to be sold was an advertisement in the Daily Journal of Commerce, a local newspaper which the plaintiff did not read; that, unknown to the plaintiff, her property, valued at approximately $10,000, was subsequently sold to defendant for $225.44. Under the rule in Sterrett, the complaint alleges that subsequent to the sale and prior to the time the city issued defendant's deed to the property, neither the city nor the defendant gave plaintiff cause to believe that her property had been sold; lack of notice of the sale denied plaintiff the opportunity to exercise her right of redemption.
Plaintiff also alleges that, as a result, "the defendant has been unjustly enriched in the approximate amount of $9,700.00 at the expense of plaintiff."
The complaint leaves much to be desired. However, it is sufficient to establish grounds for relief under ORS 223.575(3). An allegation of fraud may be reasonably inferred from the allegation of unjust enrichment, since the authorities agree that unjust enrichment implies the presence of fraud, actual or constructive. See, e.g., 2 F. Lawrence, Equity Jurisprudence, § 724, at 809-10. Whether proof of the allegation is sufficient to warrant relief under ORS 223.575(3) remains to be seen. Suffice to say at this point that the elements of a cause of action under ORS 223.575(3) have been pleaded. While plaintiff's allegations may be conclusory, any such defect is cured by defendant's failure to object and by proceeding to trial on the merits, and by the taking of evidence in support of pleaded conclusions. Rayburn et ux. v. Crawford et ux., 187 Or. 386, 394, 211 P.2d 483 (1949); Benson v. Williams, 174 Or. 404, 143 P.2d 477, decided on the merits 149 P.2d 549 (1944). See 71 C.J.S. Pleading §§ 591, 592, pp. 1173-1176.
In considering this case on its merits, we are required not only to conduct a de novo review of the record before us, ORS 19.125 (3), but to determine on the basis of that review whether the challenged decree is just. Sterrett v. Hurlburt, supra, 129 Or. at 528, 275 P. at 691. Also see "Appellate Practice and Advocacy," 34 Or.L.Rev. 73, 77, by the late Justice Rossman.
In December 1951, plaintiff was married to one Verle Penney. Some time later the residential property in southeast Portland was purchased and became the subject of this suit. In 1964 plaintiff divorced Mr. Penney, and he left the premises. Plaintiff continued to reside there until June 1968, when she remarried and moved to her present *397 husband's residence in another section of Portland. Plaintiff alleges, and defendant admits, that plaintiff was the owner of the premises involved.
In 1959, the city of Portland constructed a sidewalk on or near the Penney residence and an assessment was made against their property. The Penneys were duly notified and upon written application elected to pay the assessment, or more accurately the lien in favor of the city, in installments as provided in the Bancroft Bonding Act, ORS 223.205 to 223.300. The Act charges the city's treasurer with the responsibility of notifying property owners when their annual installment payments are due. Several of these notices were received by the Penneys, whereupon they made the required payments until some time after 1964.
The difficulties which culminated in this lawsuit began between the time of the Penneys' divorce in 1964 and the time plaintiff left the premises in 1968. During that time, plaintiff received no notice from the city that an installment payment was due, and plaintiff made no payments. Thus, plaintiff's property was entered on the city's list of delinquencies and became subject to sale forthwith in order that the city might collect the unpaid balance of the lien.
There is no evidence that the city complied with the statutory provisions for notice to delinquent property owners prior to the sale of plaintiff's property. The notice requirements are set forth in ORS 223.520, which provides that upon receipt of the list of delinquencies by the city's treasurer,
"* * * the treasurer shall proceed to collect the unpaid liens or assessments named in the list by advertising and selling the lots or tracts in the manner now provided by law for the sale of real property on execution, * * *."
The notice provisions for the sale of real property on execution are contained in ORS 23.450:
"Before the sale of property on execution, notice thereof shall be given as follows:
"* * *.
"(2) In case of real property, by publishing a similar notice [i.e., written or printed notice of the time and place of sale], particularly describing the property, once a week for four successive weeks, making four publishings in all, with the last publication at least one week prior to the day of sale, in a newspaper of the county, * * * and by sending forthwith upon the making of the first of such publishings, a copy of such notice by registered mail to the judgment debtor at his last known postoffice address or place of residence." (Emphasis supplied.)
The evidence in this case establishes that plaintiff was not notified of the pending sale by registered mail. The only notice was that which appeared in the Daily Journal of Commerce in May and June of 1965, a local newspaper which the plaintiff does not read. The city's noncompliance with the clear terms of the notice statutes resulted in plaintiff's ignorance of the sale. On June 25, 1965, plaintiff's property, valued at $10,000, was sold to the defendant for $225.44. On June 25, 1968, the city deeded the property to the defendant. The deed was recorded July 5, 1968. The evidence further discloses that plaintiff was completely unaware of what had transpired until the defendant filed its action at law to gain possession of the premises:
"Q [Plaintiff's counsel] When did you first learn that this property had been sold for some two hundred dollars?
"A [Plaintiff] When I got home from work one afternoon, my son said that a gentleman had been to the house and said that he owned it and for me to get my furniture and get out and that's the first I had heard and he had left a card for me to call.
"Q Did you contact the City then at that time?
"A I contacted the man first.
"Q Who was this man?
*398 "A Mr. Mazzocco. [Representing State Construction Corporation]
"Q After contacting Mr. Mazzocco, did you then contact the City?
"A I called; I didn't really know who to call. I didn't know for sure what it was all about. I called the tax bureau downtown and they says, `Well, as far as we can see, the taxes are still in your name.'"
No issue has been raised as to the effect of the defective notice of sale on the defendant's deed to the property. Therefore, ORS 223.575 is clear that once defendant's deed issued, the defect in the notice of sale was cured. I am concerned here with the conduct of the defendant during the running of the period of redemption.
First, it appears that the defendant is experienced in purchasing property at lien foreclosure sales and that it made no effort to contact the plaintiff before the period of redemption had run. Mr. Mazzocco, who represented the defendant at trial, testified as follows:
"BY THE COURT:
"Q Between this June '65 date and June '68 date, did you ever go near the property, Mr. Mazzocco?
"A We drive by the property before we buy it. We drive by the property during the course of the time * * We buy these every month, Your Honor."
Mr. Mazzocco also testified to the renting of four houses, one hundred apartments, a half-dozen commercial properties, and to the operating of a motel. His considerable experience as a property manager qualified him to testify that the rental value of the property involved was $125 per month. It is inconceivable that the defendant was unaware of the true value of plaintiff's property when it was purchased at the sale. This alone establishes that no one in the financial condition of this plaintiff would virtually forfeit property worth $10,000 for nonpayment of $225.44 unless she was ignorant of the pending loss. This explains the defendant's failure to contact the plaintiff during the running of the redemption period. In fact, the evidence is that during the four years between June 25, 1965, the date the property was sold, and August 13, 1969, the date defendant filed its action to gain possession thereof, defendant deliberately avoided any contact with the plaintiff whatsoever. His purpose was clear enough: he wished her ignorance of the transaction to continue until the redemption period had run.
In Teachers' Ret. Fund Ass'n v. Pirie, 150 Or. 435, 445, 46 P.2d 105, 109 (1935), this court stated, speaking through Justice Henry J. Bean,
"Courts which have a true conception of the philosophy of equity constantly reiterate the fact that equity meets all conditions; that human ingenuity and human affairs cannot create a condition which the long arm of the court of equity cannot reach if injustice or wrong would otherwise result."
The trial court sitting in equity based its opinion on this concept, as evidenced by the memorandum opinion and decree. As part of the relief afforded the plaintiff, the court below imposed a constructive trust in plaintiff's favor upon the property which the defendant had wrongfully acquired and found that the defendant had been unjustly enriched at the plaintiff's expense.
"* * * A constructive trust is simply a remedial institution invented by equity to avoid unjust enrichment in situations where there is no other available equitable remedy * * *. A constructive trust may be imposed upon the grantee as a remedial device to avoid unjust enrichment." Belton v. Buesing, 240 Or. 405, 409, 402 P.2d 103.
Presumably, the decree by the trial court imposing a constructive trust in favor of plaintiff and the nullification of defendant's deed was predicated on the trial court's finding that the defendant's conduct was fraudulent in fact. Although that finding is entitled to great weight, Nygord v. Baker Distribution Yard, 226 Or. 63, 357 P.2d 270 (1961), I would affirm on different grounds.
*399 It is a well-settled equitable principle that there need be no finding of actual fraud or fraud in fact precedent to the imposition of a constructive trust. This remedy is appropriate whenever it appears that one has employed unconscientious conduct to acquire a legal interest in property which he ought not retain. Suitter v. Thompson et ux., 225 Or. 614, 358 P.2d 267 (1961); 4 Pomeroy, Equity Jurisprudence (5th ed.) 93-97, 119 §§ 1044, 1053. See Suitter v. Thompson, supra, 225 Or. at 625, 358 P.2d at 273, citing 4 Pomeroy's Equity Jurisprudence:
"* * * `and a court of equity has jurisdiction to reach the property either in the hands of the original wrongdoer, or in the hands of any subsequent holder, until a purchaser of it in good faith and without notice acquires a higher right * * *.'"
Such unconscientious conduct may amount to actual fraud, but if it does not, the receipt and retention of unmerited benefits is clear nonetheless.
Thus, equity will consider such conduct to be constructive fraud, and will impose a constructive trust on the property wrongfully acquired in order to prevent unjust enrichment of the wrongdoer. 3 Pomeroy, Equity Jurisprudence (5th ed.) n. 1 at 625, § 992; Suitter v. Thompson, supra; Belton v. Buesing, supra; 37 C.J.S. Fraud § 2, pp. 211-212. See also, 3 Pomeroy, Equity Jurisprudence (5th ed.) at 626, speaking of the three principal classes:
"* * * Constructive fraud is simply a term applied to a great variety of transactions, having little resemblance either in form or in nature, which equity regards as wrongful, to which it attributes the same or similar effects as those which follow from actual fraud, and for which it gives the same or similar relief as that granted in cases of real fraud. It covers different grades of wrong. It embraces contracts illegal, and therefore void at law as well as in equity; transactions voidable in equity because contrary to public policy; and transactions which merely raise a presumption of wrong, and throw upon the party benefited the burden of proving his innocence and the absence of fault." (Emphasis supplied.)
See also 3 Pomeroy, Equity Jurisprudence (5th ed.) at 866:
"As a general rule, in the cases which come within this group, and, strictly speaking, none others should belong to it, the transaction is not fraudulent as to the immediate parties, the grantor and the grantee, and the like; at least, neither of them is permitted, as against the other, to set aside the conveyance, or to defeat the enforcement of the contract if it be executory. The transaction is of such a nature that it defrauds or invades the rights of third persons, who are not its immediate parties; and they alone are, in general, entitled to impeach it and to obtain affirmative relief against it * *." (Emphasis supplied.)
The plaintiff in this suit was a "third party" and had no contractual relationship with the defendant who has taken her property.
"* * * One is said to be unjustly enriched when he has received that which `ex aequo et bono,' `in equity and good conscience,' `upon principles of natural justice,' etc., he ought not to retain." 2 F. Lawrence, Equity Jurisprudence at 807.
Lawrence explains the rationale of this doctrine at page 808, as follows:
"* * * To the jurist unjust enrichment is not a moral or ethical notion, but a legal one with an economic justification. The protection of property and its enjoyment is a primary obligation of every civilized state * * *."
The provision in ORS 223.575(3) for annulling a deed on proof that the purchaser prevented payment of the assessment or redemption through fraud, comprehends at least that kind of unconscientious conduct which has traditionally been the duty of equity to remedy. An obvious purpose of that subsection is to prevent unjust enrichment *400 of purchasers at lien foreclosure sales, pursuant to such facts as appear in this case. When the conduct of a purchaser, such as defendant, during the period of redemption is such as would stir the conscience of equity, this imposes a constructive trust on the property in favor of the prior owner and provides ground for relief under ORS 223.575(3).
I would affirm the decree and judgment entered in each case.
TONGUE, Justice (dissenting).
I join in the dissenting opinion of Mr. Justice Bryson. I also question the constitutionality of a statutory procedure under which a homeowner can be deprived of his home without proof of actual notice of the proceedings under which his home was sold for failure to pay a delinquent assessment. See Walker v. Hutchinson City, 352 U.S. 112, 116, 77 S. Ct. 200, 1 L. Ed. 2d 178 (1956), and Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950). Cf. Hood River County v. Dabney, 246 Or. 14, 423 P.2d 954 (1967). Thus, even though the question of constitutionality was not raised by plaintiff's counsel, it is of such importance that I would set this case for reargument upon that question.
NOTES
[1] ORS 223.575 "Legal and evidentiary effect of deed. The effect of the deed shall be to convey to the grantee therein named the legal and equitable title in fee simple, to the real property described in the deed, excepting only the lien of the city on such assessments or liens as were not included in the foreclosure proceedings. The deed shall be prima facie evidence of title in the grantee, except as stated in this section, and that all proceedings and acts necessary to make such deed in all respects good and valid have been had and done. Such prima facie evidence shall not be disputed, overcome or rebutted, or the effect thereof avoided, except by satisfactory proof of either:
"(1) Fraud in making the assessment or in the assessment, or in the procuring of the lien.
"(2) Payment of the assessment or lien before sale or redemption after sale.
"(3) That payment or redemption was prevented by fraud of the purchaser.
"(4) That the property was sold for a lien or assessment for which neither the property nor its owner, at the time of sale, was liable, and that no part of the assessment or lien was assessed or levied upon the property sold."
[2] ORS 223.585 "Time limitation on actions to recover sold property. Every action, suit or proceeding which may be commenced for the recovery of land sold by the treasurer for any assessment or lien or to quiet the title of the former owner, or his successors in interest, against such sale, or to set aside such sale, or to remove the cloud thereof, except in cases where the assessment or lien for which the land has been sold was paid before the sale, or the land redeemed as provided by law, shall be commenced within one year from the time of recording the deed executed under ORS 223.570."
[3] See note 1 supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610134/ | 5 Wash. App. 30 (1971)
485 P.2d 91
THE STATE OF WASHINGTON, Respondent,
v.
MATTHEW EDWARD LEIGHTY, Appellant.
No. 281-3.
The Court of Appeals of Washington, Division Three.
May 20, 1971.
Eugene G. Schuster (of Critchlow, Williams, Ryals & Schuster), for appellant (appointed counsel for appeal).
Herbert E. Davis, Prosecuting Attorney, for respondent.
MUNSON, C.J.
In December of 1963 defendant Matthew Edward Leighty pled guilty to the crime of second-degree burglary. The trial court granted him a deferred sentence upon certain conditions, one being he serve a 3-year probationary period. In March 1966, after a hearing, defendant's probation and order of deferred sentence was revoked. Upon a writ of habeas corpus the Supreme Court overturned the revocation, ostensibly because of Mempa v. Rhay, 389 U.S. 128, 19 L. Ed. 2d 336, 88 S. Ct. 254 (1967), and remanded the cause for new hearing. A subsequent hearing was held and again an order revoking defendant's probation was entered. Defendant appeals. We affirm.
The primary issue raised by defendant is what quantum of proof is necessary to establish probation violations sufficient to warrant revocation. Defendant, citing In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970), *31 contends the degree of proof should be that of beyond a reasonable doubt. We disagree. The instant proceeding was subsequent to a factual determination of the original adjudication of guilt, not the original trial as such.
[1] As observed in State v. Shannon, 60 Wash. 2d 883, 376 P.2d 646 (1962):[1]
The court need not be furnished with evidence establishing beyond a reasonable doubt guilt by the probationer of [probation violations]. All that is required is that the evidence and facts be such as to reasonably satisfy the court that the probationer is "violating the terms of his probation, ...
(Italics ours.) State v. Riddell, 75 Wash. 2d 85, 449 P.2d 97 (1968); Burns v. United States, 287 U.S. 216, 77 L. Ed. 266, 53 S. Ct. 154 (1932); Manning v. United States, 161 F.2d 827, 829 (5th Cir.1947), cert. denied, 332 U.S. 792, 92 L. Ed. 374, 68 S. Ct. 102 (1947); United States v. Bryant, 431 F.2d 425 (5th Cir.1970); United States v. D'Amato, 429 F.2d 1284 (3d Cir.1970); United States v. Lauchli, 427 F.2d 258 (7th Cir.1970); People v. Hayko, 7 Cal. App. 3d 604, 86 Cal. Rptr. 726 (1970); People v. Walker, 122 Ill. App. 2d 461, 259 N.E.2d 304 (1970).
Our review of the record discloses sufficient evidence to warrant probation revocation.
Defendant was present at the hearing, was represented by counsel, had the opportunity to cross-examine the state's witnesses and to explain the evidence introduced by the state; however, he chose not to do so. As a result, defendant now contends the trial court presumed he was guilty because of his silence. The portions of the trial court's memorandum opinion cited by defendant in support of this contention do nothing more than explain the trial court's rationale for its decision, i.e., the evidence against defendant was believable, unrebutted because of his silence and *32 consequently sufficient to warrant probation revocation.
Judgment affirmed.
GREEN and EVANS, JJ., concur.
NOTES
[1] While that portion of this opinion relating to a probationer's lack of a right to counsel at a revocation hearing has been inferentially overruled by Mempa v. Rhay, supra, the quoted portion is still the applicable law in this state and under federal authority. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610137/ | 485 P.2d 429 (1971)
In the matter of Michael Jerome Patterson, a Child. STATE of Oregon, Respondent,
v.
Michael Jerome PATTERSON, Appellant.
Court of Appeals of Oregon, Department 1.
Argued and Submitted April 21, 1971.
Decided May 28, 1971.
Review Denied July 14, 1971.
*430 Richard H. Muller, Portland, argued the cause for appellant. On the brief were William L. Richardson, Tamblyn, Bouneff, Muller, Marshall & Richardson, Portland.
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 LANGTRY and FOLEY, JJ.
LANGTRY, Judge.
This appeal is from a juvenile court judgment on a murder charge contained in a juvenile court petition and order of commitment to the Corrections Division for placement in MacLaren School for Boys made on May 11, 1970. The record before us shows three petitions, alleging Michael Patterson to be within the jurisdiction of the court, which were filed pursuant to ORS 419.476(1) (a). The first, filed March 13, 1970, alleged that the 15-year-old boy had committed burglary in a dwelling and grand larceny. The second, filed March 17, 1970, alleged that he had committed murder in the first degree. The third, filed March 23, 1970, charged the burglary, referred to as the Melrose burglary, and grand larceny, already alleged in the petition of March 13, as well as two other burglaries and charges of grand larceny. The first petition appears to have been abandoned in favor of the third.
After a hearing on the third petition, held before Judge Carl A. Dahl of the juvenile court on April 20, 1970, the court found beyond a reasonable doubt that the defendant had committed the three burglaries. The dispositional phase of the matter, except an order which made the boy a ward of the court, was postponed until a later date. The record shows no appeal taken from the finding of wardship and we have no transcript of the hearing. On May 11, 1970, Judge Harlow F. Lenon of the juvenile court, held a hearing on the second petition the one charging murder and at its conclusion found that the allegations thereof had been established beyond a reasonable doubt. Judge Lenon continued the boy as a ward of the court and made the disposition judgment from which this appeal was taken. Vigorous defense representation was accorded at the second hearing by the same appointed attorney who had represented the boy at the first hearing.
Before the court announced its judgment in open court, the judge said to the boy's attorney:
"Mr. Richardson, do you understand that the disposition is to be made with respect to both his [Judge Dahl's] order and this order?
"MR. RICHARDSON: That was my impression from the last hearing, your Honor.
"THE COURT: Is Michael now a ward?
"MR. COPP: [The boy's Juvenile Court Counselor.] Yes, he is, your Honor."
We note from the above, before discussing the alleged errors in the proceedings before Judge Lenon, that if we agreed that any such errors occurred the order of commitment is nevertheless valid because it is based upon valid findings of burglary from which appeal was not taken, as well as the first-degree murder finding.
The errors alleged are that (1) the original arrest was illegal and consequently all subsequent statements were inadmissible; (2) the statements were inadmissible because they were taken in violation of the Fifth, Sixth and Fourteenth Amendments of the U.S. Constitution and were not voluntary; and (3) request for a jury trial should not have been denied.
Michael Patterson was apprehended by Officer Kanzler at approximately 11 o'clock at night on a street in Portland. Kanzler testified that he saw the boy, with others, on the street; that he knew from assertions to him of other boys he had recently arrested for the same crime that this *431 boy was one who had committed the Melrose burglary. When Kanzler sought to apprehend him the boy ran. He circled several blocks in his patrol car before the apprehension was accomplished, "because he kept running." The officer testified that he advised the boy "I was placing him under arrest in the car." Later the boy denied that he was so advised. After they arrived at the police station Kanzler testified that he advised the boy of his Miranda[1] rights in detail by reading them from a card and explaining them. No questions had been asked on the way, or information given. The boy, with reference to the Miranda advice, testified:
"Q Did you hear Officer Kanzler here in court read off those constitutional rights?
"A. Yes.
"Q Did you understand those?
"A When he just said them to me?
"Q Yes.
"A Yes.
"* * *
"Q Did you want to hire a lawyer?
"A I didn't know at the time.
"Q Did you see any of your relatives that day?
"A No. I seen my father the next morning.
"Q Were you afraid?
"A Afraid of what?
"Q Afraid of the police officers.
"A Nope.
"Q Afraid of anybody?
"A Nope.
"* * *
"Q Do you know what it means when somebody says they will appoint you a lawyer?
"A Uh-huh.
"Q What does it mean?
"A It means that they will get a lawyer and you can talk him, something like that. I know a little bit about it, not much.
"Q Do you know what it means that the Court will appoint a lawyer?
"A Uh-huh.
"Q And what does it mean?
"A It means my counselor will go out and get me a lawyer if I can't afford one.
"Q. Did you talk to your counseler [sic] that day?
"A The day I got picked up?
"Q Yes.
"A No.
"Q When was the first time you saw your counselor?
"A The next morning.
"* * *
"Q You talked to Officer Kanzler about the burglaries, right?
"A Yes, one.
"Q Do you know that you didn't have to discuss those burglaries with him if you didn't want to?
"A Uh-uh.
"* * *
"THE COURT: Then what is all this talk about? When a policeman talks to you, do you have to answer?
"A You don't have to.
"* * *
"THE COURT: How do you know you didn't have to answer?
"A I just wanted to talk to him.
"THE COURT: When I talk to you now, you have to answer, don't you?
"A. Yes.
"THE COURT: When Mr. Kanzler talked to you, you didn't have to answer him.
"A No.
*432 "THE COURT: You knew you didn't have to answer him?
"A I didn't know I had to answer him.
"THE COURT: You thought you didn't have to answer him; is that right?
"A Yes trying to get me confused, aren't you?
"THE COURT: As a matter of fact, I am trying to protect you. Your interests rather than otherwise."
(1). From the foregoing we cannot but agree with the trial court that the boy was adequately advised of his rights and that he understood them. Furthermore, Kanzler's testimony and the boy's actions indicate that the officer had reasonable grounds to believe that the boy was one who had committed the Melrose burglary. Regardless of whether he was advised he was under arrest, the fact that the officer placed him in the patrol car and took him to the police station is evidence enough of an arrest. ORS 133.310(3) requires only that an officer know that a felony has been committed, and have reasonable grounds to believe defendant did it to make the arrest. The arrest was valid.
(2). After the advice of rights, Kanzler testified that the boy talked "freely" of the burglary. He said he had taken a rifle, among other things. Before midnight the boy was placed in the juvenile unit of the city detention facility for the night; Kanzler wrote up his report, and as he left, on his way through the juvenile unit, the boy called him back. He volunteered, "I know where there is a dead guy." Then, in additional volunteered statements, the boy described the place where a dead man was in a blue car with the back window broken in the area where Kanzler had pursued the boy. Kanzler remembered having seen a car with a broken back window during the pursuit. He immediately went to that place, investigated and found that there was, indeed, such a car with a slain man in it. This was the first information the police had of the slaying. There was no connection, so far as the police were concerned, between the arrest for burglary and the volunteered information. In this respect, the situation was much different than that in State v. Jones, 248 Or. 428, 435 P.2d 317 (1967), relied upon by the boy, where the arrest was not only illegal, but the admissions made by the defendant were in answer to questions about a crime the police learned about from independent sources after the defendant's arrest.
During the next three or four hours the boy was subjected to two interrogations, apparently neither over an hour in length, by detectives. Kanzler testified, and his actions indicate, that when he found the slain man he believed the boy had simply been a witness to a murder. This is what the detectives started with. As the detectives sought information from the boy, and received increasingly fanciful answers, evidence indicates that they suspected the boy knew more than he was telling. One testified, however, "I treated him as a witness [to the crime] the whole morning * * *." The boy at one point said his cousin had been with him when he witnessed the shooting. The detectives went for and brought this cousin and his mother, the boy's aunt, who listened as the cousin denied any knowledge of the murder.
The detectives took the boy to the scene and had him point out locations of things he had seen. At about 4:00 a.m. a written statement, on a form which recites the Miranda rights, was typed up and signed by the boy. It was exculpatory. The detective who took the statement testified he read the Miranda warnings to the boy, that the boy did not ask to talk with his father or a lawyer, and was cooperative. The boy agreed that he did not ask for any such counsel. It appears that the father was at the police station, unknown to the detectives, although he testified he told someone he wanted to see the boy. The detectives had sent word of the arrest to the father, who had no telephone, through an uncle.
At about 4:00 a.m. the boy was put back into the juvenile unit and was transported *433 to the juvenile detention home around 8:00 or 9:00 a.m. At about 10:30 a.m. he he had a preliminary hearing at the detention home in juvenile court. There he was again told his rights, saw his father, and a juvenile counselor was appointed and instructed to get him an appointed lawyer. His father testified he told his counselor not to let him talk to police without the counselor present.
Kanzler again talked to the boy at about 12:45 p.m. that day. He testified:
"Q Now, he did indicate he didn't want to talk to you until his counselor arrived?
"A No. He said, `I would like to have my counselor here,' and I said, `Fine,' and then he stated, `Well, I will just talk here after all.'
"Q * * * [I]n the advising of his rights you said, `You can get a lawyer through your counselor or the Court.'
"A Yes, I did."
The boy's story changed, but continued fanciful. A day later another detective talked with him at the detention home. He testified that the boy was again advised of his rights, but that he was willing to talk. This time, the boy's story changed to include admissions that he provided to others the rifle he had taken in the Melrose burglary, and was present when it was used in a robbery, and that one of the group, using the rifle, shot and killed the man in the car.
A lawyer could have warned the boy that the final story could implicate him as a principal to murder. However, this doesn't change the voluntariness of the statement, or indicate it was obtained in violation of the boy's constitutional rights. The boy was 15, demonstrated as a witness that he could read and readily understand what he was reading, was in the eighth grade when he had dropped out of school, understood his rights, and certainly was sophisticated in the culture of crime. The circumstances related above are not a complete statement of all of what occurred, but they are supportive of the trial judge's findings. After a complete review of the record we cannot disagree with the trial court's remarks or rulings:
"THE COURT: There is a distinction between several interrogations and continued interrogations; and the Court finds here several interrogations.
"* * * [They] were not continually repeated or overwhelming in their character.
"There is also a distinction between a voluntary statement and voluntariness in a statement given in response to interrogation. The Court finds here that the initial information that is relevant * * to this case was in the nature of a voluntary statement rather than a voluntary response to interrogation.
"* * *
"The Court finds here no evidence of police misconduct.
"The Court further believes that it is appropriate for a police officer * * * to be persistent in investigation if there isn't overwhelming persistence in interrogation. The Court finds here persistence in investigation but not unconstitutional persistence in interrogation."
Our review of the record leads us to the same conclusions. See State v. Atkins, 251 Or. 485, 496-497, 446 P.2d 660 (1968), and State v. Gullings, 244 Or. 173, 182, 416 P.2d 311, 315 (1966), where the court said:
"* * * It can not be said that a juvenile can not waive constitutional rights as a matter of law. It may be more difficult to prove because of his age, but it is a factual matter to be decided by the trial judge in each case."
See also State v. Williams, 1 Or. App. 30, 458 P.2d 699 (1969).
The trial court did not discuss the failure of the juvenile detention staff to follow the father's instructions not to allow the boy to talk with police without his counselor present. No instruction was given *434 against talking without an attorney for the boy present. There is a decided difference between having a juvenile court counselor or an attorney present.
In arriving at our conclusion we have considered the failure to follow the father's instruction. Whether statements made by juveniles or adults are admissible against them depends upon the facts and circumstances of each case, measured by the constitutional safeguards interpreted in Miranda. Where a juvenile is involved the wishes of the parents are to be considered, but they are not the only consideration. In this case, the circumstances shown by the record disclose that the boy was knowledgeable, not pressured, and told what he voluntarily wanted to tell.
(3). In State v. Turner, 253 Or. 235, 453 P.2d 910 (1969), it was held that jury trials are not required in juvenile proceedings.
Affirmed.
NOTES
[1] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R. 3d 974 (1966). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2908686/ | In the Matter of W.A.W., a Juvenile
IN THE
TENTH COURT OF APPEALS
No. 10-99-055-CV
IN THE MATTER OF W.A.W., A JUVENILE,
From the County Court at Law
Coryell County, Texas
Trial Court # 1276
                                                                                                               Â
                                                                                                        Â
MEMORANDUM OPINION
                                                                                                               Â
      W.A.W judicially confessed to two counts of burglary of a building. See Tex. Pen. Code
Ann. § 30.02(a)(3) (Vernon 1994). Pursuant to a plea agreement, the court placed him on
probation for one year. See Tex. Fam. Code Ann. § 54.04(d)(1)(A) (Vernon 1996), § 59.006
(Vernon 1996 & Supp. 1999). Two and one-half months later, the State filed a motion to modify
the disposition of his case. Id. § 54.05(d) (Vernon 1996). After notice and hearing, the court
granted the motion, extended the term of probation until W.A.W.âs eighteenth birthday (an
additional two months), and required him to complete a boot camp program as an added condition
of probation. He appealed this modified disposition.
      W.A.W. has now filed a motion to dismiss this appeal. In relevant portion, Rule 42.1(a)(2)
of the Texas Rules of Appellate Procedure provides:
(a) The appellate court may dispose of an appeal as follows:
(2) in accordance with a motion of appellant to dismiss the appeal or affirm the
appealed judgment or order; but no other party may be prevented from seeking
any relief to which it would otherwise be entitled.
Tex. R. App. P. 42.1(a)(2).
      W.A.W. states that he has completed the boot camp program and has been released to the
custody of his mother to complete the remainder of his term of probation. His mother and he have
both signed the motion thereby âagree[ing] that no purpose would be served by pursuing this
appeal.â The State has not filed a response to the motion. Accordingly, this cause is dismissed.
                                                                               PER CURIAM
Before Chief Justice Davis,
      Justice Vance, and
      Justice Gray
Appeal dismissed
Opinion delivered and filed August 25, 1999
Do not publish
n of Kan., 489 U.S. 493, 509, 103 L. Ed. 2d 509, 109 S. Ct. 1262 (1989)).
Texas state rules require preservation of error by
the complaining party at the trial court in order to raise an issue on appeal
and Section 263.405 of the Texas Family Code requires that a statement of
points of error on appeal by the parent is necessary in order for the appellate
court to consider an issue in a termination case where the Department is
involved. However, section 1912 of the ICWA places the burden of determining
the issue of whether the ICWA applies on the Department and the trial court,
which is in conflict with the state rules regarding preservation of error by
the parent. Compare 25 U.S.C.S. § 1912 with Tex. R. Civ. P. 279 and Tex. R. App. P. 33.1. Additionally,
section 1914 of the ICWA regarding post-judgment attacks on involuntary
terminations for violations of the notice requirements in ICWA are in conflict
with the Family Code requirements of bringing complaints in a statement of
points of error on appeal. Compare 25 U.S.C.S. § 1914 with Tex. Fam. Code Ann. § 263.405(d) &
(i) (Vernon 2008). We hold that the provisions of the ICWA allowing
post-judgment challenges to involuntary termination proceedings preempt the
Texas rules and statutes regarding preservation of error.
Accordingly, we find that the protections
enumerated in the ICWA are mandatory as to the trial court and the Department,
that they preempt state law, and the failure to follow the ICWA may be raised
for the first time on appeal. See 25 U.S.C.A. § 1914 (Indian child,
parent of child, or tribe may petition any court of competent jurisdiction to
set aside involuntary termination for failure to comply with the ICWA).
Indian Child Welfare Act of 1978
          Congress passed the Indian Child
Welfare Act in response to the Ârising concern in the mid-1970's over the
consequences to Indian children, Indian families, and Indian tribes of abusive
child welfare practices that resulted in the separation of large numbers of
Indian children from their families and tribes through adoption or foster care
placement, usually in non-Indian homes.ÂÂ Miss. Band of Choctaw Indians v.
Holyfield, 490 U.S. 30, 32, 109 S. Ct. 1597, 1599-1600, 104 L. Ed. 2d 29
(1989); see also In re W.D.H., 43 S.W.3d at 34. Â The
ICWA applies to all state child custody proceedings involving an Indian child
when the court knows or has reason to know an Indian child is involved. 25
U.S.C.A. § 1912(a); Doty-Jabbaar v. Dallas County Child Protective Servs.,
19 S.W.3d 870, 874 (Tex. App.ÂDallas 2000, pet. denied). Â And an Indian child is defined by the ICWA as an Âunmarried
person who is under age eighteen and is either (a) a member of an Indian tribe
or (b) is eligible for membership in an Indian tribe and is the biological
child of a member of an Indian tribe. 25 U.S.C.A. § 1903(4). The ICWA,
however, does not define what constitutes being a Âmember or Âbeing eligible
for membership. See 25 U.S.C.A. § 1903(4). Each tribe has its own
criteria for determining tribe membership. See In re R.R., 294 S.W.3d 213,
217-18 (Tex. App.ÂFort Worth 2009, no pet.).
           The Bureau of Indian Affairs has
created guidelines for state courts to use in Indian child custody proceedings
to assist with the interpretation of the ICWA. See Bureau of Indian
Affairs Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.
Reg. 67,584 (Nov. 26, 1979). While these guidelines do not have binding
legislative effect, two other courts of appeals have used the Guidelines in
interpreting the ICWA. See In re R.R., 294 S.W.3d at 217; see also
Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152, 163-64 (Tex. App.ÂHouston [14th Dist.] 1995, orig. proceeding).
           The Guidelines state that
Â[p]roceedings in state courts involving the custody of Indian children shall
follow strict procedures and meet stringent requirements to justify any result
in an individual case contrary to these preferences.ÂÂ BIA Guidelines for State
Courts; Indian Child Custody Proceedings, 44 Fed. Reg. at 67,586. The
Guidelines further direct that any ambiguities between the ICWA and all
regulations, guidelines, and state statutes relating to the ICWA shall be
resolved in favor of the result that is most consistent with the ICWAÂs
preferences of keeping Indian children with their families or other Indian
families. Id.Â
           Specific instructions are provided in
the guidelines for the determination of the status of an alleged Indian child.Â
The burden is placed on the trial court to seek verification of the childÂs
status through either the Bureau of Indian affairs or the childÂs tribe. Id. at 67,586 (Âthe court shall seek verification of the childÂs statusÂ). Further,
the Guidelines provide that Â[c]ircumstances under which a state court has
reason to believe a child involved in a child custody proceeding is an Indian include
. . . (i) Any party to the case . . . informs the court that the child is an
Indian child. . . . (ii) Any public or state-licensed agency involved in child
protection services or family support has discovered information which suggests
that the child is an Indian child.ÂÂ Id.
           The commentary to section B.1. of the
Guidelines also indicates that it is the trial court's and
the petitioner's burden to make inquiry sufficient to affirmatively determine
whether the child is an Indian or not. BIA Guidelines for State Courts; Indian
Child Custody Proceedings, 44 Fed. Reg. at 67,586.Â
Therefore, we hold that it is the duty of the
trial court and the Department of Family and Protective Services to send notice
in any involuntary proceeding Âwhere the court knows or has reason to know that
an Indian child is involved. 25 C.F.R. § 23.11 (2008). The requirements of
the notice are enumerated in section 23.11, including the name of the Indian
child, the childÂs birthdate and birthplace, the name of the tribe or tribes in
which the child may be eligible for enrollment, Âall names known, and current
and former addresses of the Indian child's biological mother, biological
father, maternal and paternal grandparents and great grandparents . . .
including maiden, married and former names or aliases; birthdates; places of
birth and death; tribal enrollment numbers and/or other identifying
information. Id. § 23.11(d)(1)-(4).Â
Section 23.11 also requires that the notice be
sent to the Âappropriate Area Director and the Secretary of the Interior. Id. § 23.11(a), (b), and (f). Upon receiving the notice, the Secretary of the
Interior or his designee is obliged to make reasonable documented efforts to
locate and notify the tribe within fifteen days or to notify the trial court
how much time is needed to complete the search for the childÂs tribe. Id. § 23.11(f).Â
The Notice
           The case involving A.M.C. was
originally filed in Hill County on January 17, 2008 and transferred to McLennan County on June 13, 2008 after the birth and subsequent removal of J.J.C. in McLennan County. It is unclear from the record as to what triggered the DepartmentÂs
inquiry into the status of A.M.C. as an Indian child in Hill County; however, the Department, through one of its attorneys in Austin, sent a notice pursuant
to ICWA and filed a copy of it with the trial court in the Hill County case on May 8, 2008. According to the report attached to the notice, the
caseworker for the Department prepared her report with the childÂs information
to be sent pursuant to the ICWA on April 7, 2008.
According to the Guidelines, we find that the
trial court had reason to believe that A.M.C. and J.J.C. are Indian children
because a public or state-licensed agency involved in child protection services
or family support, the Department, discovered information that the children's
maternal grandmother was alleged to be a member of the Chippewa Indian Nation
which suggests that A.M.C. and J.J.C. are Indian children. BIA Guidelines for
State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. at 67,586. Â Once the trial court had reason to believe that A.M.C. and
J.J.C. were Indian children, the notice provisions of the ICWA were triggered
and are mandatory. Id. (providing that when a state court has reason to
believe a child involved in a child custody proceeding is an Indian, the court shall
seek verification of the child's status from either the BIA or the child's
tribe (emphasis added)).
           The notice sent regarding A.M.C. lists
multiple persons and agencies notified of this cause; however, the notice does
not contain all of the information required in section 23.11. 25 C.F.R. §
23.11. Some of this information was available to the Department such as the
childÂs birthplace. The motherÂs maiden name and prior addresses were not
included nor was her place of birth. The only ancestral information included
was that of Laura mother, which consisted of her name, date of birth, reported
tribe (Chippewa) and membership number. The record is silent as to any
response by any tribe, the Area Director, or the Secretary of the Interior.Â
Further, no additional notice was sent regarding a different court date than
the one listed nor notification that the cause had been transferred prior to
the date listed in the notice for the next hearing.
           It is undisputed that there was not a
notice sent to any person at any time regarding J.J.C. It is further
undisputed that there was no compliance with the other requirements of the ICWA
at the trial, such as the requirements of experts in Indian cultural issues or
a finding beyond a reasonable doubt at the termination hearing that the
Âcontinued custody of the child by the parent or Indian custodian is likely to
result in serious emotional or physical damage to the child. 25 U.S.C.S. §
1912(f).
           The trial courtÂs application of the
ICWA is a question of law, which we review de novo. See In re W.D.H.,
43 S.W.3d 30, 33 (Tex. App.ÂHouston [14th Dist.] 2001, pet. denied). A
violation of the ICWA notice provisions may be a cause for invalidating the
termination proceedings at some future point in time. See 25 U.S.C.A. §
1914 (providing that Â[a]ny Indian child who is the subject of any action for .
. . termination of parental rights under State law, any parent . . . from whose
custody such child was removed, and the Indian child's tribe may petition any
court of competent jurisdiction to invalidate such action upon a showing that
such action violated any provision of sections 1911, 1912, and 1913 of this
titleÂ); see also In re W.D.H., 43 S.W.3d at 38-39 (recognizing parent
of Indian child has standing to challenge adequacy of notice even though tribe
declined to join suit).
           The State contends that any failures
to comply with the ICWA were harmless. However, in light of the explicit
language of the ICWA and the Guidelines, we do not find this argument has any
merit.  We sustain LauraÂs first issue that the trial court erred in failing
to properly notify the tribe as required by the ICWA. Because of our holding
regarding the failure to properly send notice as required by the ICWA, we do
not address LauraÂs second, third, and fourth issues.
The Remedy
           We agree with the Fort Worth Court of
Appeals that the proper remedy in this situation is to remand the case so that
proper notice may be provided, and that we will conditionally affirm the
termination judgment in the event that it is determined that A.M.C. and J.J.C.
are not Indian children. See In re R.R., Jr., 294 S.W.3d at 227; Tex. R. App. P. 44.4.
           Laura attached exhibits to her brief
to this Court that included an affidavit from the director of the Indian Child
Welfare Office of the White Earth Band of Ojibwe confirming LauraÂs membership
in the tribe and other documentation, which indicate that the children are
eligible for membership in the tribe. The State has not objected to those
exhibits. However, we believe it is more appropriate for the trial court to
determine this issue.
           We will abate this appeal and remand
this case to the trial court. The trial court will ensure that proper notice
that complies with the statutory notice requisites shall be provided. The
trial court shall then conduct a hearing to determine whether A.M.C. and J.J.C.
are Indian children under the ICWA. See Tex. R. App. P. 44.4 (appellate court
shall not reverse or affirm judgment if trial court can correct erroneous
failure to act, and appellate court authorized to direct trial court to correct
erroneous failure to act and to then proceed as if erroneous failure to act had
not occurred). We order that the records generated by the hearing in the trial
court be supplemented in this Court. After we receive this supplemental
record, this appeal will be reinstated. If, after proper notice and a hearing,
the trial court has determined that A.M.C. and J.J.C. are not Indian children,
then we will issue a judgment affirming the trial court's termination
judgment. See Tex. R. App. P.
43.2(a). If, after notice and hearing, the trial court determines that A.M.C.
and J.J.C. are Indian children, then this court shall issue a judgment
reversing the trial court's termination judgment, and the trial court shall
conduct a new trial applying the ICWA. See Tex. R. App. P. 43.2(d).
Conclusion
           We find that the trial court did have
reason to believe that A.M.C. and J.J.C. were Indian children and that the
trial court erred in failing to ensure that proper notice was given to the
appropriate individuals and agencies. We abate this cause to the trial court
as stated above. If, after notice and a hearing, the trial court determines
that A.M.C. and J.J.C are not Indian children, then the termination order will
be affirmed. If, after notice and a hearing, the trial court determines that
A.M.C. and J.J.C are Indian children, then the termination judgment of the
trial court will be reversed and the trial court must conduct a new trial
applying the requirements and standards of the ICWA.Â
Â
                                                                       TOM
GRAY
                                                                       Chief
Justice
Â
Before Chief Justice
Gray,
           Justice
Reyna, and
           Justice Davis
Abated
Opinion delivered and
filed December 30, 2009
[CV06]
[1]
The father of the children, David C., executed affidavits of relinquishment and
is not appealing the termination of his parental rights. | 01-03-2023 | 09-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2093823/ | 8 N.Y.3d 313 (2007)
864 N.E.2d 1288
832 N.Y.S.2d 889
THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
RACKY RAMCHAIR, Appellant.
Court of Appeals of the State of New York.
Argued February 8, 2007.
Decided March 29, 2007.
*314 Frank Handelman, New York City, for appellant.
Richard A. Brown, District Attorney, Kew Gardens (Jennifer Hagan and John M. Castellano of counsel), for respondent.
Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ and SMITH concur; Judge JONES taking no part.
OPINION OF THE COURT
PIGOTT, J.
The issue presented on this appeal is whether defendant was denied meaningful representation when his appellate counsel failed to argue that the trial court should have granted his motion for a mistrial. We conclude that he was not and therefore affirm the order of the Appellate Division.
In 1995, defendant was arrested on suspicion of robbery of a cabdriver in Queens, New York. A lineup was held, with counsel for defendant present. The cabdriver identified defendant in the lineup as one of the persons who had robbed him. Defendant was charged with robbery in the first and second degrees.
During his first trial, defendant was assaulted in jail and, because he was unable to assist in his own defense, the trial court granted defendant's motion for a mistrial. During his *315 second trial, one of the jurors became ill and, over defendant's objection, the trial court declared another mistrial. During a third trial, as in the prior two, defense counsel challenged the cabdriver's identification of defendant. In rebuttal, the prosecutor elicited testimony from a detective that defense counsel was present during the lineup and made no objection to its composition. The detective further testified that, had defense counsel objected to the lineup, he would have considered a change in the composition or at least noted the objection. Defense counsel promptly objected, arguing that such testimony placed him in the position of being a witness at the trial. The trial court overruled the objection.
Following the court's ruling, and outside the presence of the jury, defense counsel sought permission to testify as to his conduct during the lineup, including objections he had raised at that time and why other objections had not been raised. The trial court summarily denied that request, ruling that in order to testify, defense counsel should have withdrawn as the attorney for defendant prior to the commencement of trial.
At the end of the detective's testimony, defense counsel moved for a mistrial on the grounds that it was improper to allow the prosecution to imply through the testimony of the detective that defense counsel approved of the lineup procedure, and that defense counsel should have been afforded the opportunity to testify in rebuttal. The trial court denied that motion as well.
On appeal from a conviction of all charges, appellate counsel raised two claims. First, appellate counsel argued that defendant's double jeopardy rights were violated because the trial court retried defendant after it declared a mistrial at the second trial over defense counsel's objection. Second, and relevant to this appeal, appellate counsel argued that defendant's constitutional right to present a defense was violated when the trial court precluded defense counsel from testifying in rebuttal to the testimony that counsel was present at the lineup and had not objected to its composition. Significant for purposes of this appeal, appellate counsel did not argue that the trial court should have granted defendant's mistrial motion. The Appellate Division affirmed defendant's conviction (308 AD2d 601 [2003]), and a Judge of this Court denied leave to appeal.
Defendant thereafter filed a pro se petition for federal habeas corpus relief raising the same arguments made by his appellate counsel on the direct appeal. The United States District Court *316 for the Eastern District of New York denied defendant relief on those claims, but opined that defendant may have a meritorious claim that his appellate counsel was ineffective for not specifically raising the trial court's failure to grant a mistrial. Thus, the District Court held the petition in abeyance pending defendant's exhaustion of state remedies with regard to that claim (Ramchair v Conway, 2005 WL 2786975, 2005 US Dist LEXIS 25852 [ED NY 2005]). Defendant then filed a petition for a writ of error coram nobis with the Appellate Division asserting that his appellate counsel had been ineffective for failing to argue that the trial court erred in not granting defendant's motion for a mistrial. The Appellate Division denied defendant's application without comment (27 AD3d 668 [2006]) and a Judge of this Court granted defendant leave to appeal. We now affirm.
Defendants in criminal cases have both a state and a federal constitutional right to effective assistance of appellate counsel (see e.g. People v Turner, 5 NY3d 476 [2005]). We have previously declared that the "meaningful representation" criterion set forth in People v Baldi (54 NY2d 137, 147 [1981]) is the standard for evaluating the effectiveness of appellate counsel in this state's courts (see People v Stultz, 2 NY3d 277 [2004]). In defining meaningful representation, this Court has stated:
"Appellate advocacy is meaningful if it reflects a competent grasp of the facts, the law and appellate procedure, supported by appropriate authority and argument. Effective appellate representation by no means requires counsel to brief or argue every issue that may have merit. When it comes to the choice of issues, appellate lawyers have latitude in deciding which points to advance and how to order them." (Id. at 285.)
Here, appellate counsel submitted a comprehensive brief to the Appellate Division raising two strong claims on defendant's behalf. Indeed, had the first claim raised by appellate counsel relating to defendant's double jeopardy rights been successful, defendant would have been entitled to the dismissal of the indictment. Nevertheless, defendant now argues that appellate counsel should have argued the additional claim that the court erred in denying his motion for a mistrial. The substantive grounds upon which that motion was based, however, were noted by counsel in the second claim raised in the appellate brief filed on behalf of the defendant. Counsel chronicled the facts that formed the basis of the claimed error in the context of *317 the objections made by defense counsel and the court's rulings in response thereto.
We recognize that the underlying issue concerning the admissibility of proof relating to defense counsel's presence at the lineup has never been addressed by this Court or the United States Supreme Court, and this case does not provide us with an occasion to do so. Because the issue before us is solely whether appellate counsel was effective, we cannot and do not reach the merits of any issue that could or might have been raised on the original appeal. However, viewing the issue from the perspective of appellate counsel, we note that there is Appellate Division authority suggesting that such evidence is sometimes admissible (see e.g. People v Foulks, 143 AD2d 1038 [2d Dept 1988]; People v Valentine, 271 AD2d 245 [1st Dept 2000]). Under the circumstances, appellate counsel might have determined as a matter of reasonable appellate strategy that there was a greater likelihood of success pursuing the right to present a defense argument, rather than focusing on the mistrial application. The fact that the specific motion for a mistrial was not highlighted and argued in greater detail does not, on this record, amount to ineffective assistance of appellate counsel as a matter of law. Therefore, because we cannot say from this record that there was no solid legal basis for appellate counsel's strategy, we conclude that the Appellate Division did not err in denying defendant's petition for a writ of error coram nobis.
Accordingly, the order of the Appellate Division should be affirmed.
Order affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1348127/ | 168 Mich. App. 384 (1988)
423 N.W.2d 668
PEOPLE
v.
GATES
Docket No. 98229.
Michigan Court of Appeals.
Decided May 2, 1988.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Joseph S. Filip, Prosecuting Attorney, and Jerrold Schrotenboer, Chief Appellate Attorney, for the people.
Nicholas Smith, for defendant.
Before: R.M. MAHER, P.J., and SHEPHERD and K. TERTZAG,[*] JJ.
PER CURIAM.
The people appeal as of right from the order of the Jackson Circuit Court holding that the criminal prosecution of defendant for second-degree criminal sexual conduct, MCL 750.520c(1)(a); MSA 28.788(3)(1)(a), was barred by collateral estoppel for the reason that a probate court jury had previously found, at an adjudicative hearing in that court, that defendant had not sexually abused the subject child. We affirm.
On February 18, 1986, a juvenile petition was filed in the Jackson County Probate Court requesting court intervention due to defendant's alleged sexual abuse of his daughter, who was then three years and ten months old. The petition alleged that sometime on or around February 13, 1986, *386 defendant had touched the child's genitals for the purpose of sexual arousal or gratification. Prior to a preliminary examination on the petition, defendant was also charged in the Jackson Circuit Court with second-degree CSC, arising from the same occurrence.
On June 16 and 17, 1986, a jury trial in the Jackson County Probate Court was held on the juvenile petition. In his opening statement, the prosecutor explained that he would show that defendant had touched his daughter in a sexual manner and this warranted the probate court's jurisdiction and intervention. During the prosecution's proofs, the daughter testified that she was asleep in a chair at defendant's home when he touched her hard in the vaginal area, awakening her. She also said that defendant told her not to tell her mother, from whom defendant was divorced and with whom defendant shared the child's custody, or the judge about the touching. A Catholic Social Services therapist testified that in her opinion the child had been sexually molested. The girl's mother and another social worker testified regarding the child's marked mood change. No other evidence was presented to show neglect, cruelty, or defendant's unfitness to parent, aside from the alleged sexual touching.
The probate court instructed the jury that if it found, by a preponderance of the evidence, that defendant's home was unfit for the child because of neglect, cruelty, criminality, or depravity by defendant then it should find that the court has jurisdiction over the child. The jury returned a verdict that the court did not have jurisdiction over the child. When polled, all six jury members agreed that they believed the child had not been neglected in the manner alleged by the Department of Social Services.
*387 On June 20, 1986, the DSS filed a motion for judgment notwithstanding the verdict, which the probate court granted. That order was subsequently reversed by the circuit court, and the juvenile petition was ordered dismissed.
On August 6, 1986, defendant moved to dismiss the criminal charges on the ground that the prosecution was barred by the doctrine of collateral estoppel. The trial court granted that motion and dismissed the second-degree CSC charges against defendant. This appeal of right followed.
The doctrine of collateral estoppel bars the relitigation of issues previously decided where such issues are raised in a subsequent suit by the same parties based upon a different cause of action. People v Watt, 115 Mich. App. 172, 175; 320 NW2d 333 (1982), lv den 413 Mich. 926 (1982). However, only those issues actually litigated in a prior litigation are conclusively decided for purposes of any subsequent action. Id.
The identical issue as presented herein was discussed by this Court in Watt, supra. There, the DSS terminated defendant's welfare benefits for the reason that she had committed fraud by failing to inform it that her former spouse resided with her. Defendant challenged the termination of her benefits and a hearing officer found in her favor. The officer held that there was insufficient evidence that defendant's former spouse resided with her and, consequently, ordered that benefits be reinstated. The DSS did not appeal that decision. Thereafter, criminal charges were brought against defendant for the same acts, and she was convicted of welfare fraud. On appeal, this Court overturned that conviction, noting among other things that (1) the burden of proof is higher in a criminal proceeding than in an administrative hearing and (2) a county prosecutor and the DSS are "both creatures *388 of the same sovereign, namely, the State of Michigan." Id., p 179. See also People v Grainger, 117 Mich. App. 740, 753-754; 324 NW2d 762 (1982); Anno: Doctrine of res judicata or collateral estoppel as barring relitigation in state criminal proceedings of issues previously decided in administrative proceedings, 30 ALR4th 856. Cf. Thangavelu v Dep't of Licensing & Regulation, 149 Mich. App. 546, 554-556; 386 NW2d 584 (1986), lv den 425 Mich. 864 (1986); People v Bookmeyer, 127 Mich. App. 69, 71-72; 338 NW2d 557 (1983), lv den 419 Mich. 854 (1984).
We hold that Watt, supra, is dispositive of this appeal. The basis of the juvenile petition against defendant was his alleged sexual abuse of his daughter. No other allegations of abuse, neglect, or unfitness were made or proven at the adjudicative hearing. Thus, the subject matter of the petition was the same as the criminal charge. Moreover, it is clear that the issue was fully litigated in the probate court, as the DSS presented several witnesses in support of its case. Despite the DSS'S efforts, the jury applying a lesser standard than required in a criminal proceeding found that the state had failed to establish that defendant had committed the alleged sexual assault. Logic dictates that defendant could not be found guilty of the same misconduct under the higher standard of proof. Finally, we agree that the DSS and the county prosecutor, being creatures of the same sovereign, are the same party for purposes of collateral estoppel. For these reasons, the trial court correctly ruled that the doctrine of collateral estoppel barred defendant's prosecution on charges of second-degree CSC.
Our disposition of this issue renders it unnecessary to address defendant's claim that the prosecution *389 was also prohibited by the double jeopardy clause of the United States Constitution. US Const, Ams V, XIV.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1373594/ | 335 P.2d 887 (1959)
STATE of Idaho, Plaintiff-Respondent,
v.
Robert F. BARTER, Defendant-Appellant.
No. 8638.
Supreme Court of Idaho.
February 17, 1959.
*888 Murphy & Schwartz, Shoshone, for appellant.
Frank L. Benson, Atty. Gen., Anton Hohler, B. James Koehler, Jr., Asst. Attys. Gen., for respondent.
PORTER, Chief Justice.
Appellant, Robert F. Barter, is a medical doctor. At the time in question in this cause he lived in Shoshone and maintained offices both in Shoshone and in Mackey, Idaho. He divided his time between the two offices which were 110 miles apart. On April 26, 1956, at about 12:30 p. m. appellant left Shoshone in his Cadillac automobile with his secretary to drive to Mackey. He followed State Highway 26 to Richfield where he stopped for a few minutes and then proceeded on along such highway in the direction of Mackey.
Thomas W. Conner, Sheriff of Lincoln County, and Willard Baker, a state patrolman, met at the car of the sheriff in Shoshone by prearrangement and followed appellant. They saw appellant's car stop in Richfield and saw it for a distance of about six miles out of Richfield. They were not able to keep up with appellant's car although they traveled at high speed sometimes reaching a speed of over 100 miles per hour. They again came in sight of appellant's car at Carey. They stopped appellant about one mile north of Carey. They had followed appellant's automobile for about forty miles. Baker gave appellant a traffic citation charging him with the offense of reckless driving occurring North of Carey and requiring him to appear in the Justice Court of Carey Precinct of Blaine County. On April 28, appellant appeared in such justice court and denied the charge.
A complaint signed by Patrolman Baker was filed in the Probate Court of Blaine County on April 30, 1956, charging appellant with the offense of reckless driving occurring on April 26, 1956, on the stretch of Highway 26 extending both north of Carey and south of Carey. Appellant moved to dismiss the complaint filed in the probate court on the ground that the Justice Court of Carey Precinct had already acquired jurisdiction of the alleged offense. After a hearing on the motion to dismiss, the probate court on May 17, 1956, entered an order dismissing such complaint, and reading in part as follows:
"Now Therefore, It Is Hereby Ordered that this court is without jurisdiction to entertain complaint in this matter, as a traffic citation has heretofore been issued for said defendant to appear before the Justice of the Peace for Carey Precinct, Blaine County, Idaho, and said defendant having so appeared pursuant to said traffic citation, said justice of the peace assumed jurisdiction of said matter and that this court is without jurisdiction to hear said matter."
On May 17, 1956, after such dismissal, a new complaint was filed in the Probate Court of Blaine County charging appellant with the same offense of reckless driving but eliminating reference to the highway *889 north of Carey and describing the highway where the offense was alleged to have been committed as Highway 26 extending south of Carey. Appellant, against this complaint, filed a motion to dismiss the same on the ground that the court was without jurisdiction to entertain such complaint. The motion to dismiss was denied by the court and the case went to trial. Appellant was found guilty of the offense of reckless driving.
Appellant appealed from the judgment of conviction entered in the probate court to the District Court in and for Blaine County. In the district court he again presented his motion to dismiss on the ground of lack of jurisdiction. His motion to dismiss was again denied by the district court. Appellant was again found guilty of reckless driving and a judgment of conviction entered against him. His motion for new trial was denied. From the judgment and from the order denying the motion for new trial, he has appealed to this court.
On this appeal, among other allegations of error, appellant urges that the court erred in not granting the motion to dismiss the action on the ground of lack of jurisdiction "for two reasons, the first being that the Justice Court of Blaine County, Carey Precinct, had taken jurisdiction of the case and retained jurisdiction of the case until it was finally determined * * * and the second being that an order of dismissal is a final order and a bar to any other prosecution as to the same offense if it is a misdemeanor."
Appellant contends that the Justice Court of Carey Precinct in Blaine County and the Probate Court of Blaine County had concurrent jurisdiction of the offense charged (§§ 1-1406 and 1-1202, I.C.); that the justice court having first asserted jurisdiction, was entitled to retain the same; and when the case was started in the probate court and the attention of the court was called to the pending case in the justice court, it was the duty of the probate court to dismiss the complaint. Appellant cites in this connection, State v. Raaf, 16 Idaho 411, on page 417, 101 P. 747, on page 750, where it is said:
"It is equally well settled that, where two courts have concurrent jurisdiction of a case, the one first acquiring jurisdiction retains that jurisdiction until the case is finally determined. If, while such case is pending another court of co-ordinate jurisdiction is resorted to for the prosecution of the same case, the latter court will dismiss the action as soon as the fact is properly called to the attention of the court that the case is already pending in another court of co-ordinate jurisdiction."
In this case the order of dismissal entered in the probate court stands not directly challenged and it is unnecessary for us to determine whether such order was predicated on proper grounds; or whether the justice court under a traffic citation acquired jurisdiction or whether jurisdiction could not be acquired until a complaint was filed.
The second complaint filed in the Probate Court of Blaine County charges the alleged offense to have occurred south of Carey while the traffic citation charged an offense alleged to have occurred north of Carey. The traffic citation and the second complaint in the probate court charged different offenses and the prosecution of the one would not be a bar to the prosecution of the other.
Appellant contends that the offenses charged in the first complaint filed in the probate court on April 30, 1956, and in the second complaint filed on May 17, 1956, were the same offense and that the dismissal of the first complaint constituted a bar to the maintenance of the second complaint.
Section 19-3504, I.C., reads as follows:
"The court may, either of its own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action or indictment to be dismissed. The reasons of the dismissal must be set forth in an order entered upon the minutes."
Section 19-3506, I.C., is as follows:
"An order for the dismissal of the action, as provided in this chapter, is a bar to any other prosecution for the *890 same offense, if it is a misdemeanor; but it is not a bar if the offense is a felony."
The probate court set forth the reasons for its judgment of dismissal as required by § 19-3504, I.C. The offense of reckless driving is a misdemeanor and the dismissal of the action started April 30, 1956, would be a bar to any other prosecution for the same offense. State v. McKeehan, 49 Idaho 531, 289 P. 993. The question for determination is whether the two complaints charge the same offense. On page 10 of its brief, respondent says:
"If the Justice Court had acquired jurisdiction by means of the traffic citation, of course the Probate Court acted properly in dismissing the action. And if the offense committed on the south side of town can be considered the same as the one north of town, it might be argued that the second complaint should have been dismissed."
The two complaints filed in the probate court charge the identical offense and are based on the same acts. The only difference is that the alleged location of the offense charged in the first complaint extended both north and south of Carey while in the second complaint the location of the offense is charged as being south of Carey. The location charged in the first complaint includes the location alleged in the second complaint. A conviction or acquittal of the offense charged in the first complaint would be a bar to a prosecution under the second complaint. Likewise, the offense charged in the second complaint is included in the dismissal of the offense charged in the first complaint. We conclude that the judgment of dismissal of the first complaint is by virtue of § 19-3506, I.C., a bar to the maintenance of a prosecution upon the second complaint, and that the district court was in error in denying the motion of appellant for a dismissal of the action.
By virtue of our foregoing holding, it is unnecessary to discuss and determine the other assignments of error contained in appellant's brief. The judgment of conviction is reversed and the cause remanded to the trial court with instruction to vacate the judgment and dismiss the action.
TAYLOR, SMITH and KNUDSON, JJ., and BELLWOOD, D. J., concur.
McQUADE, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2899578/ | NO. 07-08-0303-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MARCH 24, 2009
______________________________
AARON R. DIAL,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 137
TH
DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2006-413,416; HON. CECIL PURYEAR, PRESIDING
_______________________________
Opinion
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Aaron R. Dial appeals a judgment revoking his probation and sentencing him to two years confinement in a state jail facility for the offense of possession of a controlled substance. Through two complaints, he apparently argues that 1) the trial court erred in failing to conduct an investigation into whether his plea of guilty to the original offense was voluntary, and 2) the trial court relied upon illegally obtained evidence in finding that appellant failed to identify himself to a police officer. We affirm the judgment.
Issue One – Investigating Voluntariness of Guilty Plea
In a rather rambling discourse, appellant complains about the voluntariness of his guilty plea which resulted in the trial court’s decision to defer the adjudication of his guilt. We are unsure of whether he contends that the plea was involuntary, that he should have been entitled to withdraw his plea, or that the trial court failed to inquire into the voluntariness of his prior plea at the subsequent revocation hearing.
(footnote: 1) If it is the first, then we have no jurisdiction to consider the dispute via an appeal from an order adjudicating guilt and revoking community supervision.
Castillo v. State
, No. 01-07-00887-CR, 2008 Tex. App.
Lexis
8061 at *2-3 (Tex. App.–Houston [1
st
Dist.] October 23, 2008, no pet.) (not designated for publication) (and the authorities cited therein).
If it is the second, then the claim was not preserved for appellant did not request leave to withdraw his plea from the trial court. The Court of Criminal Appeals required as much in
Mendez v. State,
138 S.W.3d 334, 350 (Tex. Crim. App. 2004).
If it was the third, appellant’s receipt of the statutory admonishments was prima facie evidence that his plea was knowing and voluntary.
(footnote: 2)
See Brown v. State,
11 S.W.3d 360, 362 (Tex. App.–Houston [1
st
Dist.] 2000, pet. ref’d) (holding that the receipt of statutory admonishments is prima facie evidence that the plea is knowing and voluntary). Moreover, without citation to either evidence or authority suggesting that one’s ingestion of cocaine alone impairs his ability to think rationally, perceive the circumstances before him or understand the consequences of his actions, we hesitate to impose on a trial judge the duty contemplated by appellant.
See
Villareal v. State,
860 S.W.2d 529, 533 (Tex. App. –Corpus Christi 1993, pet. ref’d) (stating the trial court had no duty to
sua sponte
examine retrospectively the voluntariness of the defendant’s guilty plea even though he was found incompetent at the adjudication hearing).
Issue 2 - Illegal Detention
Via his second issue, appellant attacks the trial court’s finding that he failed to identify himself. Purportedly, the evidence upon which the trial court relied was acquired through an illegal detention. Be that as it may, we do not see how that changes the validity of the decision to revoke. Appellant’s failing to identify himself was only one of many grounds alleged by the State in support of its motion. Moreover, appellant pled true to at least two grounds the validity of which had nothing to do with his misidentifying himself to a police officer. So, even if we were to accept appellant’s protestations about the supposed illegal detention and ignore that finding as a ground supporting revocation, nothing would change. Simply put, the decision to revoke is supported by the other findings about which he utters no complaint.
Moore v. State,
605 S.W.2d 924, 926 (Tex. Crim. App. 1980) (stating that only one ground can justify the trial court’s decision to revoke community supervision).
Accordingly, we overrule each issue and affirm the judgment.
Brian Quinn
Chief Justice
Publish.
FOOTNOTES
1:We would ask those appearing before this court to cautiously proofread their briefs for typographical errors, improper grammar, and questionable sentence structure. So too would we ask them to note that the longer a sentence is, the more difficult it is for the reader to understand it. Finally, it also would be wise to remember that the clarity of one’s discourse is much more important than its length.
2:Though the appellate record does not contain a transcript of the original plea hearing, the written admonishments containing appellant’s signature appears in the clerk’s record. | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2240795/ | 694 N.E.2d 1058 (1998)
296 Ill. App. 3d 466
230 Ill. Dec. 780
STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff-Appellant,
v.
Gregory Lee MARTIN, Sr., Scott Lewis, as Special Administrator of the Estate of Timmie Lee Lewis, Deceased, and Ethelyn J. Gorham, Executrix of the Estate of Gary Porter, Deceased, Defendants-Appellees.
No. 5-95-0810.
Appellate Court of Illinois, Fifth District.
May 6, 1998.
*1059 Stephen W. Thomson, Thomson & Behr, P.C., Edwardsville, for Plaintiff-Appellant.
Ralph J. Mendelsohn, Mendelsohn Law Offices, Alton, for Gregory L. Martin, Sr.
Samuel A. Mormino, Wiseman, Shaikewiz, McGivern, Wahl, Flavin, Hesi & Mormino, P.C., Alton, for Scott Lewis.
Joseph E. Hoefert, Hoefert & Perica, P.C., Alton; John Long, Troy, for Ethelyn J. Gorham.
Justice KUEHN delivered the opinion of the court:
Plaintiff, State Farm Fire and Casualty Company (State Farm), filed a declaratory judgment action seeking a determination of whether it owed its insured, Gregory Lee Martin, Sr. (Martin), a defense and indemnification in two underlying wrongful death suits. These suits were based upon Martin's involvement in an arson which resulted in the death of two firemen. State Farm appeals from trial court orders finding that it had a duty to defend and to indemnify Martin. We affirm.
This case originated with an arrangement between Martin and Delaney Gordon, Sr. (Gordon), to destroy a building. Martin owned the designated building. The building was located in Alton, Illinois. Gordon was one of Martin's tenants, and in exchange for his participation, Martin offered him a reduced rental rate.
On October 24, 1992, at approximately 2 a.m., Gordon ignited the fire by leaving an unattended candle in a hamper in the basement. An accelerant was used. By the time the fire was reported and firemen responded, the building was in flames. As the fire intensified, the building's second floor collapsed *1060 onto some of the firemen. Firemen Timmie Lee Lewis and Gary Porter perished.
Martin and Gordon were indicted by a federal grand jury for damaging by fire a building used in interstate commerce, directly causing a death, in violation of section 844(i) of the Anti-Arson Act of 1982 (18 U.S.C. § 844(i) (1988)).
Defendants Scott Lewis (Lewis) and Ethelyn J. Gorham (Gorham) were appointed executors of the estates of Timmie Lee Lewis and Gary Porter, respectively. Lewis filed a wrongful death suit against Martin and Gordon on or about June 7, 1993. Gorham filed her suit on or about July 7, 1993. Both suits alleged that Martin negligently started the fire with the knowledge that firemen would respond.
State Farm insured Martin's building. Martin tendered both wrongful death suits to State Farm. State Farm denied coverage and refused to defend Martin. Martin did not answer the suits.
State Farm filed the declaratory judgment action on August 20, 1993, alleging that the underlying actions did not constitute an occurrence as defined in the policy and that Martin's actions triggered two coverage exclusions. State Farm asked the trial court to declare that there was no coverage under the Martin liability policy for the suits filed by the deceased firemen's estates. State Farm also asked the trial court to declare that it had no duty to defend Martin in the underlying suits because of the lack of coverage. Defendant Gorham sought to stay the declaratory judgment action until the federal criminal cases then pending against Martin and Gordon were resolved. Defendant Lewis had not yet answered State Farm's declaratory judgment petition and thus did not file a motion to stay. State Farm opposed the stay. The trial court entered an order on February 24, 1994, staying the declaratory judgment action. The order further stated that any party could move to lift the stay upon resolution of the criminal cases. The record does not contain any order staying the wrongful death suits.
On September 23, 1994, Martin was found guilty on the indictment and in December 1994 was sentenced to 50 years' imprisonment.
During the summer of 1995, Gorham and Lewis defaulted Martin on the wrongful death suits. On August 8, 1995, the trial court entered judgment on the negligence counts of Gorham's wrongful death suit against Martin in the amount of $10 million. On September 5, 1995, the trial court entered judgment on Lewis's suit against Martin in the amount of $9 million. Sometime in September 1995, after default judgments were taken in both suits, State Farm offered Martin a defense.
The record contains no order lifting the stay imposed upon the declaratory judgment action following the criminal case's conclusion. However, on April 18, 1995, approximately seven months after Martin's conviction, State Farm filed a summary judgment motion in the declaratory judgment action seeking a determination that it had no duty to defend and indemnify Martin in the underlying suits. On August 30, 1995, the trial court found that coverage existed, and the court denied State Farm's motion for summary judgment.
Gorham filed her motion for summary judgment on September 20, 1995. On September 29, 1995, State Farm filed a motion to reconsider the order denying its summary judgment motion. On October 4, 1995, the trial court granted Gorham's motion for summary judgment and denied State Farm's motion to reconsider. The record does not reflect that Lewis filed a motion for summary judgment, but the October 4, 1995, order stated that he did. The order granted Lewis's summary judgment motion. The trial court determined that coverage existed and that State Farm had a duty to both defend and indemnify Martin. State Farm appeals both orders.
Summary judgment should only be granted when the pleadings, depositions, admissions, and affidavits on file show that there is no genuine issue of material fact. Myers v. Health Specialists, S.C., 225 Ill. App. 3d 68, 72, 167 Ill. Dec. 225, 228, 587 N.E.2d 494, 497 (1992). On appeal, courts review summary judgment orders de novo. Myers, 225 Ill.App.3d at 72, 167 Ill. Dec. at 228, 587 N.E.2d at 497.
*1061 When an insurer questions whether an insured's claim possibly falls within the scope of coverage, the insurer essentially has two options. The insurer must either (1) secure[1] a declaratory judgment as to its rights and obligations before or pending trial or (2) defend the insured under a reservation of rights. Shelter Mutual Insurance Co. v. Bailey, 160 Ill.App.3d 146, 151-52, 112 Ill. Dec. 76, 80, 513 N.E.2d 490, 494 (1987); Trovillion v. United States Fidelity & Guaranty Co., 130 Ill.App.3d 694, 700, 86 Ill. Dec. 39, 44, 474 N.E.2d 953, 958 (1985); Reis v. Aetna Casualty & Surety Co. of Illinois, 69 Ill.App.3d 777, 782, 25 Ill. Dec. 824, 828, 387 N.E.2d 700, 704 (1978); Thornton v. Paul, 51 Ill.App.3d 337, 340-41, 9 Ill. Dec. 537, 540, 366 N.E.2d 1048, 1051 (1977), aff'd in part & rev'd in part, 74 Ill. 2d 132, 23 Ill. Dec. 541, 384 N.E.2d 335 (1978).
For the reasons that follow, we affirm. The issues on appeal are somewhat intertwined in that State Farm's contentions that it owed its insured no duty to defend or indemnify, on the basis that there was no potential for coverage, rest on the bigger issue of whether State Farm's policy actually provides coverage for this incident.
There is no dispute that State Farm did not defend Martin until some time after default judgments were taken against him in both wrongful death suits. State Farm filed the declaratory judgment but then did not advance the suit. State Farm allowed the declaratory judgment to linger without resolution while the underlying wrongful death suits proceeded to default against its unrepresented insured.
Given the possibility that State Farm could lose the declaratory judgment, we remain perplexed that State Farm failed to take the safest and simplest route available and provide some sort of defense pending the outcome of its declaratory judgment action.
State Farm contends that its policy defenses were preserved by merely filing the declaratory judgment suit, essentially arguing that so long as the insurance company at least filed suit, it can ignore its insured and watch the case proceed to default without repercussions. We find it difficult to accept this argument and note that the cases State Farm cites do not detail facts similar to these. However, we do not need to further interpret the meaning of the terms seek or secure and will not otherwise determine this case's outcome on an estoppel basis. We turn to State Farm's contentions regarding the interpretation of its policy provisions in light of the underlying facts.
State Farm initially contends that Martin's actions do not amount to an "occurrence." Its policy provides business liability for claims made or suits brought against its insured for damages because of bodily injury caused by an occurrence arising from the ownership, maintenance, or use of the insured premises. The policy definition of bodily injury includes death resulting from bodily harm, sickness, or disease. Occurrence is defined as "an accident, including exposure to conditions, which results in: (a) bodily injury * * * during the policy period."
In the wrongful death suits at issue, the parties complain that Martin knew or should have known that firemen would respond to the fire and could be injured and that Martin was guilty of one or more of several negligent acts or omissions related to the fire and the firemen's response. State Farm argues that while the complaints sound in negligence, Martin's involvement in the arson does not qualify as an accident.
State Farm also contends that coverage is barred by one of its exclusionary clauses. This policy exclusion bars coverage if Martin expected or intended the firemen's deaths.
These accident and exclusionary clause issues are closely related and as we reach the same conclusion on both, we will analyze them concurrently.
The trial court determined that the facts of this case fell squarely within State Farm's definition of an accident in that the policy equates "exposure to conditions" to an accident. The trial court went on to conclude *1062 that the firemen's deaths were an unintended result of an intended act and that therefore the occurrence qualified as an accident under the policy and that the exclusionary clause was ineffective.
This court previously defined accident as utilized in State Farm's policies as follows: "An accident has been defined as an unforeseen occurrence, usually of an untoward or disastrous character or an undesigned sudden or unexpected event of an inflictive or unfortunate character. The natural and ordinary consequences of an act do not constitute an accident." State Farm Fire & Casualty Co. v. Watters, 268 Ill.App.3d 501, 506, 205 Ill. Dec. 936, 939-40, 644 N.E.2d 492,495-96 (1994), quoting Aetna Casualty & Surety Co. v. Freyer, 89 Ill.App.3d 617, 619, 44 Ill. Dec. 791, 793, 411 N.E.2d 1157, 1159 (1980). This court further explained the term by stating that an accident "involves the consideration of whether the injury was expected or intended from the standpoint of the insured." Watters, 268 Ill.App.3d at 506, 205 Ill. Dec. at 940, 644 N.E.2d at 496.
The determination of whether or not an occurrence qualifies as an accident requires reviewing the matter from the objective foreseeability of the insured to determine whether the contingency is "known to all sensible men as likely to follow" naturally from the insured's conduct. Marsh v. Metropolitan Life Insurance Co., 70 Ill.App.3d 790, 792, 27 Ill. Dec. 158, 160, 388 N.E.2d 1121, 1123 (1979), quoting Hutton v. States Accident Insurance Co., 267 Ill. 267, 269, 108 N.E. 296, 297 (1915). A certain outcome resulting from an insured's actions could be deemed foreseeable for purposes of tort liability and/or criminal liability, but not necessarily for insurance policy foreseeability, as the threshold is higher. Marsh, 70 Ill. App.3d at 792-93, 27 Ill. Dec. at 160-61, 388 N.E.2d at 1123-24. Moreover, except in situations involving sexual abuse and assault and battery where intent to injure is inferred, coverage is not excluded unless Martin acted with a specific intent to cause personal injury with conscious knowledge that the deaths were practically certain to occur. Scudder v. Hanover Insurance Co., 201 Ill. App. 3d 921, 927, 147 Ill. Dec. 386, 389, 559 N.E.2d 559, 562 (1990); Grinnell Mutual Reinsurance Co. v. Frierdich, 79 Ill.App.3d 1146, 1148, 35 Ill. Dec. 418, 420, 399 N.E.2d 252, 254 (1979); Bay State Insurance Co. v. Wilson, 96 Ill. 2d 487, 493-94, 71 Ill. Dec. 726, 728-29, 451 N.E.2d 880, 882-83 (1983).
The negligence counts of the complaints in issue do not allege a specific intent to injure the firemen. Martin acknowledged that his intent was to destroy a building. He contends that the firemen's deaths were an unexpected event. While his participation in the crimes resulting in death was obviously criminal, it does not clearly follow that Martin expected or intended the deaths. See Taylor v. John Hancock Mutual Life Insurance Co., 11 Ill. 2d 227, 142 N.E.2d 5 (1957) (holding that the arson-related death of an arson coconspirator was not intended and was therefore an "accident" within the meaning of an accident insurance policy). The record establishes that Martin did not foresee the deaths or intend any bodily injury or death.
We agree with the trial court's assessment that the facts of this case reflect "an unintended result of an intended act." Accordingly, we conclude that the occurrence at issue amounted to an accident. Not only was there a potential of coverage under this policy relative to State Farm's duty to defend Martin, but we conclude that State Farm's policy in fact provides liability coverage for the unintended accidental deaths of the two firemen. Furthermore, coverage is not excluded by the "expected or intended" clause of State Farm's policy.
We next turn to State Farm's contention that its "willful and malicious acts" policy exclusion bars coverage for this occurrence. State Farm's policy excludes coverage for bodily injury caused by an insured's willful and malicious acts but then fails to define those terms. In its brief, State Farm offers no definition of the term willful. We turn to case law for the definitions. Willful has been interpreted in a criminal context to mean a conscious awareness that the act in question is practically certain to cause a particular result. People v. Pratt, 213 Ill. App. 3d 69, 75, 157 Ill. Dec. 171, 176, 571 N.E.2d 1190, 1195 (1991). Malice has been defined to mean "the intentional doing of a wrongful act without just cause or excuse, *1063 with an intent to inflict an injury or under circumstances that the law will imply an evil intent." Aetna Casualty & Surety Co. v. Freyer, 89 Ill.App.3d 617, 622, 44 Ill. Dec. 791, 795, 411 N.E.2d 1157, 1161 (1980), quoting Blacks Law Dictionary (4th ed.1951). Illinois cases define it as "an intent to do wrongful harm and injury and without just cause" (Freyer, 89 Ill.App.3d at 622, 44 Ill. Dec. at 795, 411 N.E.2d at 1161, quoting Candalaus Chicago, Inc. v. Evans Mill Supply Co., 51 Ill.App.3d 38, 47, 9 Ill. Dec. 62, 69, 366 N.E.2d 319, 326 (1977)), as "[a] wrong inflicted on another with an evil intent or purpose * * * [requiring] the intentional perpetration of an injury or wrong on another" (Freyer, 89 Ill.App.3d at 622, 44 Ill.Dec. at 795, 411 N.E.2d at 1161, quoting First National Bank of Flora v. Burkett, 101 Ill. 391, 394 (1882)), and as "an intent to do a wrongful harm and injury" (Freyer, 89 Ill. App.3d at 622, 44 Ill.Dec. at 795, 411 N.E.2d at 1161, quoting Doremus v. Hennessy, 176 Ill. 608, 615, 52 N.E. 924, 926 (1898)).
The trial court analyzed this issue in the same manner as it did with the "expected and intended" exclusion. We agree with that analysis. State Farm accurately argues that in assessing this exclusion's applicability, we must focus on the insured's conduct. Martin did not intend to kill two firemen or expect that their deaths would occur. He did intend to burn his building and collect the proceeds of his State Farm policy relative to the building's worth. This case presents a unique factual situation. For Martin's intent to burn his building, he should be precluded from property damage coverage under his State Farm policy. An insured should not be allowed to consciously control covered insurance risks through intentional acts. Freyer, 89 Ill.App.3d at 620, 44 Ill. Dec. at 793, 411 N.E.2d at 1159. To hold otherwise would circumvent the very purpose of insurance. Freyer, 89 Ill.App.3d at 620, 44 Ill. Dec. at 793, 411 N.E.2d at 1159. But to also exclude coverage for injuries sustained by the families of the firemen sets a dangerous precedent. This is not a specific-intent-crime coverage issue. We do not permit defendants to argue that they are entitled to insurance coverage for the unintended physical or psychological damage that their sexual abuse victim suffers (See Watters, 268 Ill.App.3d at 507, 205 Ill. Dec. at 940-41, 644 N.E.2d at 496-97) or the unexpected specific type of injuries that the victim sustained in a typical fistfight (See Freyer, 89 Ill.App.3d at 622, 44 Ill.Dec. at 795, 411 N.E.2d at 1161). Those cases involve direct involvement with the victim with intended acts upon that victim. Their specific intent to harm is inferred as a matter of law. If the injury is slightly different or greater than the defendant expected, he should not be covered for those differences under an "unexpected" or "unintended" theory. As this case involves an issue different from the intent-based crimes, the "willful and malicious acts" policy exclusion does not bar coverage.
State Farm also contends that insurance coverage for the arson-related activities is against public policy and is thus void. State Farm cites no Illinois authority for this contention. The four cases State Farm cites as authority are from other states. All four cases are distinguishable in that none involve an arson-related death. State Farm Fire & Casualty Co. v. Hackendorn, 605 A.2d 3 (Del.Super.1991) (assault with a gun); Altena v. United Fire & Casualty Co., 422 N.W.2d 485 (Iowa 1988) (sexual abuse); Perreault v. Maine Bonding & Casualty Co., 568 A.2d 1100 (Me.1990) (sexual abuse); Atlantic Employers Insurance Co. v. Tots & Toddlers Pre-School Day Care Center, Inc., 239 N.J.Super. 276, 571 A.2d 300 (1990) (sexual abuse).
Illinois public policy clearly prevents Martin from recovering policy proceeds for the building's worth, given his involvement in the arson of that building. See University of Illinois v. Continental Casualty Co., 234 Ill. App. 3d 340, 359, 175 Ill. Dec. 324, 337, 599 N.E.2d 1338, 1351 (1992); Checkley v. Illinois Central R.R. Co., 257 Ill. 491, 496-97, 100 N.E. 942, 944 (1913). However, our supreme court has held that interpreting an insurance contract to provide coverage for an intent-based act violates no established public policy of this state. Dixon Distributing Co. v. Hanover Insurance Co., 161 Ill. 2d 433, 446-47, 204 Ill. Dec. 171, 177-78, 641 N.E.2d 395, 401-02 (1994); Taylor, 11 Ill.2d at 230, 142 N.E.2d at 6. Furthermore, public policy encourages the compensation of victims. *1064 University of Illinois, 234 Ill.App.3d at 358, 175 Ill. Dec. at 336, 599 N.E.2d at 1350.
If Martin was seeking coverage for intentionally caused injuries or to profit from his arson involvement, no court would hesitate to find that such coverage was beyond the intent of the parties. Given our analysis on the coverage issues and the public policy encouragement of victim compensation, we find no public policy obstacle with finding liability coverage for the unintended and unexpected outcome of Martin's acts.
We find that no genuine issue of material facts exists, and for the foregoing reasons, the judgment of the circuit court of Madison County is hereby affirmed.
Affirmed.
WELCH, P.J., and CHAPMAN, J., concur.
NOTES
[1] Other cases use the term seek in place of the term secure. See, e.g., Waste Management, Inc. v. International Surplus Lines Insurance Co., 144 Ill. 2d 178, 207-08, 161 Ill. Dec. 774, 777, 579 N.E.2d 322, 335 (1991); Murphy v. Urso, 88 Ill. 2d 444, 451, 58 Ill. Dec. 828, 831, 430 N.E.2d 1079, 1082 (1981). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876427/ | 247 S.W.3d 608 (2008)
Jamel DIZER, Appellant,
v.
STATE of Missouri, Respondent.
No. ED 89239.
Missouri Court of Appeals, Eastern District, Division One.
March 18, 2008.
Craig Allan Johnston, Columbia, MO, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Mary H. Moore, Jefferson City, MO, for respondent.
Before KATHIANNE KNAUP CRANE, P.J., ROBERT G. DOWD, JR., J., and KENNETH M. ROMINES, J.
ORDER
PER CURIAM.
Appellant Jamel Dizer appeals from the judgment of the Circuit Court of the City of St. Louis, the Honorable Joan L. Moriarty presiding. A jury convicted Dizer of two counts, of forcible sodomy and one count of false imprisonment. The court sentenced him to concurrent sentences of life imprisonment for the sodomy charges and one year in prison for false imprisonment. This Court affirmed in State v. Dizer, 119 S.W.3d 156 (Mo.App. E.D.2003). Dizer filed a timely motion for post-conviction relief under Missouri Supreme Court Rule 29.15, which the motion court denied.
Dizer's sole point on appeal alleges his counsel was ineffective for making what Dizer considered to be improper concessions during opening and closing argument. The motion court found that counsel's arguments were part of a reasonable trial strategy.
We have reviewed the briefs and the record on appeal, and we conclude the motion court's findings were not clearly erroneous. We believe a written opinion would have no precedential value. The judgment is affirmed pursuant to Rule 84.16(b).
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1175630/ | 551 P.2d 1155 (1976)
Luther ANDERSON, Appellant,
v.
The STATE of Oklahoma, Appellee.
No. F-75-433.
Court of Criminal Appeals of Oklahoma.
June 21, 1976.
S. Daniel George, Sallisaw, Court-appointed, for appellant.
Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., Douglas L. Combs, Legal Intern, for appellee.
*1156 OPINION
BUSSEY, Judge:
Appellant, Luther Anderson, hereinafter referred to as defendant, was charged in the District Court, Sequoyah County, Case No. CRF-74-69, with the offense of Murder in the First Degree; defendant was convicted of the offense of Murder in the Second Degree and sentenced to serve a term of Ten (10) years to life in the custody of the Department of Corrections. From said judgment and sentence a timely appeal has been perfected to this Court.
At the trial, Dovie Duty, age seventy-eight, testified that on July 2, 1974, she was living with her son Clarence Duty in Muldrow, Oklahoma. She related the day's events, including the visit of the defendant during the afternoon. They left the home together and Clarence returned approximately an hour and a half later by himself. He ate his supper and went to bed shortly before 10:00 p.m. At approximately 10:30 p.m. she heard a knock on the door and upon opening the door found the defendant standing outside. Defendant said, "Where's Clarence?" She replied, "Well, he is in there in the bed maybe asleep." Defendant said, "I'm going to kill the God-damned Son-of-a-Bitch, and then I am agonna kill, I'm agonna rape you and eat your face all to pieces and kill you." [Tr. 332] She testified that she had an axe sitting near the duofold in the front room of the house and further related that the defendant had been present when her son sharpened the axe. The only thing that she remembered after that was defendant having her on the bed where Clarence had been lying. She testified that she *1157 was injured and spent three weeks in the hospital recovering from her injuries.
Roger Duty, age fourteen, testified that he lived in Muldrow a couple of blocks from his grandmother Dovie Duty. He had been acquainted with the defendant for approximately three weeks. His younger brother Bobby went to his grandmother's house at approximately 10:10 p.m. and returned shortly thereafter. He went to his grandmother's house to investigate and found his uncle with an axe in his head and his grandmother sitting on a bed in the back bedroom. The defendant came into the room, knocked him down and jumped on his grandmother. Defendant then chased him from the house threatening to kill him if he returned. He testified that the defendant was covered with blood. He ran down the road and informed his mother of his observations.
Helen Duty testified that she went to Dovie Duty's house at approximately 10:15 p.m. after having learned of some trouble through her son, Bobby. Upon entering the house, she observed the defendant come out from the back bedroom door. Defendant threw something at her and she tripped over a coffee table. Defendant grabbed her, forced her outside and raped her. Defendant advised her that he had killed Clarence and tried to have intercourse with "grandma." [Tr. 368] She managed to escape from the defendant and was subsequently taken to the hospital.
Dr. William Wilson, Sequoyah County Medical Examiner, testified that he observed the body of Clarence Duty on the evening of July 2, 1974, at Duty's home in Muldrow. Duty was dressed in a T-shirt with brief shorts and had a double bitted axe imbedded in the left side of his head. He testified that he was present the following day when an autopsy was performed and stated that the cause of death was "multiple, massive axe wounds to the head." [Tr. 384]
State's Exhibit No. 3 was identified as the double bitted axe which was removed from the head of Clarence Duty.
Robert Bean, an investigator for the District Attorney's Office, testified that he assisted in the investigation of the homicide at the Duty residence. He identified two pictures of Dovie Duty which were taken at the hospital approximately two weeks after the incident, and State's Exhibit No. 3, the axe.
Sheriff Ade Walters testified that he also assisted in the investigation at the Duty residence. He described his observations of the residence and identified certain items of evidence.
Jim Lowder, the City Marshall of Muldrow, testified that he was called to the Duty residence on July 2, 1974, some time after 10:00 p.m. He observed Dovie Duty standing in the yard bleeding profusely from the face. He searched the immediate area for the defendant. While conducting the search, a nurse from the nearby nursing home attracted his attention. Upon entering the nursing home, he found the defendant lying in a bed with the covers over him.
The defense called Dr. Joseph Dorzab, a psychiatrist, who testified that he was appointed by the court to examine the defendant. That as a result of his examination he found that the defendant had brain damage, a lower than normal intelligence, was illiterate, unskilled and an alcoholic. He testified that the defendant was subject to rage reactions after consuming alcohol. The defendant understood right from wrong and was able to understand the judicial system, with one exception, that being that he had a definite loss of memory for July 2, 1974. In response to a hypothetical question which generally covered the testimony of the State's witnesses, the doctor testified that in his opinion the defendant would not have known right from wrong on the night in question.
Stella Mitchell testified that she was living in a nursing home in Muldrow on July 2, 1974; that the defendant came into her room and was covered with blood. He got into a bed and pulled the covers up over *1158 his head as if to hide. She testified that in her opinion the defendant was doped.
Sheriff Ade Walters testified that he was present at the preliminary hearing and that Dovie Duty had some difficulty in identifying the defendant.
In rebuttal, Dr. Lorraine Schmidt, Chief of the Department of Forensic Psychiatry at Central State Hospital, testified that her institution examined the defendant from July 3, 1974 until July 18, 1974; that, in her opinion, defendant did not have brain damage and was not psychotic and was able to determine right from wrong.
Leo Matlock testified that he assisted in the arrest of the defendant on the evening of July 2, 1974. He transported the defendant to Sallisaw from the nursing home. He further testified that he did not notice anything unusual or abnormal about the way the defendant acted.
Roger Duty and Helen Duty both testified that the defendant did not appear to be abnormal on the night in question, but rather appeared to have been frightened.
In the first assignment of error it is asserted that the trial court erred in failing to sustain defendant's first Demurrer to the Information. Defendant complains that the Information fails in two aspects, first, the death of Clarence Duty was not the result of the attempted rape of Dovie Duty, therefore making the Murder in the First Degree Statute, 21 O.S.Supp. 1974, § 701.1 inapplicable and secondly that the Information does not detail the acts that the defendant allegedly performed on Dovie Duty which would constitute an attempted rape. We disagree. The Information states, in part, as follows:
"... That is to say, the said LUTHER ANDERSON in the County and State aforesaid, and on or about the date aforesaid, then and there being, did then and there unlawfully, wilfully and feloniously, without authority of law and with a premeditated design to effect the death of one Clarence Eugene Duty, the said LUTHER ANDERSON did while being then and there engaged in attempting to commit the crime of Rape by then and there unlawfully, wilfully and feloniously with the use of force and violence to Dovie Duty, a female person not the wife of the said defendant, overcome all resistance on the part of the said Dovie Duty and did then and there attempt to rape, ravish, carnally know and have sexual intercourse with said Dovie Duty against her will and consent, did kill the said Clarence Eugene Duty by striking him in the head with an axe causing mortal wounds in the body of the said Clarence Eugene Duty from which mortal wounds the said Clarence Eugene Duty did languish and die .. ."
We are of the opinion that the above stated Information meets all the requirements of 21 O.S.Supp. 1974, § 701.1 which states in pertinent part:
"Homicide, when perpetrated without authority of law and with a premeditated design to effect the death of the person killed, or of any other human being, is murder in the first degree in the following cases:
1. * * *
2. When perpetrated by one committing or attempting to commit rape, kidnapping for the purpose of extortion, arson in the first degree, armed robbery or when death occurs following the sexual molestation of a child under the age of sixteen (16) years;
* * *" [Emphasis added]
We are of the opinion that the Legislature intended to cover the contingency of killing a third person while attempting to rape another.
We further observe that the Information sufficiently informs the defendant of the offense with which he is charged with such particularity as to enable him to prepare for his trial, and so defines and identifies the offense that, if convicted or acquitted, *1159 he would be able to defend himself against any subsequent prosecution for the same offense. See Bennett v. State, Okl. Cr., 492 P.2d 340 and Tolleson v. State, Okl.Cr., 400 P.2d 576. We, therefore, find this assignment of error to be without merit.
In the second assignment of error it is contended that the trial court erred by failing to sustain defendant's plea in abatement, motion to quash and set aside the information. Defendant argues that this assignment should be sustained for the same reasons as set forth in the first assignment of error. We likewise find this assignment of error to be without merit.
The defendant contends in his third assignment of error that the trial court erred by refusing to allow him to take a polygraph test. Defendant cites as authority the case of Castleberry v. State, Okl. Cr., 522 P.2d 257. The question of admissibility of polygraph tests was finally put to rest by this Court in Fulton v. State, Okl.Cr., 541 P.2d 871, wherein we stated:
"... However, in light of the potential unreliability of polygraph examinations at this time, we feel that in all future cases the introduction into evidence of polygraph examination results for any purpose, even if admitted upon stipulation of all parties, will be error. This holding departs from our previous decisions in Castleberry, supra, and Jones, [v. State, Okl.Cr., 527 P.2d 169] supra, therefore, Castleberry, supra, and Jones, supra, and all other cases, are overruled insofar as they are inconsistent with the views expressed today... ."
In his fourth assignment of error it is contended that the trial court erred by refusing to grant defendant's motion for change of venue based upon the widespread pre-trial publicity. Defendant timely filed his motion for change of venue, which the trial court properly reserved its ruling until after the completion of the voir dire. We have carefully examined the trial transcript of the voir dire examination which contains 300 pages. The transcript reflects that all of the jurors were extensively questioned by both counsel for the State and defendant, as well as by the court. Each juror selected affirmatively stated that he or she could render a verdict based solely upon the evidence presented at the trial. In Cooper v. State, Okl.Cr., 524 P.2d 793, we quoted from our decision in Shapard v. State, Okl.Cr., 437 P.2d 565, wherein we stated:
"`In applying the rules set forth in Irvin v. Dowd [366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961)], and on the basis of a thorough study of the record of the voir dire examination of the jurors selected to whom the case was ultimately submitted, we are of the opinion that the defendant's contention that he did not receive a fair and impartial trial by reason that a fair and impartial jury could not be obtained from the inhabitants of Canadian County, is not supported by the record. The jurors who were extensively examined by defense counsel, who was given wide latitude, as to their qualifications all stated that they would base their verdict on the evidence presented and lay aside any impression or opinion which they might have formed as a result of what they had read or heard discussed.'"
We, therefore, find this assignment to be without merit.
Defendant contends in his fifth assignment of error that the trial court erred in overruling his Motion in Limine to prohibit the testimony of Helen Duty as to the alleged rape. We are of the opinion that the court's ruling was proper. The evidence at the trial clearly adduced a very short time sequence between the arrival at the deceased's home by the defendant, the homicide of the deceased and the rape of Helen Duty. We have previously recognized the exceptions to the general rule prohibiting the introduction of evidence of *1160 other crimes or offenses. These exceptions were restated in Moulton v. State, Okl.Cr., 476 P.2d 366 (1970), wherein, we stated:
"... However, evidence of separate and similar offenses is admissible when it is material and proper to show (1) motive, (2) intent, (3) absence of mistake or accident, (4) identity of person charged with the commission of the crime for which an accused is put on trial, and (5) common scheme or plan embracing the two or more crimes so related to each other that proof of one tends to establish the other...."
It is asserted in the sixth assignment of error that the trial court erred in allowing the introduction of two pictures of Dovie Duty which were taken thirteen days after she was allegedly attacked by the defendant. Defendant argues that the only purpose in introducing the pictures was to arouse the passion of the jury. We need only observe that this assignment is not properly before us inasmuch as the pictures do not appear in the original record and transcript. We have previously held that it is incumbent on the defendant in seeking appeal to present sufficient record before the reviewing court in order to determine the issues raised. Pierce v. State, Okl.Cr., 495 P.2d 407 (1972).
The defendant asserts in his sixth assignment of error that the trial court erred in allowing the introduction of the axe into evidence because of the lack of connection shown between defendant and the axe. We observe that this assignment is not supported by the citations of authority. We have previously held that where this is not done and it is apparent that defendant has not been deprived of any fundamental rights, this Court will not search the books for authorities to support assertions of error in the trial court. Sandefur v. State, Okl.Cr., 461 P.2d 954 (1969).
Although this assignment is improperly before this Court, we observe that circumstantial evidence did connect the defendant with the murder weapon and that the axe was properly admitted into evidence. In Richmond v. State, Okl.Cr., 456 P.2d 897 (1969), we quoted with approval from Wharton's Criminal Evidence, 12th Edition, Vol. 2, § 675, pgs. 616-617, which states:
"`... If a question of fact as to the connection of the article sought to be admitted with the defendant or the crime is raised, the evidence should be admitted for the determination of the jury. The lack of positive identification in such a case affects the weight of the article or substance as evidence, rather than its admissibility.' [Emphasis added]."
In the final two assignments of error defendant asserts that the trial court erred in failing to sustain his Demurrer to the evidence and that the trial court erred in giving an instruction to the jury on the charge of Murder in the First Degree. In support of these assignments defendant reurges the argument and authorities set forth in assignments one, two and five. We have previously considered these assignments and found them to be without merit. We therefore find the final two assignments of error to be likewise without merit.
In conclusion, we observe that the record is free of any error which would require reversal or justify modification. The judgment and sentence is accordingly AFFIRMED.
BRETT, P.J., concurs.
BLISS, J., specially concurs.
BLISS, Judge (specially concurring):
I concur generally in this Opinion and specially in its holding that the State's evidence in the case, if believed, supports the alleged crime of Murder in the First Degree and, therefore, warranted the Magistrate in binding the defendant over for the crime, the trial court in overruling the Motion to Quash and Set Aside the Information *1161 and in submitting the issue to the jury. The evidence, if believed, sustains the State's theory that the killing of Clarence Duty by the defendant was an overt act by him in an attempt to rape the mother, Dovie Duty, and, therefore, the homicide was perpetrated by him while attempting to commit the crime of rape.
As stated in Taylor v. State, 96 Okla. Crim. 188, 251 P.2d 523 (1953), the elements of an "attempt to commit a crime" are intent, performance and some act toward consummation of the crime and failure to consummate its commission.
Further, this Court held in Dunbar v. State, 75 Okla. Crim. 275, 131 P.2d 116 (1942), as follows:
"It is also well settled that the overt act must be something more than mere preparation or planning the crime. It must be something done, some step taken beyond preparation, that directly moves toward the crime and brings the accused nearer to its commission than mere acts of preparation or of planning. It must be such act or acts as will apparently result, in the usual and natural course of events, if not hindered by extraneous causes, in the commission of the crime itself."
Under the State's theory, defendant intended to commit the crime of rape, his victim's son, Clarence Duty, stood in his way and was a barrier to his purpose, homicide eliminated him and was an overt act toward the commission of a crime, though not consummated. For this theory the State relied on its witnesses who quoted the defendant as follows: "I'm going to kill the Goddamned Son-of-a-Bitch, and then I am agonna kill, I'm agonna kill, I'm agonna rape you." Later he summarized his acts by saying he had killed Clarence and had tried to have intercourse with "grandma and couldn't."
As held in the Opinion, there was no merit in the first and second assignments of error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1494727/ | 963 S.W.2d 38 (1998)
STATE FARM LLOYDS INSURANCE CO., Petitioner,
v.
Adelfa MALDONADO and Curtis D. Robert, Respondents.
No. 96-1179.
Supreme Court of Texas.
Argued November 3, 1997.
Decided February 13, 1998.
Rehearing Overruled April 14, 1998.
Paul Dodson, Van Huseman, Alan Clifton Gordon, Corpus Christi, for Petitioner.
*39 Anthony F. Constant, Rose R. Vela, Corpus Christi, for Respondent.
SPECTOR, Justice, delivered the opinion for a unanimous Court.
In this case, we consider two issues: whether an insurance company breached its Stowers[1] duty to the insured, and whether the insured's failure to comply with the terms of an insurance policy precludes any recovery on the policy by the insured's judgment creditor. The court of appeals held that the insurance company negligently failed to settle within policy limits, and that the judgment creditor could recover on the policy. We disagree.
I.
Adelfa Maldonado worked for Curtis Robert, Sr., as a bookkeeper for nearly twenty years. In 1990, Maldonado resigned her position with Robert and went to work for the Brooks County Auditor. Shortly thereafter, Robert began to circulate stories that Maldonado was a thief and of questionable moral character. Because of Robert's statements, a district court judge passed over Maldonado for a promotion to County Auditor. There was also evidence that Robert's statements seriously damaged Maldonado's reputation in the community.
As a result, in 1991, Maldonado sued Robert for defamation. Robert was insured by State Farm under a policy covering up to $300,000 in personal injury damages[2] caused by an offense arising out of his business as a certified public accountant. State Farm, after agreeing to defend the action against Robert under a reservation of rights, hired attorney Roland Leon to represent Robert. The case was set for trial on November 25, 1991. During discovery, Leon became concerned that Maldonado's case against Robert appeared strong. In fact, at one point he told State Farm that Robert's case was "horrible," that a "high dollar verdict can be expected," and finally that, from a liability standpoint, it was the worst case he had ever seen.
In October, Maldonado made a settlement demand to State Farm of $1.3 million, open until November 15th. When State Farm did not accept the demand by the deadline,[3] Maldonado and Robert on November 15th entered into an agreement whereby Robert agreed to pay Maldonado $1 million from his personal assets in return for Maldonado's promise not to collect on any later judgment against Robert.[4] The agreement further provided that after Robert recovered his $1 million from State Farm in a bad faith lawsuit to be filed later, he and Maldonado would split evenly any remaining recovery.
The case proceeded to a bench trial. Believing that Maldonado and Robert had entered into an agreement and that Robert would not contest the claims against him, State Farm repeatedly requested to intervene in the suit as a third party. The trial court refused these requests. At the trial, Leon presented no evidence on Robert's behalf, did not cross-examine any witnesses, and did not present opening or closing arguments. Essentially, the entire trial consisted of Maldonado's witnesses' testimony. The judge rendered a $2 million verdict for Maldonado.
Maldonado, as a judgment creditor and third-party beneficiary, and Robert then brought this suit against State Farm seeking recovery for negligence and gross negligence, violations of the Insurance Code, breach of contract, and breach of the duty of good faith *40 and fair dealing. The jury found State Farm liable under each theory except gross negligence. Based on those findings, the trial court awarded Robert over $6 million and Maldonado over $1.5 million.[5]
The court of appeals affirmed in part and reversed in part. 935 S.W.2d 805. The court upheld State Farm's liability to Maldonado for breach of contract and to Robert for negligent failure to settle, and reversed and rendered any additional recovery based upon alleged Insurance Code violations or breach of the common-law duty of good faith and fair dealing.
State Farm has appealed to this Court, asserting in several "no evidence" points of error that it is not liable under the insurance policy and that it did not negligently fail to settle within policy limits. We affirm in part, reverse in part, and render judgment that Robert and Maldonado take nothing.
II.
In considering State Farm's no evidence points of error, we consider all the record evidence in the light most favorable to Robert and Maldonado, and indulge every reasonable inference deducible from the evidence in their favor. Harbin v. Seale, 461 S.W.2d 591, 592 (Tex.1970).
A. Maldonado's Claim
Initially, State Farm asserts that there is no evidence that it was liable to make payments under the insurance policy. As such, we first consider whether Maldonado may recover from State Farm on the policy.
To recover on the insurance policy as a third-party beneficiary, Maldonado must initially show that Robert, the insured, complied with the conditions precedent and terms of the policy. See State Farm County Mut. Ins. Co. v. Ollis, 768 S.W.2d 722, 723 (Tex.1989); Klein v. Century Lloyds, 154 Tex. 160, 275 S.W.2d 95, 96 (1955). State Farm contends that Robert, and therefore Maldonado, is not entitled to sue or recover for breach of contract because the defamation trial violated the "actual trial" condition of the policy. We agree.
The actual trial condition reads: "A person or organization may sue [State Farm] to recover on an agreed settlement or on a final judgment against an insured obtained after an actual trial." (emphasis ours). An "actual trial" contemplates a genuine contest of issues. See Wright v. Allstate Ins. Co., 285 S.W.2d 376, 379-80 (Tex.Civ.App.-Dallas 1955, writ ref'd n.r.e.) ("`judgment following [an] actual trial' relates to ... a contest of issues leading up to a final determination by court or jury, in contrast to a resolving of the same issues by agreement of the parties; i.e., without a contest.") (emphasis in original); see also Emscor Mfg., Inc. v. Alliance Ins. Group, 879 S.W.2d 894, 908 (Tex.App.- Houston [14th Dist.] 1994, writ denied). Although Maldonado presented evidence to a judge who later made findings of fact and conclusions of law, this evidence was uncontested. Robert did not appear at trial. His attorney did not cross-examine any witnesses or put on any of his own. Robert's attorney made no argument to the court contesting liability or damages and at one point even referred to the trial as a "hearing." In sum, there was no real contest of issues.
This is not a situation where the insured has entered into an agreed judgment or settlement as a result of the insurance company's refusal to offer the insured a defense. On the facts before us, we hold that this was not an "actual trial" as contemplated by the insurance policy. Because State Farm agreed to defend Robert under a reservation of rights and Robert failed to satisfy a condition precedent of the insurance policy, Robert cannot sue or recover on the policy.
Maldonado claims she is entitled to sue State Farm for recovery under the policy *41 as a third-party beneficiary by virtue of her final judgment against Robert. See Ollis, 768 S.W.2d at 723. However, as a third-party beneficiary, Maldonado steps into the shoes of Robert, the insured, and therefore is bound by the conditions precedent in the insurance policy. Klein, 275 S.W.2d at 96. Because Robert failed to satisfy the "actual trial" condition of the insurance policy and was therefore not entitled to sue State Farm, Maldonado is also not entitled to sue or recover on the policy as a third-party beneficiary.
We hold that because Robert did not comply with all conditions precedent to recover under the insurance policy, neither he nor Maldonado is entitled to sue or recover on the contract.
B. Robert's Claim
We next examine Robert's Stowers claim. A Stowers duty is triggered by a settlement demand when: (1) the claim against the insured is within the scope of coverage; (2) the demand is within the policy limits; and (3) the terms of the demand are such that an ordinarily prudent insurer would accept it, considering the likelihood and degree of the insured's potential exposure to an excess judgment. American Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 849 (Tex.1994). "A demand above policy limits, even though reasonable, does not trigger the Stowers duty to settle." Id. Therefore, Robert must show that Maldonado's demand of $1.3 million was somehow transformed into an unconditional offer to settle within the policy limits of $300,000.
In APIE, the insured had been covered in consecutive years under four separate insurance policies, the largest of which provided a maximum $500,000 in coverage. The plaintiff's lowest settlement demand was for $600,000. We held that "[e]ven if this demand were reasonable, it triggered no Stowers duty unless it was within the applicable policy limits." Id. at 852. Because the plaintiffs never did make a settlement demand within the $500,000 policy limits, no Stowers duty was triggered.
In this case, State Farm claims that Maldonado never made an unconditional offer to settle within the State Farm policy limits. It is undisputed that Maldonado never made a settlement demand of less than $1.3 million. She nevertheless contends that Robert's offer to pay the $1 million above the policy limits converted the $1.3 million demand into a $300,000 policy-limits demand.[6] We disagree.
Although Maldonado argues that "it was understood" that this $1.3 million settlement offer was bifurcated$300,000 from State Farm and $1 million from Robertthere is no evidence that State Farm knew, at a point when it had a reasonable amount of time to respond, that Robert had made an unconditional offer to pay the excess. As the dissenting justice at the court of appeals noted, "The fact remains that Maldonado never made a demand within the policy limits. State Farm had no duty to respond to the demand in excess of policy limits; its failure to settle in response to that demand cannot be negligence." 935 S.W.2d at 826 (Rickhoff, J., dissenting) (citing Texas Farmers Ins. Co. v. Soriano, 881 S.W.2d 312, 314 (Tex.1994) and APIE, 876 S.W.2d at 849).
We conclude that this demand was not an unconditional offer to settle within policy limits and therefore did not trigger the Stowers doctrine. As such, Maldonado's settlement demand did not impose a Stowers duty on State Farm. Without a tort duty, there can be no breach. Accordingly, Robert cannot recover from State Farm in tort.
In light of our disposition of the preceding issues, we need not consider State Farm's remaining points of error.
III.
In summary, we reverse the court of appeals' insofar as it awarded recovery to Robert *42 and Maldonado and render judgment that Robert and Maldonado take nothing. We affirm the court of appeals' judgment in all other respects.
NOTES
[1] G.A. Stowers Furniture Co. v. American Indem. Co., 15 S.W.2d 544 (Tex. Comm'n App.1929, holding approved).
[2] As defined in the policy, "personal injury" is an "injury, other than `bodily injury,' arising out of one or more of the following offenses: ... d. Oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products, or services."
[3] State Farm ultimately offered the policy limits of $300,000 on November 22nd, one week after the deadline and three days before trial. Maldonado rejected the offer.
[4] State Farm argues that our decision in State Farm Fire & Casualty Co. v. Gandy, 925 S.W.2d 696 (Tex.1996), invalidates the Robert-Maldonado agreement as against public policy. In light of our disposition of other issues, however, we decline to consider the merits of this point.
[5] The trial court apparently calculated Robert's recovery as follows: (1) Robert's actual damages of approximately $1.8 million, which represents the $2 million defamation judgment against him plus interest, minus the policy limits of $300,000; (2) the actual damages trebled; (3) plus 10% attorneys' fees.
The trial court calculated Maldonado's damages as follows: (1) actual damages of approximately $465,000, equal to the $300,000 policy limits plus interest on the judgment; (2) the actual damages trebled; (3) plus 10% attorneys' fees. See 935 S.W.2d 805, 808 nn. 1, 2.
[6] In APIE, we left open the question whether a Stowers duty is triggered "if an insured provides notice of his or her willingness to accept a reasonable demand above the policy limits, and to fund the settlement, such that the insurer's share of the settlement would remain within policy limits." 876 S.W.2d at 849 n. 13. Because State Farm did not know that Robert made an unconditional offer to pay the $1 million excess, we are not confronted with this situation, and we therefore decline to decide it here. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1115864/ | 492 So. 2d 977 (1986)
MISSISSIPPI PRINTING COMPANY, INC. and Robert H. Hardin, Jr.
v.
MARIS, WEST & BAKER, INC., a Corporation, Norma K. Higgin, Gerrit A. Maris and Norman West.
No. 55689.
Supreme Court of Mississippi.
August 6, 1986.
Arnold F. Gwin, Greenwood, for appellant.
Michael J. Malouf, Malouf & Malouf, Jackson, for appellee.
Before WALKER, C.J., and PRATHER and GRIFFIN, JJ.
GRIFFIN, Justice, for the Court:
This defamation action was instigated by Mississippi Printing Company, Inc., a Greenwood, Mississippi, corporation engaged primarily in the business of printing, against Maris, West & Baker, Inc., an advertising agency incorporated in Mississippi and located in Jackson. Also named as defendants were the president of the corporation, the executive vice president, and an employee serving as production manager.
The complaint stated that Maris, West & Baker maliciously, and with the intent to defame and damage the reputation and business of Mississippi Printing Company, wrote a letter to the Better Business Bureau in Jackson which contained libelous statements. Maris, West & Baker counterclaimed, alleging tortious interference with business relations, slander, and abuse of process.
At the conclusion of the trial, the lower court directed a verdict in favor of the three individual defendants, sustained the appellants' motion for a directed verdict on the issue of abuse of process, and allowed the issue of tortious interference with business relations to go to the jury. Although the court overruled the appellants' motion for a directed verdict on the defendants' counterclaim for slander, no jury instructions on this issue were presented to the jury.
The jury returned a verdict against Mississippi Printing Company on the libel issue, and against Maris, West & Baker on their counterclaim.
The subject of this lawsuit was a letter written by the three individual defendants named to the Better Business Bureau in Jackson, and circulated to several of Mississippi Printing Company's clients. The letter contained accusations that Mississippi Printing Company "centered around very unbusiness-like conduct", deliberately destroyed client material, was careless, and engaged in unethical conduct by contacting *978 Maris, West & Baker's clients when Mississippi Printing was not awarded a particular bid.
The truth or falsity of the allegations contained in the letter was properly submitted to the jury for its determination of the corporation's liability. However, we are of the opinion the lower court erred in directing a verdict in favor of the corporate officers and agent.
The question of whether the officers and agents of a corporation may be held personally liable when they participate in defamatory conduct has not been addressed by this Court. However, the general rule is well established that when a corporate officer directly participates in or authorizes the commission of a tort, even on behalf of the corporation, he may be held personally liable. First Mobile Home Corporation v. Little, 298 So. 2d 676 (Miss. 1974); Grapico Bottling Co. v. Ennis, 140 Miss. 502, 106 So. 97 (1925).
The potentially libelous letter was signed by the corporation's president, the executive vice president, and the production manager. Each signed in their official capacities on Maris, West & Baker stationery. It is clear that the individuals named participated directly in the publication of the letter.
It is true that the case was properly presented to the jury as to Maris, West & Baker, Inc., however we find and hold that it was error to direct a verdict in favor of the individual defendants, and that it was not harmless error under Rule 11, Miss. Sup.Ct. Rules. Therefore, the case should be retried as to the individual defendants and the corporation. Rule 11 reads as follows:
RULE 11
NO REVERSAL FOR HARMLESS ERROR
No judgment shall be reversed on the ground of misdirection to the jury, or the improper admission or exclusion of evidence, or for error as to the matter of pleading or procedure, unless it shall affirmatively appear, from the whole record, that such judgment has resulted in a miscarriage of justice. (emphasis added).
Dismissal of the individual defendants was substantive.
It is not necessary to address any other issues raised. The verdict of the jury on the counterclaim is affirmed, since no cross-appeal was taken.
REVERSED AND REMANDED.
WALKER, C.J., ROY NOBLE LEE, P.J., and DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.
HAWKINS, P.J., and ANDERSON, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1442294/ | 382 A.2d 1036 (1978)
Clarence WORRELL, Petitioner,
v.
DISTRICT UNEMPLOYMENT COMPENSATION BOARD, Respondent.
No. 12194.
District of Columbia Court of Appeals.
Submitted January 9, 1978.
Decided February 10, 1978.
Clarence Worrell pro se.
Russell L. Carter, Bill L. Smith, Robert J. Hallock, Washington, D. C., and Earl S. Vass, Jr., Richmond, Va., were on the brief for respondent.
*1037 Before KELLY, HARRIS and FERREN, Associate Judges.
FERREN, Associate Judge:
Petitioner Clarence Worrell asks this court, pursuant to its authority under D.C. Code 1977 Supp., § 46-312, to vacate a decision by the District Unemployment Compensation Board (the "Board"). The Board dismissed, as untimely, petitioner's appeal from a determination by one of the Board's Claims Deputies disqualifying him from receiving benefits for a period of five weeks. We affirm.
I.
On October 19, 1976, petitioner Worrell and his last employer, the Marriott Corp., were notified by mail that petitioner was to receive a five-week disqualification on the ground that Marriott had discharged him for misconduct. D.C.Code 1973, § 46-310(b). Within ten days of the mailing of this notice, Marriott filed an appeal of the determination on grounds not disclosed by the record. This appeal was dismissed upon Marriott's failure to appear at a hearing scheduled by the Board for December 2, 1976.[1]
On February 3, 1977, petitioner filed with the Board his own appeal of the disqualification by the Claims Deputy. At a hearing on this appeal on February 14, 1977, petitioner testified that he had filed an earlier appeal of the disqualification on one of his regular reporting days "around November or December" 1976. In a decision the next day, February 15, 1977, the Appeals Examiner entered a finding that there was no record of an earlier appeal by petitioner. The Examiner noted, further, that petitioner's first regular reporting day after October 19, 1976, was November 1, 1976. He therefore concluded that petitioner's appeal could not have been filed in any event within ten days after the Board had mailed notice of the disqualification decision, and that petitioner's appeal accordingly must be dismissed as untimely under D.C.Code 1973, § 46-311(b).[2] On May 25, 1977, the Board adopted the Appeals Examiner's decision whereupon Mr. Worrell, on June 2, 1977, petitioned for review by this court.
II.
For undisclosed reasons the employer, Marriott, filed an appeal of the Board's determination, which was dismissed on December 2, 1976. This may have confused petitioner about the necessity of filing his own timely appeal. In fact, at the hearing on his own later appeal, petitioner claimed that he originally had been told that "I won the case and that I would receive the checks. . . after my benefits ran out." However, as elaborated below, whatever confusion may have resulted from the employer's appeal cannot legally excuse petitioner's failure to note his own timely appeal.
The notice of disqualification which the Board mailed to petitioner included the following legend in capital letters:
ANY APPEAL MUST BE FILED IN WRITING WITHIN TEN (10) DAYS FROM THE DATE SHOWN ABOVE.
The "date shown above" was October 19, 1976. This legend reflects D.C.Code 1973, § 46-311(b), which provides in relevant part that the Board's determination "shall be *1038 final within 10 days after the mailing of notice thereof to the party's last known address or in the absence of such mailing, within 10 days of actual delivery of such notice." In Gaskins v. District Unemployment Compensation Board, D.C.App., 315 A.2d 567 (1974), our court held that this ten-day period for filing an appeal to prevent finality of the Board's determination (based on a Claims Deputy's decision) is jurisdictional; "the Board has no authority to extend the ten-day limitation time set forth in the Act. . . ." Id. at 568. Therefore, unless petitioner's appeal rights were saved during the ten days immediately following October 19, 1976, the Board's determination became final.
The record indicates that the employer's appeal was not dismissed until December 2, 1976. By arguing that he had filed his own appeal on one of his regular reporting days "around November or December" 1976, petitioner in effect was arguing that his appeal was timely because by virtue of the employer's appeal the Board's decision of October 19, 1976, was not "final" until at least December 2.
The Appeals Examiner concluded that "[t]he employer's appeal in no way excused claimant from filing an appeal within the required [ten day] time period." The Examiner may or may not be correct. Gaskins v. District Unemployment Compensation Board, supra, does not resolve the question whether an employer's timely appeal tolls the ten-day period within which the employee must note his or her own appeal under D.C.Code 1973, § 46-311(b). We do not, however, have to resolve that question (which has not been briefed), for the Appeals Examiner expressly found that petitioner, despite his testimony to the contrary, did not file an appeal with the Board until February 3, 1977, long after any possible tolling under his theory had expired. We cannot say, on the record, that this finding, adopted by the Board, was not supported by evidence. D.C.Code 1973, § 46-311(f). See Hill v. District Unemployment Compensation Board, D.C.App., 302 A.2d 226, 228 (1973). Accordingly, the Board's determination must be upheld.
Affirmed.
NOTES
[1] According to the Appeals Examiner at the hearing on petitioner's appeal: "Okay, that is in the record that there was an employer appeal filed and a hearing scheduled on the employer's appeal. Rescheduled, I guess, for December 2nd and that the employer did not come. The claimant did come on that day and the employer's claim was dismissed. . . ."
[2] D.C.Code 1973, § 46-311(b), provides in part:
The claimant and other parties to the proceedings shall be promptly notified of the initial determination or any amended determination and the reasons therefor. Benefits shall be denied or, if the claimant is otherwise eligible, paid promptly in accordance with such initial determination except as hereinafter otherwise provided. The Board shall promptly notify the claimant and any party to the proceeding of its determination, and such determination shall be final within 10 days after the mailing of notice thereof to the party's last known address or in the absence of such mailing, within 10 days of actual delivery of such notice. . . . [Emphasis added.] | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1913870/ | 981 A.2d 925 (2009)
COM.
v.
LAMBERT.
No. 1695 WDA 2008.
Superior Court of Pennsylvania.
July 20, 2009.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610139/ | 485 P.2d 434 (1971)
STATE of Oregon, Respondent,
v.
Joseph Albert O'BRIEN, Appellant.
Court of Appeals of Oregon, Department 2.
Argued and Submitted April 20, 1971.
Decided May 28, 1971.
Rehearing Denied June 29, 1971.
Review Granted September 21, 1971.
Bruce E. Smith, Eugene, argued the cause and filed the briefs for appellant.
Ted E. Barbera, 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 FORT and THORNTON, JJ.
*435 FORT, Judge.
Defendant was convicted by the court sitting without a jury of illegal possession of narcotics. ORS 474.020. He contends that (1) the court erred in allowing hearsay testimony and in denying a motion to strike the testimony; (2) the court erred in allowing testimony of another crime; and (3) the court erred in not allowing his motion for judgment of acquittal.
There was evidence establishing that one evening Russel Edmonds went to the New World Coffee House in Eugene where he encountered the defendant, Arthur Koivisto and Judy Freeman. After a few minutes a fifth person, Joe Lyda, joined them at the table.
At approximately 11 p.m., all left together in Miss Freeman's car. Upon reaching the corner of 14th and High Streets in Eugene, they stopped. At this time all of the people in the car knew that the purpose of the stop was to purchase marihuana.
Lyda got out of the car and returned in about 10 minutes with a paper sack out of which he took a half-opened cigarette package which contained 12 handrolled cigarettes. Lyda sold five of the cigarettes to Koivisto for $5 and six of the cigarettes to Edmonds for $6. The cigarettes sold to Edmonds were identified at the trial as marihuana. Edmonds testified that after removing the package of marihuana cigarettes from it Lyda passed the paper sack around, that defendant entered into the conversation in the car regarding the marihuana, and further that Lyda then stated the paper sack contained twigs and seeds from his last shipment of marihuana and offered to sell it for $1. The defendant, immediately after looking into the sack, purchased it from Lyda for $1. Neither Edmonds nor Freeman, the state's witnesses, saw the contents of the sack, and it was not produced at trial. Edmonds also testified that at a later date the defendant told him he had taken "the material" in the paper sack and with a knife chopped it up finer, put it into a matchbox and sold it for $5.
The principal assignments of error relate to the testimony of Joe Lyda, who the record shows was "currently under indictment and fleeing somewhere." Defendant contends that any statements of Lyda made in the car in the presence and within the hearing of the defendant were inadmissible as hearsay. The court overruled this.
Edmonds testified:
"Mr. Lyda mentioned the fact that the sack contained some twigs of stems and seeds from which the shipment, the last purchase of his marijuana that he had bought to make the cigarettes, was contained in the paper sack, and that it was for sale for a dollar, and he said that there was approximately a match box full of twigs and stubble in the sack.",
and later:
"Q And it is your recollection of Mr. Lyda's statement that the material in the sack were the twig stems and seeds from the marijuana out of which the cigarettes were made?
"A Yes, sir."
We note no objection was made on the ground that Lyda's statement did not constitute the best evidence of what the sack contained.
The statement made by Lyda was relevant as a cirmumstance tending, together with those described above, to establish defendant's belief that it was marihuana and his intent to buy it when, simultaneously with his examining what was in it, he paid $1 for the paper sack and its contents. This was admissible as an exception to the hearsay rule under ORS 41.900(3).[1]*436 We note that no motion was made to establish or limit the purpose for which the statement was offered. See State v. Sieckmann, Or. App., 91 Adv.Sh. 281, 286, 474 P.2d 367 (1970). The assignment is without merit.
The next contention is that it was error to allow the testimony of Edmonds that defendant told him that he cut up the "material" in the paper sack a short time later and sold it for $5.
We have discussed the rules relating to evidence of other offenses in several recent cases. State v. Zimmerlee, Or. App., 92 Adv.Sh. 569, 483 P.2d 111 (1971); State v. Hamilton, Or. App., 92 Adv.Sh. 575, 483 P.2d 90 (1971); State v. Tucker, Or. App., 92 Adv.Sh. 593, 483 P.2d 825 (1971). In accordance with those cases we hold, in the language of State v. Long, 195 Or. 81, 116, 244 P.2d 1033, 1048 (1952), such testimony was admissible "to show motive, design or purpose for the crime charged."
The final error claimed is the failure to grant a judgment of acquittal. Defendant contends the state failed to prove possession of a usable quantity of marihuana. There was evidence one marihuana cigarette was worth $1. One cigarette is usable. There is testimony that defendant not only paid $1 for the contents of the paper sack, but after cutting it up sold it for $5. Such evidence amply supports a finding that the quantity he possessed was usable. We therefore do not reach the question whether possession of any of a narcotic drug as distinguished from a usable quantity constitutes a violation of the statute. We think the evidence amply supports the judgment, and accordingly that the motion was correctly denied.
The judgment is affirmed.
THORNTON, Judge (dissenting).
Defendant has cited two assignments of error, each of which presents a sufficient ground for reversal. First, at trial, and over objection on the grounds of hearsay, Russel Edmonds was permitted to testify to out-of-court statements allegedly made by Joe Lyda. These statements were to the effect that the paper bag allegedly sold to the defendant contained "* * * some twigs of stems and seeds from * * * the * * * last purchase of his marijuana * * *." The admission into evidence of the testimony was prejudical error and grounds for reversal.
State v. Christensen, Or. App., 91 Adv. Sh. 269, 270-271, 474 P.2d 782 (1970), presented a situation almost identical with that of the case at bar. In that case the hearsay in question concerned testimony by an undercover policeman as to what the declarant Randall Kauffman had said. Kauffman had driven with the policeman to meet defendant. At trial the officer testified:
"* * * * *
"`THE WITNESS: Randy told me to pull up beside this, and he pointed up to he said, "Pull up there. I can get some marijuana here."'
Defendant objected to this testimony as hearsay and assigns as error the court's refusal to exclude it.
"The state contends (1) that the statement is not hearsay because it was offered to show circumstantially the state of mind of the declarant, and (2) if it is hearsay it is admissible under the state-of-mind exception to the hearsay rule. These contentions are erroneous. This statement constitutes hearsay. It is an out-of-court assertion being used in court to prove the truth of the matter asserted. See State v. Randolph, 251 Or. 45, 444 P.2d 545 (1968); State v. Crawley, 242 Or. 601, 609, 410 P.2d 1012 (1966); State v. Kendrick, 239 Or. 512, 515, 398 P.2d 471 (1965). The declarant Kauffman's state of mind is not in issue here. The mere fact that this statement incidentally indicated Kauffman's intention or desire to buy marihuana does not automatically make the statement admissible. The significance of this statement is that it would allow the jury to infer substantively not only that Kauffman did in fact *437 buy marihuana from defendant, but also that he had done so before, suggesting thereby that defendant was a `seller.' The hearsay rule was designed to preclude this type of testimony."
Likewise, Lyda's statement would allow the jury to infer substantively not only that there was marihuana in the bag, but also that the defendant was a "buyer" of marihuana.
The only distinction between Christensen and the case at bar is that the defendant was not present when the witness made his statement in Christensen and the defendant was present when Lyda allegedly spoke in the case at bar. Statements made by others are no less hearsay when made in the presence of the defendant, and are inadmissible unless coming within a recognized exception to the hearsay rule, such as an accusatory statement. People v. McKnight, 87 Cal. App. 2d 89, 196 P.2d 104 (1948). ORS 41.900 states that:
"Evidence may be given of the following facts:
"* * *
"(3) A declaration or act of another, in the presence and within the observation of a party, and his conduct in relation thereto.
"* * *."
In Swain v. Oregon Motor Stages, 160 Or. 1, 82 P.2d 1084, 1085 (1938), this statute (then § 9-226, Oregon Code 1930) was interpreted to mean that a declarant's statements made in the presence of the defendant were admissible if the defendant possessed an opportunity and a motive to deny the statement if it were deemed to be incorrect. See also Brown v. Bryant, 244 Or. 321, 324, 417 P.2d 1002 (1966); Patty v. Salem Flouring Mills Co., 53 Or. 350, 353, 96 P. 1106, 98 P. 521, 100 P. 298 (1909).
The statement allegedly made by Lyda would not be one calling for denial by defendant. The "in presence" exception to the hearsay rule authorized by ORS 41.900 (3) would not apply in this case and Christensen should control the question of the statement's admissibility.
The state also contends that the evidence is admissible under ORS 41.900(7) and ORS 41.870. But as defendant points out in his brief, ORS 41.870, which reads:
"Where the declaration, act or omission forms part of a transaction which is itself the fact in dispute, or evidence of that fact, such declaration, act or omission is evidence as part of the transaction * * *,"
is merely
"* * * a legislative definition of `res gestae.' Humphrey v. Chilcat Canning Co., 20 Or. 209, 213, 25 P. 389 (1890). `Res gestae' is an exception to the hearsay rule relating to the admissibility of spontaneous declarations which are considered to have a special reliability. The basis for the rule is stated in 29 Am.Jur.2d Evidence section 708:
"`The basis for the admission of declarations under the res gestae rule is the well-founded belief that statements made instinctively at the time of a specific transaction or event, without the opportunity for formulation of statement favorable to one's own cause, are likely to cast important light upon the matter in issue; as to such statements, the law creates a presumption of their truthfulness.' Accord, Raymond v. Shell Oil Co., 165 Or. 11, 22, 103 P.2d 745 (1940); State v. Hutchinson [Hutchison], 222 Or. 533, 537, 353 P.2d 1047 (1960).
"* * *."
The statements of Lyda were not the type of statement contemplated by the "res gestae" exception. They were the statements of a salesman intent on making a sale and as such would not carry a presumption that they were spontaneous or uncontrived. To the contrary, they would be self-serving.
The majority opinion has taken the position that the testimony by Edmonds as to what Lyda said was admissible not as hearsay, but "* * * as a circumstance *438 tending, together with those described above, to establish defendant's belief that it was marihuana and his intent to buy it when, simultaneously with his examining what was in it, he paid $1 for the paper sack and its contents * * *." (Emphasis supplied.) But, "[d]eclarations tending to show the state of mind of another are hearsay and are inadmissible," 31A C.J.S. Evidence § 255, pp. 668, 670. In Herrmann v. Newark Morning Ledger Co., 48 N.J. Super. 420, 449, 138 A.2d 61, 77, adhered to 49 N.J. Super. 551, 140 A.2d 529 (1958), the court said:
"* * * Also incompetent was testimony by plaintiff that an anonymous caller on the phone told his wife `about that husband of yours, a Communist.' The court denied a motion to strike it. This was hearsay not within the exception. It did not relate to the declarant's (wife's) state of mind concerning the effect of the article * * *."
Likewise, here the statement by Lyda does not relate to the defendant's state of mind or intent but is only a statement of what Lyda alleged was in the bag. As such the statement would be inadmissible because it would be incompetent to prove defendant's state of mind or intent.
Prejudice by admission of the objected to hearsay is evident by a reading of the record.
It cannot be assumed that the trial judge considered the testimony of Lyda for any purpose other than that for which it was submitted by the state, namely, to prove that there was marihuana in the bag.
The statement by Lyda was the only direct evidence that there was marihuana in the bag. Because it was accepted by the trial judge for that purpose, I cannot find that the erroneous admission of the hearsay had "* * * `little, if any, likelihood of having changed the result of the trial', * * *." State v. McLean, 255 Or. 464, 468 P.2d 521 (1970). I find therefore that the error in admitting the hearsay was prejudicial and grounds for reversal.
Defendant's final assignment of error contended that the court erred in failing to grant a judgment of acquittal on the grounds that the state had failed to prove possession of a usable quantity of marihuana.
At trial, the state produced neither the paper bag purchased by the defendant nor the marihuana supposedly contained in the bag. The two witnesses produced by the state who were present at the time that the defendant allegedly purchased the bag both testified that they never saw what was in the bag. Having failed to produce the alleged contraband or any person who saw it, the state attempted to prove that the defendant had possessed marihuana by three other methods.
First, they sought to introduce the statement allegedly made by Joe Lyda for the purpose of proving the truth of that statement. As discussed above, there is no conceivable exception to the hearsay rule that would permit the introduction of that statement for that purpose.
Second, the state offered the testimony of Russel Edmonds, the informer, who testified that Joe Lyda took a cigarette package out of the bag defendant is alleged to have purchased. The evidence showed that the cigarette package contained 12 handrolled marihuana cigarettes. The evidence also showed that 11 were sold to people other than the defendant and that the twelfth was kept by Lyda. Edmonds testified that the cigarettes were loosely packed. By this statement the state sought to imply that some of the marihuana in the cigarette had fallen into the bag. However, there was no evidence produced to the effect that any of the marihuana had fallen into the bag.
Finally, Edmonds testified that the defendant told him that he had taken the "material" in the bag and chopped it up and sold it for five dollars. At no time did the witness Edmonds explain what was meant by the word "material," save the hearsay statements of Lyda.
*439 In conclusion then the state "proved" its case by (1) not producing the marihuana defendant was alleged to have possessed; (2) not producing the bag in which it was allegedly contained; (3) not producing a single witness who could testify that he had seen what was in the bag; (4) not producing a single witness who could testify that any marihuana fell into the bag; (5) producing a hearsay statement which was made at a time when the declarant was trying to make a sale and which would be inadmissible under any hearsay exception, to prove the truth of the statement; and (6) offering defendant's admission that he had cut up and sold the "material."
In State v. Dennis, 177 Or. 73, 77, 159 P.2d 838, 840, 161 P.2d 670 (1945), the court set down the classic statement of the sufficiency of circumstantial evidence:
"* * * The fact that a crime has been committed (the corpus delicti), and that it was done by the defendant, may be lawfully established by circumstantial evidence alone * * *. The evidence upon which the State relies for conviction must not merely coincide with, render probable, and be consistent with, the guilt of the accused, but it must be inconsistent with any reasonable theory of his innocence and incapable of explanation upon any other rational hypothesis than that of guilt * * *."
More recently, in State v. Christenson, Or. App., 92 Adv.Sh. 603, 606, 483 P.2d 84, 86, 92 Adv.Sh. 899, 484 P.2d 853 (1971), this court stated that:
"* * * The jury is entrusted with the responsibility of deciding whether every element [of a crime] has been proved beyond a reasonable doubt, and it is entitled to draw all reasonable inferences capable of being drawn from the circumstantial evidence in reaching that decision * * *. Nevertheless, it is the duty of the court, when proper challenge has been made, to review the evidence and determine
"`"* * * whether the inferences that can be drawn are sufficiently reasonable * * *."'"
The admissible evidence produced by the state clearly would not be the basis for any reasonable inference that marihuana was in the bag sold to defendant. The state having failed to produce legal evidence of possession of a narcotic drug, the trial court erred when it failed to grant defendant's motion for acquittal. The judgment should have been reversed.
NOTES
[1] ORS 41.900:
"Evidence may be given of the following facts:
"* * *
"(3) A declaration or act of another, in the presence and within the observation of a party, and his conduct in relation thereto.
"* * *." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610149/ | 15 Ariz. App. 42 (1971)
485 P.2d 866
FARMERS INSURANCE EXCHANGE, Appellant,
v.
Lysle E. SMITH and Amy Lee Smith, husband and wife, Appellees.
No. 2 CA-CIV 913.
Court of Appeals of Arizona, Division 2.
June 15, 1971.
Rehearing Denied July 14, 1971.
Review Denied September 28, 1971.
*43 Chandler Tullar, Udall & Richmond by D. Burr Udall, Tucson, for appellant.
Russo, Cox & Dickerson, P.C. by Vernon F. Dickerson, Tucson, for appellees.
KRUCKER, Chief Judge.
This appeal challenges the correctness of a declaratory judgment in favor of the appellees as to insurance coverage under a policy issued to them by the appellant. The parties shall hereinafter be referred to as the Smiths and Farmers.
The Smiths were injured in an automobile accident occurring in Pima County, Arizona, on April 21, 1968, when their vehicle collided with one driven by an uninsured motorist. At the time of the accident, the Smiths had an automobile policy issued by Farmers which provided uninsured motorist coverage and described certain vehicles.
At the time they purchased the policy in November, 1966, the Smiths owned two vehicles which were covered under the policy: a 1961 Rambler and a 1959 Volkswagen. On December 23, 1967, they purchased a 1964 Buick Skylark and requested their insurance agent to transfer the insurance coverage from the Volkswagen to the Buick. The uninsured motorist coverage was added at this time. The Volkswagen was kept at the Smiths' home and they maintained title to it. They had always been its registered owners and were such at the time of the accident in question. The Volkswagen was properly licensed but was not driven after December 23, 1967, until the day of the accident and at no time prior to the date of the accident had the Smiths requested coverage for the Volkswagen.
During the four months that the Volkswagen remained in the Smiths' yard, it developed a flat tire, a dead battery and a broken left-front headlight. On April 21, 1968, Mr. Smith spent two to three hours working on the car, repaired the tire and activated the battery.
After December 23, 1967, the Smiths attempted, but unsuccessfully, to sell the Volkswagen and then decided to sell the Rambler. On April 20, 1968, they orally agreed to sell the Rambler to Miss Nancy Luce. Although the Smiths considered the Rambler "sold" to Miss Luce, the sale in fact was to be effected on Monday, April 22nd. The Smiths did not thereafter drive the Rambler.
On Sunday, April 21, the day of the accident in question, Mr. Smith signed the certificate of title and left it with Mrs. Smith to co-sign and get notarized so that it could be turned over to Miss Luce on Monday when she paid the purchase price. They intended to call their insurance agent on Monday to change the policy coverage on the Rambler to the Volkswagen. Since Mr. Smith intended to use the Volkswagen on Monday to drive to work, he made the above-described repairs and took Mrs. Smith out for a ride in the Volkswagen to try it out. During this ride, the subject accident occurred. Due to the seriousness of their injuries, the Smiths were hospitalized and unable to transact any business for a period of time. Miss Luce acquired the Rambler on April 30, 1968, and the insurance on it was not cancelled until about a month later.
The sole question on appeal is whether the Volkswagen was a "newly acquired automobile" within the purview of the insurance *44 policy, which in its pertinent part reads as follows:
"Newly Acquired Automobile means an automobile, ownership of which is acquired by the named insured, (a) if it replaces the described automobile and the named insured notifies the Company within thirty days following the date of such acquisition or within the policy term then current, whichever is the longer period of time, or (b) if it is an additional automobile and the Company insures all automobiles owned by the named insured on the date of such acquisition and the named insured notifies the Company within 30 days thereafter; but the insurance with respect to the newly acquired automobile does not apply to any loss against which the named insured has other collectible insurance. The named insured shall pay any additional premium required."
The question presented here is one of first impression in this State, but a number of other jurisdictions have construed a like policy provision in varying factual contexts. With only two exceptions, every court which has considered this provision has held that it is not ambiguous and that in order to be "newly acquired" within its plain meaning, an automobile must have been acquired after the commencement of the policy period and must replace the automobile described in the policy. See, Lynam v. Employers Liability Assurance Corp., 218 F. Supp. 383 (D.Del. 1963), aff'd 331 F.2d 757 (3d Cir.1964); Yenowine v. State Farm Mutual Automobile Ins. Co., 342 F.2d 957 (6th Cir.1965), cert. denied, 382 U.S. 830, 86 S. Ct. 68, 15 L. Ed. 2d 74 (1965); Brown v. State Farm Mutual Automobile Ins. Co., 306 S.W.2d 836 (Ky.App. 1957); Country Mutual Ins. Co. v. Murray, 97 Ill. App. 2d 61, 239 N.E.2d 498 (1968); Adams v. Bartel, 129 N.W.2d 755 (N.D. 1964); Howe v. Crumley, Jones & Crumley Co., 44 Ohio Law. Abs. 115, 57 N.E.2d 415 (Ohio App. 1944); State Farm Mutual Automobile Ins. Co. v. Shaffer, 250 N.C. 45, 108 S.E.2d 49 (1959); Utilities Ins. Co. v. Wilson, 207 Okl. 574, 251 P.2d 175 (1952); Coleman v. Atlantic National Ins. Co., 166 So. 2d 620 (Fla.App. 1964); Marquez v. Dairyland Mutual Ins. Co., 78 N.M. 269, 430 P.2d 766 (1967); Dike v. American Family Mutual Ins. Co., 284 Minn. 412, 170 N.W.2d 563 (1969);[1] Mahaffey v. State Farm Mutual Automobile Ins. Co., 175 So. 2d 905 (La. App. 1965). See also, 12 Couch on Insurance 2d § 45:193.
The only two exceptions to that rule have been National Indemnity Co. v. Giampapa, 65 Wash.2d 627, 399 P.2d 81 (1965) and Boston Ins. Co. v. Smith, 149 So. 2d 68 (Fla.App. 1963). In the Washington case, a six to three decision, the majority held that the policy provision was ambiguous and should therefore be construed most favorably to protect the insured. The dissenters vigorously protested that the majority's opinion was inconsistent both with the authorities and with the clear meaning of the words of the policy. In the Florida case, a two to one decision, the majority also held that the provision was ambiguous and should be construed in favor of coverage. However, the Coleman case, supra, decided by another district of the same Florida court, in a later case unanimously applied the contrary majority rule. Therefore, the State of Washington may be categorized as standing alone.
The Smiths argue, however, that since the Volkswagen was not operable, the majority rule does not apply. The texts do not agree with the Smiths' position. 7 Appleman, Insurance Law and Practice § 4293 at 92; 12 Couch, supra. We approve *45 the following language in Mahaffey v. State Farm Mutual Automobile Ins. Co., supra:
"An automobile, although in need of a new motor, is still an automobile, as this term is ordinarily understood. Frensley did not acquire an automobile. He only put a new motor in an old automobile he already owned.
Furthermore, we think this construction is consistent with the intention of the contracting parties. The obvious purpose of the provision regarding `newly acquired automobiles' is to provide automatic coverage, without even the necessity of notice to the insurer, for an automobile acquired by the named insured during the policy period to replace a vehicle covered by the policy. But this provision was not intended to cover another automobile owned by the insured at the time the policy issued and used to replace the described vehicle. To hold otherwise, in a situation like the present, would permit an assured with a number of vehicles, some in operating condition and some in need of repair, to put them in and out of service, contending that all are covered by the policies, when in fact no premiums are being paid for some of them. This may be possible under a fleet policy, but not under the separate policies." 175 So. 2d at 909.
The Smiths did not acquire the Volkswagen after making the contract of insurance or during the policy period. We hold, therefore, as do the majority of jurisdictions, that since the Volkswagen was acquired prior to the commencement of the policy period, it did not qualify as a "newly acquired automobile" and there was no insurance coverage at the time of the subject accident. The trial court erred in deciding this coverage question and therefore the judgment is reversed.
HATHAWAY and HOWARD, JJ., concur.
NOTES
[1] The Smiths have cited to us a later Minnesota decision, St. Paul Fire and Marine Ins. Co. v. Nyquist, 286 Minn. 157, 175 N.W.2d 494 (1970), in support of their position. This later case, however, is factually different in that the trial court finding that ownership was not acquired before the policy went into effect was sustained on appeal. The St. Paul Fire and Marine case has been limited to its facts by Fitch v. Bye, 288 Minn. 344, 180 N.W.2d 869 (1970). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876438/ | 247 S.W.3d 600 (2008)
John NAUNHEIM, Jr., Plaintiff/Appellant,
v.
BARNES JEWISH HOSPITAL, Defendant/Respondent.
No. ED 89343.
Missouri Court of Appeals, Eastern District, Division One.
March 18, 2008.
Mark Belz, Belz & Hearne LLC, Michael D. Quinlan, Quinlan Law Firm PC, St. Louis, MO, for appellant.
*601 Peter J. Krane, Williams Venker & Sanders LLC, Lisa A. Larkin, St. Louis, MO, for respondent.
Before KATHIANNE KNAUP CRANE, P.J., ROBERT G. DOWD, JR., J., and KENNETH M. ROMINES, J.
ORDER
PER CURIAM.
This is an appeal from a judgment entered on a jury verdict in defendant's favor on plaintiffs claims for assault and battery and a judgment entered on a directed verdict in defendant's favor on plaintiffs claim for false imprisonment. The evidence in support of the jury verdict is not insufficient. No error of law appears. `An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum opinion, for their information only, setting forth the facts and reasons for this order.
We affirm the judgment pursuant to Rule 84.16(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3096645/ | Fourth Court of Appeals
San Antonio, Texas
July 24, 2014
No. 04-13-00519-CV
Robert SAMANIEGO,
Appellant
v.
Mary SAMANIEGO,
Appellee
From the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 12-0784-CV
Honorable W.C. Kirkendall, Judge Presiding
ORDER
The Appellant’s Motion for Objections is DENIED.
_________________________________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 24th day of July, 2014.
___________________________________
Keith E. Hottle
Clerk of Court | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2899481/ | NO. 07-08-0377-CR
NO. 07-08-0378-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
APRIL 15, 2009
______________________________
PETER CAUDILLO, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 64
TH
DISTRICT COURT OF HALE COUNTY;
NOS. A12823-9710 AND A12824-9710; HON. ED SELF, PRESIDING
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Peter Caudillo,
pro se
, filed a notice of appeal of revocations of community supervision. Appellant was placed on community supervision after being convicted of manufacture or delivery of a controlled substance in penalty group one. Following revocation, the trial court sentenced appellant to two years incarceration in the State Jail Division of the Texas Department of Criminal Justice in each cause and assessed a $10,000 fine in cause number 07-08-0378-CR. We dismiss these appeals for want of prosecution.
After appellant filed his notice of appeal, both the clerk and reporter filed motions for extension of time to file the record indicating that appellant had neither paid or made arrangements to pay for preparation of the records nor had designated the items to be included in the records in these causes. We granted the clerk and reporter extensions of 30 days. However, upon reaching the extended deadlines, we again received motions for extension from both the clerk and reporter which indicated that appellant had still not paid or made arrangements to pay for the record nor had designated the items to be included in the records. We again granted the clerk and reporter extensions of 30 days. In addition, by letters dated January 28, 2009 and January 30, 2009, this Court informed appellant of his failure to comply with the requirements of Texas Rule of Appellate Procedure 35.3 and gave him until March 3, 2009 to ensure that the records were filed with this Court or to file a certification from the clerk and reporter that appellant had complied with the rule.
See
Tex. R. App. P.
35.3(a)(2), (b)(2), (3). Appellant was also notified, by these letters, that a failure to comply with the rule could result in the appellate court deciding those issues that do not require a reporter’s record,
see
Tex. R. App. P.
37.3(c), or dismissal of the appeals for want of prosecution,
see
Tex. R. App. P.
37.3(b). To date, appellant has not responded to our letters nor have we received any indication from the clerk or reporter that appellant has taken appropriate action to comply with the requisites of the rule. In fact, on March 4, 2009, this Court received a third request for extension of time to file the clerk’s record that again indicates that appellant has not paid or made arrangements to pay for preparation of the clerk’s record.
Because no clerk’s record has been filed in these appeals due to the fault of appellant and after this Court has afforded appellant reasonable opportunity to comply with the requisites, we now dismiss these appeals for want of prosecution.
See
Tex. R. App. P.
37.3(b).
Mackey K. Hancock
Justice
Do not publish. | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/8326484/ | Lauriat, Peter M., J.
This action arises out of a failed business relationship between plaintiff Joel M. Albrizio (“Albrizio”) and defendants John P. Puccio (“Puccio”) and Celestino A. DiGiovanni (“DiGiovanni”) (collectively, “the defendants”) with respect to the governance of Adlife Marketing and Communications Co., Inc. (“Adlife”), a company in which the three once held equal shares. Now before the court is the defendants’ motion to dismiss Albrizio’s complaint, pursuant to Mass.R.Civ.P. 12(b)(6), for failure to state a claim. For the following reasons, the defendants’ motion is allowed.
BACKGROUND
The court takes as true the following facts set forth in the plaintiffs’ complaint. See Marshall v. Stratus Pharm., Inc., 51 Mass.App.Ct. 667, 670-71 (2001). Adlife creates and prints advertising flyers for retail sales businesses to be distributed through newspapers and other print outlets. In September 1994, Albrizio, who had owned a similar business, agreed to purchase a 33.3% share of Adlife from Puccio and DiGiovanni for $200,000, payable over two years in the form of a tender back of Albrizio’s earned bonuses. The parties entered into a series of agreements, including a Corporate Control Agreement (the “Agreement”) dated September 7, 1994, an undated Covenant Not To Compete, and an agreement related to the disposition of corporate shares dated September 7, 1994. Albrizio, Puccio and DiGiovanni signed each instrument in their individual capacities.
The Agreement provides that Puccio, DiGiovanni and Albrizio each own one third stock in Adlife and Advision Corporation (“Advision”), and are directors and officers of the companies.1 It states, by way of introduction, that:
WHEREAS, the Shareholders, being the owners of all of the authorized, issued and outstanding stock of the Corporations, desire to set forth the agreement which they have made among themselves concerning the operation, ownership, and control of the Corporations’ business.
The Agreement contains an arbitration provision which reads:
If any controversy or claim arising out of this Agreement cannot be settled by the Shareholders, it shall be settled by Arbitration in accordance with the rules of the American Arbitration Association then in effect. . .
The non-competition agreement was amended by an agreement dated January 16, 2006, which provided that Albrizio “may pursue clients for radio and television advertising outside of his employment with and ownership interest in [Adlife].”
Albrizio asserts that, since 2001, Puccio and DiG-iovanni have frozen him out of “the governance and operational decision making” of Adlife, resulting in lost clients and profit. In January 2010, Puccio “gave his voting interest in his 33% in Adlife” to DiGiovanni, reducing Albrizio to a minority shareholder. In addition, the complaint claims that Puccio and DiGiovanni have made “disguised dividends” to themselves by employing their children in jobs for which they are not qualified at excessive salaries and benefits, and by paying excessive premiums for their own life insurance and automobile allowances. Albrizio asserts that, consequently, Adlife became under-capitalized and had to borrow monies. He estimates that, over fifteen years, these “disguised dividends” and “unnecessary borrowings” exceeded $3,000,000. Albrizio claims that, as a result of the defendants’ conduct, Adlife has suffered a considerable decline in its net worth and stock value. He also argues that he accounts for 60% of all revenues but receives only 33.3% of Adlife’s profits, and therefore has not been compensated for his share of sales and commissions.
*299Albrizio filed this action on July 16, 2010. He asserts on behalf of both himself and Adlife a claim for breach of fiduciary duty/ disguised dividend (Count I); on behalf of only himself he asserts claims for breach of fiduciary duty/freeze out in a close corporation (Count II), breach of contract (Count III), quantum meruit (Count IV), and unjust enrichment (Count VII). He also seeks declaratory judgments to the effect that the non-competition agreement is unenforceable and that the amendment to that agreement must be extended to include email, internet and all social media (Counts v. and VI). He seeks $5,000,000 in damages.2
DISCUSSION
In order to withstand a motion to dismiss, a plaintiffs complaint must contain “allegations plausibly suggesting (not merely consistent with) an entitlement to relief, in order to reflect [a] threshold requirement . . . that the plain statement possess enough heft to sho[w] that the pleader is entitled to relief.” Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1966 (2007) (internal quotations omitted). While a complaint need not set forth detailed factual allegations, the plaintiff is required to present more than labels and conclusions, and must raise a right to relief “above the speculative level . . . [based] on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. See also Harvard Crimson, Inc. v. President & Fellows of Harvard Coll., 445 Mass. 745, 749 (2006).
The defendants first argue that the arbitration provision of the Agreement compels the plaintiffs to arbitrate this case. They contend that all of Albrizio’s claims arise out of the Agreement, the purpose of which was to address the “operation, ownership and control” of Adlife. The plaintiffs’ response is twofold. They first claim that Adlife did not sign the Agreement and is therefore not subject to its arbitration provision. They also argue that the present controversy does not arise from a specific term of the Agreement, and that arbitration would be too costly. The court is not persuaded.
Under G.L.c. 251, §1 “a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties shall be valid, enforceable and irrevocable . . .” “(W]here a contract has an arbitration clause that is ‘broad’ in its reach, there is a rebuttable presumption that a contract dispute is covered by the clause, and doubts whether a particular dispute comes within the scope of the clause should be resolved in favor of arbitration.” Warfield v. Beth Israel Deaconess Medical Center, 454 Mass. 390, 396 (2009); see also Drywall Sys., Inc. v. ZVI Constr. Co., 435 Mass. 664, 666-67 (2002). The phrase “arising out of’ constitutes broad language that invokes the presumption in favor of arbitration. Warfield, 454 Mass. at 396-97.
The court concludes that the claims set forth in Counts II, III, v. and VI all arise out of the “operation, ownership and control” of Adlife’s business. Count II, for breach of fiduciary duty, alleges a “freeze-out” where Albrizio claims he “has not been fully notified of corporate activities and has been excluded from participation in corporate affairs.” Count III, for breach of contract, alleges that he has not been compensated for sales and commissions for over three years. Counts v. requests a declaratory judgment that the non-competition agreement be declared unenforceable. None of these claims can be taken outside the operation and control of the corporation, which is clearly governed by the arbitration provision. As to Count VI, which seeks a declaration that the January 16, 2006, amendment to the non-competition agreement includes electronic media, the agreement itself provides that any controversy “arising out of this Agreement... shall be settled by arbitration ...” Given the strong public policy favoring arbitration, see Home Gas Corp. of Mass., Inc. v. Walter’s of Hadley, Inc., 403 Mass. 772, 774 (1989), the court concludes that the arbitration provision controls. Counts II, III, v. and VI must therefore be dismissed.
As to Counts IV and VII, for quantum meruit and unjust enrichment, Albrizio has asserted both tort and breach of contract claims which, if the defendants are held liable, will adequately compensate him for any losses. See, e.g., Fox v. F&J Gattozzi Corp., 41 Mass.App.Ct. 581, 589 (1996); see also MCI Worldcom Communications v. Department of Telecommunications, 442 Mass. 103, 116 (2004). Therefore Counts IV and VII must be dismissed.
The issue is somewhat different as to Count I, where Adlife is not a signatoiy to the Agreement and is thus not subject to the arbitration provision. The defendants contend that Count I is a derivative action that must be dismissed because the plaintiffs made no demand. See, e.g., S. Solomont & Sons Trust, Inc. v. New England Theatres Operating Corp., 326 Mass. 99, 113 (1950); Halprin v. Babbitt, 303 F.2d 138, 141 (1st Cir. 1962) (applying Massachusetts law). The plaintiffs argue that any demand would have been futile and that this requirement is therefore excused. See, e.g., Harhen v. Brown, 431 Mass. 838, 844 (2000). This argument is without merit.
If the only injuiy asserted is a diminution in the corporation’s worth or other financial injury to the corporation, a shareholder may not bring a direct action. In such circumstances, the corporation is the injured party with the right to sue. Hurley v. Federal Deposit Ins. Corp., 719 F.Sup. 27, 30 (D.Mass. 1989). The essence of Count I is that the defendants breached their fiduciary duly by paying family members excessive salaries and benefits and, as a result, needed to borrow money. Otherwise put, the defendants essentially diverted funds that otherwise would have inured to Adlife. Nothing in the complaint would lead the *300court to infer that this conduct caused Albrizio to suffer an injury separate and distinct from that suffered by Adlife. The wrong is but indirect as to Albrizio, affecting him merely as a shareholder. See, e.g., Jackson v. Stuhlfire, 28 Mass.App.Ct. 924, 925 (1990). Count I must therefore be brought derivately.
Pursuant to Mass.R.Civ.P. 23.1, the complaint in a derivative action must be verified by oath and “allege with particularity the efforts, if any, made by the plaintiff to obtain the action he desires from the directors or comparable authority and, if necessary, from the shareholders or members, and the reasons for his failure to obtain the action or for not making the effort.” The demand would be futile, however, where the shareholders themselves are the wrongdoers and would be expected to, in essence, sue themselves. Harlen, 431 Mass. at 844. Under those circumstances, the demand requirement is excused. Id.; see also Houle v. Low, 407 Mass. 810, 813 n.13 (1990).
Here, the plaintiffs have failed to comply with the requirements of the Rule; Count I of the complaint is thus fatally defective. Not only is the complaint not verified, but it fails to state with particularity those conditions which would have excused the plaintiffs’ failure to make efforts to seek redress from the majority shareholders. See Aliberti v. Green, 6 Mass.App.Ct. 41, 45 (1972); see also J.W. Smith & H.B. Zobel, Rules Practice, §23.1.5 (1974) (“These requirements depart from the relaxed policy of ‘notice pleading’ which the Rules generally promote”). Although the plaintiffs contend in their memorandum that any demand would be futile, since both Puccio and DiGiovanni are alleged wrongdoers, this does not mitigate the deficiencies of the complaint. Failure to plead futility demands requires dismissal of Count I. Id. See also Thomas P. Billings, Remedies for the Aggrieved Shareholder in a Close Corporation, 81 Mass.L.Rev. 3, 13-14 (March 1996).
ORDER
For the forgoing reasons, the Defendants’ Motion to Dismiss the Plaintiffs’ Complaint is ALLOWED.
Nothing in the record before the court identifies Advision, although the language of the Agreement refers to both the “corporations” and the “corporation.”
The court notes at the outset that a plaintiff may not include in the complaint a claim for a specific monetary amount. See G.L.c. 231, §13B; Hermanson v. Szafarowicz, 457 Mass. 39, 44 (2010). | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1000740/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-2182
WYNDHAM H. GABHART,
Plaintiff - Appellant,
versus
MARK T. CALLOWAY, U. S. Attorney, Western Dis-
trict of North Carolina,
Defendant - Appellee.
Appeal from the United States District Court for the Western Dis-
trict of North Carolina, at Statesville. Richard L. Voorhees, Dis-
trict Judge. (CA-96-131-5-V)
Submitted: January 18, 2000 Decided: February 4, 2000
Before LUTTIG, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Wyndham H. Gabhart, Appellant Pro Se. Joseph L. Brinkley, OFFICE
OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Wyndham H. Gabhart appeals from the district court's order de-
nying relief on his complaint seeking a declaratory judgment under
28 U.S.C. § 2201 (1994). We have reviewed the record and the dis-
trict court's opinion and find to the extent that Gabhart's objec-
tions to the magistrate judge's report were sufficient to preserve
appellate review, there was no reversible error. Accordingly, we
affirm on the reasoning of the district court. See Gabhart v.
Calloway, No. CA-96-131-5-V (W.D.N.C. Aug. 4, 1999);* see also
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
*
Although the district court's judgment or order is marked as
"filed" on July 30, 1999, the district court's records show that it
was entered on the docket sheet on August 4, 1999. Pursuant to
Rules 58 and 79(a) of the Federal Rules of Civil Procedure, it is
the date that the judgment or order was entered on the docket sheet
that we take as the effective date of the district court's
decision. See Wilson v. Murray, 806 F.2d 1232, 1234-35 (4th Cir.
1986).
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1804550/ | 336 So. 2d 71 (1976)
Mercedes M. RAMOS, Petitioner,
v.
NORTHWESTERN MUTUAL INSURANCE COMPANY and Lawrence J. Williams, Respondents.
No. 48510.
Supreme Court of Florida.
May 26, 1976.
Rehearing Denied August 31, 1976.
*72 Edward A. Perse, of Horton, Perse & Ginsberg, and Grover Ciment, Weinstein & Stauber, Miami Beach, for petitioner.
Magill & Sevier, P.A., and Jeanne Heyward, Miami, for respondents.
ROBERTS, Justice.
This cause is before us on petition for writ of certiorari, buttressed by the District Court of Appeal, Third District's certificate that in disposing of the cause, it had passed upon a question of great public interest. We have jurisdiction pursuant to Article V, Section 3(b)(3).
The controlling question in the cause certified to us by the District Court involves whether or not an automobile insurance carrier may still be permitted to avoid liability pursuant to a provision in its contract requiring the insured to give his cooperation in connection with any claim of which the carrier would have responsibility under the contract notwithstanding recent developments in the law. These recent developments referred to include Florida's Financial Responsibility Act,[1] provisions contained in Florida Automobile Reparations Reform Act, and decisions of this Court including Shingleton v. Bussey, 223 So. 2d 713 (Fla. 1969), Beta Eta House Corp., Inc. v. Gregory, 237 So. 2d 163 (Fla. 1970), Thompson v. Commercial Union Ins. Co., 250 So. 2d 259 (Fla. 1971), Stecher v. Pomeroy, 253 So. 2d 421 (Fla. 1971), Godshall v. Unigard Ins. Co., 281 So. 2d 499 (Fla. 1973), and Allred v. Chittenden Pool Supply Co., Inc., 298 So. 2d 361 (Fla. 1974).
Petitioner, Mercedes Ramos, sued Lawrence Williams and Respondent Northwestern Mutual Insurance Company to recover for injuries resulting from an automobile collision proximately caused by the negligence of Williams. Respondent Northwestern answered admitting the issuance of the policy of automobile liability insurance to defendant Williams but further affirmatively alleging that the policy of insurance does not provide coverage for the defendant in this case because the accident was not reported by him to his insurance carrier nor has he cooperated with Northwestern as required by the terms of the policy of automobile liability insurance. The trial judge granted Northwestern's motion to sever the trial on coverage from the original claim relating to liability and damages. Except as to the issue of coverage the cause proceeded by jury trial on October 21, 1974, and verdict was returned in the amount of $52,037.00. Final judgment was entered against Williams in the amount of $52,037.00. Entry of judgment with respect to Northwestern was reserved by the trial court for determination at a later date.
*73 After non-jury trial on the issue of insurance coverage, examination of the pleadings, evidence, and memoranda of law submitted by the respective parties, the trial court entered final judgment finding no coverage by the insurance carrier because of the total non-cooperation of the insured. Specifically, the trial court made the following findings of fact and conclusions of law:
"1. The plaintiff and Lawrence J. Williams, hereinafter referred to as WILLIAMS, were involved in a motor vehicular accident on November 28, 1969. At the time, WILLIAMS was the insured under a policy of automobile liability insurance issued by Northwestern Mutual Insurance Company, hereinafter referred to as NORTHWESTERN.
"2. On August 9, 1971, the plaintiff initiated this action against WILLIAMS and NORTHWESTERN.
"3. NORTHWESTERN answered plaintiff's complaint alleging, among other things, that there was no coverage for WILLIAMS because of his failure to give NORTHWESTERN notice of the accident and his failure to cooperate with NORTHWESTERN.
"4. Actual service of process was never made upon WILLIAMS, notwithstanding valiant and persistent efforts by plaintiff's counsel to locate WILLIAMS and effect such service.
"5. Upon appropriate motion the Court found that WILLIAMS was concealing his whereabouts and attempting to avoid service of process and, accordingly, impressed jurisdiction over WILLIAMS on May 2, 1974.
"6. The cause proceeded to trial, except as to the issue of coverage, on October 21, 1974, and verdict was returned for plaintiff in the sum of $52,037.00.
"7. NORTHWESTERN received notice of the accident from plaintiff's counsel on December 29, 1969. However, WILLIAMS never contacted NORTHWESTERN, failed to report the accident, failed to notify NORTHWESTERN of his apparent changes of address and, despite efforts of NORTHWESTERN and plaintiff's counsel, was never located.
"8. WILLIAMS breached the terms of the policy issued by NORTHWESTERN because of his total failure to cooperate. Further, the breach was material and substantially prejudiced NORTHWESTERN.
"It is, therefore, the opinion and judgment of this Court that WILLIAMS was not entitled to coverage under the policy and that NORTHWESTERN was correct in its denial of coverage. The plaintiff relies in part upon the case of American Fire and Casualty Company v. Collura, Fla.[App.] 1964, 163 So. 2d 784. Such reliance, however, is misplaced because there the insured notified his carrier of the accident and his whereabouts were known to all parties throughout the proceedings. Further, in considering the issue of cooperation in that case the Second District Court of Appeal stated at page 788:
"`In considering the issue of breach of a cooperation clause in an insurance policy, it must always be borne in mind that in order for the company to avoid liability by reason of the insured's breach, the company must show that it has exercised diligence and good faith in bringing about the cooperation of the insured, and that it has in good faith complied with the terms and conditions of the policy. [cases cited] On the other hand the insured is bound to cooperate with his insurer and to abide, both in letter and in spirit, with the terms of the contract; or he should at least be held to reasonably strict compliance with the terms thereof.'
"Here, not only did NORTHWESTERN exercise diligence in attempting to *74 locate WILLIAMS but, also, was precluded by WILLIAMS' concealment from `bringing about' his cooperation. Moreover, WILLIAMS totally disregarded his own responsibility in the premises. [Emphases supplied]"
Plaintiff appealed to the District Court of Appeal, Third District, which affirmed the judgment of the trial court although expressly stating that it did so in reliance on past precedent. The District Court opined that the plaintiff made a persuasive argument and but for precedent and this Court's ruling in Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973), wherein this Court stated that District Courts should not change law as a matter of public policy, the District Court would have been inclined to reverse the trial court's judgment. Relative to existing precedent, the District Court stated:
"Under existing Florida law, we conclude that the trial judge's order should be affirmed. American Fire and Casualty Company v. Vliet, 148 Fla. 568, 4 So. 2d 862; American Fire and Casualty Company v. Collura, Fla.App. 1964, 163 So. 2d 784; Bordettsky v. Hertz Corporation, Fla.App. 1965, 171 So. 2d 174; Anno. 60 ALR2d 1146. However, the appellant has made a persuasive argument that because of the modern trend of requiring that motorists carry insurance [§ 627.733, Fla. Stat.; 7 Am.Jur.2d, Automobile Insurance, §§ 4, 6] insurance carriers are real parties in interest in automobile accident litigation. Stecher v. Pomeroy, Fla. 1971, 253 So. 2d 421; Godshall v. Unigard Insurance Company, Fla. 1973, 281 So. 2d 499; Allred v. Chittenden Pool Supply Inc., Fla. 1974, 298 So. 2d 361. That, because of the mandatory requirements of the no fault insurance act adopted in recent years in Florida, these older decisions should be ignored and the law should be changed as a matter of public policy and a carrier should suffer the responsibility of finding its insured and, if it could not, it should then be required to respond for any damages within the limits of its policy to the injured innocent party and be left to its remedy by seeking indemnification from its insured."
The District Court concluded that it would certify the matter to this Court as one passing upon a question of great public interest in that it determines that, notwithstanding recent developments in the law, an automobile insurance carrier may still be permitted to avoid liability pursuant to a provision in its contract requiring the insured to give his cooperation in connection with any claim of which the carrier would have responsibility under the contract.
Respondent, Insurance Company, suggests in line with past precedent of this Court and other Florida Appellate Courts, that where an insured has a contractual duty to cooperate with the insurer and there is undisputed evidence that the insured failed to cooperate, thereby breaching his contractual obligation to the substantial prejudice of the insurer in that the insurer was (1) unable to confirm that the vehicle listed was the one involved in the accident, (2) unable to determine the liability situation, (3) unable to determine if there were any passengers in the vehicle in order to obtain their version of the intersectional accident and the existence of injuries inasmuch as the police report indicated no visible injuries, and (4) unable to obtain the insured's cooperation in the defense of the case, an automobile insurance carrier may still be permitted to avoid liability based upon lack of cooperation. Respondent posits that neither Florida Statutes nor recent Florida decisions have abrogated the insured's duty to cooperate. Sub judice, the trial court found that the insured failed completely to cooperate with Northwestern Mutual and found that this breach of the terms of the insurance policy was material and substantially prejudiced Northwestern Mutual. Restating the findings *75 and conclusions of the trial court, the District Court affirmed the final judgment denying coverage.
In light of current public policy as reflected by Shingleton v. Bussey, supra, and its progeny, petitioner requests that this Court recede from the Florida decisions which stand for the proposition that an insurer may deny coverage and avoid payment of compensation to the victim of the insured's tort where the insured has been guilty of lack of cooperation which is material and is of such a nature as would substantially prejudice the rights of the insurer, where the insurer has exercised diligence and good faith in seeking to bring about the cooperation of the insured, and where the insurer has in good faith complied with the terms and conditions of the policy.[2]
Relating to petitioner's assertion that the financial responsibility law renders obsolete the defense of prejudicial non-cooperation, the District Court of Appeal, Third District, in Atlantic National Insurance Co. v. Johnson, 178 So. 2d 733 (Fla.App. 3, 1965), held that the financial responsibility law does not preclude the insurer from raising the defense of failure to give notice to the insurer for a period of seventeen months after the accident at which time Allstate, the insurer of the other vehicle involved in the accident, notified it.
We are not unmindful of the decisions cited by petitioner, but we adhere to the general philosophy of the precedent set out in American Fire and Casualty Co. v. Vliet, supra; American Fire and Casualty Co. v. Collura, supra; and Bordettsky v. Hertz Corporation, supra. American Universal Insurance Co. v. Stotsberry, 116 So. 2d 482 (Fla.App. 3, 1959), Barnes v. Pennsylvania Threshermen & Farmers' Mutual Casualty Insurance Co., 146 So. 2d 119 (Fla.App. 3, 1962), cert. den. 153 So. 2d 305 (Fla. 1963). We do not feel that the compulsory insurance law or third party beneficiary concept are sufficient justification to recede from that reasoning.
This Court in American Fire and Casualty Co. v. Vliet, supra, emphasized that to constitute the breach of a policy, the lack of cooperation must be material and the insurance company must show that it was substantially prejudiced in the particular case by failure to cooperate. Furthermore, as is stated in Collura, supra, the insurer must show that it has exercised diligence and good faith in bringing about the cooperation of its insured and must show that it has complied in good faith with the terms of the policy.
Not every failure to cooperate will release the insurance company. Only that failure which constitutes a material breach and substantially prejudices the rights of the insurer in defense of the cause will release the insurer of its obligation to pay. The question of whether the failure to cooperate is so substantially prejudicial as to release the insurance company of its obligation is ordinarily a question of fact, but under some circumstances, particularly where the facts are admitted, it may well be a question of law. Cf. Norwich Union Indemnity Co. v. Willis, 124 Fla. 137, 168 So. 418 (1936), American Fire and Casualty Co. v. Vliet, supra, and American Fire and Casualty Co. v. Collura, supra.
Accordingly, the decision of the District Court is affirmed and the writ is discharged.
It is so ordered.
OVERTON, C.J., and ENGLAND and SUNDBERG, JJ., concur.
ADKINS, J., dissents.
NOTES
[1] Section 324.011, Florida Statutes, announcing the purpose of the Financial Responsibility Act provides:
"It is the intent of this chapter to recognize the existing rights of all to own motor vehicles and to operate them on the public streets and highways of this state when such rights are used with due consideration for others; to promote safety, and provide financial security by such owners and operators whose responsibility it is to recompense others for injury to person or property caused by the operation of a motor vehicle, so it is required herein that the owner and operator of a motor vehicle involved in an accident shall respond for such damages and show proof of financial ability to respond for damages in future accidents as a requisite to his future exercise of such privileges."
[2] American Fire and Casualty Co. v. Vliet, supra; American Fire and Casualty Co. v. Collura, supra; Bordettsky v. Hertz Corporation, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610153/ | 485 P.2d 1021 (1971)
Phil KRAHN, Administrator of the Estate and Personal Representative of Vincent Cirillo, Deceased, and Betty Louise Cirillo, Appellants (Plaintiffs below),
v.
Geraldine K. PIERCE and Garland R. Reneau, Appellees (Defendants below).
No. 3850.
Supreme Court of Wyoming.
June 14, 1971.
*1023 David N. Hitchcock, Laramie, Robert L. Tognoni, Englewood, Colo., for appellants.
Alfred M. Pence, of Pence & Millett, Laramie, for appellee Garland R. Reneau.
No appearance for appellee Geraldine K. Pierce.
Before McINTYRE, C.J., and PARKER, McEWAN, and GRAY, JJ.
Mr. Justice GRAY delivered the opinion of the court.
Plaintiffs brought an action to recover damages for injuries incurred in an accident involving the Cirillo car driven by decedent in which his wife, Betty Louise Cirillo, was a passenger; the car driven by Geraldine K. Pierce, a party defendant; and a station wagon driven by Garland R. Reneau, also named as a defendant. During the pendency of the action, plaintiffs and the defendant Pierce entered into a "Covenant Not to Execute" and for such reason counsel for defendant Pierce did not appear or participate in the trial of the case. The jury, however, was instructed that such fact should be disregarded in its deliberations, and in arriving at a verdict or verdicts the jury was told to consider the matter as though defendant Pierce was present with counsel throughout the trial. Four separate verdicts were returned by the jury. In two of those verdicts the jury found generally for the plaintiffs and against the defendant Pierce and assessed damages in favor of the plaintiff-administrator in the sum of $10,000 and for plaintiff Cirillo in the sum of $7,500. In the other two the jury found generally for the defendant Reneau and against the plaintiffs. Judgment was entered accordingly, a motion and amended motion by plaintiffs for new trial were denied, and plaintiffs have now appealed from the said judgment. The defendant Pierce did not appear or participate in the appeal.
Turning briefly to the circumstances with respect to the accident, the record discloses that the Cirillo car, shortly after 9:45 a.m. on January 26, 1968, was proceeding northward on U.S. Highway 287 and had reached a point some four miles north of the Colorado-Wyoming State line at a "Do Not Pass" zone on the two-lane highway. At the time of the accident and prior thereto intermittent fog was encountered, which at times was quite dense, and the highway at that point was very icy and "slick" and "slippery." The defendant Pierce's car was proceeding south on the highway, and according to her testimony about the time that she was approaching the scene of the accident the fog "kept getting denser" and she slowed to about 40 m.p.h. Suddenly a truck, also proceeding southward but at a slower speed, loomed up in front of her and she "touched my brakes very lightly to try and slow myself down." As she did so the front end of her car "veered" to the left and she tried to get "into the left-hand borrow-pit." During that maneuver she collided almost head-on with the Cirillo car in its own lane of travel and remembered nothing further.
The defendant Reneau was proceeding northerly on the highway behind the Cirillo car and testified that some two miles disant *1024 from the scene of the accident he encountered heavier fog than previously encountered, and also ice, and had reduced his speed to 25 m.p.h. At the scene of the accident the fog was "very heavy" and he slowed to 20 m.p.h. He then said, "As I came in out of the fog the first thing I saw was a car [the Cirillo car], was a man hanging out of a car crosswise in the road," which he previously fixed as some 50 feet distant. He attempted evasive action without success and the right front fender of his station wagon came in contact with the Cirillo car in the area over the right rear wheel.
The Cirillo and Pierce cars, as disclosed by the pictures taken at the scene, were extensively damaged and according to the investigating highway patrolman were "total" losses. He also said the damage to the Reneau station wagon was "major," which also is borne out by the pictures. As a result of the accident plaintiff Cirillo's husband was killed and she was badly injured. Further elaboration of the evidence presented will be made in our discussion of the specific points raised by plaintiffs on this appeal.
In support of their claim of error in the trial, the plaintiffs advance some twelve points, all relating to procedure. Some relate to the issue of damages and will not be discussed for the reason it is not asserted that the verdict exonerating Reneau from liability was not supported by substantial evidence. In addition, no attack is made on the amount of damages assessed, and thus any error with respect to evidence relating to the issue of damages is harmless and not grounds for reversal. Northwest States Utilities Co. v. Brouilette, 51 Wyo. 132, 65 P.2d 223, 235, rehearing denied 69 P.2d 623.
The first point raised relates to the failure of the trial judge to discharge and dismiss a prospective juror for cause. In the voir dire examination of Eugene E. Dunn it was established that there was a relationship of attorney and client between his father, whose business was managed by Eugene, and the law firm of which Mr. Pence, representing Reneau, was a member. The effect of such a relationship was extensively discussed by this court in Redwine v. Fitzhugh, 78 Wyo. 407, 329 P.2d 257, 261, 72 A.L.R. 2d 664, rehearing denied 330 P.2d 112, and it was there held under our statute, § 1-121, W.S. 1957, which does not specify such a relationship as a disqualification of a prospective juror, that any bias or prejudice which might be said to result from such a relationship was "at the most, only a rebuttable presumption, and that the fairness and impartiality of the juror is a matter of fact to be determined by the trial court in the exercise of its sound discretion." While we will agree that Dunn in some of his responses was somewhat vacillating, when the voir dire is considered as a whole we cannot say that the trial judge abused his discretion in concluding that the juror would not be unfair or partial in his deliberations. In Redwine it was also mentioned that no case was found, absent a statute, wherein it was held to be "reversible error" to overrule a challenge for cause because of the relationship, and the annotation on the subject in 72 A.L.R. 2d 682, § 7(a), as supplemented by the Later Case Service, discloses that the same situation continues to prevail.
The next point relates to the exclusion of an opinion of highway patrolman Isabell with respect to a "gouge mark" upon the highway made by a piece of metal from the "A" frame of the Cirillo car before it came to rest following the collisions with the defendants' vehicles. By way of preface to the point raised, the record discloses Isabell was patrolling the highway and while some two miles north of the scene of the accident received notice of its occurrence. He arrived at the scene at 10 a.m., observed the circumstances existing, and called for assistance. Patrolmen Kopriva and Brown responded shortly thereafter and assisted Isabell in the investigation, particularly with respect to "the point where the debris existed," the location of the vehicles on the highway following the collision which had not been moved, the *1025 measurement of pertinent distances, and the taking of pictures. The so-called "debris" area was roughly a little right of the center of the northbound lane. The "gouge mark" started there and in a "continuous uninterrupted mark" ran in an arched curve to the north which bordered the centerline of the highway, ran underneath the rear of the Reneau station wagon, where it came to rest at approximately one-half the distance of the "gouge mark," then veered to the northeast under the front of the Cirillo car, where it came to rest, for a total distance of 59 feet from the point of beginning. The witness was then asked if from his experience as an officer he had an opinion "as to whether or not that [the "gouge mark"] was made from one movement or two movements." This was objected to as "calling for a conclusion without proper foundation." The patrolman was permitted to answer "yes" or "no" if he had an opinion, and upon stating he did have an opinion was again asked to give his opinion. Defendant again objected on the ground this was "Improper, invading the province of the jury, calling for a conclusion of the witness." The objection was sustained.
No offer of proof was made and it is not entirely clear to us, and apparently was not clear to the trial court in view of a later ruling on a similar question put to patrolman Brown which we shall later mention, as to the nature of the testimony plaintiff was attempting to elicit and for what purpose. Reference is made in their brief to generalities as to the facts being subtle and complex, with which we can agree, but it is not pointed out wherein that testimony was particularly pertinent in view of the evidence preceding it relating to the "gouge mark" or what effect the exclusion of the opinion might have had upon the verdict of the jury. No doubt we would be justified in rejecting the point on that basis alone. Watson v. Klindt, 73 Wyo. 402, 280 P.2d 282, 283.
We are not so inclined, however, inasmuch as the point poses an important problem concerning the admissibility of expert testimony, particularly with respect to the mounting liberal trend in motor vehicle accident cases. Neither do we think, as argued by the defendant, that the point should be disposed of on the basis that the ruling was based on the lack of foundation. It is equally reasonable that the ruling was based upon the oft-applied rule that the opinion would invade the province of the jury. What we say here will also relate to some extent to another point raised concerning testimony as to "safe speed."
We have in the past, with the exception of expert valuation testimony, rather strictly applied the rule with respect to expert testimony invading the province of the jury. Macy v. Billings, 74 Wyo. 404, 289 P.2d 422; State ex rel. Kirk v. Gail, Wyo., 373 P.2d 955, 957; Taylor v. MacDonald, Wyo., 409 P.2d 762, 764. The rule has its roots in the philosophy that if the facts are as apparent to a layman as to an expert the rule comes into play. That, however, often leads to difficulty and inconsistencies in the trial of cases, particularly where, as here, the facts are subtle and complex. The exclusionary rule has been severely criticized by eminent authors in works pertaining to the rules of evidence as reflected in the informative opinion emanating from the Supreme Court of Wisconsin in the rather recent case of Rabata v. Dohner, 45 Wis. 2d 111, 172 N.W.2d 409. Several of the state courts now accept the modified view there expounded that if the testimony or opinion of a qualified expert will be of aid to the trier of the fact, it is admissible even though it might embrace an ultimate fact in issue. In a large measure, it would appear that the trend was initiated by Rule 401, A.L.I. Model Code of Evidence (1942), which had for its purpose needed revision of the rules pertaining to opinion evidence.
Likewise, the Federal courts have increasingly adopted such view. For example, the fairly recent case of Clifton v. Mangum, 10 Cir., 366 F.2d 250, involved "gouge and scrape marks" on the highway and the critical issue of which *1026 truck was on the wrong side of the highway at the time of impact. Expert testimony on such issue was offered by both parties and received. The jury returned a verdict for the defendant and plaintiffs appealed. The principal claim of error was that the opinion of defendant's expert was incompetent for the reason it did not involve special skill "but was equally within the knowledge and comprehension of the lay jury," 366 F.2d at 252. After discussing a previous holding on a similar question in which the court left open to expert testimony an issue "involving causes and effects which are not within the range of knowledge and comprehension of the lay trier of the facts," the court rejected plaintiffs' contention and said the case involved "the identification of the offending vehicle by scientific analysis of the incriminating scrape a matter not within the knowledge and comprehension of the jury. As we observed in Campbell [Campbell v. Clark, 10 Cir., 283 F.2d 766], the admissibility of testimony of this nature must be left to the sound discretion of the trial court. It is only when the proffered evidence is clearly within the comprehension of a layman that we will disturb its judgment." 366 F.2d at 253. However, it is interesting to note that in a later case, Wilkins v. Hogan, 10 Cir., 425 F.2d 1022 (decided May 18, 1970), the court was again confronted with an expert opinion concerning "gouge marks" and "debris" upon the highway. The opinion embraced some three ultimate issuable facts. In holding that the opinion was admissible and constituted substantial evidence supporting the verdict, the court made no mention of an invasion of the province of the jury and on the contrary necessarily regarded such opinion as being of aid to the jury.
On the other hand, the court in Krizak v. W.C. Brooks & Sons, Incorporated, 4 Cir., 320 F.2d 37, 42, sustained the trial court's exclusion of the opinion of an expert "accidentalogist" as to several ultimate issuable facts, including that the "gouge marks and debris on the road * * * do not necessarily lie at the point of impact," on the basis that the facts appeared obvious to a layman and consequently expert testimony was unnecessary. After remarking, however, that "the trial court might well have permitted greater latitude," the court stated, "Whether in any given case, the expert testimony is necessary to aid the jury in its search for the truth depends upon such a variety of factors readily apparent only to the trial judge that we must depend heavily upon his judgment."
In this connection attention is also directed to Rules 702 and 704 of the Proposed Federal Rules of Evidence, Revised Draft March 1971, 51 F.R.D. 315. Those rules provide:
Rule 702
"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."
Rule 704
"Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact."
The Advisory Committee's Notes with respect to the proposals are most informative as to the need for the proposed revision.
It is not the purpose, of course, of the modified view entirely to let down the bars concerning expert testimony. As pointed out, there are adequate safeguards inasmuch as the trial courts in the exercise of their discretion may still exclude testimony which is deemed unnecessary or not helpful to the trier of the facts or which simply wastes time, or as the committee states:
"* * * These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach, somewhat in the manner of the oath-helpers of an earlier day. * * *"
51 F.R.D. 405.
*1027 We have not recently had an opportunity to consider the point raised here in the light of the foregoing developments and mention has never been made in previous opinions of this court of the applicability of that portion of Rule 43(a), W.R.C.P., which was taken verbatim from the Federal Rules of Civil Procedure, reading as follows:
"* * * In any case, the statute or rule which favors the reception of the evidence shall be presented according to the most convenient method prescribed in any of the statutes or rules to which reference is herein made. * * *"
It has often been said by the Federal courts that such is a rule of "admissibility" and not an "exclusionary" rule. See 2B Barron and Holtzoff, Federal Practice and Procedure, §§ 961-962, pp. 207-209 (1961). The Federal courts, of course, have now recognized the necessity of entirely revamping the rules of evidence, and while the proposals have not yet been brought to fruition there appears to be no good reason why we should not profit from their experience and teachings and now consider the objectives sought to be attained.
With that in mind we think the trial court might well have permitted patrolman Isabell to have stated his opinion to the question as put, but as pointed out above there was a lack of clarity with respect to the nature of the testimony. For such reason we do not say that the exclusionary ruling was clearly erroneous. We would point out, however, that when the purpose of the inquiry had been clarified by the questions put to patrolman Brown the trial court quite properly recognized that such testimony would be of aid to the jury as constituting an informed expert analysis of the "scrape mark" and over objection allowed the patrolman to express an opinion on the matter of the "movement" of the Cirillo car following the collision as disclosed by the following:
"Q. In this particular accident did you have the ability, did you have the information before you that would give you sufficient information to ascertain whether, to give you an opinion as to whether or not this movement and gouge mark of 59 feet was caused by one collision rather than two, or two collisions rather than one? A. I have an opinion, yes, sir.
"Q. All right. Would you now state what that opinion is?
"MR. PENCE: We object to the question. Same grounds that were previously objected on, and in addition we want to say that this amounts to interpretation of physical facts that were present at the scene of the accident to which has been testified to by both patrolmen, and it is a finding of fact which is wholly within the province of the jury.
"THE COURT: This is opinion evidence. I think he is qualified to give his opinion as to whether there was another impact. I think he can make that opinion. He may answer. The objection is overruled.
"Q. What is your answer? A. The continuous arch of the gouge mark and line wasn't deviated either direction except in the arch which would indicate to me that there was the second collision.
"Q. And that is your opinion, sir? A. Yes, sir.
"Q. Based on the fact that there was, and everybody admits there were two collisions in this particular case, which of the collisions caused the 59 feet of skid marks, I mean 59 feet of gouge marks, in your opinion? A. The second collision."
This brings us to the next point, that the court erred in permitting the three patrolmen above mentioned to testify on cross-examination that a speed of 35 to 40 m.p.h. when they encountered the icy condition of the highway some two to four miles from the scene of the accident was a "safe speed."
The matter first came up in the testimony of patrolman Isabell. On direct he had *1028 testified that as he approached the scene he slowed to 25 to 35 m.p.h. On cross he first said that about the time he was notified of the accident and discovered the icy condition of the highway he drove about 35 m.p.h., "Give five miles either way." He was then reminded that he had testified in another trial to a speed of between 35 and 45 m.p.h. prior to the time he received the message, which he affirmed, and was then asked, "Did you consider that a safe speed at the time?" Plaintiff objected on the same grounds defendant had objected to the opinion on the "gouge marks." The objection was overruled and Isabell answered, "Yes."
At first blush it would appear that such testimony was somewhat remote, having been directed to the conditions prevailing some two miles from the scene of the accident. In the light of the testimony, however, that the icy condition was constant from that point on and his direct testimony that he slowed to 25 to 35 m.p.h. at the time of approaching the scene and the later testimony of the defendant Reneau that he had reduced his speed to 25 m.p.h. when he encountered the ice some two miles south of the accident, and to 20 m.p.h. when approaching the scene, the significance of the "safe speed" expert opinion is apparent.
Concededly this presents a close question. Inherent in the opinion is the vital question of whether or not defendant Reneau's speed was "reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing," as § 31-130, W.S. 1957, C. 1967, requires. At the time the opinion was elicited the jury had before it testimony of the icy condition of the highway and the hampered visibility due to the fog. Thus, in view of what we said in the Macy case, supra, there is some merit in plaintiffs' contention that the jury on the facts before it was capable of determining the ultimate issue without the expert opinion of the patrolman. The trial court, however, in ruling upon the matter was apparently of the view that such testimony would be of aid to the jury and hence the ruling. Whether we would be warranted in holding that the ruling was clearly erroneous and prejudicial is a matter of some doubt. Such determination is dependent upon the facts and circumstances of each case. Taylor v. MacDonald, supra.
Most of the authorities we have examined, including Taylor, deal with a patrolman's opinion of speed as reflected by skid marks and do not reach the question here involved. Nonetheless there is a substantial line of authority to the effect that under proper circumstances opinions such as we have here are admissible. White v. Zutell, 2 Cir., 263 F.2d 613, 614; Ferguson v. Hurford, 132 Colo. 507, 290 P.2d 229, 235-236; Ware v. Boston & M.R.R., 92 N.H. 373, 31 A.2d 58, 60; Talley v. Fournier, 3 Wash. App. 808, 479 P.2d 96, 100, 101. The rationale of the holdings seems to be that it is for the trial court first to determine if the proffered expert is qualified and the proffered opinion would be of aid to the jury. If held admissible the jury is at liberty to reject it and it still leaves with the jury the responsibility of determining the ultimate fact. There are, of course, holdings to the contrary. Gardner v. Pereboom, 197 Kan. 188, 416 P.2d 67, 72-73. In McClure v. Latta, Wyo., 348 P.2d 1057, 1060, we were confronted with substantially the same circumstance presented here, but inasmuch as the opinion came in without objection we did not pass on the question although we did say, "the jury was entitled to consider the patrolman's opinion in arriving at its verdict."
In the light of what has been said with respect to expert opinion, and in view of the unusual and extraordinary circumstances presented by the icy condition of the highway and the fog, we cannot say with assurance that the opinion here challenged was not of aid to the jury. The trial court was in much better position than are we to decide the matter, and consequently we hold there was no error in the trial court's ruling.
*1029 The same point is raised with respect to the question put to plaintiff Cirillo on cross-examination as to whether or not she considered the speed of 35 m.p.h. at which the Cirillo car was traveling prior to the accident a "reasonable" or "safe and proper" speed under the circumstances, to which over objection that she was not an expert she answered, "Yes." As we view it, the objection made was not a valid objection. It is well established that a nonexpert may, upon a proper foundation, testify with respect to the speed of a moving motor vehicle. Colwell v. Anderson, Wyo., 438 P.2d 448; Cederburg v. Carter, Wyo., 448 P.2d 608. It is true, of course, that the matter of a nonexpert opinion relating to a "reasonable" or "safe" speed was not involved in those cases. Nevertheless, the claim of error advanced here is basically that the opinion embraced an ultimate fact to be determined by the jury and it is clear that the objection made was not sufficient to raise that point. For such reason we do not decide the point and hold that there was no error by the court in overruling the objection. Murdock v. State, Wyo., 351 P.2d 674, 679.
The next point relates to defendant Reneau's defense of "unavoidable accident." It is first asserted that the trial court erred in refusing to strike such defense from the answer on the ground that it did not constitute a separate defense but was merely a reiteration of the denial of negligence. With that as their premise they then assert the trial court erred in giving an instruction on "unavoidable accident." There is no contention that there was a lack of evidence in support of the doctrine. The matter is presented here solely on the broad question of whether or not as a matter of law the instruction should ever be given.
While plaintiffs find support for the contentions in other jurisdictions, it has no merit under previous decisions of this court. In Friesen v. Schmelzel, 78 Wyo. 1, 318 P.2d 368, 371, we defined the term as meaning "an accident in which there is no negligence by either party." We also held the defense was available even though not pleaded and Rule 8, W.R.C.P., has not abrogated that concept. Thus, it seems strange that plaintiffs would complain about advance notice of such a defense by way of answer. Even had the court granted the motion, the defense would still have been available.
That case also inferentially approved the giving of an instruction on "unavoidable accident." We again considered the matter in the recent case of Potts v. Brown, Wyo., 452 P.2d 975, 979, and although the refusal of the trial court to give the instruction tendered was upheld we indicated the propriety of such an instruction if the circumstances were such as to warrant it. Peculiarly, we have not directly passed upon the matter but what we have said must certainly be taken as subscribing to the generally prevailing rule that such is proper in an appropriate case. 8 Am.Jur.2d, Automobiles and Highway Traffic, § 1032, p. 591; 13 Blashfield Automobile Law and Practice, § 463.8, p. 683 (3d Ed.).
Additionally we mention that plaintiffs tendered two separate instructions with respect to "unavoidable accident," and while the court refused those instructions and gave the instruction of which plaintiffs now complain they seem to have overlooked the rule that they have no standing to attack an instruction which they have invited. Bagley v. Watson, Wyo., 478 P.2d 595, 598.
In addition to the foregoing, plaintiffs complain about the refusal of the trial court to grant their motion for a directed verdict on the issue of liability of the defendant Reneau based primarily on obscured visibility and two instructions tendered and refused dealing with the same subject. We find no merit in these contentions. We have already pointed out that the evidence was sufficient to sustain the verdict exonerating Reneau from negligence and on the whole the instructions given were adequate.
*1030 We also previously mentioned that we would not here notice procedural matters relating to the issue of damages and we have not done so. We feel, however, that it may not be amiss briefly to comment upon the refusal of the trial court to give the instructions tendered by plaintiffs pertaining to concurrent negligence but on the contrary to give an instruction that each defendant was responsible only for the damages each might have caused. Plaintiffs have devoted a large portion of their brief to this point, relying upon a vast array of authority to support their claim, and defendant in meeting the argument has done the same in support of the trial court's ruling.
We have heretofore dealt with this intricate and involved problem where more than two motor vehicles were involved in an accident in Cameron v. Lockhart, 79 Wyo. 187, 332 P.2d 65, and Tyler v. Jensen, 75 Wyo. 249, 295 P.2d 742. For purposes here, however, we need not elaborate upon what was there said generally concerning the problem. The problem here is simply whether or not there was sufficient evidence to enable the jury to apportion the damages for the physical injuries inflicted by each defendant in their respective collisions with the Cirillo car. All parties concede that the collisions were separate and distinct; neither do they dispute the fact that only a few seconds could have elapsed between the two occurrences. That, however, furnishes no solution to the problem, and we think the question of whether or not the damages were divisible, which was a close question under the circumstances presented, might well have been left to the jury under proper instructions.
Nevertheless, even if the trial court was in error, we think there is merit in defendant's contention that it could not be held to have been prejudicial. As defendant points out, the jury, as instructed, was called upon first to determine if the defendants, or either of them, were guilty of actionable negligence, and by its separate verdict exonerated the defendant Reneau. Just how the matter of concurrent negligence could have entered into that determination is not pointed out. As we view it, the most it could have done was to shift liability for the total amount of the damages from both of the defendants to the defendant Pierce, and, as we have seen, plaintiffs' case against Pierce was settled and the amount thereof exceeded the amount awarded by the jury. Consequently there could be no prejudice on that score and it would be speculative indeed to suggest that if both defendants were held liable the amount of damages allowed by the jury would have been increased.
Lastly plaintiffs, pursuant to Rule 75(f), W.R.C.P., which has since been superseded by Rule 75(b), W.R.C.P., ask that costs be imposed upon the defendant Reneau for designation of all of the transcript of evidence to be included in the record on appeal not theretofore designated by the plaintiffs and which is asserted to be unessential to decision of the points raised on appeal. The defendant's designation included all of the medical testimony relating to the physical injuries suffered by the Cirillos, which is somewhat extensive and is the principal cause of plaintiffs' complaint. In defense of the designation, defendant asserts that such testimony was relevant and significant on the points raised with respect to concurrent negligence. We are inclined to agree. Much of it, of course, did not bear directly upon the point but interspersed throughout that testimony was the nature of the injury, which in turn had a direct bearing upon the generative force that could have caused the injury. For example, there was testimony, in addition to the fractures suffered by the plaintiff Betty Cirillo, of multiple cuts and lacerations on her face, neck and head. There was also testimony that the death of Vincent Cirillo was caused by a crushed chest and that of Kenneth C. Miles, who was a passenger in the Cirillo car, by a skull fracture on the front and right side and a crushed chest. That such testimony had a direct bearing upon the question of whether or *1031 not such injuries were caused by the defendant Pierce or by the claimed concurrent negligence of both defendants can scarcely be doubted.
The fact that we found it unnecessary extensively to analyze the testimony on this hotly contested point in disposing of the point cannot be taken to mean that defendant's counsel was guilty of misconduct or without a reasonable basis for presenting an unfragmented record of the circumstances bearing upon the question. For such reason we decline to impose the costs thereof upon the defendant.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876432/ | 283 So. 2d 566 (1973)
Lester SHEELER et al., Appellants,
v.
UNITED STATES BANK OF SEMINOLE, etc., et al., Appellees.
No. 71-935.
District Court of Appeal of Florida, Fourth District.
October 12, 1973.
Gary H. Neely, Daytona Beach, for appellants.
No appearance for appellee.
WALDEN, Judge.
In response to appellants' Point II, are monies held in a joint bank account of a husband and wife as a tenancy by the entirety subject to garnishment (or execution) to pay the individual debt of one of the parties? The answer is "no" and we so hold.
The trial court had answered this question in the affirmative, relying upon First National Bank of Leesburg v. Hector Supply Co., Fla.App. 1970, 236 So. 2d 204. Subsequently, as we discovered, the Supreme Court of Florida quashed and took the opposite tack in First National Bank of Leesburg v. Hector Supply Co., Fla. 1971, 254 So. 2d 777. It is clear from the terms of the bank signature card that an estate by the entireties was expressly created and so we need only to reverse and remand with instructions to vacate and dissolve the order in garnishment upon authority of First National Bank of Leesburg v. Hector Supply Co., Fla. 1971, 254 So. 2d 777.
As to Point I, we observe that it lacks merit substantively under the principle announced in Northside Motors of Florida, Inc. v. Brinkley, Fla., 282 So. 2d 617, opinion issued July 31, 1973. Additionally, the point is procedurally infirm as it could only be raised by appeal from the 1969 final judgment this not having been done.
Reversed and remanded for proceedings consistent herewith.
Reversed and remanded.
OWEN, C.J., and MAGER, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1150262/ | 531 So. 2d 1053 (1988)
E.B., a Juvenile, Appellant,
v.
The STATE of Florida, Appellee.
No. 87-1049.
District Court of Appeal of Florida, Third District.
October 11, 1988.
Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Richard L. Kaplan, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, C.J., BASKIN, J., and JOSEPH P. McNULTY, Associate Judge.
BASKIN, Judge.
E.B., a juvenile, appeals an order withholding adjudication of delinquency and placing him in a community control program. After hearing the evidence, the trial court found E.B. guilty of aggravated battery. E.B. contends that the trial court erred in precluding him from presenting certain evidence in support of his claim that he acted in self-defense when he hit classmate John Randall with a tree branch and threw an unknown liquid in his eyes. Finding merit in each of the points raised, we reverse.
First, E.B. contends that the trial court erred in sustaining the state's objection to E.B.'s testimony that he was aware that *1054 Randall had a reputation as a good fighter and that on a previous occasion Randall had threatened to beat E.B.
A defendant who asserts that he acted in self-defense, § 776.012, Fla. Stat. (1985), must lay a proper foundation before presenting evidence of the victim's character; that evidence is relevant to resolve an issue as to the victim's conduct or as to the reasonableness of the defendant's fear at the time of the incident. Garner v. State, 28 Fla. 113, 9 So. 835 (1891); Burk v. State, 497 So. 2d 731 (Fla. 2d DCA 1986) (where defendant pleads self-defense, testimony concerning victim's reputation for violence is admissible to show reasonableness of defendant's belief concerning imminent danger); Sanchez v. State, 445 So. 2d 1 (Fla. 3d DCA 1984) (evidence of prior specific acts of violence by victim and character admissible to show reasonableness of defendant's fear); Reddick v. State, 443 So. 2d 482 (Fla. 2d DCA 1984) (evidence of specific acts of violence by victim admissible to show defendant's concern for his own safety); Hager v. State, 439 So. 2d 996 (Fla. 4th DCA 1983) (sufficient predicate rendered admissible victim's violent reputation and prior violent acts); E.C. v. State, 426 So. 2d 1292 (Fla. 3d DCA 1983) (juvenile's awareness of prior violent acts by victim admissible to show juvenile reasonably believed his conduct necessary for self-defense); Campos v. State, 366 So. 2d 782, 784 (Fla. 3d DCA 1978) (specific violent act of victim admissible to show defendant's state of mind at time of the incident); §§ 90.404(1)(b)1; 90.803(21), Fla. Stat. (1987). See also C. Ehrhardt, Florida Evidence, § 404.6, at 112 (2d ed. 1984).
The establishment of a proper predicate requires "a showing of some overt act by the [victim] at or about the time of the [incident] that reasonably indicated a need for action by the defendant in self-defense." Sanchez, 445 So.2d at 2; Hager, 439 So.2d at 997 (where defendant attempts to adduce proof of victim's reputation for violence and specific acts of violence "he must lay an adequate predicate, i.e., showing that the circumstances of the [incident] are such that they would tend to support a case of self-defense"). In the case before us, E.B. presented evidence of Randall's overt acts. According to testimony, Randall jumped out of the car, approached E.B., questioned E.B. in an aggressive manner, and made statements that led E.B. to believe that he had a weapon in the car trunk. E.B. testified that he was afraid Randall intended to harm him. These circumstances tend to support E.B.'s self-defense claim. E.B.'s testimony demonstrated the existence of an issue as to E.B.'s state of mind and as to the meaning of Randall's conduct, rendering admissible evidence of Randall's reputation as a good fighter and evidence of his prior threats against E.B. The trial court erred in excluding that testimony.
E.B. also argues that the trial court erroneously sustained an objection to testimony concerning statements made to him by school administrators. Counsel proffered that school administrators advised E.B. to leave school early on the day the incident occurred because his life was in danger. The court excluded the testimony as hearsay and stated that the school administrators were available and should have been subpoenaed and subjected to cross-examination.
Hearsay is defined as "a statement, other than one made by a declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted." § 90.801(1)(c), Fla. Stat. (1987). Here, the purpose of the statement was not to prove the truth of the matter asserted that E.B.'s life was in danger but to show its effect on E.B.'s state of mind, namely, that E.B. had reason to fear Randall. Thus, the statement was not hearsay. That testimony supports E.B.'s defense and is clearly relevant. See Breedlove v. State, 413 So. 2d 1, 7 (Fla. 1982), cert. denied, 459 U.S. 882, 103 S. Ct. 184, 74 L. Ed. 2d 149 (1982); Nelson v. State, 388 So. 2d 1276, 1278 (Fla. 3d DCA 1980), review denied, 392 So. 2d 1379 (Fla. 1981); Brown v. State, 299 So. 2d 37 (Fla. 4th DCA 1974), cert. denied, 310 So. 2d 740 (Fla. 1975). See also Koon v. State, 513 So. 2d 1253 (Fla. 1987) (out-of-court statement is admissible to show *1055 knowledge on the part of the listener that the statement was made if this knowledge was relevant), cert. denied, ___ U.S. ___, 108 S. Ct. 1124, 99 L. Ed. 2d 284 (1988); C. Ehrhardt, Florida Evidence, § 801.6, at 444 (2d ed. 1984).
E.B. admitted striking Randall and his only defense was self-defense. We cannot say that the state has "prove[n] beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no possibility that the error contributed to the conviction." State v. DiGuilo, 491 So. 2d 1129, 1135 (Fla. 1986). See Burk; Banks v. State, 351 So. 2d 1071 (Fla. 4th DCA), cert. denied, 354 So. 2d 986 (Fla. 1977). Thus, the error was not harmless. Ciccarelli v. State, 531 So. 2d 129 (Fla. 1988).
REVERSED AND REMANDED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2607231/ | 21 Kan. App. 2d 580 (1995)
GLENDA CONDON, Claimant/Appellee,
v.
THE BOEING COMPANY-WICHITA and AETNA CASUALTY & SURETY COMPANY, Respondent and Insurance Carrier/Appellants, and KANSAS WORKERS COMPENSATION FUND, Appellee.
No. 73,251
Court of Appeals of Kansas.
Opinion filed October 6, 1995.
Vaughn Burkholder and Stephen M. Kerwick, of Foulston & Siefkin, of Wichita, for appellants.
Vincent L. Bogart, of Klenda, Mitchell, Austerman & Zuercher, of Wichita, for appellee Glenda Condon.
Stacie Sanders and John C. Nodgaard, of Arn, Mullins, Unruh, Kuhn & Wilson, L.L.P., of Wichita, for appellee Workers Compensation Fund.
Before RULON, P.J., GREEN, J., and EDWARD BOUKER, District Judge, assigned.
RULON, J.:
This is a workers compensation case involving a disputed finding concerning the date of accident and the resulting basis for computation of permanent partial disability benefits. The Workers Compensation Board (Board) concluded the date of accident in a repeated mini-trauma case was earlier than the last day worked and, accordingly, the disability claim was to be computed *581 under the 1987 Workers Compensation Act and not subject to the 1993 amendments. The Boeing Company-Wichita (Boeing), and Aetna Casualty & Surety Company (Aetna) appeal. We affirm.
Glenda Condon, claimant, was hired by Boeing in 1987 as a clerk typist. In January 1993, Boeing transferred Condon to a position which required her to do data input for much longer periods of time during her work day. Sometime in May 1993, she developed pain in her wrist, arm, and elbow. Condon reported to Boeing's medical office and was initially diagnosed as having carpal tunnel syndrome.
On June 7, 1993, Condon was seen by Dr. Lesko, an orthopedic surgeon, who initiated some restrictions and recommended therapy. Lesko believed Condon suffered from a median nerve compression, some ulnar nerve irritation, and possibly carpal tunnel syndrome or a dorsal cyst. About June 15, 1993, Condon noticed pain in her shoulders, neck, and left side. Condon again contacted Boeing's medical office, which again referred her to Dr. Lesko. After doing more tests, Lesko still could not specifically identify the cause of Condon's pain.
Condon continued working at Boeing until July 6, 1993, when she was laid off. The parties agree that Condon's layoff was not related to her medical condition. Condon continued to be treated by Dr. Lesko until released on December 14, 1993, but subsequently found work as a receptionist at Wichita State University at a lesser salary.
The record is not entirely clear as to exactly when Condon first filed her workers compensation claim. However, the administrative law judge (ALJ) found that Condon sustained an accidental injury on July 6, 1993, and sustained a 12 1/2% permanent impairment of the function of her left upper extremity, including the shoulder. Specifically, the ALJ found:
"In the instant case, the evidence as a whole establishes that the Claimant has an overuse syndrome due to a series of micro-traumas in the work place. The Claimant continued working and continued experiencing the micro-traumas up through July 6, 1993 when she was laid off. Therefore, the Claimant's last day of work is the date of injury with respect to this claim. The 1993 amendments are applicable."
*582 Under K.S.A. 44-510d, shoulder joint, shoulder girdle, shoulder musculature, or any other shoulder structure injuries are now schedule injuries. Here, the ALJ awarded Condon 28.13 weeks of compensation in the amount of $313 for a 12 1/2% permanent partial schedule injury, making the total award $8,804.69 (225 weeks on the schedule times 12 1/2% less zero weeks of temporary disability equals 28.13 compensable weeks at a rate of $313). Condon then sought review by the Board.
The Board concluded that Condon's injury occurred before July 1, 1993, because:
Claimant worked a relatively short period of time after July 1, 1993;
claimant received restrictions from her physician prior to July 1;
the restrictions were designed to prevent further injury; and
any injury occurring after July 1, 1993, would be insignificant and not change claimant's limitations or ability to any extent.
The Board found that for computational purposes, Condon's injury occurred June 15, 1993, and used this date because that was the date Condon informed Dr. Lesko of her shoulder problems. The Board further found that Condon had a 29% work disability based on a 24% loss of access to the open labor market and a 34% loss in ability to earn a comparable wage. Because the injury was deemed to have occurred prior to July 1, 1993, the shoulder injuries were covered by K.S.A. 1992 Supp. 44-510e and, consequently, were injuries to the body as a whole. The Board awarded Condon 415 weeks of permanent partial disability at $101.04, for a total award of $41,931.60.
The law in Kansas is well settled that "K.S.A. 44-556 specifically subjects workers compensation appeals to the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. That Act limits the relief granted on appeal. K.S.A. 77-621(c)." Berry v. Boeing Military Airplanes, 20 Kan. App. 2d 220, 222, 885 P.2d 1261 (1994). For purposes of this appeal, K.S.A. 77-621(c)(4) and (7) are relevant.
*583 "The court shall grant relief only if it determines any one or more of the following:
....
(4) the agency has erroneously interpreted or applied the law;
....
(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act."
"The 1993 workers compensation amendments limited review of all orders issued after October 1, 1993, to questions of law. K.S.A. 44-556(a). However, whether the Board's findings of fact are supported by substantial competent evidence (K.S.A. 77-621[c][7] is a question of law. Tovar v. IBP, Inc., 15 Kan. App. 2d 782, 784, 817 P.2d 212, rev. denied 249 Kan. 778 (1991)." Berry, 20 Kan. App.2d at 222-23.
The issue in this case is similar to one this court addressed in Berry. In Berry, the employee injured his finger on May 12, 1987, and was diagnosed with carpal tunnel syndrome on June 2, 1987. As Berry could no longer perform his original job, Boeing transferred him to a different position. The new job aggravated Berry's condition and, subsequently, Boeing transferred him to an accommodation job working with small parts. Although the new position was at a lower rate of pay, Berry accepted the transfer until he learned such position required a great deal of overtime. Boeing terminated Berry because of his unwillingness to work the overtime. 20 Kan. App. 2d at 221.
In September 1987, Berry had surgery on his left wrist. Although the surgery helped, he soon began experiencing pain in his right hand. The right wrist was operated on shortly thereafter. Berry filed a workers compensation claim on July 11, 1988. He subsequently underwent surgery on both hands. 20 Kan. App. 2d at 221.
Both the ALJ and the Board determined the date of Berry's injury was the last day he worked and, thus, the law in effect on that date controlled. Because Berry had not introduced evidence of his inability to perform work in the open labor market, or evidence regarding his ability to earn a comparable wage, he was not entitled to work disability. Berry appealed, arguing that his injury *584 occurred prior to July 1987 and that he should not have had to prove loss of access to the open labor market and loss of ability to earn comparable wages. 20 Kan. App. 2d at 222. The Berry court concluded that carpal tunnel syndrome could fit the definition of both an "accident" and an "occupational disease." 20 Kan. App. 2d at 224.
Kansas statutes provide the following definitions:
"`Accident' means an undesigned, sudden and unexpected event or events, usually of an afflictive or unfortunate nature and often, but not necessarily, accompanied by a manifestation of force. The elements of an accident, as stated herein, are not to be construed in a strict and literal sense, but in a manner designed to effectuate the purpose of the workers compensation act that the employer bear the expense of accidental injury to a worker caused by the employment." K.S.A. 44-508(d).
"`Occupational disease' shall mean only a disease arising out of and in the course of the employment resulting from the nature of the employment in which the employee was engaged under such employer, and which was actually contracted while so engaged. `Nature of the employment' shall mean, for purposes of this section, that to the occupation, trade or employment in which the employee was engaged, there is attached a particular and peculiar hazard of such disease which distinguishes the employment from other occupations and employments, and which creates a hazard of such disease which is in excess of the hazard of such disease in general. The disease must appear to have had its origin in a special risk of such disease connected with the particular type of employment and to have resulted from that source as a reasonable consequence of the risk." K.S.A. 44-5a01(b).
As in Berry, Condon suffered from a condition of which the origin could not be determined as to a specific date. The Berry court acknowledged that different jurisdictions have established different methods for determining the date of injury when the injury or condition occurs over a gradual period: "According to [1B Larson, The Law of Workman's Compensation § 39.50 (1992)], there are two alternative criteria for determining the date of accident where the injury is gradual. The first is the time at which the employee can no longer perform his or her job." 20 Kan. App. 2d at 224. Here, this never occurred. There is no evidence in the record that Condon could not do her job, only that Dr. Lesko had placed certain restrictions on her. Up until her last day of work, Condon was still at the same data processing job. The other criteria *585 for determining the date of accident where the injury is gradual, according to Professor Larson, "is the onset of pain which necessitates medical attention." 20 Kan. App. 2d at 224. In the instant case, the use of this determinant would mean Condon's injury took place prior to July 1993, and, consequently, the Board's determination would be correct.
The Berry court also noted a third method formulated by the Illinois Supreme Court in Peoria County Belwood v. Ind. Com., 115 Ill. 2d 524, 505 N.E.2d 1026 (1987). In that case the court found that the date of accidental injury in a "repetitive-trauma" case is the date on which the injury manifested itself. The injury was manifested when both the fact of the injury and the causal relationship to the claimant's employment became apparent to a reasonable person. 115 Ill. 2d at 531. Applying this rationale to Condon's case would set the date of the injury prior to July 1993.
A later case, Oscar Mayer & Co. v. Industrial Comm'n, 176 Ill. App. 3d 607, 531 N.E.2d 174 (1988), modified the Peoria rule by holding that the term "fact of the injury" was not synonymous with the "fact of discovery."
"We reiterate we are dealing with a repetitive-trauma injury. Nothing we say here should be interpreted as establishing an inflexible rule. Just as we reject respondent's contention the date of discovery of the condition and its relation to the employment necessarily fixes the date of accident, we reject any interpretation of this opinion which would permit the employee to always establish the date of accident in a repetitive-trauma case by reference to last date of work." 176 Ill. App. 3d at 612.
Finally, the Berry court, faced with multiple methods of determining the "date of injury," decided on a bright line rule which set the "date of injury" or "date of occurrence" in carpal tunnel syndrome cases at the last day worked where the employment came to an end when the employee could no longer continue the job because of the condition. 20 Kan. App. 2d at 229.
"Under our statutory scheme, disability compensation must begin at some fixed point in time. In the case of disability which is the result of a personal injury caused by accident, the date of the accident becomes the date from whence compensation flows. K.S.A. 44-510e(a)(1). In the case of an occupational disease, the injury or condition is deemed to have `occurred' on the last day worked. K.S.A. 44-5a06." 20 Kan. App. 2d at 228.
*586 "The fact is, carpal tunnel syndrome appears to be a hybrid condition that is neither fish nor fowl. It is a condition caused by repetitive trauma over a long period of time. While it is true that it is caused by trauma and thereby fits the definition of an `injury caused by accident,' it is nonetheless a condition that defies any attempt to affix the precise date the accident occurred....
....
"We hold that carpal tunnel syndrome is a condition that cannot logically be said to be either a personal injury caused by accident or an occupational disease. Because of the complexities of locating the date of injury in a carpal tunnel syndrome case, the process is simplified and made more certain by adopting a rule that in a carpal tunnel syndrome action, the date from which compensation flows is the last date worked by the claimant. This date will not only simplify the process, it offers the least potentials prejudice to future claimants. In establishing this date, we decline to label the condition. It is a condition that lies somewhere in between a personal injury caused by accident and an occupational disease. It has features of both, but best lends itself to a `last day of work' analysis as the date of injury or occurrence." 20 Kan. App. 2d at 229-30.
Here, Condon was diagnosed with a number of possible afflictions, including: carpal tunnel syndrome, cervical spondylopathy and double crush syndrome, flexor tenosynovitis, overuse syndrome, lateral epicondylitis, a mild bulging at C6-7, overuse syndrome of the cervical spine, left shoulder girdle and left upper extremity with aggravation of degenerative changes in the cervical spine, tendonitis in the left shoulder, epicondylitis of the left elbow, and entrapment neuropathy of the ulnar nerve at the left elbow and wrist. According to the ALJ, Condon suffered from overuse syndrome and a series of micro-traumas associated with her employment. The Board found that Condon suffered injuries associated with the repetitive activities of her job and that the date of injury was June 15, 1993, the date Condon reported her additional pain to Dr. Lesko.
Under the facts shown, Condon's injuries are of the type caused by continuing repetitive activity over a period of time and are not subject to being defined as occurring on a specific date. Such injuries are described as micro-trauma injuries. Because it is impossible to determine exactly when the injury or injuries have occurred and because such injuries occur over a period of time, this type of condition is virtually the same for workers compensation purposes *587 as carpal tunnel syndrome. Consequently, Berry is persuasive authority.
Condon's injuries, like Berry's, are a hybrid condition that lies somewhere between a personal injury caused by accident and an occupational disease. Such condition, which the record shows occurred over a period of months, was obviously caused by some kind of trauma but is nevertheless a condition that defies any attempt to determine a precise accident date.
Because of these factual similarities, Boeing argues that Berry is controlling and that the date of the injury was Condon's last day of work, July 6, 1993. Boeing is correct in that the type of injury suffered here is sufficiently similar to that in Berry to make that case relevant. However, there was an additional factor present in Berry that is not present here.
In Berry, the claimant was forced to quit his job because of his injury. This court specifically held:
"The date of accident or date of occurrence in a workers compensation action involving carpal tunnel syndrome is the last day on which a claimant performs services for his or her employer and is required to stop working as a direct result of the claimant's pain and disability resulting from carpal tunnel syndrome." (Emphasis added.) 20 Kan. App. 2d 220, Syl. ¶ 3.
However, when a worker suffering from work injuries caused by micro-traumas is laid off from work in a general layoff, and not because of a medical condition, the date of injury is not always the last day the worker worked.
The Board has exclusive jurisdiction to review all decisions of administrative law judges and such review includes both questions of law and fact. K.S.A. 44-555b(a). The ultimate issue on appeal is whether the Board's findings are supported by substantial competent evidence. Findings in a workers compensation case which are supported by substantial competent evidence will be upheld. Elder v. Arma Mobile Transit Co., 253 Kan. 824, 826, 861 P.2d 822 (1993). "`The term "substantial evidence" when applied to workers' compensation cases means evidence that possesses something of substance and relevant consequence or evidence that furnishes a substantial basis of fact from which the issues presented *588 can be reasonably resolved.'" Crabtree v. Beech Aircraft Corp., 229 Kan. 440, 442, 625 P.2d 453 (1981).
In this case, the Board found, considering the record as a whole, that Condon's injury had occurred by June 15 and that the work subsequent to July 1 would not have significantly contributed to her condition. The record supports this finding as Dr. Lesko placed restrictions on Condon's work in June 1993. We are convinced there is substantial competent evidence that Condon's injury occurred prior to July 1, 1993, and, as such, her award shall be computed under the pre-1993 law.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2607239/ | 903 P.2d 906 (1995)
137 Or. App. 213
Philip D. OCHS, Appellant,
v.
Deborah T. ALBIN, Respondent.
CV93-1005; CA A85272.
Court of Appeals of Oregon.
Argued and Submitted July 25, 1995.
Decided October 11, 1995.
*907 David K. Gerstenfeld, argued the cause for appellant. On the brief was Richard T. Ligon.
Robert D. Corl, Jr., argued the cause for respondent. With him on the brief were Robert D. Street and Corl & Street.
Before WARREN, P.J., and EDMONDS and ARMSTRONG, JJ.
EDMONDS, Judge.
Plaintiff appeals from a judgment denying his claims for specific performance of an earnest money agreement and damages. He also assigns as error the award of attorney fees to defendant. On de novo review, we reverse. ORS 19.125(3).
In July 1993, plaintiff contacted defendant expressing interest in purchasing a house that defendant owned and used as a rental property. Defendant showed little interest in selling the house, until plaintiff presented her with a proposed earnest money agreement and a check for $1,000 earnest money toward the purchase of the property. The agreement was written on a preprinted form entitled "Owner's Sale Agreement and Earnest Money Receipt." It stated, in part:
"RECEIVED OF [plaintiff], hereinafter called purchaser, $1,000.00, as earnest money and in part payment for the following described real estate situated in the City of Corvallis * * * which we have this day sold to the purchaser for the sum of Twenty-Five Thousand Dollars * * * on the following terms, to wit: [$1,000 as earnest money, and $1,500] upon acceptance of title and delivery of deed or delivery of contract * * * balance of Twenty-Two Thousand Five Hundred Dollars * * * payable as follows: Seller to carry the balance in the form of a Land Sales Contract. Terms of contract to be 10% interest, 10 yr amortization. Contract shall have a balloon payment of the balance due at 3 years. Balloon due date may be extended yearly by purchaser making an extra payment equal to 1% (one) of the contract balance. Purchaser's attorney to draw up contract at purchaser's expense. Payments to be made through an escrow company. Purchaser has option to finance through other means. Payment minimum of $250.00/mo."
The preprinted form also contained language regarding the prorating of taxes, as well as a promise by seller that title would be delivered free and clear of all liens. The agreement indicated that the parties intended to close the sale on September 1, 1993, at Key Title Company. However, the sale was "contingent upon inspection by purchaser and approval of any inspections necessary for financing." The agreement also provided:
*908 "In any suit or action brought on this contract, the losing party agrees to pay the prevailing party's reasonable attorney's fees to be fixed by the trial court, and on appeal the prevailing party's reasonable attorney's fees to be fixed by the appellate court."
Both parties signed the agreement on July 24, 1993. Plaintiff gave the agreement to defendant and instructed her to take it to the title company and open an escrow account there. Plaintiff immediately began making preparations to close the sale. He contacted his attorney to draft a land sale contract, and also contacted two banks about the possibility of financing the purchase. A few days later, plaintiff contacted defendant to make arrangements to show the house to prospective renters. Defendant agreed to meet with plaintiff, but failed to show up at the appointed time. Plaintiff tried again to schedule an appointment to show the house, and again, defendant failed to appear. On July 30, defendant sent a letter to plaintiff, stating that she was "going to back out of selling [him] the house * * *," because she had talked to family members and her accountant, and they had pointed out to her certain negative consequences of such a sale. In particular, she stated that she could not afford the loss of monthly income she received from the property and that she had been advised that some of the payment terms were unfavorable to her. She also stated that she had already spent more than $25,000 in remodeling the house, and that she needed the house for storage of her business equipment.
Plaintiff brought this action against defendant, alleging that the parties had entered into an enforceable earnest money agreement. After a bench trial, the court stated, in a memorandum opinion:
"The Court finds that there was a valid contract entered into by the parties. * * *
"* * * * *
"The contract * * * clearly states that it is an Owner's Sale Agreement and earnest money receipt. The Agreement states that the $1,000 is being received in part payment for property `which we have this date sold to the purchaser for the sum of.' The Defendant has been involved in previous purchases and sales of real property and would have some knowledge of such matters. * * * The Defendant's reference to backing out of the Sale Agreement convinces the Court that she knew she had agreed to sell the property. The Defendant may well have not understood the potential effects and ramifications of breaching the contract, but she did know that she was backing out of selling the property.
"The Court is satisfied that it cannot require the Defendant to enter into a Land Sales Contract with the Plaintiff as prayed for in the complaint. * * *
"In our case, the only major missing factor is what the actual terms of the Land Sale Contract should include. The Plaintiff argues that this is not significant, and the Court should require some `standard Land Sale Contract.'
"It is apparent from the proposed changes in the draft * * * that the Plaintiff, buyer, was going to be seeking language very favorable to him. It appears that he felt that as his attorney was drawing it, that [sic] he could set the terms of the contract. While the Plaintiff's attorney may have advised more reasonable language to protect the seller, the Plaintiff might not have agreed. The Plaintiff's including a `floating balloon payment' provision in the Earnest Money Agreement is some indication of his intentions.
"While the Court in earlier cases may have referred to standard forms, it is apparent that after [Booras v. Uyeda, 295 Or. 181, 666 P.2d 791 (1983)] and [Genest v. John Glenn Corporation, 298 Or. 723, 696 P.2d 1058 (1985) ], a Court of Equity cannot draft a Land Sale Contract for the parties. * * *
"* * * * *
"The Plaintiff offered no proof of damages other than the current appraised value of the property. Even if the Plaintiff was not withdrawing his claim for money damages, the Court would deny such damages as they cannot be specifically enforced." (Emphasis in original.) *909 The court entered judgment in favor of defendant and ordered plaintiff to pay defendant's attorney fees.
Plaintiff first assigns error to the trial court's refusal to specifically enforce the agreement. On appeal, defendant relies on the holdings of Booras and Genest.
In Booras, the court said:
"To be entitled to specific performance, a contract must be definite in all material respects, with nothing left for future negotiation. The foregoing proposition is subject to an exception that ` * * * [i]f there is sufficient intent expressed to make a legally valid contract, a court of equity can make certain by its decree, within limits, subordinate details of performance which the contract itself does not state.'" 295 Or. at 191-92, 666 P.2d 791 (quoting Howard v. Thomas, 270 Or. 6, 13, 526 P.2d 552 (1974) (citations omitted)).
Plaintiff maintains that the material terms of the agreement are sufficiently definite to be enforceable under the holding in Booras, because the terms of the land sales agreement that was to be prepared are discernable from the earnest money agreement. Defendant counters:
"Defendant * * * is entitled to favorable terms in a complex land sale contract protecting her security interest and * * * those material elements were not agreed upon. In this complex real estate matter, the land sale contract is more than an inconsequential or subordinate detail."
For the following reasons, the holdings in Booras and Genest are not controlling. First, the fact that the parties contemplate a future writing does not by itself prohibit specific performance. If all of the material terms that are to be incorporated into a future writing have been agreed on, the initial agreement is specifically enforceable. See Wagner v. Rainier Mfg. Co., 230 Or. 531, 540, 371 P.2d 74 (1962). Second, in every agreement for the sale of land, the essential terms, other than terms that may be unique to a particular agreement, include the designation of the parties, a description or adequate identification of the property to be sold, the promise to sell and to buy, the purchase price and how it shall be payable, and a fixed time and place for the delivery of the deed, i.e., the "closing" or "settlement." 1 Milton R. Friedman, Contracts and Conveyances of Real Property § 1.2(b) (5th ed. 1991); see also Genest, 298 Or. at 745-46, 696 P.2d 1058.
In both Genest and Booras, the agreements were held not to be specifically enforceable, because they failed to sufficiently specify certain basic essentials to an agreement for a sale of land as well as the terms that the parties indicated were essential to their particular agreements. In Genest, the parties entered into an agreement for the sale of a business, a ten-year lease of the real property on which the business was conducted, and an option to purchase the real property for $425,000. Later, the purchaser sought specific performance of the option to purchase the real property. The option provided that no more than 29 percent of the purchase price could be paid "in year option is exercised." The court held that the terms of the option were not sufficiently definite for specific performance in that the agreement did not specify what was meant by the "year the option is exercised," i.e., whether it was the calendar year or the 12-month period in which the first payment was made. The agreement also did not specify whether the purchaser had a right or obligation to finance the balance of the purchase price, nor did it express what form the sale would take, what would govern the fixing of the interest rate on the unpaid balance, or what the parties intended as to the subordination of existing liens. As the court pointed out, the gaps in the agreement pertained to the essential terms of the agreement. Genest, 298 Or. at 737-39, 696 P.2d 1058.
In Booras, "[t]he earnest money agreement expressly referred to the preparation of a `land sales contract,' [which] was to include additional provisions, some for the plaintiff's benefit, some for the [defendant's]." 295 Or. at 192, 666 P.2d 791. Some of those additional provisions included a "release clause" that would enable the buyer to have portions of the property released to him as he reduced the balance owed on the agreement, and a provision requiring the buyer to provide *910 seller with security in equity other than the subject property. The agreement was indefinite as to the amounts to be paid for partial release or what portion of the security would be released in exchange for partial payment. Because the agreement was not definite as to its essential terms, the court declined to specifically enforce it.
In contrast to Genest and Booras, the terms of the earnest money agreement in this case regarding payment of the purchase price are sufficiently definite to be enforceable. The agreement's payment terms require plaintiff to make a down payment of $2,500, and to pay the balance of $22,500 at 10 percent interest on a 10-year amortization schedule. The agreement also indicates that the parties intended the payments to be made monthly.[1] The terms regarding the balloon payment are also sufficiently definite to be enforceable.
Nevertheless, defendant argues that because the agreement did not specify defendant's remedies in the event of a default to protect her security interest in the property, the agreement is unenforceable. We disagree because the parties agreed on a land sale contract as the form of this agreement. In a land sale contract,
"`[t]he seller agrees by contract to convey title upon receipt of the full purchase price * * *. Timely payment of the installment is a condition precedent to the obligation of the seller to complete performance by delivering the deed. If the buyer defaults on an installment payment, the seller has the right to declare the contract at an end, repossess the property, and retain any payments made to date.'" Bedortha v. Sunridge Land Co., Inc., 312 Or. 307, 311, 822 P.2d 694 (1991) (quoting Patrick A. Randolph, Jr., Updating The Oregon Installment Land Contract, 15 Willamette LRev 181, 182 (1979)).
Thus, a land sale contract implicitly provides a remedy to a seller on default, because the title remains with the seller until the purchase price is paid in full. Braunstein v. Trottier, 54 Or.App. 687, 635 P.2d 1379 (1981), rev. den. 292 Or. 568, 644 P.2d 1129 (1982). In the event of a default on a land sale contract, the remedies such as forfeiture or foreclosure arise by operation of law. See, e.g., ORS 93.905-ORS 93.915 (procedure for declaring a forfeiture of vendee's interest in a land sales contract); see also Savings Co. v. MacKenzie, 33 Or. 209, 211, 52 P. 1046 (1898) (holding that on actions to enforce right of seller to have equitable contract of vendee foreclosed is in nature of equitable remedy). There is no evidence that any of the other terms not included in the earnest money agreement were essential to the parties' agreement. Accord Miller v. Ogden, 134 Or.App. 589, 594, 896 P.2d 596 (1995) (affirming denial of specific performance, where parties' memorandum of agreement did not specify form of sale or address various "substantive concerns"). We conclude that plaintiff is entitled to specific performance of the earnest money agreement that the parties executed.
Plaintiff also argues that he is entitled to an award of money damages for profits that he would have earned from renting the property, and that he "would have realized upon sale of the Property." As to the lost rental profits, plaintiff's only evidence is that he had contacted some potential renters who were interested in looking at the home, and that he had told them that the rent would be between $175 and $200 for each person. No renter committed to renting the house or to paying that amount in rent. We conclude that plaintiff has not carried his burden of proving that he has suffered damages for lost rental profits. Similarly, plaintiff testified that he did not intend to sell the property during the time defendant was in breach of the sales agreement. Again, he has not proven that he lost a sale of the property because of defendant's breach.
In summary, plaintiff is entitled to specific performance of the agreement according to the terms set forth in the earnest money agreement. The order awarding attorney *911 fees to defendant as the prevailing party falls with the judgment for defendant.
Reversed and remanded for entry of judgment granting plaintiff's request for specific performance.
NOTES
[1] Plaintiff explained that the agreement's provision that the minimum monthly payment would be $250 per month was due to defendant's concerns that she must receive at least that amount in order to pay off her outstanding debt on the property. The evidence indicates that the exact monthly payment would have been $297.35 or $297.36. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610145/ | 15 Ariz. App. 20 (1971)
485 P.2d 844
MEVA CORPORATION, Petitioner Employer, Argonaut Insurance Company, Petitioner Carrier,
v.
The INDUSTRIAL COMMISSION of Arizona, Respondent, James C. Jonas, Respondent Employer.
No. 1 CA-IC 516.
Court of Appeals of Arizona, Division 1, Department A.
June 10, 1971.
Rehearing Denied July 26, 1971.
Review Denied October 5, 1971.
*21 Robertson & Fickett, Tucson, by Leonard Everett and J. Michael Moeller, Phoenix, for petitioner employer and petitioner carrier.
William C. Wahl, Jr., Chief Counsel, The Industrial Commission, Phoenix, for respondent.
*22 Gorey & Ely, by Stephen S. Gorey, Phoenix, for respondent employee.
STEVENS, Presiding Judge.
On 9 July 1965 James C. Jonas was injured in an industrial accident. He was then 45 years of age. The industrial claim was promptly processed. In May 1967 there was an award pending the determination of the loss of earning capacity. In early 1969 The Industrial Commission entered an award which established that the Jonas injuries resulted in an unscheduled permanent partial disability and established a $409.69 monthly loss of earning capacity. The last-mentioned award provided for medical benefits to a fixed date. The award became final. After the award was entered Jonas moved to Benson, North Carolina.
Shortly thereafter the carrier commenced its efforts to have Jonas submit to the Division of Vocational Rehabilitation of the North Carolina Department of Public Instruction. Appointments were made which Jonas did not keep.
On 18 March 1970 the carrier filed a petition with The Industrial Commission seeking "an order relative to the refusal of the Applicant James C. Jonas to return to Arizona and submit to a rehabilitation evaluation." The petition pointed out that at the time the carrier contacted Jonas in North Carolina in September 1969 "Mr. Jonas complained of further physical problems and agreed to come back to Arizona for further physical treatment, as well as vocational re-evaluation for rehabilitation." In the petition it was pointed out that "arrangements were made to fly Mr. Jonas at your petitioner's expense to Phoenix and for him to enter Good Samaritan Hospital under the care of Dr. John Young on December 8, 1969. Arrangements were also made for Mr. Jonas to be evaluated while at the hospital for vocational rehabilitation." In the petition it was asserted that "Medical reports in the file indicate that Mr. Jonas could be successfully retrained." There were letters attached to the petition as exhibits but no medical reports were attached thereto. The petition concluded:
"WHEREFORE, your petitioner prays that the Applicant James C. Jonas be ordered to return to Phoenix at his own expense for vocational re-evaluation and then make honest attempts to comply with the evaluation which is made, and if the order is not complied with, that the award previously made to the Applicant be amended to suspend any further payments until compliance with the order."
One of the letters attached to the petition was a letter from the carrier to Attorney Gorey wherein it was stated that the claimant "has indicated that he is again having trouble with his back as well as his leg." The letter made reference to Dr. Young as follows:
"I have in mind that if we do return him to the Phoenix area that we would arrange for him to be hospitalized at the Good Samaritan Hospital where he could be examined by Dr. John Young, who is probably one of the foremost physiatrist (sic) in the country. We believe that by doing this we can answer all of the questions pertaining to surgery, and help Mr. Jonas in any way we can towards the Rehabilitation Program."
Blakiston's New Gould Medical Dictionary, 2nd Ed., defines a physiatrist as follows:
"A physician specializing in physical medicine." (p. 911)
and defines physical medicine as follows:
"A consultative, diagnostic, and therapeutic service coordinating and integrating the employment of physical and occupational therapy, and physical reconditioning on the professional management of the diseased and injured." (p. 706)
It appears that the main thrust of the carrier's request was an attempt to require Jonas to return to Arizona for testing relative to possible vocational rehabilitation.
The proceeding instituted by the carrier by the aforesaid petition was a proceeding *23 pursuant to the Workmen's Compensation Act, as amended, effective 1 January 1969. A.R.S. § 23-1270.
On 14 April 1970 the Commission ruled as follows:
"ORDER
"IT IS ORDERED that the Respondent Carrier's Petition filed March 18, 1970, is denied on the grounds that there is no authority for such Petition."
Thereafter the carrier filed a petition and a request for hearing, again seeking an order requiring Jonas to return to Arizona. On 3 July 1970 the Commission took the following action.
"This Commission having reconsidered the file and all reports now issues Order Denying Petition for Rehearing as follows:
FINDINGS
1. That the Commission lacks jurisdiction in the premises to grant the relief prayed for in the Petition filed on May 1, 1970.
AWARD
IT IS ORDERED that the Request for Hearing be, and the same is hereby denied."
The foregoing actions which were taken by The Industrial Commission are now before this Court for review.
THIS COURT'S JURISDICTION
As heretofore stated these proceedings are reviewed under the Workmen's Compensation Act, as amended, effective 1 January 1969. All of the references in this opinion to the Arizona Revised Statutes will be to the statutes which were in effect on and after 1 January 1969 unless otherwise specified. Earlier statutes will be identified as "pre-1969."
At the oral argument before this Court Jonas urged a lack of jurisdiction in the Court of Appeals. Jonas urged that the 1970 actions by The Industrial Commission were "orders" and were therefore reviewable only pursuant to A.R.S. § 23-948 by a review in the Superior Court and that the Commission actions above-referred to were not "awards" reviewable by this Court by certiorari pursuant to A.R.S. § 23-951. We do not agree.
An "order" reviewable pursuant to A.R.S. § 23-948 was defined in A.R.S. § 23-901(7) [pre-1969] as follows:
"7. `Order' means and includes any rule, regulation, direction, requirement, standard, determination or decision of the commission."
And these orders are now defined in A.R.S. § 23-901 (8) as follows:
"8. `Order' means and includes any rule, regulation, direction, requirement, standard, determination or decision other than an award or a directive by the commission or a hearing officer relative to any entitlement to compensation benefits, or to the amount thereof, and any procedural ruling relative to the processing or adjudicating of a compensation matter."
We find no difference in the definition as amended, merely an enlargement and a clarification thereof.
The pre-1969 definition of an "award" is found in A.R.S. § 23-901(1) and is as follows:
"1. `Award' means the finding or decision of the commission of the amount of compensation or benefit due an injured employee or the dependents of a deceased employee."
The current definition is as follows:
"1. `Award' means the finding or decision of a hearing officer or the commission as to the amount of compensation or benefit due an injured employee or the dependents of a deceased employee."
The enlargement to include action taken by hearing officers was required due to the fact that after 1 January 1969 the hearing officers had greater authority than the pre-1969 referees possessed. The substance is the same.
*24 The Arizona Supreme Court in Russell v. Industrial Commission of Arizona, 104 Ariz. 548, 456 P.2d 918 (1969), and in Talley v. Industrial Commission of Arizona, 105 Ariz. 162, 461 P.2d 83 (1969), made it clear that there is no magic in the word "award." Any formal written document in a matter adjudicating the right of a workman which document was executed by the Commissioners of The Arizona Industrial Commission or which complies with the requirements of Benites v. Industrial Commission Of Arizona, 105 Ariz. 517, 467 P.2d 911 (1970), whether entitled a "Commission action," an "order," or an "award," and which contains a direct determination of some issue in relation to the claim of a particular injured workman is an award.
We hold that the 1970 actions of the Industrial Commission hereinbefore recited were "awards" and that this Court has jurisdiction pursuant to A.R.S. § 23-951.
A REOPENING PROCEEDING
The matters before us are the attempt by the carrier to reopen the 1969 award which was entered in favor of Jonas and which became final. The pre-1969 A.R.S. § 23-1044(F) was declared unconstitutional by our Supreme Court in Adkins v. Industrial Commission Of Arizona, 95 Ariz. 239, 389 P.2d 118 (1964), and one must not be confused by reference to the current A.R.S. § 23-1044(F). In Adkins our Supreme Court stated:
"* * * in 1949 in Steward v. Industrial Commission, 69 Ariz. 159, 211 P.2d 217, on rehearing, this Court held:
`That the commission retains jurisdiction of all compensation cases for the purpose of altering, amending, or rescinding its findings and awards at the instance of either the workman, the insurer or the employer (a) upon showing a change in the physical condition of the workman subsequent to said injury resulting in the reduction or increase of his earning capacity; (b) upon a showing of a reduction in the earning capacity of the workman arising out of said injury where there is no change in his physical condition, subsequent to said findings and award; (c) upon a showing that his earning capacity has increased subsequent to said findings and award.' 69 Ariz. 180, 211 P.2d 231." 95 Ariz. at 245, 246, 389 P.2d at 122.
The three criteria for reopening "at the instance of either the workman, the insurer or the employer" are now statutory law and are found verbatim in the current A.R.S. § 23-1044(F).
The carrier urges that A.R.S. § 23-1071 prohibited Jonas from leaving Arizona without the written permission of the Commission at the risk of the forfeiture of his right to compensation. We do not agree. The 1969 awards fixed a terminal date for Jonas' right to further medical treatment as an incident to the industrial accident, a day which has long since expired. The above section, by express language, applies only to the injured workman's departure from this State or the locality "in which he is receiving treatment while the necessity of having medical treatment continues." We do not find the situation contemplated by the statute in the instant case.
The main contention of the carrier rests upon A.R.S. § 23-1026 which we quote in part:
"A. An employee who may be entitled to compensation under (the Workmen's Compensation Act) shall submit himself for medical examination from time to time at a place reasonably convenient for the employee, if and when requested by the commission, the state compensation fund, his employer or the insurance carrier.
"B. The request for the medical examination shall fix a time and place having regard to the convenience of the employee, his physical condition and ability to attend. The employee may have a *25 physician present at the examination if procured and paid for by himself.
"C. If the employee refuses to submit to the medical examination or obstructs the examination, his right to compensation shall be suspended until the examination has been made, and no compensation shall be payable during or for such period. * * *."
This section does not grant an unfettered right on the part of the carrier to demand that The Industrial Commission order an injured workman to appear in Arizona for follow-up physical examinations. There must be a reasonable showing made as the condition precedent to securing such an order and it must be for the purposes outlined in A.R.S. § 23-1044(F).
In the matter now before us the carrier seeks vocational rehabilitation. The carrier has not brought itself within the requirements of A.R.S. § 23-1044(F).
The carrier urges that it is unrealistic to require that it secure a medical examination in North Carolina as a condition precedent to filing a petition in Arizona because of the difficulty of the presentation of that medical evidence in hearings before The Industrial Commission in Arizona. We are not called upon to express an opinion as to this contention since the carrier has not brought itself within the controlling statutes.
JURISDICTION OF THE COMMISSION
In the Commission action of 14 April 1970 it is recited that the carrier's petition was denied "on the grounds that there is no authority for such petition." We agree. The Commission action of 3 July 1970 recited in its finding "that the Commission lacks jurisdiction in the premises to grant the relief prayed for in the petition." Again we agree. We do not deem these actions by the Commission to be a holding by the Commission that it was completely without jurisdiction to entertain and grant a carrier's post-award petition on a proper showing. We agree that the showing made was inadequate to invoke the jurisdiction and power of the Commission to reopen.
The award is affirmed.
CASE and DONOFRIO, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610147/ | 15 Ariz. App. 51 (1971)
485 P.2d 1168
William D. CHAPMAN, individually; William D. Chapman and Jane Doe Chapman, his wife, Appellants,
v.
RANGER INSURANCE COMPANY, a corporation, Appellee.
No. 1 CA-CIV 1512.
Court of Appeals of Arizona, Division 1, Department B.
June 21, 1971.
Rehearing Denied July 22, 1971.
Review Denied October 5, 1971.
George W. Oglesby, Phoenix, for appellants.
Lewis & Roca, by Michael J. LaVelle and John A Miller, Phoenix, for appellee.
JACOBSON, Presiding Judge.
This appeal requires the court to make a determination as to whether an airplane which was crashed in Mexico by a student pilot was covered under a policy of insurance.
The procedural setting of this suit arose out of a third party complaint filed by third party plaintiff-appellant William D. Chapman and his wife against third party defendant-appellee, Ranger Insurance Co. In the original action, the Michigan National Bank, a national banking association, sought a judgment against William D. *52 Chapman and William E. McKnight and their wives on a promissory note in the sum of $8,147, this note being secured by a chattel mortgage on a 1964 Cessna 172 airplane. Upon stipulation, judgment was entered in favor of the bank and against William D. Chapman, no service ever having been effected on the defendant McKnight. The matter proceeded to trial before a jury on the third party complaint. Following a verdict in Chapman's favor, the trial court granted Ranger's motion for a new trial. Upon retrial to the court, judgment was entered in favor of Ranger Insurance Company and Chapman has appealed.
In the latter part of 1966, third party plaintiff, William D. Chapman, became interested in forming a flying club to the end that several individuals might participate in the cost and expense of owning an airplane. Pursuant to this interest, he contacted a Chuck Wright, who was the manager of a small airfield located outside Phoenix, Arizona. Mr. Wright put Mr. Chapman in touch with a William McKnight and together they, Chapman and McKnight, agreed to purchase a 1964 Cessna 172 airplane from Mr. Wright. This airplane, together with the installment note and chattel mortgage executed by Chapman and McKnight for the purchase price of the airplane, provides the subject matter of the ensuing litigation.
The chattel mortgage required that the airplane be insured. Therefore, on July 19, 1967, a policy of insurance was obtained from third party defendant, Ranger Insurance Company, covering the subject aircraft.
Following the purchase of the airplane, Chapman and McKnight obtained two additional members for their club, including a Larry Fassler, a student pilot. These new members were duly included as named insureds on Ranger's policy of insurance. However, with the inclusion of Fassler, a student pilot, Ranger attached an additional rider to its policy. This rider provided:
"It is agreed that this policy does not apply and that no coverage is afforded to any insured while any aircraft insured under this policy is being operated by a Student Pilot unless such Student Pilot is under the direction of a qualified FAA Certified Flight Instructor who shall specifically have approved each flight undertaken by the student prior to takeoff."
In addition the policy contained the following provisions:
"This policy does not apply * * * to any insured * * * (c) who operates or permits the aircraft to be operated for any unlawful purpose. * * *"
A second provision provided:
"This policy does not apply * * * to any insured who operates or permits the aircraft to be operated: (a) in any manner which requires a special permit or waiver from the United States Federal Aviation Agency whether granted or not; * * * (d) in violation of any regulation pertaining to pilot certificates."
The Code of Federal Regulations (14 C.F.R. § 61.73(a) (1971)), provides that a student pilot may not act as a pilot in command of an aircraft that is carrying a passenger or that is on an international flight.
A fourth provision of the policy provided:
"This policy shall not apply * * * to loss due to * * * confiscation by duly constituted government or civil authority. * * *"
It was stipulated by the parties that the aircraft was flown from the United States to Mexico on or about May 24, 1967 by student pilot Larry Fassler, who had with him a non-licensed pilot-passenger named Jerry Lawrence. It was further stipulated that the plane was crashed in Mexico, that it had aboard contraband consisting of stolen typewriters which were being illegally brought into Mexico, and that the plane *53 had been confiscated by the Mexican government. The plane was never recovered.
Chapman presented evidence that written rules concerning the use of the airplane were adopted by the members of the flying club which provided that exclusive use of the plane was to be vested in one member per week and that at the particular time Fassler took the airplane to Mexico he had no right to do so under these rules. In addition, evidence was presented that Ranger Insurance Company had, by letter, informed Michigan National Bank that it was accepting liability to it under the terms of its policy, which information was subsequently passed on to Chapman's attorney. Chapman contended that as a result of this information he gave up efforts to obtain possession of the airplane in Mexico.
Chapman relies on two basic points on appeal:
(1) That the exclusions contained in the policy were not applicable to him so as to deny coverage or that the insurance company failed to prove the factual basis for applying the exclusions, and
(2) Ranger, by its conduct, and the subsequent reliance thereon by Chapman, waived its policy defenses.
Chapman's first argument is that the exclusions dealing with unlawful conduct and violation of FAA regulations and pilots' certificates by their terms exclude only coverage to the "insured" who engages in such forbidden conduct or to those "insured" who knowingly permitted the forbidden conduct. Chapman's argument is that while Fassler might be excluded from coverage, he (Chapman) should not be, having had no knowledge of Fassler's nefarious conduct. In support of this construction of the policy, Chapman points to the specific language of the student pilot rider which provides "[i]t is agreed that this policy does not apply and that no coverage is afforded to any insured while any aircraft * * * is being operated by a Student Pilot * * *."
We need not decide this particular issue, for we are of the opinion that there was sufficient evidence before the trial court that Fassler took his ill-destined flight into Mexico without the prior approval of an FAA Certified Flight Instructor and thus no coverage was afforded any insured under the policy for the accident which occurred there. FAA regulations specifically deny the right of student pilots to make international flights or to carry passengers. In order for an FAA Certified Flight Instructor to have specifically approved this flight he would have had to countermand these two specific regulations. Moreover, the evidence was clear that the local FAA office had no knowledge of the particular flight involved. While every FAA Certified Flight Instructor in Arizona was not called to testify that they had not authorized the particular flight in question, the secrecy which one would expect to surround the smuggling of illegal contraband into a foreign country, together with the other positive evidence in this case, was sufficient in our opinion to justify the trial court's conclusion that the accident occurred on a non-approved flight by a student pilot and therefore was excluded from coverage under the terms of the policy. See, Pacific Indemnity Company v. Kohlhase, 9 Ariz. App. 595, 455 P.2d 277 (1969).
Chapman next contends that even if Ranger had a valid defense for his policy, this defense was waived by its conduct. Admittedly, Ranger undertook to investigate and did investigate both the circumstances of the loss and the amount of the loss. However, under our statutes such an investigation cannot be considered as a waiver of the defense of non-coverage under the policy. A.R.S. § 20-1130 provides:
"Without limitation of any right or defense of an insurer otherwise, none of the following acts by or on behalf of an insurer shall be deemed to constitute a waiver of any provision of a policy or of any defense of the insurer thereunder:
* * * * * *
*54 "3. Investigating any loss or claim under any policy or engaging in negotiations looking toward a possible settlement of any such loss or claim."
This leaves only the conduct of Ranger in informing the bank that it did not deny liability under its policy as any evidence of waiver. It is apparent that this communication made to the bank was some three or four months after Ranger had specifically denied liability to Chapman's attorney. Also, there is no evidence that as far as Chapman was concerned, that Ranger ever, in any way, communicated directly to him that any defenses were waived or that liability under the policy was accepted. Under the particular terms of this policy, we do not believe that Ranger's conduct was so inconsistent as to constitute a waiver of defenses, at least as far as Chapman is concerned. Ranger's liability to the bank under the policy was specifically provided by a "Breach of Warranty Endorsement" made a part of the policy issued. This endorsement provided that, "[a]s to the interest of the lienholder only, the insurance afforded by this policy shall not be invalidated by any act or neglect of the insured. * * *"
The endorsement is clear, however, that only the interest of the lienholder was protected for it also provided:
"Whenever the Company shall pay the lienholder any sum for loss or damage under this policy and shall claim that, as to the Insured or Owner, no liability existed, the Company shall, * * * be thereupon legally subrogated to all the rights of the lienholder against the Insured or Owner * * *."
In our opinion, there was nothing in Ranger's conduct inconsistent in affirming liability as to the lienholder while at the same time denying liability to its insured. Under such a policy condition we hold that the insured had no right to rely on representations made to its lienholder and that no waiver of defenses occurred.
Ranger, in its brief raises other procedural issues which, having determined that the trial court entered judgment in its favor on the merits, need not be discussed.
For the foregoing reasons, the judgment of the trial court is affirmed.
HAIRE and EUBANK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610154/ | 14 Ariz. App. 594 (1971)
485 P.2d 583
STATE of Arizona, Appellee,
v.
Gary Lee JACKSON, Appellant.
No. 1 CA-CR 307.
Court of Appeals of Arizona, Division 1, Department A.
May 26, 1971.
Rehearing Denied June 23, 1971.
Review Denied September 21, 1971.
Gary K. Nelson, Atty. Gen., by Carl Waag, Asst. Atty. Gen., Phoenix, for appellee.
Ross P. Lee, Public Defender, by James H. Kemper, Deputy Public Defender, Phoenix, for appellant.
CASE, Judge.
This is an appeal from a judgment of conviction after a plea of guilty to assault with a deadly weapon in violation of Section 13-249 A.R.S.
The criminal complaint filed on January 5, 1970, charged appellant and his wife with assault with a deadly weapon, forgery and also charged his wife alone with forgery. On January 20, 1970, a preliminary hearing was held wherein appellant, represented by counsel, was bound over to superior court on the charge of assault with a deadly weapon. Thereafter, on February 18, 1970, an Information was filed charging appellant with assaulting Clemico Gonzales on January 3, 1970, with a deadly weapon, to-wit: a gun. Appellant with counsel was arraigned on February 24, 1970, and furnished a copy of the Information. He verified that the Information stated his true name and waived a reading thereof and entered his plea of not guilty. On May 14, 1970, after several delays, appellant, as a result of plea bargaining, entered a plea of guilty to an amended Information which deleted all references to a gun and otherwise left the original Information intact. On June 2, 1970, appellant was sentenced to 9-10 years in the Arizona State Prison, said sentence to run concurrently with the sentence imposed in Cause No. 54312.
The question presented on review is whether the record reveals that the trial court determined that the plea was made with an understanding of the nature of the charge as required by Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). Appellant concedes the trial court's compliance with the other requirements of Boykin, supra.
After reviewing the record, we are convinced that appellant knew and that the trial determined that he knew, the nature of the charge against him. First, appellant was present at the preliminary hearing where the testimony indicated that he pointed a loaded gun at employees of a grocery store on January 3, 1970. Second, he was provided an Information which specifically charged him with assaulting Clemico Gonzales with a deadly weapon, to-wit: a gun, on January 3, 1970. The court, at the time of the entering of the guilty plea, questioned appellant extensively, a portion of which follows:
"THE COURT: Now, in that regard, in Cause No. 61164, Assault with a Deadly *595 Weapon, it is alleged that on the 3rd day of January in this county that you assaulted Clemico Gonzales with a deadly weapon. Is that true?
THE DEFENDANT: Yes.
THE COURT: Where did that occur?
THE DEFENDANT: At Smitty's Big Town.
THE COURT: Smitty's Big Town?
THE DEFENDANT: Yes.
THE COURT: That is a grocery store?
THE DEFENDANT: Yes.
THE COURT: What time of day did it occur?
THE DEFENDANT: About 1:00 o'clock.
THE COURT: In the afternoon?
THE DEFENDANT: Yes.
THE COURT: Were you by yourself?
THE DEFENDANT: No.
THE COURT: Who was with you?
THE DEFENDANT: My wife and daughter.
THE COURT: Were they right beside you while this happened or were they out in the car or what?
THE DEFENDANT: My daughter was lying on the table right behind me and my wife was standing right next to me.
THE COURT: Did you have a gun on your person at that time?
THE DEFENDANT: Yes.
THE COURT: Did you have this in your hand?
THE DEFENDANT: Yes.
THE COURT: Did you point it at Mr. Gonzales?
THE DEFENDANT: Yes.
THE COURT: What were you going to do?
THE DEFENDANT: Try to get him to trying to tell him to let my wife and child out of the store.
THE COURT: Whose gun was it?
THE DEFENDANT: Mine.
THE COURT: What did you say to Mr. Gonzales?
THE DEFENDANT: I don't even remember.
THE COURT: Did you threaten him?
THE DEFENDANT: No.
THE COURT: Was it loaded?
THE DEFENDANT: Yes, sir."
From the foregoing it is abundantly clear that appellant knew the nature of the charge to which he was entering a plea of guilty.
Appellant argues that Boykin, supra, and Rule 11, Fed.R.Crim.P., made applicable to Arizona by State v. Laurino, 106 Ariz. 586, 480 P.2d 342 (1971), requires the trial judge to tell the defendant the legal elements of the crime to which he is pleading. We disagree. In McCarthy v. United States, 394 U.S. 459, 467, 89 S. Ct. 1166, 1171, 22 L. Ed. 2d 418 (1969), the Supreme Court discussed this aspect of Rule 11 as follows:
"* * * For this reason, we reject the Government's contention that Rule 11 can be complied with although the district judge does not personally inquire whether the defendant understood the nature of the charge.[20]"
Footnote 20 set out below explains the scope of the inquiry required.
"The nature of the inquiry required by Rule 11 must necessarily vary from case to case, and, therefore, we do not establish any general guidelines other than those expressed in the Rule itself. As our discussion of the facts in this particular case suggests, however, where the charge encompasses lesser included offenses, personally addressing the defendant as to his understanding of the essential elements of the charge to which he pleads guilty would seem a necessary prerequisite to a determination that he understands the meaning of the charge. In all such inquiries, `[m]atters of reality, and not mere ritual, should be controlling.' Kennedy v. United States, 397 F.2d 16, 17 (C.A.6th Cir.1968)." 394 U.S. at 467, 468 n. 20, 89 S. Ct. at 1171.
*596 The probing inquiry by the trial court clearly established that appellant pointed a loaded pistol at another, which action constitutes the crime charged. State v. Duncan, 105 Ariz. 426, 466 P.2d 380 (1970); State v. Gortarez, 103 Ariz. 395, 442 P.2d 842 (1968).
Affirmed.
STEVENS, P.J., and DONOFRIO. J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4517111/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 5 MM 2020
EX REL., ANCELL EUGENE HAMM, :
:
Petitioner :
:
:
v. :
:
:
COMMONWEALTH OF PENNSYLVANIA, :
:
Respondent :
ORDER
PER CURIAM
AND NOW, this 17th day of March, 2020, the Application for Leave to File Original
Process is GRANTED, and the “Petition for Writ of Habeas Corpus ad Subjiciendum” is
DENIED. | 01-03-2023 | 03-17-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1962880/ | 828 A.2d 1118 (2003)
Rosezetta Marie WARD, Appellant,
v.
Jeffrey W. RICE, D.M.D. and Jeffrey W. Rice, D.M.D., P.C., Appellee.
Superior Court of Pennsylvania.
Argued March 25, 2003.
Filed June 27, 2003.
*1119 Patrick J. Loughren, Pittsburgh, for appellant.
Allen P. Neely, State College, for appellee.
BEFORE: JOHNSON, KLEIN and POPOVICH, JJ.
OPINION BY POPOVICH, J.:
¶ 1 Appellant Rosezetta Marie Ward appeals the entry of summary judgment in favor of Jeffrey W. Rice, D.M.D., and Jeffrey W. Rice, D.M.D., P.C. Appellant alleges that the trial court erred in dismissing the suit as time-barred. We reverse.
¶ 2 Pennsylvania Rule of Civil Procedure 1035.2 provides that any party *1120 may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to the jury.
In addition, we are mindful that in considering a motion for summary judgment the court must examine the record in the light most favorable to the non-moving party; that the court's function is not to decide issues of fact but merely to determine whether any such issues exist; and that all doubts as to the existence of a genuine issue of material fact must be resolved in favor of the non-moving party. We also note that "ordinarily most questions relating to the applicability of the defense of the statute of limitations are questions of fact to be determined by the jury." Specifically, the questions of whether a plaintiff has exercised due diligence in discovering the incidence of his injury is usually a jury question. "Whether the statute has run on a claim is usually a question of law for the judge, but where, as here, the issue involves a factual determination, i.e. what is a reasonable period, the determination is for the jury."
This is not to say that there are not instances where summary judgment may be ordered in malpractice actions based upon a statute of limitations defense. Entry of summary judgment is proper where the plaintiff fails to plead facts sufficient to toll the statute, or admits facts sufficient to admit the limitations defense ... or fails in his response, by affidavits, or as otherwise provided, to set forth facts showing that there is a genuine issue for trial or where the evidence relied upon by the plaintiff is inherently incredible.
Taylor v. Tukanowicz, 290 Pa.Super. 581, 435 A.2d 181, 183-184 (1981) (citations omitted).
¶ 3 On March 28, 1995, Appellant had her "wisdom teeth" extracted. The surgery was performed by Dr. Rice after a diagnosis that all four of Appellant's third molars were impacted and in need of removal. Immediately after surgery, Appellant experienced "some numbness and occasional tingling" in her lip. She communicated this condition to Dr. Rice during the first visit following surgery on April 5, 1995. Dr. Rice informed Appellant "it would get better, it would go away." These remarks were repeated after each of Appellant's visits on April 19th, April 26th, May 3rd, May 17th and May 31st of 1995. In particular, Dr. Rice cautioned that Appellant would have a "return of feeling in two months," this period expired without improvement.
¶ 4 On July 5, 1995, Appellant asked Dr. Rice for a referral to secure another opinion. It was not until September 20, 1995, that Dr. Rice directed Appellant to Dr. Kaltman at Allegheny General Hospital in Pittsburgh. Appellant was examined on October 11, 1995, and Dr. Kaltman discussed two options: nerve graft and surgery, the latter of which was not recommended because there was no guarantee it would alleviate the problem. Also, Dr. Kaltman stated that he would not "do that kind of surgery" and that Appellant's condition was not permanent.
¶ 5 Dr. Rice referred Appellant to a second oral surgeon (Dr. Sotereanos) in *1121 Pittsburgh on March 4, 1996. At this point, Appellant's condition had "gotten worse"numbness moved to the center of the mouth and speech and chewing became difficult. Dr. Sotereanos advised Appellant there was no guarantee her condition ("pain" and "numbness") would improve with surgery.[1]
¶ 6 On September 26, 1997, Appellant filed a writ of summons. This was followed by a complaint alleging "battery" (at Count I), in that Dr. Rice failed to inform her of all facts, risks and alternatives associated with the surgery, and "negligence" (at Count II), in that Dr. Rice was negligent in his care, treatment and diagnosis of Appellant's condition. Appellees filed an answer and new matter raising the defense of the statute of limitations. Then, Appellees filed a motion for summary judgment asserting Appellant's claims were barred by the statute of limitations, which affirmative defense was not tolled by the "discovery rule" or "concealment" of the nerve damage occasioned by Dr. Rice. The trial court agreed with Appellees' statute of limitations argument, a defense not stayed by Appellant's "blind reliance" upon Dr. Rice's assurances of improvement, and "fraud or concealment" could not be established by clear, concise and convincing evidence.
¶ 7 This appeal ensued claiming the trial court erred in dismissing the lawsuit as time-barred by the statute of limitations and holding neither the discovery rule nor the doctrine of fraudulent concealment served to toll the statute of limitations.
¶ 8 In personal injury actions, the statute of limitations requires that suit be filed within two years of the date of the incident. 42 Pa.C.S.A. § 5524. Once the prescribed statutory period has expired, the individual is barred from bringing suit, unless some exception which tolls the statute of limitations can be proven. One such exception is the "discovery rule," which is premised on the concept that where the existence of an injury is not apparent or where the existence of an injury cannot be reasonably ascertained, the statute of limitations does not begin to run until such time as the injury's existence is known or discoverable by the exercise of reasonable diligence. Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959); Bickford v. Joson, 368 Pa.Super. 211, 533 A.2d 1029 (1987), allocatur denied, 518 Pa. 647, 544 A.2d 959 (1988). Under the "discovery rule," the statute of limitations begins to run when a plaintiff knows, or reasonably should have known, that: (1) an injury has been sustained; and (2) the injury has been caused by another party's conduct. Citsay v. Reich, 380 Pa.Super. 366, 551 A.2d 1096, 1098 (1988).
¶ 9 An assessment of whether a plaintiff has exercised "reasonable diligence" in protecting her own interest requires an evaluation of Appellant's actions to determine whether she exhibited "those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of their own interests and the interests of others." Restatement (Second) Torts, § 283, Comment b. The standard of "reasonable diligence" is an objective standard. It is a community standard. It is sufficiently flexible, however, to take into account differences between persons, their capacity to meet certain situations and circumstances confronting them at the time in question. In short, the standard of conduct required is a uniform one which takes "into account *1122 the fallibility of human beings." Restatement (Second) Torts, § 283, Comment b and c. Petri v. Smith, 307 Pa.Super. 261, 453 A.2d 342, 347 (1982).
¶ 10 In Acker v. Palena, 260 Pa.Super. 214, 393 A.2d 1230 (1978), appellant was injured on the job when an object struck her left eye on November 14, 1972. The day after the injury, appellant consulted the defendant/ophthalmologist, who recommended surgery of the detached retina. Id., 393 A.2d at 1231. During the operation, a rupture in the sclera, or white portion, of appellant's eye caused it to hemorrhage. Id., 393 A.2d at 1231. Within nine days of the injury and operation, appellant was released from the hospital. Id., 393 A.2d at 1231. For the next several months, appellant remained in the defendant's care. Id., 393 A.2d at 1231. She "was at all times advised that the operative procedure had corrected the problem with her eye and that it would just be a matter of time before her vision returned." Id., 393 A.2d at 1231. Nowhere in appellant's complaint did she allege the defendant informed her that the condition of her eye was deteriorating. Id., 393 A.2d at 1231.
¶ 11 In July of 1973, appellant terminated her association with the defendant, and, on August 9, 1973, appellant consulted another ophthalmologist who stated her left eye had deteriorated to the point it required surgery. Acker, 393 A.2d at 1231. On October 18, 1973, appellant had her eye surgically removed. Id., 393 A.2d at 1231. A complaint was filed on July 30, 1975, which alleged negligence on the part of the defendant and hospital. Id., 393 A.2d at 1231. Summary judgment was granted by the trial court because the statute of limitations had expired. Id., 393 A.2d at 1231. On appeal, we reversed, and held, in pertinent part:
In effect, the Pennsylvania "discovery" rule delays the accrual of the cause of action from the time of the defendant's negligent conduct to a time when the injury caused by that conduct becomes known or knowable. It is, obviously, a rule intended to benefit the plaintiff. The fairness of the rule has been praised[.]
* * *
Barshady v. Schlosser, 226 Pa.Super. 260, 313 A.2d 296 (1973) presented a factual pattern similar to the instant case. In Barshady, supra, plaintiff had surgery to correct a hearing loss. Immediately thereafter, plaintiff suffered severe pain, a raw tongue and numbness of the face and tongue. When she complained of these symptoms to defendant-physician, he assured her that her condition was temporary. Consequently, plaintiff continued under defendant's care for a period of almost two years. At this point, she consulted another physician and learned, for the first time, that she had sustained damage to the tympanic nerve. Plaintiff subsequently instituted a trespass suit against defendant. The trial court granted defendant's motion for a non-suit based on its finding that the statute of limitations period had expired by the time plaintiff filed her complaint. Because the vote of our Court was equally divided, we affirmed the lower court's order, without an opinion. However, the opinion by HOFFMAN, J. in support of reversal, is instructive in analyzing Pennsylvania's rationale for tolling the statute of limitations until such time as a reasonable person could have discovered the injury:
Despite the seemingly mandatory nature of [the statute of limitations] certain exceptions to the rule have evolved as part of our case law. As the Supreme Court of Pennsylvania *1123 said in Walters v. Ditzler, 424 Pa. 445, 227 A.2d 833 (1967):
"Presently pertinent are certain well settled legal principles: (a) mere mistake, misunderstanding or lack of knowledge do not toll the running of the statute of limitations ...; (b) if, through fraud, deception or concealment of facts,... [a defendant] lulls an injured person or his representatives into a sense of security so that such person's vigilance is relaxed, then [the defendant] is estopped from evoking the statute ...; (c) the fraud which toll the statute and effect an estoppel need not be fraud in the strictest sense, i.e., inclusive of an intent to deceive, but may be fraud in the broad sense, i.e., inclusive of an unintentional deception: Nesbitt v. Erie Coach Co., 416 Pa. 89, 96, 204 A.2d 473 (1964); Schwab v. Cornell, 306 Pa. 536, 160 A. 449 (1932) ..."
Even where no fraud or concealment of facts may be proven, the law permits a party to bring a cause of action after the statutory period of limitations has passed where the existence of the injury was not known and where such knowledge cannot be reasonably ascertained....
... [T]he earliest the statute of limitations can be said to run is March of 1963. The appellant confronted her surgeon with her symptoms and ailments immediately after the operation. Having absolute confidence in the judgment of her physician, as is the case in many physician-patient relationships, she believed the appellee's statement that the pain was an emotional reaction to surgery and the numbness would be temporary. So confident was she, that despite the ongoing nature of her symptoms appellant continued her treatments with the appellee until March, 1963. We believe that appellant's delay in seeking other medical advice was a reasonable one, prompted by her faith in her physician. While the concealment of the cause of her symptoms cannot be said to rise to "fraud" or "deception," we hold that the assurances of the physician lulling his patient into a false sense of security acted as "concealment," thereby tolling the statute until March, 1963. Our computation is justified further by the continued course of treatment followed by the appellant with the appellee surgeon from the date of the surgery until March, 1963. See Plazak v. Allegheny Steel Co., 324 Pa. 422, 188 A. 130 (1936).
The second exception is likewise applicable to the instant case. Appellant contends that the damage to the chorda tympani nerve was not ascertainable until after discontinuing her treatments with Dr. Schlosser. It was not until Dr. Pegues determined by physical examination that there was loss of taste on the left side of appellant's tongue. It was pointed out at trial that such loss of sensation and "numbness" were not physical signs readily experienced or discovered without medical examination. During the two years following surgery, the appellant who had been under the continuous treatment of the appellee could not reasonably have been expected to ascertain the cause of her symptomology. Instead, she could only conclude, based on the appellee's assurances, that her maladies were temporary and would disappear with time.
While the appellant was symptomatic since 1961, and while physical examination would have determined the extent of injury as early as 1961, to compute the running of the statute of limitations from that date simply is *1124 not the law. Because of appellant's reasonable reliance on appellee's representations, we conclude that the statute was tolled until March, 1963, at which time appellant was first able to ascertain the cause of her injury. Ayers v. Morgan, supra. In our opinion that was the crucial factor. Logic and judicial fairness compel no other result. Barshady, supra, 226 Pa.Super. at 262-65, 313 A.2d at 298.
In the instant case, appellant's complaint alleged that she was "at all times advised that operative procedures had corrected the problem with her eye and that it would be a matter of time before her vision was restored." Consequently, appellant maintains that she neither knew of nor could have discovered the injury allegedly sustained during the November 17, 1972 surgery until Dr. Kurz informed her of the permanence of the damage on August 9, 1973. Moreover, appellee's answers and appellee's motion for summary judgment do not assert that Dr. Palena ever informed appellant of the nature or permanence of her injury.
Construing the pleadings, as we must, in the light most favorable to appellant as the non-moving party, Husak[ v. Berkel, Inc.], supra, 234 Pa.Super. 452, 341 A.2d 174 [1975]; Amabile[ v. Auto Kleen Car Wash], supra, 249 Pa.Super. 240, 376 A.2d 247 [1977]; Bowman[v. Sears, Roebuck & Co.], supra, 245 Pa.Super. 530, 369 A.2d 754 [1976], we conclude that Dr. Palena gave appellant no information which would have provided reason for her to believe that her visual loss was permanent or that she had sustained any injury during surgery. Appellant, under Palena's care until July, 1973, could not reasonably have been expected to ascertain on her own, the cause of the deterioration of her eye. Instead, she could only conclude, based on Dr. Palena's alleged assurances, that her vision would return. Thus, it was not until August 9, 1973, when Dr. Kurz informed appellant that he would have to remove her eye that appellant discovered the injury.
Because we conclude that appellant's non-discovery of the cause of her injury until August 9, 1973 was reasonable, we hold that the statute of limitations was tolled and appellant's cause of action did not begin until that date. Accordingly, appellant's complaint filed on July 30, 1975 was within the statutory period, and the lower court erroneously granted appellee's motion for summary judgment.
Acker, 393 A.2d at 1233-35 (footnote omitted) (emphasis added). See also DeMartino v. Albert Einstein Medical Center, Northern Division, 313 Pa.Super. 492, 460 A.2d 295, 300 & 301 (1983) (in the absence of fraud or concealment the statute of limitations begins to run when a tort is ascertainable; if, however, "through fraud or concealment, the defendant causes the plaintiff to relax his vigilance or deviate from his right of inquiry, the defendant is estopped from invoking the bar of the action." (citations omitted)).
¶ 12 Herein, as in Acker and Barshady, Appellant remained under the surgeon's care for a period of time after the operation, which encompassed office visits and repeated assurances that her condition ("pain and numbness") would subside. Dr. Rice's prognosis for Appellant's recovery (a two-month update after each visit) did not dissuade her from remaining under his care from April 5, 1995, through March 19, 1997. See Appellant's Complaint, Paragraph 7. If we stop our inquiry here, with Appellant's writ filed September 26, 1997, the lawsuit is not barred by the two-year statute of limitations.
*1125 ¶ 13 This is predicated upon the fact Appellant relied upon Dr. Rice's continued assurances that her situation "would get better, it would go away" in a couple of months. Further, Dr. Rice diagnosed Appellant's post-operative condition as "a complication from the surgery" that would dissipate with time. Appellant "trusted" the surgeon and "relied solely on him." This type of patient-physician bond is not unusual and prompts patients to rely on the assurances of recovery. See Petri, supra; Acker, supra; Barshady, supra; see also Held v. Neft, 352 Pa.Super. 195, 507 A.2d 839 (1986).
¶ 14 A jury could conceivably conclude that Appellant's failure to investigate the possible causes of her condition until the first referral with Dr. Kaltman on October 11, 1995, was reasonable, especially in light of the repeated assurances of full recuperation by Dr. Rice. The circumstances at the time of Appellant's operation do not unquestionably Indicate she was unreasonable as a matter of law in taking the course of action she did. Id.
¶ 15 We find the assurances given by Dr. Rice lulled Appellant into a false sense of security, which conduct constituted "concealment,"[2] and, thus, tolled the statute of limitations. Contrast DeMartino, supra. Nonetheless, when the injured person loses confidence in her doctor, the statute of limitations begins to run anew. See Held, supra at 842-43 (the statute of limitations, albeit stayed by "concealment" attributed to defendant/doctor, began to run from the time Appellant lost confidence in her doctor: "the fact that [Appellant] sought professional advice concerning the pain indicates that she did not choose to rely upon her own subjective knowledge of its cause.")
¶ 16 Applying the Held rationale here, even with concealment present, Appellant showed that she did not choose to rely on Dr. Rice's opinion that her pain and numbness would subside when she sought alternative professional advice. Seeking such advice was reasonable, i.e., she lost confidence in her own doctor's ability to treat her condition. Her office visit to Dr. Kaltman on October 11, 1995, was evidence of this loss of confidence. Appellant chose the proper course by seeking other professional advice, which this starting point renders timely the filing of the writ on September 26, 1997.[3]
¶ 17 Judgment reversed. Case remanded for further proceedings. Jurisdiction relinquished.
NOTES
[1] Despite the dismal medical forecasts, Appellant had oral surgery performed by Dr. Thomas Braun in November of 1998. Unfortunately, the surgery was unsuccessful because the nerve had been "trapped" in the jaw too long to be repaired.
[2] Additionally, viewing the record as we must in a light most favorable to the non-moving party, Dr. Rice failed to refer Appellant to a neurosurgeon (Dr. Sotereanos) at the optimum time (one and one-half years after the original surgery) to perform any corrective procedure. This window of opportunity was let pass by Dr. Rice, which precluded Dr. Sotereanos from performing the corrective surgery upon the inferior alveolar nerve damaged during the original operation. This act of concealment impeded Appellant's opportunity to rectify, possibly, her medical condition ("pain" and "numbness" of the face).
[3] The filing of the writ was prior in time to the expiration of the two-year statute of limitations via reactivation of the run date on October 11, 1995. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2984263/ | April 17, 2014
JUDGMENT
The Fourteenth Court of Appeals
JOHANNES “JOE” ELMGREN AND VALARIE ELMGREN, INDIVIDUALLY
AND AS NEXT FRIENDS OF THEIR MINOR CHILDREN, Appellants
NO. 14-13-00044-CV V.
INEOS USA, LLC F/K/A INNOVENE USA, LLC, INEOS POLYMERS, INC.,
A/K/A INEOS OLEFINS, INEOS OLEFINS & POLYMERS USA, A DIVISION
OF INEOS USA, LLC, AND JONATHAN “BUBBA” PAVLOVSKY, Appellees
________________________________
This court today heard a motion for rehearing filed by appellees Ineos USA,
LLC f/k/a Innovene USA, LLC, Ineos Polymers, Inc., a/k/a Ineos Olefins, Ineos
Olefins & Polymers USA, a division of Ineos USA, LLC, and Jonathan “Bubba”
Pavlovsky. We deny the motion for rehearing, and order that this court’s former
judgment of March 20, 2014, be vacated, set aside, and annulled. We further order
this court’s opinion of March 20, 2014, withdrawn.
This cause, an appeal from the summary judgment in favor of appellees,
signed December 13, 2012, was heard on the transcript of the record. We have
inspected the record and find error in the judgment. We therefore order the
judgment of the court below REVERSED in part and REMAND the cause for
proceedings in accordance with the court’s opinion. Specifically, we reverse the
trial court’s granting of summary judgment pursuant to chapter 95 of the Texas
Civil Remedies and Practice Code as to appellee Pavlovsky. With regard to
appellants the Elmgrens’ claims based on negligent-activity and negligent-
undertaking theories, we reverse the trial court’s granting of summary judgment as
to all appellees. In all other respects, we AFFIRM the summary judgment.
We further order that each party shall pay its costs by reason of this appeal.
We further order this decision certified below for observance. | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4517105/ | [Cite as State v. Payne, 2020-Ohio-1009.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, : No. 19AP-248
(C.P.C. No. 01CR-3300)
Plaintiff-Appellee, : and
No. 19AP-250
v. : (C.P.C. No. 01CR-3339)
Scott E. Payne, : (ACCELERATED CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on March 17, 2020
On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
Gilbert, for appellee.
On brief: Scott E. Payne, pro se.
APPEALS from the Franklin County Court of Common Pleas
BRUNNER, J., authoring lead opinion.
{¶ 1} Defendant-appellant, Scott E. Payne, appeals a decision and judgment of the
Franklin County Court of Common Pleas entered on March 28, 2019, denying Payne's
motion to correct his sentence on the grounds that it was void as originally issued. Because
the trial court erred in construing Payne's motion to correct a void sentence as a
postconviction petition and because a number of errors exist in the judgment entry with
respect to Franklin C.P. No. 01CR-3300, the trial court's judgment is reversed and
remanded with instructions to issue a corrected judgment entry.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} In 2001, under two separate case numbers, Payne was indicted for 6 counts
of aggravated robbery, 12 counts of robbery, 4 counts of kidnapping, and 1 count of assault.
(June 5, 2001 Indictment 01CR-3300; June 8, 2001 Indictment 01CR-3339.) All counts
except the assault were accompanied by firearm specifications. (June 5, 2001 Indictment
01CR-3300; June 8, 2001 Indictment 01CR-3339.) After a lengthy trial, the jury found
Nos. 19AP-248 and 19AP-250 2
Payne guilty of all counts and specifications except the assault charge. (Apr. 12, 2002
Verdict Forms.) We have previously recounted the factual underpinning of the charges in
detail in Payne's direct appeal. State v. Payne, 10th Dist. No. 02AP-723, 2003-Ohio-4891,
¶ 3-11. In short, the charges stemmed from the armed robberies of 2 flower shops and a
credit union and there was sufficient and persuasive evidence of Payne's guilt. Id. at ¶ 1, 3-
11, 74-76.
{¶ 3} On May 28, 2002, the trial court convened a sentencing hearing. (May 28,
2002 Sentencing Tr., filed Sept. 23, 2002.)1 At the hearing, the prosecution conceded and
the trial court agreed that the alternatively charged aggravated robberies should merge with
the robbery counts, leaving six aggravated robbery charges (one for each person victimized
in the course of the three robberies). Id. at 5, 10-12. The trial court then reasoned, over the
objection of the State, that the kidnappings essentially only occurred as part of the
aggravated robberies and therefore merged those charges also into the aggravated
robberies. Id. at 5-11.
{¶ 4} The court sentenced Payne on Franklin C.P. No. 01CR-3339 first. Id. at 12-
13. This case involved the robbery of a credit union and also of a bystander. Id. In that
case, the court sentenced Payne to serve consecutive terms of 10 years for each of the 2
aggravated robberies (Counts 1 and 4) plus 3 prior and consecutive years for each of the 2
associated firearm specifications. Id. Thus, on that case, the trial court imposed a total of
26 years and also determined that the sentence would run consecutively to the sentence it
was about to impose in case No. 01CR-3300. Id. at 13. Approximately one week later, it
journalized an entry memorializing the sentence it orally indicated it would impose.
(June 3, 2002 Jgmt. Entry 01CR-3339.)
{¶ 5} In case No. 01CR-3300, which was the case concerning the 2 flower shop
robberies (and the persons in the shops), the trial court sentenced Payne to serve 10 years
on each of the 4 aggravated robberies (Counts 1, 4, 8, and 12). (Sentencing Tr. at 14-15.) It
ordered Payne to serve 3 of the 10-year sentences concurrently with each other (Counts 1,
4, and 8), but consecutively to the remaining 10-year aggravated robbery sentence (Count
12). Id. at 15. It remarked that, as a consequence of its decision to run 3 of the aggravated
1Where identical documents are filed in both underlying criminal cases, we omit the case number from the
citation.
Nos. 19AP-248 and 19AP-250 3
robbery sentences concurrently, the 3 associated firearm specifications merged into one,
leaving just 2 of the original 4 firearm specifications. Id. Ultimately, the court imposed 2
consecutive 10-year sentences and 2 consecutive 3-year firearm specifications for a total of
26 years. Id. at 14-15. It issued an entry approximately one week later in which it generally
attempted to impose the same sentence it orally imposed.
{¶ 6} However, that judgment entry differed from its oral pronouncement.
Although the trial court noted that the specifications to the 3 concurrently sentenced
aggravated robbery counts "merge[d]," it stated that it was imposing 3-year sentences for
each of the 3 specifications concurrently. (June 3, 2002 Jgmt. Entry 01CR-3300 at 2.) It
is also noteworthy for the purposes of this appeal that, although the entry referenced the
firearm specification to Count 12 and indicated that the concurrent sentences imposed on
Counts 1, 4, and 8 would run consecutively to Count 12, it never actually imposed a sentence
for Count 12. Id. But, in a corrected judgment entry issued one week later, the trial court
rectified the clerical error with respect to Count 12. (June 11, 2002 Corr. Jgmt. Entry 01CR-
3300 at 2.) Finally, although the court properly noted that Count 11 merged into Count 8
in both the original and corrected entries, in the recitation of the Counts of which jury found
Payne to be guilty, both entries did not reference Count 11. (June 3, 2002 Jgmt. Entry
01CR-3300 at 1; June 11, 2002 Corr. Jgmt. Entry 01CR-3300 at 1.)
{¶ 7} After making findings on the issue of jail-time credit, the trial court discussed
the reasons it had imposed consecutive terms of imprisonment. (Sentencing Tr. at 18-19.)
Then it discussed post-release control:
[Court]: This time that I have given you, you're going to do this
time day for day. If you live long enough and they finally run
out of time here and they release you from the prison, the Adult
Parole Authority will supervise your behavior out on the street
for five years after your release. During that period of time, if
you violate any condition of your release, they could return you
to the prison for up to nine months for each violation.
If there are multiple violations, these nine-month periods could
total up to 50 percent of whatever this sentence is, and to be
honest with you I haven't even totalled it up. But whatever
these numbers are, if they're 50, if you mess up repeatedly
when you get out, they could send you back for another 25 years
nine months at a time. Do you understand all of that?
[Payne]: Yes.
Nos. 19AP-248 and 19AP-250 4
Id. at 19-20. All of the sentencing entries stated that the court had notified the defendant
regarding "the possibility of the applicable periods of post-release control." (June 3, 2002
Jgmt. Entry 01CR-3300 at 3; June 3, 2002 Jgmt. Entry 01CR-3339 at 2; June 11, 2002
Corr. Jgmt. Entry 01CR-3300 at 3.)
{¶ 8} Payne appealed and this Court affirmed. Payne, 2003-Ohio-4891.
{¶ 9} Over the years that followed, Payne filed (among other petitions and
motions) a number of motions to correct his sentence, arguing that more of the counts
should have merged and that the trial court misapplied the sentencing statutes. (Aug. 10,
2006 Mot. to Corr. Sentence; Oct. 20, 2011 Mot. for Resentencing 01CR-3339; June 19,
2012 Mot. to Corr. Sentence; Dec. 6, 2012 Mot. to Corr. Sentence.) When the first of these
was denied, an appeal occurred. State v. Payne, 10th Dist. No. 07AP-104, 2007-Ohio-4594.
We affirmed the trial court's denial in 2007 based on the notion that a postconviction
petition was the "exclusive remedy by which a person may bring a collateral challenge to
the validity of a conviction or sentence in a criminal case" and that Payne's motion, if
construed as a petition, was untimely. Id. at ¶ 5, 7-9.
{¶ 10} After that appeal, the trial court denied one more of Payne's motions, noting
that his repetitive requests were barred by res judicata. (Dec. 3, 2012 Decision & Entry
01CR-3339.) Payne's motions appear generally to have gone unaddressed by the trial court
after that point until the denial of the motion which forms the basis of this appeal.
{¶ 11} Payne filed the latest motion to correct his sentence on July 9, 2018. (July 9,
2018 Mot. to Corr. Sentence.) When several months passed without action by the trial
court, Payne filed a notice on November 28, 2018 informing the trial court that, after our
previous decision in 2007, the law had changed as a result of the Supreme Court of Ohio's
decision in State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238. According to Fischer,
motions to correct void sentences were now considered a proper filing, were not to be
considered postconviction petitions, and were not to be denied on grounds of res judicata.
(Nov. 28, 2018 Notice, citing Fischer at ¶ 25.) Yet, on March 28, 2019, the trial court denied
Payne's motion, characterizing it as an untimely successive postconviction petition and
finding that it was unsuccessful in invoking the jurisdiction of the court. (Mar. 28, 2019
Decision & Entry at 2-3.)
{¶ 12} Payne now appeals.
Nos. 19AP-248 and 19AP-250 5
II. ASSIGNMENTS OF ERROR
{¶ 13} Payne presents six assignments of error for review:
[1.] The trial court abused its discretion when it denied
Defendant-appellant's Motion to Correct a facially illegal
sentence as a post-conviction motion.
[2.] A Judgment entry is not a final appealable order when its
judgment entry is in violation State v. Lester, 130 Ohio St. 3d
303, 2011-Ohio-5204, 958 N.E.2d 142, where the sentencing
entry fails to set forth the fact of conviction, and fails to set forth
the sentence to count twelve.
[3.] The trial court's sentence on Defendant-Appellant's
firearm specification is contrary to law and thus, void where it
failed to sentence the Defendant-Appellant on the one-year
firearm specifications in case No. CR 06 3300.
[4.] The trial court's sentence on Defendant-Appellant's
firearm specification is contrary to law and thus, void when it
failed to impose the firearm specification consecutively to and
prior to any prison term imposed in case No. CR 06 3300 and
CR 06 3339.
[5.] The trial court's sentence in CR 06 3300 is contrary to law
when it imposed sentence on the firearm specification as an
actual incarceration, and imposes individual sentences on
firearms specifications, then merges the sentences, and then
runs the sentence as concurrent sentences.
[6.] The trial court's judgment entry in CR 06 3330 and CR 06
3339 is contrary to law when it failed to properly impose post
release control.
(Sic passim.)
III. DISCUSSION
A. First Assignment of Error – Whether Payne's Motion to Correct a Void
Sentence Should have been Construed as a Post-Conviction Petition and
Denied as Untimely
{¶ 14} In general, the postconviction relief process is a collateral civil attack on a
criminal judgment. State v. Steffen, 70 Ohio St. 3d 399, 410 (1994). "It is a means to reach
constitutional issues which would otherwise be impossible to reach because the evidence
supporting those issues is not contained" in the trial court record. State v. Murphy, 10th
Dist. No. 00AP-233, 2000 WL 1877526, 2000 Ohio App. LEXIS 6129, *5 (Dec. 26, 2000);
Nos. 19AP-248 and 19AP-250 6
see also, e.g., State v. Carter, 10th Dist. No. 13AP-4, 2013-Ohio-4058, ¶ 15. If Payne had
genuinely filed a postconviction petition rather than a motion to correct his sentence, he
would have been required to show "that there was such a denial or infringement of [his]
rights as to render the judgment void or voidable under the Ohio Constitution or the
Constitution of the United States." R.C. 2953.21(A)(1)(a). Since he had previously filed a
bona fide postconviction petition, he would also have had to demonstrate that he "was
unavoidably prevented from discovery of the facts upon which [he] must rely to present the
claim for relief" and that "but for constitutional error at trial, no reasonable factfinder
would have found [him] guilty of the offense of which [he] was convicted." R.C.
2953.23(A)(1)(a) and (b).
{¶ 15} Payne's arguments in his motion to correct his sentence are essentially that
the trial court imposed a sentence that was not in accordance with its statutory authority.
(July 9, 2018 Mot. to Corr. Sentence in passim.) Payne's motion does not attempt to argue
that his constitutional rights were violated, or that he was unavoidably prevented from
discovering facts essential to his claim, or that, but for the constitutional rights violation,
he would not have been convicted. See R.C. 2953.21(A)(1)(a); R.C. 2953.23(A)(1)(a) and
(b). In short, Payne's motion is not argued or substantively designed as a traditional
postconviction petition. Rather it is a claim that the judgment against him is void in part
because the trial court did not sentence in accordance with its statutory authority. (July 9,
2018 Mot. to Corr. Sentence at 1.)
{¶ 16} The Supreme Court has found that postconviction proceedings under
Chapter 2953 of the Ohio Revised Code are not the exclusive means by which a criminal
defendant may challenge his conviction after the judgment has become final:
The state urges us to conclude, however, that because the
General Assembly has provided a statutory remedy for
addressing claimed constitutional error, the postconviction
scheme is the exclusive avenue of redress. Thus, the state
asserts, courts must construe postsentence Crim.R. 32.1
motions that are based on constitutional violations to be
postconviction petitions. We disagree.
(Emphasis sic.) State v. Bush, 96 Ohio St. 3d 235, 2002-Ohio-3993, ¶ 12. The high court
has also recognized that one motion an offender may file, even after a conviction becomes
Nos. 19AP-248 and 19AP-250 7
final, is a motion arguing that his sentence is illegal because it was imposed beyond the
bounds of the sentencing court's statutory authority:
"A motion to correct an illegal sentence 'presupposes a valid
conviction and may not, therefore, be used to challenge alleged
errors in proceedings that occur prior to the imposition of
sentence.' " Edwards v. State (1996), 112 Nev. 704, 708, 918
P.2d 321, quoting Allen v. United States (D.C.1985), 495 A.2d
1145, 1149. It is, however, an appropriate vehicle for raising
the claim that a sentence is facially illegal at any time. Id. The
scope of relief based on a rule, like Fed.R.Crim.P. 35, is likewise
constrained to the narrow function of correcting only the illegal
sentence. It does not permit reexamination of all perceived
errors at trial or in other proceedings prior to sentencing. See,
e.g., Hill v. United States (1962), 368 U.S. 424, 430, 82 S. Ct.
468, 7 L. Ed. 2d 417.
(Emphasis added.) Fischer at ¶ 25; see also State v. Moore, 135 Ohio St. 3d 151, 2012-Ohio-
5479, ¶ 15.
{¶ 17} This Court and others have expressed concerns about the view that a
defendant should be permitted to challenge a sentence at any time as void (rather than
voidable) simply because a court erred in imposing the sentence and ignored or exceeded
some statutory requirement:
The Supreme Court previously recognized that "a void
judgment is one that has been imposed by a court that lacks
subject-matter jurisdiction over the case or the authority to act"
while a "voidable judgment is one rendered by a court that has
both jurisdiction and authority to act, but the court's judgment
is invalid, irregular, or erroneous." State v. Simpkins, 117 Ohio
St.3d 420, 2008-Ohio-1197, ¶ 12, 884 N.E.2d 568. The high
court has also recognized that "we commonly hold that
sentencing errors are not jurisdictional and do not necessarily
render a judgment void." Id. at ¶ 13. Yet, in cases such as
Williams, the Supreme Court has embraced exceptions that
threaten to swallow the rule and lead to a situation where
virtually any allegedly serious error in sentencing can be
revived time and time again without being foreclosed by res
judicata. This Court and others have expressed concerns about
the legal basis and limits of the "voidness" doctrine that the
Supreme Court has created in this context. State v. Banks, 10th
Dist. No. 15AP-653, 2015-Ohio-5372, ¶ 16, fn. 1; see also State
v. Grimes, 151 Ohio St. 3d 19, 2017-Ohio-2927, ¶ 34-39, 85
N.E.3d 700 (DeWine, J., concurring in judgment only); State
Nos. 19AP-248 and 19AP-250 8
v. Fischer, 128 Ohio St 3d 92, 2010-Ohio-6238, ¶ 41-57, 942
N.E.2d 332 (Lanzinger, J., dissenting).
State v. Steele, 10th Dist. No. 18AP-187, 2018-Ohio-3950, ¶ 11, fn. 1. This Court has
sometimes characterized motions seeking resentencing or to vacate a conviction as
postconviction petitions and considered them under the standards of review applied to
such petitions. State v. Draughon, 10th Dist. No. 18AP-709, 2019-Ohio-1461, ¶ 10; State
v. Jennings, 10th Dist. No. 17AP-248, 2018-Ohio-3871, ¶ 5; State v. Bankston, 10th Dist.
No. 13AP-250, 2013-Ohio-4346, ¶ 7.
{¶ 18} However, unless and until the Supreme Court revisits Fischer, when a
defendant such as Payne seeks only to claim that his sentence is void or partially void due
to the trial court sentencing outside its statutory authority, there seems little choice but to
evaluate it under Fischer and progeny. In light of that, this Court and the Supreme Court
have considered many motions to correct void sentences without construing them as
postconviction petitions. See, e.g., Moore at ¶ 15 & in passim; State v. Peoples, 10th Dist.
No. 18AP-850, 2019-Ohio-2141, ¶ 9-15; State v. Bridges, 10th Dist. No. 18AP-262, 2018-
Ohio-4844, in passim; State v. Melhado, 10th Dist. No. 15AP-960, 2016-Ohio-3346, ¶ 8;
State v. Maser, 10th Dist. No. 15AP-129, 2016-Ohio-211, in passim. Even the State's brief
in this appeal concedes that "a motion to correct a void sentence is distinct from a
postconviction petition." (State's Brief at 2, citing Fischer).
{¶ 19} In this case, Payne's motion was not filed as a postconviction petition. It was
a motion requesting that the trial court "correct its facially illegal sentence." (July 9, 2018
Mot. to Corr. Sentence at 1.) Yet, the trial court, citing a decision that pre-dates Fischer,
reasoned "regardless of how Defendant captions his motion, it is considered a petition for
post-conviction relief because Defendant filed it after his direct appeal and he seeks to have
this Court render the judgment against him void." (Mar. 28, 2019 Decision & Entry at 2.)
It then found that Payne had not met the statutory requirements of R.C. 2953.23(A) for
filing a postconviction petition. Id. at 2-3. Because Payne had not complied with the
requirements of R.C. 2953.23, the trial court concluded that Payne had not successfully
invoked its jurisdiction to consider the "untimely petition for post conviction relief." Id. at
2-3. This was error.
{¶ 20} Because Fischer and other cases of the Supreme Court make clear that
motions to correct void sentences are cognizable, the trial court erred in treating Payne's
Nos. 19AP-248 and 19AP-250 9
motion as a postconviction petition and dismissing it on timeliness grounds. Payne's first
assignment of error is sustained.
B. Second Assignment of Error – Whether the Judgment Entry was a Final
Appealable Order
{¶ 21} Payne argues that the original judgment entry in his case was not a final
appealable order because it omitted to state that the jury found him guilty of Count 11 and
because it failed to impose a sentence on Count 12. (Payne's Brief at 6-9, citing State v.
Lester, 130 Ohio St. 3d 303, 2011-Ohio-5204.) Under Lester and Ohio Rule of Criminal
Procedure 32(C), a "judgment of conviction is a final order subject to appeal under R.C.
2505.02 when it sets forth (1) the fact of the conviction, (2) the sentence, (3) the judge's
signature, and (4) the time stamp indicating the entry upon the journal by the clerk." Lester
at paragraph one of the syllabus. However, this Court has also recognized that courts do
retain jurisdiction to correct clerical errors and clerical errors generally do not prevent
judgments from becoming final. Id. at paragraph two of the syllabus; State v. Raber, 134
Ohio St. 3d 350, 2012-Ohio-5636, ¶ 20.
{¶ 22} Although the trial court's original judgment entry referenced the firearm
specification to Count 12 and indicated that the concurrent sentences imposed on Counts
1, 4, and 8 would run consecutively to Count 12, it never actually imposed a sentence for
Count 12. (June 3, 2002 Jgmt. Entry 01CR-3300 at 2.) But the trial court corrected this
clerical omission approximately one week later. (June 11, 2002 Corr. Jgmt. Entry 01CR-
3300 at 2.) It is also true that, in listing the offenses of which jury found Payne to be guilty,
the trial court omitted mentioning Count 11 in both the original and corrected entries.
(June 3, 2002 Jgmt. Entry 01CR-3300 at 1; June 11, 2002 Corr. Jgmt. Entry 01CR-3300 at
1.) However, in both entries, the court explained that Count 11 merged with Count 8 and,
thus, although Payne was found guilty of Count 11, he was not convicted and sentenced on
Count 11. (June 3, 2002 Jgmt. Entry 01CR-3300 at 1; June 11, 2002 Corr. Jgmt. Entry
01CR-3300 at 1.)
{¶ 23} Payne's second assignment of error is overruled.
C. Third Assignment of Error – Whether the Trial Court Ought to Have
Sentenced Payne on the One-Year Firearm Specifications
{¶ 24} Payne notes that, in case No. 01CR-3300, he was charged with one-year
firearm specifications in addition to the three-year firearm specifications and that, though
Nos. 19AP-248 and 19AP-250 10
the trial court sentenced him on the three-year specifications, it did not dispose of the one-
year firearm specifications. (Payne's Brief at 9-10.) However, in each of the verdict forms,
the jury indicated a finding that Payne had "displayed and/or brandished and or use[d] the
firearm to facilitate the offense." See, e.g., Apr. 12, 2002 Verdict Form 01CR-3300 Count
1. Under R.C. 2929.14(D)(1)(a)(i) through (iii), R.C. 2941.141(B) and 2941.145(B) as
constituted at the time of the offenses and sentencing, if a court imposed the three-year
term consistent with the finding that an offender "display[ed] the firearm, brandish[ed] the
firearm, indicat[ed] that the offender possessed the firearm, or us[ed] it to facilitate the
offense," it could not also impose a one-year term. See 2002 Am.Sub.H.B. No. 4852; 2001
Am.Sub.S.B. No. 179.3 Thus, the trial court could not have imposed the one-year
specifications and there was, therefore, nothing for the trial court to have disposed of.
{¶ 25} Payne's third assignment of error is overruled.
D. Fourth Assignment of Error – Whether the Trial Court Erred in
Imposing the Firearm Specifications
{¶ 26} Payne points out that R.C. 2929.14(E)(1)(a) provided at the time of the
offense and sentencing4 that mandatory prison terms imposed under division (D)(1)(a) of
the statute were to be served "consecutively to and prior to any prison term imposed for the
underlying felony." (Emphasis omitted.) (Payne's Brief at 11.) Because the trial court did
not mention in its entries that the specifications were to be served "prior to" Payne's
substantive prison terms, he alleges the entries are defective and void. Id. at 11-12.
However, though consecutive specification sentences are, as a matter of statute, to be
served prior to the prison term for the underlying offense, there is no requirement that the
trial court specifically state that statutory rule in its entries. Such failure to do so does not
render the entries erroneous or void.
{¶ 27} Payne's fourth assignment of error is overruled.
E. Fifth Assignment of Error – Whether the Trial Court Erred by Merging
the Firearm Specifications, Imposing Multiple Sentences, or Referring
to the Sentences as "Actual Incarceration"
{¶ 28} Payne argues that the trial court erred in referring to the terms imposed for
Payne's firearm specifications as "actual incarceration" because that was a term of art used
2 Archived online at 2001 Ohio HB 485.
3 Archived online at 1999 Ohio SB 179.
4 This requirement is now found in division (C)(1)(a) of R.C. 2929.14.
Nos. 19AP-248 and 19AP-250 11
in statutes predating Payne's sentencing. (Payne's Brief at 13-15.) Payne is correct both
that the trial court referred to the imprisonment imposed in connection with the
specifications as "actual" rather than "mandatory" and that the term "actual" had been
replaced by the term "mandatory" by the time of his sentencing. See 1995 Am.Sub.S.B. No.
25; June 3, 2002 Jgmt. Entry 01CR-3300 at 2; June 11, 2002 Corr. Jgmt. Entry 01CR-3300
at 2; June 3, 2002 Jgmt. Entry 01CR-3339 at 2. It is not clear that this error in terminology
has had any practical effect on Payne. Nevertheless, an incorrect term was used to describe
the mandatory three-year sentences imposed for the firearm specifications.
{¶ 29} Payne also argues that the trial court imposed multiple sentences for firearm
specifications relating to a single act or transaction and despite having merged the
specifications. (Payne's Brief at 15-17.) He is again correct.
{¶ 30} At the time Payne was sentenced, a court was not permitted to "impose more
than one prison term on an offender [for a firearm specification in relation to] felonies
committed as part of the same act or transaction." See R.C. 2929.14(D)(1)(b) (2007).
Senate Bill No. 184 added an exception to that rule in 2008 which is now found in division
(B)(1)(g) of the definite sentencing statute:
If an offender is convicted of or pleads guilty to two or more
felonies, if one or more of those felonies are aggravated
murder, murder, attempted aggravated murder, attempted
murder, aggravated robbery, felonious assault, or rape, and if
the offender is convicted of or pleads guilty to a specification of
the type described under division (B)(1)(a) of this section in
connection with two or more of the felonies, the sentencing
court shall impose on the offender the prison term specified
under division (B)(1)(a) of this section for each of the two most
serious specifications of which the offender is convicted or to
which the offender pleads guilty and, in its discretion, also may
impose on the offender the prison term specified under that
division for any or all of the remaining specifications.
R.C. 2929.14(B)(1)(g); see also 2008 Am.Sub.S.B. No. 184.6 This exception did not exist at
the time of Payne's sentencing. But still the trial court sentenced Payne to serve terms of
imprisonment (albeit concurrent ones) as to the specifications on Counts 1, 4, and 8 (all of
which concerned the robbery of a single flower shop and persons therein). (June 5, 2001
5 Archived online at 1995 Ohio SB 2.
6 Archived online at 2007 Ohio SB 184.
Nos. 19AP-248 and 19AP-250 12
Indictment 01CR-3300 at 1-8; June 3, 2002 Jgmt. Entry 01CR-3300 at 2; June 11, 2002
Corr. Jgmt. Entry 01CR-3300 at 2.)
{¶ 31} In addition, the trial court merged these specifications both by oral recitation
and in writing in the judgment entry. (Sentencing Tr. at 15; June 3, 2002 Jgmt. Entry
01CR-3300 at 2; June 11, 2002 Corr. Jgmt. Entry 01CR-3300 at 2.) Yet, despite having
merged the specifications, it imposed concurrent sentences for each of the specifications
accompanying Counts 1, 4, and 8. (June 3, 2002 Jgmt. Entry 01CR-3300 at 2; June 11,
2002 Corr. Jgmt. Entry 01CR-3300 at 2.) This was error and rendered the judgment entry
void in relevant part such that modification or correction is now appropriate. State v.
Williams, 148 Ohio St. 3d 403, 2016-Ohio-7658, ¶ 2, 31-34.
{¶ 32} Payne's fifth assignment of error is sustained.
F. Sixth Assignment of Error – Whether the Trial Court Properly Imposed
Post-Release Control in its Entry
{¶ 33} "[A] trial court has a statutory duty to provide notice of postrelease control at
the sentencing hearing" and "any sentence imposed without such notification is contrary to
law." State v. Jordan, 104 Ohio St. 3d 21, 2004-Ohio-6085, ¶ 23.7 "[S]tatutorily compliant
notification" includes "notifying the defendant of the details of the postrelease control and
the consequences of violating postrelease control." State v. Qualls, 131 Ohio St. 3d 499,
2012-Ohio-1111, ¶ 18. The "preeminent purpose" of such notice is that "offenders subject
to postrelease control know at sentencing that their liberty could continue to be restrained
after serving their initial sentences." Watkins v. Collins, 111 Ohio St. 3d 425, 2006-Ohio-
5082, ¶ 52. However, because a court is generally said to speak only through its journal,
the trial court, in addition to oral notification at the sentencing hearing, is "required to
incorporate that notice into its journal entry imposing sentence." Jordan at ¶ 6, 17,
paragraph one of the syllabus.
{¶ 34} Notification and incorporation in the judgment entry of the post-release
control sanction are necessary to "empower[] the executive branch of government to
exercise its discretion." Jordan at ¶ 22. Thus, "to validly impose postrelease control, a
minimally compliant entry must provide the APA [Adult Parole Authority] the information
7 See also State v. Singleton, 124 Ohio St. 3d 173, 2009-Ohio-6434, ¶ 35-36 (Pfeifer, J., concurring/dissenting),
which notes that, rather than provide a de novo sentencing hearing, courts may apply corrective procedures
as set forth in R.C. 2929.191.
Nos. 19AP-248 and 19AP-250 13
it needs to execute the postrelease-control portion of the sentence." State v. Grimes, 151
Ohio St. 3d 19, 2017-Ohio-2927, ¶ 13. The Supreme Court has clarified that a "sentencing
entry must contain the following information: (1) whether postrelease control is
discretionary or mandatory, (2) the duration of the postrelease-control period, and (3) a
statement to the effect that the Adult Parole Authority ("APA") will administer the
postrelease control pursuant to R.C. 2967.28 and that any violation by the offender of the
conditions of postrelease control will subject the offender to the consequences set forth in
that statute." Id. at ¶ 1.
{¶ 35} In this case, despite the fact that the trial court provided Payne with a detailed
oral notification, the judgment entry only provided that it had notified the defendant
regarding "the possibility of the applicable periods of post-release control." (June 3, 2002
Jgmt. Entry 01CR-3300 at 3; June 3, 2002 Jgmt. Entry 01CR-3339 at 2; Sentencing Tr. at
19-20.) This Court has held, in cases where oral notification is sufficient but written
notification is not, that the judgment entry may be corrected nunc pro tunc. State v.
Harper, 10th Dist. No. 17AP-762, 2018-Ohio-2529, ¶ 16-19.
{¶ 36} The State argues that the Grimes requirements should not be applied
retroactively. (State's Brief at 11-12.) Under typical circumstances, the Supreme Court has
recognized that "[a] new judicial ruling may be applied only to cases that are pending on
the announcement date." Ali v. State, 104 Ohio St. 3d 328, 2004-Ohio-6592, ¶ 6, citing
State v. Evans, 32 Ohio St. 2d 185, 186 (1972). In other words, a "new judicial ruling may
not be applied retroactively to a conviction that has become final, i.e., where the accused
has exhausted all of his appellate remedies." Ali at ¶ 6, citing Transamerica Ins. Co. v.
Nolan, 72 Ohio St. 3d 320, 323 (1995); Doe v. Trumbull Cty. Children Serv. Bd., 28 Ohio
St.3d 128 (1986), paragraph one of the syllabus; Evans at 186; State v. Lynn, 5 Ohio St. 2d
106, 108 (1966); State v. Gonzalez, 138 Ohio App. 3d 853, 859 (1st Dist.2000).
{¶ 37} However, the Supreme Court has also embraced the view that not properly
imposing post-release control renders a sentence void in relevant part and therefore open
to challenge at any time, irrespective of finality or other principles of res judicata. Fischer,
2010-Ohio-6238, at paragraphs one and two of the syllabus; Harper at ¶ 15. When post-
release control is not appropriately imposed in a trial court's judgment entry, the sentence
is partially void and never becomes final in that limited respect. Harper at ¶ 15. Thus, it is
Nos. 19AP-248 and 19AP-250 14
appropriate to correct it now under Grimes. Id.; see also Grimes at ¶ 1. The dissent in
Harper correctly observed that this argument may appear circular in the sense that the trial
court's judgment is only void when it issued if its deficiencies under Grimes could be
considered to have been deficiencies before the Grimes decision was published. Harper at
¶ 23 (Sadler, J., dissenting). But the view of Grimes this court adopted in Harper was that
Grimes was not judicially legislating a new set of requirements but, rather, clarifying
requirements that always existed. Thus, entries that failed to meet such requirements (even
prior to Grimes) and were void in consequence of that failure should be subject to later
correction.
{¶ 38} As this Court recognized when it decided Harper, this ruling is problematic
in that it encourages filings to obtain retroactive compliance with the clarification
enunciated by Grimes. Yet, the problem is not with Grimes or Harper. Rather, there are
problems with the line of cases that have promoted sentencing errors from mere errors that
render a judgment voidable, to breaches of statutory authority which render the judgment
void ab initio.
{¶ 39} Payne's sixth assignment of error is sustained.
IV. CONCLUSION
{¶ 40} The trial court erred in construing Payne's motion to correct a void sentence
as a postconviction petition and dismissing it as untimely. As Payne argued in his motion,
the original and corrected judgment entries with respect to case No. 01CR-3300 contain a
number of errors. The original entry (corrected, however) omitted imposition of a sentence
on Count 12, both entries impose concurrent sentences on the three merged firearm
specifications, and neither entry explained (1) whether post-release control was
discretionary or mandatory, (2) the duration of the post-release-control period, or included
(3) a statement to the effect that the Adult Parole Authority would administer post-release
control pursuant to R.C. 2967.28 and that any violation by Payne of the conditions of post-
release control would subject the offender to the consequences set forth in that statute.
{¶ 41} Therefore, Payne's first, fifth, and sixth assignments of error are sustained
and this case is remanded to the trial court with instructions to issue a corrected judgment
entry that provides only a single three-year sentence for the three merged firearm
specifications and notes that Payne will be subject to a five-year mandatory period of post-
release control to be administered by the Adult Parole Authority pursuant to R.C. 2967.28
Nos. 19AP-248 and 19AP-250 15
with the understanding that any violation by Payne of the conditions of post-release control
will subject him to the consequences set forth in that statute. Payne's second, third, and
fourth assignments of error are overruled.
Judgment reversed and
cause remanded with instructions.
NELSON, J., concurs in judgment only.
DORRIAN, J., concurs in judgment only in part and dissents in part.
DORRIAN, J., concurring in judgment only in part and dissenting in part.
{¶ 42} I respectfully dissent in part and concur in judgment only in part.
{¶ 43} I concur with the majority's conclusion that the original and corrected
original judgment entries were final and appealable orders and would overrule the second
assignment of error. This court has stated that "[i]f a direct appeal from the underlying
sentencing entry has previously been taken in and decided by the court of appeals, the
sentencing entry is implicitly a final order through application of the law of the case
doctrine." State v. Bates, 10th Dist. No. 17AP-869, 2019-Ohio-1172, ¶ 19.8 In Bates, we
8 Bates further explains at paragraphs 19-20:
[T]his court has found a consistent manner of dealing with sentencing
entries that are allegedly deficient under Crim.R. 32(C), after the trial court
has denied (rather than refused to rule upon) a motion to correct such an
entry. If a direct appeal from the underlying sentencing entry has previously
been taken in and decided by the court of appeals, the sentencing entry is
implicitly a final order through application of the law of the case doctrine. A
subsequent order from the trial court denying the defendant's motion to
correct the sentencing entry is itself a final appealable order, rather than
interlocutory, and may be addressed by this court on appeal. If, to the
contrary, no direct appeal was taken from the noncompliant sentencing
entry, that entry remains a non-final order and no direct appeal may be
taken from the subsequent order from the court denying a motion to correct
the sentencing entry. At that point, as in [State v.] Bonner, [10th Dist. No.
14AP-461, 2015-Ohio-1010], the defendant's remedy (once the trial court
has denied his motion to correct the sentencing entry) lies in a writ of
procedendo ordering the trial court to grant him the correct sentencing
entry to which he is entitled.
In contrast, if the defendant has pursued a legal remedy through a motion
before the trial court, and the court has simply declined to rule on the
motion, the defendant's remedy is through a writ of procedendo, and the
appealability of the underlying sentencing entry is not determinative. If the
defendant has yet to bring a motion before the trial court to correct the
underlying sentencing entry, neither an appeal nor a writ is ripe. Dunn [v.
Smith, 119 Ohio St. 3d 364, 2008-Ohio-4565].
Nos. 19AP-248 and 19AP-250 16
followed our precedent set forth in State v. I'Juju, 10th Dist. No. 15AP-692, 2016-Ohio-
3078, and State v. Monroe, 10th Dist. No. 13AP-598, 2015-Ohio-844. In I'Juju, we stated:
Initially, as we found in Monroe, the purpose of Crim.R. 32(C)
is to ensure that a defendant is on notice concerning when a
final judgment has been entered and the time for filing an
appeal has begun to run. Like the defendant in Monroe, in the
present case, appellant filed a direct appeal of the judgment;
thus, appellant cannot credibly argue that he was not on notice
regarding when a final judgment was entered. Furthermore,
consistent with our reasoning in Monroe, by reviewing and
affirming the trial court's judgment in I'Juju, this court
implicitly found the trial court's judgment was a final
appealable order, and the doctrine of law of the case would
preclude both the trial court and this court from concluding it
was not a final appealable order.
Although we indicated in Monroe that an appellate court may
choose to re-examine the law of the case it has itself previously
created if that is the only means to avoid injustice, appellant
has failed to demonstrate that any injustice would be prevented
by granting his motion. Appellant filed his motion to correct
judgment entry 30 years after the trial court filed the original
judgment, and appellant has failed to convince us that the trial
court's issuing a new entry at this very late juncture would
alleviate any prejudice or prevent an injustice.
Id. at ¶ 10-11.
{¶ 44} As in Bates, I'Juju, and Monroe, appellant in the consolidated cases before
us filed a direct appeal and this court took the appeal and decided the case 17 years ago.
State v. Payne, 10th Dist. No. 02AP-723, 2003-Ohio-4891. Therefore, pursuant to law of
the case doctrine, the original and corrected original sentencing entries were final and
appealable. Furthermore, appellant in this case has failed to demonstrate that any injustice
would be prevented if we were to accept his argument that the original and corrected
original judgment entries were not final and appealable. Therefore, I would decline to re-
examine the law of the case that the original and corrected original sentencing entries were
final and appealable.
{¶ 45} I concur in judgment only as to the first assignment of error. For this limited
reason, I would reverse and remand to the trial court to determine which, if any, of the
alleged errors set forth in the motion to correct a void sentence, if established, would render
Nos. 19AP-248 and 19AP-250 17
the sentence void in part or in its entirety and therefore would not be subject to res judicata
or the time constraints and criteria outlined at R.C. 2953.21 through 2953.23. In the event
an alleged error, if established, would not render the sentence void in part or in its entirety,
the court should apply the principles of res judicata and the time constraints and criteria
outlined in R.C. 2953.21 through 2953.23 to that particular error.
{¶ 46} I write separately regarding the first assignment of error to express caution
regarding the broad conclusion set forth in the lead opinion at paragraphs 17-18 and
suggested in footnote one of State v. Steele, 10th Dist. No. 18AP-187, 2018-Ohio-3950,
quoted in paragraph 17 of the lead opinion. While I recognize the concern of appellate
courts regarding the "swelling" of the Supreme Court of Ohio's "void-versus-voidable-
sentence jurisprudence," State v. Straley, __ Ohio St.3d __, 2019-Ohio-5206, ¶ 26, I think
it is important to note that the labeling of a motion as one "to correct or vacate a void
sentence" does not necessarily require a trial court to assume the petitioner has in fact
raised an issue that would render part or all of a sentence void and accordingly require the
trial court to evaluate the motion under State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-
6238, and its progeny.9 Such a motion does, however, require a trial court to carefully
examine the motion, and each separate alleged error raised therein, to determine whether
the alleged error, if established, would render part or all of the sentence void. Sometimes
this analysis involves a fine line. But, to be clear, not every sentencing error results in a
void sentence, even if a petitioner labels it as such. Furthermore, if such an error exists, it
may render the sentence void only in part, leaving the remainder of the sentence unaffected.
9 It is well-recognized that the caption or title of a motion is not controlling and that a court should consider
the content of the motion in determining how to treat it. Cooke v. United Dairy Farmers, Inc., 10th Dist. No.
05AP-1307, 2006-Ohio-4365, ¶ 29 ("Courts of this state have recognized that the name given to a pleading or
motion is not controlling. Rather, it is the substance of the pleading or motion that determines the operative
effect thereof."). (Internal citation omitted.) See also Carter-Jones Lumber Co. v. JCA Rentals, LLC, 7th Dist.
No. 12 MA 56, 2013-Ohio-863, ¶ 19 ("A court is entitled to rely on the caption of a motion when ruling on it,
but also has the discretion to construe the motion based on the contents in the body of the motion, itself.");
State ex rel. Browning v. Browning, 5th Dist. No. CT2011-CA-55, 2012-Ohio-2158, ¶ 43 ("Courts of this state
have recognized that the name given to a pleading or motion is not controlling. Rather, the substance of the
pleading or motion determines the operative effect thereof.") (Internal citation omitted.); State v. Workman,
12th Dist. No. CA2002-12-302, 2003-Ohio-4242, ¶ 6 ("It is not a motion's designation or title that is
controlling. Rather, a motion should be considered for what it is and its content rather than how it is
designated.") (Internal citation omitted.); Lungard v. Bertram, 86 Ohio App. 392, 395 (1st Dist.1949) ("We
are fully conscious that the name given to a pleading or motion is not controlling. It is the substance and not
the caption that determines the operative effect of a pleading or motion under the Code.").
Nos. 19AP-248 and 19AP-250 18
{¶ 47} Even post-Fischer and State v. Williams, 148 Ohio St. 3d 403, 2016-Ohio-
7658, some motions which purport to correct or vacate a void sentence are, simply,
petitions for postconviction relief—subject to the time constraints and criteria outlined at
R.C. 2953.21 through 2953.23 and subject to res judicata. Moreover, within the same
motion, some of the issues raised could be subject to res judicata and the criteria outlined
at R.C. 2953.21 through 2953.23, whereas others might not. See Fischer at ¶ 36-40 ("[T]he
court of appeals in this case correctly found that Fischer's remaining claims, which did not
involve a[] void sentence or judgment, were barred by res judicata. * * * [R]es judicata still
applies to other aspects of the merits of a conviction, including the determination of guilt
and the lawful elements of the ensuing sentence."). (Emphasis added.) Therefore, res
judicata10 may still apply to part or all of a motion captioned as a motion to vacate or correct
a void sentence. Thus, the trial court must engage in careful examination of such a motion
issue by issue. The trial court here did not engage in an issue-by-issue examination.
{¶ 48} I respectfully dissent from the lead opinion's analysis of the third, fourth,
fifth, and sixth assignments of error, and I would find them to be rendered moot pursuant
to reversal and remand on the first assignment of error. If, upon remand, the trial court
determines that some or all of the issues raised in appellant's motion would, if established,
render part or all of the sentence void, and thus are not subject to res judicata or the criteria
outlined at R.C. 2953.21 through 2953.23, the trial court should address these issues in the
first instance. I would not opine on issues not yet decided by the trial court.
{¶ 49} For these reasons, I respectfully dissent in part and concur in judgment only
in part. I concur in judgment only and would sustain the first assignment of error. I would
10It is also important to remember that this court has applied the doctrines of res judicata and law of the case
to previous determinations, within the same case, that an alleged error did not render a sentence void.
Accordingly, I would disagree with the statement in footnote 1 of Steele that an alleged sentencing error, even
one which claims to render a sentence void, could be "revived time and time again without being foreclosed
by res judicata." That is not the case. See State v. Haynes, 10th Dist. No. 14AP-276, 2015-Ohio-183, ¶ 14 ("We
believe that once an appellate court has ruled that a judgment is not void, that ruling binds the case for
purposes of future consideration."); State v. Anderson, 10th Dist. No. 15AP-897, 2016-Ohio-1089, ¶ 12-13
("Moreover, we have previously decided these issues in Anderson's previous appeal. We again find Anderson's
assignments of error to be without merit and we specifically hold that his sentence is not void. Therefore, his
claim is barred by res judicata."); see also State v. Sowell, 8th Dist. No. 107153, 2019-Ohio-701, ¶ 13 ("Sowell's
arguments are barred by res judicata. This court has repeatedly found that the sentence on the [repeat violent
offender] specification is not void; thus, any argument regarding sentencing should have been raised on direct
appeal."); State v. Burns, 2d Dist. No. 27374, 2018-Ohio-1419, ¶ 19 ("In [the appellant's] second appeal, we
found that the trial court properly imposed an aggregate sentence of 44 years to life. * * * Hence, we have
already determined that the sentence is not void, implicating the doctrine of res judicata.").
Nos. 19AP-248 and 19AP-250 19
reverse and remand and instruct the trial court to determine, alleged error by alleged error,
set forth in the motion to correct a void sentence, which, if any, of the alleged errors, if
established, would render the sentence void in part or in its entirety and therefore are not
subject to res judicata or the time constraints and criteria outlined at R.C. 2953.21 through
2953.23. I concur with the majority overruling the second assignment of error. I dissent
from the majority addressing the third, fourth, fifth, and sixth assignments of error and
would find the same to be rendered moot. | 01-03-2023 | 03-17-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2610201/ | 207 Kan. 431 (1971)
485 P.2d 221
DOROTHY LEONE HAMM (Now Moser), Appellant,
v.
NORMAN DALE HAMM, Defendant, JACK RAYMOND KELSEY and BARBARA KELSEY, Respondents Appellees.
No. 46,316
Supreme Court of Kansas.
Opinion filed May 15, 1971.
James R. Schmitt, of Wettig, Schmitt and Caro, of Wichita, argued the cause and was on the brief for the appellant.
Mearle D. Mason, of Hill, Mason, Graber and Nicklin, of Wichita, argued the cause and was on the brief for the respondents appellees.
The opinion of the court was delivered by
HATCHER, C.:
This is an appeal from a judgment in a child custody proceeding. The natural mother was denied custody of her two small children and she has appealed.
The facts are not in dispute. As the appeal challenges the finding of unfitness of the mother, the facts must be presented in some detail.
In 1965, appellant filed a divorce action against her husband and was granted temporary custody of her four minor children, Wanda, Zina, Cindy May and Kristen Ray, whose ages at the time ranged from two months to five years. Receiving no financial assistance from their father, appellant was unable to provide for her children and in the fall of 1965, she agreed to allow the two oldest girls, Wanda and Zina, to stay in the home of their paternal grandparents and the youngest boy and girl, Kristen Ray and Cindy May, to stay in the home of their father's aunt and uncle, appellees herein. Both the grandparents and the appellees live in the same neighborhood in Arkansas City, Kansas. In June, 1966, this temporary arrangement was reduced to writing and approved by the court, and in the same year a final decree of divorce was granted to appellant.
Subsequently, appellant met Rudy Moser who was a resident of *432 Las Vegas, Nevada, and an employee of Trans World Airlines. In February, 1967, they were married. Approximately three months after appellant was remarried she filed a motion in the district court of Sedgwick County, Kansas, seeking to regain custody of her two oldest daughters from the paternal grandparents. On June 7, 1968, the judge of the district court of Sedgwick County, Kansas, granted permanent custody of the two older daughters to appellant. They have resided with her and Mr. Moser since that time. Parental rights of the natural father were judicially severed by a Nevada court in 1969, and his whereabouts are unknown.
In August, 1970, in an effort to reunite her family, appellant filed a motion before the same judge requesting that she be granted custody of the two younger children, Kristen Ray and Cindy May. The judge ordered a juvenile court investigation of the home of appellant be made, and on September 23, 1970, the report was filed. The report of the juvenile court of Clark County, Nevada, found that appellant and her husband own a three-bedroom home in a well developed and respected housing area in Las Vegas, Nevada, that they are essentially without debts, except on their home, and have an income of slightly more than $1,000 per month. The two oldest girls, Wanda and Zina, were found to be in good health, with fine school records, and were attending church regularly. The report noted that appellant and husband do not drink or go out frequently, but rather enjoy family entertainment such as bowling, croquet and vegetable gardening in their back yard. The report concluded by stating that appellant's home atmosphere was very good and that all persons contacted by the investigator gave a high appraisal of the Mosers.
On October 2, 1970, following the juvenile investigation, a hearing was held on the appellant's motion for change of custody.
The appellant testified that during the past two and one-half years since she was granted custody of her two oldest children, their home life has been good. She exhibited the children's school and church records and told about the family home and activities. She further testified that it was her husband's desire to adopt her children but that they were waiting until all four children could be adopted at one time. Concerning the two younger children, she explained that she had always remembered the children with gifts on their birthdays and Christmas and had journeyed from Las Vegas to Kansas some fifteen times to visit them in the past *433 three and one-half years. On these visits the older girls have gone with her and were always upset because their younger brother and sister could not go home with them. All four of the children have known and played with each other most of their lives having lived in the same neighborhood in Arkansas City, Kansas.
Frank Wadsworth, one of the owners of the Las Vegas Transfer and Storage Company and a resident of Las Vegas for more than 35 years, testified that appellant had been a responsible and efficient employee for the past three and one-half years. Mildred Carlson, a resident of Las Vegas, Nevada, for more than 24 years and a fellow employee of appellant, also testified in her behalf. Both witnesses stated that they had observed Mrs. Moser both on and off the job and on a number of occasions when she was with her older children. Each observed that the children were happy, well dressed and well taken care of, and each characterized appellant's work habits and personal habits as good. Mrs. Carlson stated that based upon her observation of the youngsters and the home setting, she believed that the adjustment of the two older girls to their new home had been perfectly normal.
Appellant's husband, Rudy Moser, testified that his relationship with appellant's children was good and that he has supported the two older children since his wife had regained custody of them. He stated that he would welcome the two younger children into his home and support them, and that he intended to adopt all four of the children as his own.
The appellees presented the testimony of one witness, that of appellee, Barbara Kelsey. She testified that she and her husband have had custody of the two children in question since October, 1965, except for a period of three months in early 1966, and that the children have resided with them and their own two children since that time. Mrs. Kelsey was asked by her attorney if adjustment for the children would be hard if the court changed custody. She replied that adjustment for the youngest child, in her opinion, would be harder because he is "sensitive" but stated that he was a "very healthy" boy. Concerning the girl, she felt that she would have no trouble adjusting to the change of custody. The children were enrolled in school under the name of Kelsey but that they knew their real name was Hamm. No attempt had ever been made to conceal the identity of the children's real mother, and Mrs. Kelsey told them on occasion that Mrs. Moser had "brought them *434 into the world." She admitted that she had called appellant since the filing of appellant's motion to change custody and offered the girl to her in exchange for appellant's allowing the boy to stay with the appellees.
At the close of the evidence, the court took the matter under advisement and on October 13, 1970, it entered an order which concluded:
"It is the opinion of this court that plaintiff cannot be permitted to grant the complete care, support, responsibility and financial responsibility of raising these two very young babies to another and then at her will and desire take these children without cause. It is the further opinion of this court that these children cannot be uprooted from their home and `parents' and transplanted into a totally strange situation without causing them irreparable harm and damage. It is this court's opinion that in situations such as is here presented, the future health and welfare of the children involved is paramount and not the desires and rights of adults.
"After hearing the testimony of plaintiff, Mrs. Jack Raymond Kelsey, and other witnesses, after observing the parties to this matter, and after much consideration, this court finds that plaintiff is an unfit person to have the future care, custody and control of Kristen Ray Hamm and Cindy May Hamm. It is my opinion that plaintiff is not a suitable, proper or correct person under all the circumstances to have the future care and custody of these children. To take these children from their present home and those they consider their parents and place them with persons who to them are practical[ly] strangers would be an unconscionable exercise of judicial discretion."
The trial court granted permanent custody of the two children to the appellees.
The appellant contends that there was no substantial evidence to support the finding that she was an unfit person and the trial court abused its discretion in denying appellant's motion for change of custody.
We are forced to agree. There was no evidence of any character that indicated the mother was an unfit person to have possession of her children. In fact, the evidence before the trial court, which we have previously summarized, would indicate that the mother was maintaining a fine Christian home in which to raise her children and that she had a motherly desire to have her four children in the home together.
The right of the parent to the custody of the children under such circumstances has been announced in numerous decisions. In Stout v. Stout, 166 Kan. 459, 201 P.2d 637, we stated at page 463 of the opinion:
"... Under our recent and often repeated decisions, to which we have *435 strictly adhered for many years, the established and inviolate rule has been and now is that a parent who is able to care for his children and desires to do so, and who has not been found to be an unfit person to have their custody, in an action or proceeding where that question is in issue, is entitled to the custody of his children as against grandparents or others who have no permanent or legal right to their custody, even though at the time the natural parent seeks their custody such grandparents or others are giving the children proper and suitable care and have acquired an attachment for them (See Jones v. Jones, 155 Kan. 213, 219, 124 P.2d 457; May v. May, 162 Kan. 425, 176 P.2d 533; In re Jackson, 164 Kan. 391, 190 P.2d 426; Bailey v. Bailey, 164 Kan. 653, 192 P.2d 190, citing numerous other and early decisions to the same effect)."
The opinion in the Stout case was quoted with approval in Ramey v. Ramey, 170 Kan. 1, 223 P.2d 695. See, also, Christlieb v. Christlieb, 179 Kan. 408, 295 P.2d 658.
Where a contest for child custody is between a mother and a third party, in the absence of evidence that the mother is an unfit person to have custody, she is entitled to custody as against the third party. (Finney v. Finney, 201 Kan. 263, 440 P.2d 608.)
The trial judge no doubt placed great weight on his conclusion
"It is the opinion of this court that plaintiff cannot be permitted to grant the complete care, support, responsibility and financial responsibility of raising these two very young babies to another and then at her will and desire take these children without cause...."
The appellees' only contention is that the failure of the mother to support the two children is sufficient grounds to sever all parental relationship.
The above conclusion of the court is not a proper statement of the law.
A child is not a chattel subject to an absolute gift or contract. A parent cannot by merely giving away a child be released of the obligation to support it or be deprived of the right to its custody. The question was definitely decided in Wood v. Shaw, 92 Kan. 70, 139 P. 1165. There the father had delivered a son two years old, and a baby girl, four days old, to the custody of their grandparents, the parents of the children's mother. By a written contract the father agreed they might remain with their grandparents for fourteen years. Four years later he remarried and endeavored several times to secure the children from their grandparents but was not successful. He brought habeas corpus to get their custody. There had been some trouble between the father and the grandparents *436 and on one occasion he had gained possession of the children by a ruse. This was all pointed out in the opinion. We said:
"The agreement referred to is not controlling, because the custody of the children is not a matter to be determined by contract. (Chapsky v. Wood, 26 Kan. 650; Notes, 27 L.R.A. 56, 41 L.R.A., n.s., 578, 42 L.R.A., n.s. 1013.) There is no substantial controversy as to the important facts of the case. The court is of the opinion that there is nothing in the circumstances of the case to overcome the natural claim of the father to the custody of his children, inasmuch as his right is not subject to be contracted away, and has not been forfeited by any misconduct; that the present arrangement affords no such superior advantage to the children as to offset this consideration, especially in view of the fact that after seven years more they were in any event to be returned to him...." (p. 72. See, also, In re Jackson, 164 Kan. 391, 190 P.2d 426, where the matter is discussed at some length.)
We are forced to conclude that there being no evidence of unfitness on the part of the mother the trial court abused its discretion in denying her motion for change of custody.
The judgment is reversed with instructions to the trial court to enter an order granting the permanent custody of the two children, Cindy May Hamm and Kristen Ray Hamm, to their natural mother, Dorothy Leone Moser.
APPROVED BY THE COURT. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2899881/ | NO. 07-07-0016-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JANUARY 22, 2009
______________________________
DOMINIC RYAN AYON, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;
NO. 17,860-B; HON. JOHN BOARD, PRESIDING
_______________________________
Before CAMPBELL, HANCOCK and PIRTLE, JJ.
Memorandum Opinion
Appellant Dominic Ryan Ayon appeals from his conviction of the offense of
possession of a firearm by a felon and his resulting sentence of six years imprisonment in
the Institutional Division of the Texas Department of Criminal Justice. Via four issues,
appellant challenges the legal and factual sufficiency of the evidence to support his
conviction. We find the evidence sufficient and affirm.
Background
Appellant’s indictment for possession of a firearm by a felon1 also set forth
appellant’s 2004 felony conviction of the offense of burglary of a habitation.2 Following
appellant’s plea of not guilty, this matter proceeded to trial by jury.
At trial, the evidence established that Amarillo CrimeStoppers received a tip that
appellant had a sawed-off shotgun and two hand grenades in an apartment. When officers
went to the apartment identified in the tip,3 appellant answered the door. When officers
told him of the anonymous tip, appellant laughed and said he didn’t have any hand
grenades. He told the officers his girlfriend had a shotgun.
At the officers’ request, appellant read and signed a consent to search form that
repeatedly described the premises to be searched as “my premises.” One of the officers
asked appellant where the shotgun was located and he pointed into the bedroom and told
him it was on the bed. Officers located the shotgun underneath the sheets on the bed.
The barrel and stock of the gun had been shortened by sawing. Appellant accurately told
1
See Tex. Penal Code Ann. § 46.04 (Vernon 2003). This is a third degree felony
punishable by imprisonment in the institutional division for any term of not more than 10
years or less than 2 years and a fine not to exceed $10,000. Tex. Penal Code Ann. §
12.34 (Vernon 2003).
2
Appellant stipulated to his final felony conviction and also stipulated that his
possession of a firearm, if any, occurred after this felony conviction and before the fifth
anniversary of his release from parole.
3
The addresses associated with appellant in the department’s computer system
included the address of the apartment. In the CrimeStoppers tip, officers were also
provided a description of appellant’s car, a black Lexus. When officers arrived at the
apartment, they noted the presence of a 2001 black Lexus.
2
officers there was one “round” in the chamber of the gun. After obtaining consent to
continue searching the apartment, officers located boxes of 9 mm rounds and additional
shotgun shells.
After officers returned to their vehicles, they learned appellant had previously been
convicted of a felony. As a result, the officers returned to the door of the apartment and
appellant allowed them to reenter. The officers explained to appellant that they were
taking custody of all of the items they had located in their search. In response, appellant
told one of the officers that the shotgun was there because someone had tried to break
into his apartment on several occasions.
At the close of the evidence, the jury returned a verdict of guilty as alleged in the
indictment. The court assessed punishment at six years imprisonment and this appeal
followed.
Analysis
In reviewing issues of legal sufficiency, an appellate court views the evidence in the
light most favorable to the verdict to determine whether, based on that evidence and
reasonable inference therefrom, a rational jury could have found each element of the
offense beyond a reasonable doubt. Swearingen v. State, 101 S.W.3d 89, 95
(Tex.Crim.App. 2003); Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001), citing
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). The
standard for legal sufficiency review “gives full play” to the jury’s responsibility to fairly
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
3
inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Sanders v. State,
119 S.W.3d 818, 820 (Tex.Crim.App. 2003). If, given all of the evidence, a rational jury
would necessarily entertain a reasonable doubt of the defendant’s guilt, due process
requires that we reverse and order a judgment of acquittal. Swearingen, 101 S.W.3d at
95, citing Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App. 1992), cert. denied, 507
U.S. 975,113 S.Ct. 1422, 122 L. Ed. 2d 791 (1993). Circumstantial evidence is as probative
as direct evidence in establishing guilt, and circumstantial evidence alone can be sufficient
to do so. Hooper v. State, 214 S.W.3d 9 (Tex.Crim.App. 2007), citing Guevara v. State,
152 S.W.3d 45, 49 (Tex.Crim.App. 2004).
A factual sufficiency review of the evidence is “barely distinguishable” from the legal
sufficiency review under Jackson v. Virginia. Marshall v. State, 210 S.W.3d 618, 625
(Tex.Crim.App. 2006). A factual sufficiency review considers whether the evidence
supporting guilt, though legally sufficient, is so weak that the jury’s verdict seems clearly
wrong and manifestly unjust, or evidence contrary to the verdict is such that the jury’s
verdict is against the great weight and preponderance of the evidence. Id.; Watson v.
State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006); Johnson v. State, 23 S.W.3d 1, 11
(Tex.Crim.App. 2000). In a factual sufficiency review, we again consider all the evidence,
but now in a neutral light. Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 414.
Pursuant to Penal Code § 46.04(a), a person who has been convicted of a felony
commits an offense if he possesses a firearm: (1) after conviction and before the fifth
anniversary of the person’s release from confinement following conviction of the felony or
4
the person’s release from supervision under community supervision, parole, or mandatory
supervision, whichever date is later; or (2) after the period described by Subdivision (1), at
any location other than the premises at which the person lives. Tex. Penal Code Ann. §
46.04(a) (Vernon 2003).
The State must show appellant (1) exercised actual care, control, or custody of the
firearm; (2) he was conscious of his connection with the firearm; and (3) he possessed the
firearm knowingly or intentionally.4 We analyze the sufficiency of the evidence to prove
possession of a firearm by a felon under the rules adopted for determining the sufficiency
of the evidence in cases of possession of a controlled substance. Bates v. State, 155
S.W.3d 212, 216 (Tex.App.–Dallas 2004, no pet.); Smith v. State, 118 S.W.3d 838, 841
(Tex.App.–Texarkana 2003, no pet.); Nguyen v. State, 54 S.W.3d 49, 52
(Tex.App.–Texarkana 2001, pet. ref’d).
The State was not required to prove that appellant had exclusive possession of the
firearm; joint possession is sufficient to sustain a conviction. Cude v. State, 716 S.W.2d
46, 47 (Tex.Crim.App. 1986). The State can meet its burden with direct or circumstantial
evidence, but it must establish that the defendant's connection with the firearm was more
than fortuitous. Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App. 2005);
4
A person commits a possession offense only if he voluntarily possesses the
prohibited item. Tex. Penal Code Ann. § 6.01(a) (Vernon 2003). Possession is a
voluntary act “if the possessor knowingly obtains or receives the thing possessed or is
aware of his control of the thing for a sufficient time to permit him to terminate his control.”
Tex. Penal Code Ann. § 6.01(b) (Vernon 2003).
5
Grantham v. State, 116 S.W.3d 136, 143 (Tex.App.–Tyler 2003, no pet.); Davis v. State,
93 S.W.3d 664, 667 (Tex.App.–Texarkana 2002, pet. ref’d).
When the firearm is not found on the accused's person or is not in the accused's
exclusive possession, additional facts must link the accused to the firearm. Jones v. State,
963 S.W.2d 826, 830 (Tex.App.–Texarkana 1998, pet. ref’d). In determining whether
sufficient links exist, we examine factors such as whether the firearm was in plain view,
whether appellant owned the residence where the firearm was found, whether he was in
close proximity to the firearm and had ready access to it or whether it was found on him,
whether he attempted to flee, whether his conduct indicated a consciousness of guilt,
whether he had a special connection to the firearm, whether the firearm was found in an
enclosed space, and whether he made incriminating statements. The number of factors
present is not as important as the logical force or the degree to which the factors, alone or
in combination, tend to link the accused to the contraband. Smith v. State, 176 S.W.3d
907, 916 (Tex.App.–Dallas 2005, pet. ref’d); Hawkins v. State, 89 S.W.3d 674, 677
(Tex.App.–Houston [1st Dist.] 2002, pet. ref’d); Corpus v. State, 30 S.W.3d 35, 38
(Tex.App.–Houston [14th Dist.] 2000, pet. ref’d). No set formula of facts exists to dictate
a finding of links sufficient to support an inference of knowing possession. Taylor v. State,
106 S.W.3d 827, 830 (Tex.App.–Dallas 2003, no pet.); Nguyen, 54 S.W.3d at 53.
Officer testimony and a defense exhibit presented at trial established that the
identified address, along with another address, was associated with appellant’s name.
Officer testimony also established that a car matching the description provided was
6
observed at the apartment and appellant answered the door. On that occasion, appellant
was the only individual present at the apartment. Appellant also referred to the apartment
as “his” and signed a consent form that repeatedly referenced the premises to be searched
as “my premises.” Appellant knew exactly where the shotgun was located in the bedroom
of the apartment and knew there was one “round” in the chamber. Further, when officers
executed the outstanding warrant for appellant’s arrest about two weeks after their initial
visit, appellant again answered the door at the apartment.
The logical force of this evidence together is legally sufficient to link appellant to the
firearm. And, when viewed in the light most favorable to the prosecution, a rational trier
of fact could have found the requisite elements of this offense. Thus, the evidence is
legally sufficient to support appellant’s conviction.
Finding the evidence legally sufficient, we turn to the factual sufficiency of the
evidence to support appellant’s conviction. Appellant presented evidence contrary to the
verdict of guilt. A palm print lifted from the shotgun matched neither appellant nor his
girlfriend. During cross-examination of one of the police officers, appellant introduced his
driver’s license as evidence his listed address was different from the apartment’s address.
One of the officers did not recall what address was in the department’s computer system
for appellant and admitted he had no physical evidence tying appellant to the shotgun or
the boxes of ammunition. The officer also acknowledged he did not know who owned the
gun and acknowledged they did not locate hand grenades. During cross-examination of
another officer, appellant introduced a lease for the apartment. The lease listed appellant’s
girlfriend as the lessee and did not list any other occupants. The officer also testified that
7
he believed that someone “ran the tag” to the black Lexus and found it belonged to
appellant’s girlfriend.
Appellant also emphasizes evidence that the shotgun was owned by his girlfriend.
Evidence supporting that assertion came only from appellant. It was appellant who told
officers that the shotgun belonged to his girlfriend. He also told officers the gun was given
to her by her father. When an officer suggested appellant might obtain an affidavit from
the father, however, appellant responded he “wasn’t sure that’s how it happened, but that’s
possibly what happened.” Moreover, the statute does not require ownership of the firearm;
it requires only care, custody, control or management of it. Tex. Penal Code Ann. §
46.04(a) (Vernon 2003); Knight v. State, No. 07-07-0099-CR, 2008 WL 3824003
(Tex.App.–Amarillo Aug. 15, 2008, pet. stricken) (mem. op., not designated for publication);
Good v. State, No. 01-05-00639-CR, 2007 WL 274526 (Tex.App.–Houston [1st Dist.] Feb.
1, 2007, pet. ref’d) (mem. op., not designated for publication).
Viewing the entire record in a neutral light, and giving due consideration to the
evidence contrary to the verdict of guilt, we find no objective basis on which to conclude
the evidence is so weak that the jury’s verdict seems clearly wrong and manifestly unjust
or that, given the evidence to the contrary, the great weight and preponderance of all the
evidence contradicts the jury’s verdict. We therefore overrule appellant’s issues on appeal
and affirm his conviction and sentence.
James T. Campbell
Justice
Do not publish.
8 | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1598843/ | 467 N.W.2d 388 (1991)
237 Neb. 617
Richard L. CHAPMAN, Sr., Appellant,
v.
UNION PACIFIC RAILROAD, a Corporation, Appellee.
No. 89-1329.
Supreme Court of Nebraska.
March 22, 1991.
*390 Lloyd R. Bergantzel, Council Bluffs, Iowa, for appellant.
Gayla L. Fletcher and Kathleen J. Ford, Omaha, for appellee.
HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.
SHANAHAN, Justice.
In two "divisions" of his amended petition, Richard L. Chapman, Sr., asserted actions against his employer, Union Pacific Railroad, a corporation, for personal injuries which Chapman sustained in an automobile accident that occurred during Chapman's employment on December 6, 1985. The district court for Douglas County struck certain allegations from "DIVISION *391 I" of Chapman's amended petition and, after sustaining a demurrer to "DIVISION II," dismissed Chapman's action asserted in that division when Chapman declined to replead and stood on the allegations of Division II. At the close of evidence in Chapman's case in chief, the district court, on Union Pacific's motion, directed a verdict for the railroad. We affirm.
CHAPMAN'S AMENDED PETITION
Division I: Federal Employers' Liability Act.
In Division I of Chapman's amended petition, under the heading "Federal Employers' Liability Act," Chapman alleged that at the time of the accident, he was a Union Pacific employee in the interstate operation of a motor vehicle supplied by Union Pacific, which was then engaged in the "business of interstate commerce and interstate transportation as a common carrier by railroad." Chapman drove the railroad's vehicle from Omaha, Nebraska, to Council Bluffs, Iowa. When Chapman stopped Union Pacific's vehicle at a stop sign in Council Bluffs, an automobile, apparently driven by an uninsured motorist, struck the rear end of the Union Pacific vehicle.
According to Chapman's amended petition, Union Pacific was negligent by:
(a) Failing to provide Plaintiff with a vehicle equipped with headrests. (b) Failure to provide Plaintiff with vehicle with both seatbelts and shoulder harness. (c) Failure to comply with Iowa uninsured/under insured requirements.... (e) Failure to inform Plaintiff that he was not covered by any type of uninsured or underinsured coverage.
Chapman concluded that Union Pacific's "negligence was a violation of the Federal Employers' Liability Act," 45 U.S.C. §§ 51 et seq. (1988).
Division II: Negligence.
In Division II of his amended petition, under the heading "Negligence," Chapman, by reference, incorporated and reasserted all allegations contained in Division I. Chapman then alleged that Union Pacific failed to notify him that "he was not covered by an automobile insurance policy which contained uninsured or underinsured coverage" and failed to notify Chapman that "he should acquire proper automobile insurance," since Union Pacific, a self-insurer, see Neb.Rev.Stat. § 60-562 (Reissue 1988), did not provide "uninsured/underinsured" motorist protection on its vehicles. Those omissions, Chapman alleged, constituted negligence which resulted in Chapman's damages from the vehicular accident described in Division I of the amended petition.
UNION PACIFIC'S PLEADINGS
In a motion under Neb.Rev.Stat. § 25-833 (Reissue 1989) (irrelevant matter stricken), Union Pacific requested, among other things, that paragraph 9(c) and (e) of Division I in Chapman's amended petition be stricken as irrelevant to Chapman's action under the Federal Employers' Liability Act. Also, Union Pacific demurred to Division II of Chapman's amended petition and, pursuant to Neb.Rev.Stat. § 25-806 (Reissue 1989), claimed that the amended petition failed to state a cause of action, since the Federal Employers' Liability Act was Chapman's "exclusive remedy" under the circumstances.
DISTRICT COURT'S JUDGMENTS
The district court sustained Union Pacific's motion and struck paragraph 9(c) and (e) from Division I of Chapman's amended petition. The court also sustained Union Pacific's demurrer to Division II of Chapman's amended petition. When Chapman declined to replead, but stood on the allegations of his amended petition, the court dismissed Division II of Chapman's amended petition. Chapman's case proceeded to trial on Division I with paragraph 9(c) and (e) deleted or stricken by the court. At the conclusion of Chapman's case in chief, the district court directed a verdict for Union Pacific.
ASSIGNMENTS OF ERROR
Chapman contends that the district court erred (1) in striking paragraph 9(c) and (e) *392 from Division I of Chapman's amended petition, (2) in sustaining the demurrer to Division II, and (3) in directing a verdict for Union Pacific.
FEDERAL EMPLOYERS' LIABILITY ACT
The Federal Employers' Liability Act provides in pertinent part:
Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in commerce, [that is, liability] for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.
Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter.
45 U.S.C. § 51.
We assume that a motor vehicle may be characterized as "equipment" for the purpose of the preceding provision in the Federal Employers' Liability Act. See, e.g., Mortensen v. Southern Pacific Co., 245 Cal.App.2d 241, 53 Cal.Rptr. 851 (1966) (absence of vehicular seatbelts; actionable negligence under the Federal Employers' Liability Act).
The Federal Employers' Liability Act was enacted pursuant to the power granted to Congress for regulation of interstate commerce under the commerce clause of U.S. Const. art. I, § 8. Second Employers' Liability Cases, 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327 (1912); Parden v. Terminal R. Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964). As a statute of the United States, the Federal Employers' Liability Act, enacted pursuant to the U.S. Constitution, is a part of "the supreme Law of the Land." U.S. Const. art. VI, cl. 2. See, also, State ex rel. Douglas v. Karnes, 216 Neb. 750, 346 N.W.2d 231 (1984) (the supremacy clause of the U.S. Constitution binds the several states, subordinates state law, including legislation, to a congressional enactment, and supersedes state law which conflicts with federal law). The Federal Employers' Liability Act preempts state law and statutorily supplies uniform law controlling a railroad employee's claim for damages caused by negligence of the employer railroad while the employee is engaged in the railroad's interstate commerce activity. Second Employers' Liability Cases, supra; Dice v. Akron, C. & Y.R. Co., 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398 (1952).
Among objectives of the Federal Employers' Liability Act are protection of railroad employees' safety and health and promotion of measures to prevent injury to railroad employees. Parden, supra; Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949); Jamison v. Encarnacion, 281 U.S. 635, 50 S.Ct. 440, 74 L.Ed. 1082 (1930); Minneapolis &c. R. Co. v. Rock, 279 U.S. 410, 49 S.Ct. 363, 73 L.Ed. 766 (1929).
The U.S. Supreme Court stated in Sinkler v. Missouri Pacific R. Co., 356 U.S. 326, 329-30, 78 S.Ct. 758, 761-62, 2 L.Ed.2d 799 (1958):
[I]n interpreting the FELA, we need not depend upon common-law principles of liability. This statute, an avowed departure from the rules of the common law [citation omitted], was a response to the special needs of railroad workers who are daily exposed to the risks inherent in railroad work and are helpless to provide adequately for their own safety. [Citation *393 omitted.] The cost of human injury, an inescapable expense of railroading, must be borne by someone, and the FELA seeks to adjust that expense equitably between the worker and the carrier. [Citation omitted.] The Senate Committee which reported the Act stated that it was designed to achieve the broad purpose of promoting "the welfare of both employer and employee, by adjusting the losses and injuries inseparable from industry and commerce to the strength of those who in the nature of the case ought to share the burden."
The Federal Employers' Liability Act is a broad remedial statute and should be interpreted liberally to fulfill the intent of Congress. Atchison, T. & S.F.R. Co. v. Buell, 480 U.S. 557, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987).
Courts of the United States and courts of the several states have concurrent jurisdiction over claims controlled by the Federal Employers' Liability Act. 45 U.S.C. § 56. In disposing of a claim controlled by the Federal Employees' Liability Act, a state court may use procedural rules applicable to civil actions in the state court unless otherwise directed by the act, St. Louis Southwestern R. Co. v. Dickerson, 470 U.S. 409, 105 S.Ct. 1347, 84 L.Ed.2d 303 (1985), and Geris v. Burlington Northern, Inc., 277 Or. 381, 561 P.2d 174 (1977), but substantive issues concerning a claim under the Federal Employers' Liability Act are determined by the provisions of the act and interpretative decisions of federal courts construing the Federal Employers' Liability Act, see, Monessen Southwestern R. Co. v. Morgan, 486 U.S. 330, 108 S.Ct. 1837, 100 L.Ed.2d 349 (1988); Chesapeake & Ohio Ry. Co. v. Kuhn, 284 U.S. 44, 52 S.Ct. 45, 76 L.Ed. 157 (1931); Southern Ry. v. Gray, 241 U.S. 333, 36 S.Ct. 558, 60 L.Ed. 1030 (1916); Seaboard Air Line v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062 (1914). See, also, McDermott v. Chicago & N.W.R. Co., 124 Neb. 727, 730, 248 N.W. 59, 60 (1933): "The state courts are bound by the interpretation of the federal act [Federal Employers' Liability Act] given by the federal courts." Thus, if the Federal Employers' Liability Act applies to an employee's negligence claim, the act supersedes a state's common and statutory law, even though the employee seeks relief in a state court. Erie R.R. Co. v. Winfield, 244 U.S. 170, 37 S.Ct. 556, 61 L.Ed. 1057 (1917).
Thus, when the Federal Employers' Liability Act applies to a railroad employee's negligence claim, the cause of action against the railroad employer and recovery for negligent injury to a railroad employee are exclusively controlled by the Federal Employers' Liability Act. See, Second Employers' Liability Cases, 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327 (1912); Janelle v. Seaboard Coast Line R. Co., 524 F.2d 1259 (5th Cir.1975); Geris v. Burlington Northern, Inc., supra.
THE STRICKEN ALLEGATIONS
Chapman claims that reversible error occurred as the result of the district court's striking paragraph 9(c) and (e) of the amended petition regarding provision for indemnification against Chapman's bodily injury from a collision between Union Pacific's vehicle and a vehicle driven by an uninsured or underinsured motorist. Chapman does not refer to any federal statute or decision regarding the Federal Employers' Liability Act which supports Chapman's contention that a railroad employer's failure to provide uninsured or underinsured motorist protection for the railroad's vehicle, used in interstate commerce activity, renders the vehicle an "unsafe workplace" or "defective" as a basis for a claim under the act. We are unable to locate any federal statute or decision whereby uninsured or underinsured motorist indemnificatory protection is required for a railroad's vehicle under federal law.
The statutory law of Iowa and Nebraska, the states in which Chapman drove the Union Pacific vehicle, does not require uninsured or underinsured motorist coverage whether the owner is self-insured or not. See, Iowa Code Ann. § 516A.1 (West 1988) (uninsured and underinsured motorist coverage optional); Neb.Rev.Stat. §§ 60-509.01 and 60-577 (Reissue 1988) (uninsured *394 and underinsured motorist coverage optional).
As noted, under the statutory law of Iowa and Nebraska, there is no requirement that a vehicle operated within either state must be covered by indemnificatory protection against an uninsured or underinsured motorist. Hence, Union Pacific was under no statutory duty to provide indemnification against an uninsured or underinsured motorist in collision with its vehicles. As Chapman's self-insured employer and owner of the vehicle in question, Union Pacific had the option to provide uninsured and underinsured protection on its vehicles, but made no such provision. Even if some nonstatutory duty were fashioned, to complete the allegation of causation for actionable negligence, namely, the railroad's legal obligation to inform Chapman concerning the absence of uninsured or underinsured motorist protection on its vehicle, Chapman had to plead, under principles for pleading a negligence case in Nebraska, that if the railroad had informed him about the absence of such protection, he would have obtained uninsured or underinsured motorist insurance coverage for the Union Pacific vehicle. See State Auto. & Cas. Underwriters v. Farmers Ins. Exchange, 204 Neb. 414, 282 N.W.2d 601 (1979). Cf. Reynolds v. Atlantic Coast Line, 336 U.S. 207, 69 S.Ct. 507, 93 L.Ed. 618 (1949) (complaint must allege proximate cause). Consequently, by itself, absence of uninsured or underinsured indemnificatory protection on Union Pacific's vehicle has no bearing on Chapman's negligence action against the railroad. On the one hand, if the insurance coverages were unavailable to an employee concerning an employer-owned vehicle in Chapman's case, then the alleged absence of uninsured or underinsured motorist protection is irrelevant to a negligence action under the circumstances. On the other hand, if the insurance coverages were available, Chapman failed to allege that on the railroad's notice that the vehicle in question was not protected by indemnification against damages from an uninsured or underinsured motorist, he could have obtained the insurance coverage, a sequence of events necessary to complete causation for actionable negligence. Without that complete and necessary allegation about Chapman's ability to obtain insurance coverage to protect against an uninsured and underinsured motorist, protection which Union Pacific did not supply, Chapman's allegations about nonexistence of uninsured or underinsured motorist protection for Union Pacific's vehicle was irrelevant to a negligence action. For that reason, any allegation that Union Pacific failed to provide uninsured and underinsured protection or notify Chapman regarding the absence of such protection is irrelevant to the negligence action. Therefore, the district court properly struck paragraph 9(c) and (e).
DISMISSAL OF DIVISION II
Next, Chapman contends that the district court erred by dismissing the cause of action asserted in Division II of Chapman's amended petition.
"`In reviewing an order sustaining a demurrer, the Supreme Court accepts the truth of facts well pled and the factual and legal inferences which may be reasonably deduced from such facts, but does not accept conclusions of the pleader.'" Security Inv. Co. v. State, 231 Neb. 536, 538, 437 N.W.2d 439, 442 (1989).
When ruling on a demurrer, a court must assume that the pleaded facts, as distinguished from legal conclusions, are true as alleged and must give the pleading the benefit of any reasonable inference from the facts alleged, but cannot assume the existence of a fact not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial.
Schuyler State Bank v. Cech, 228 Neb. 588, 593, 423 N.W.2d 464, 468 (1988). Accord Parrett v. Platte Valley State Bank, 236 Neb. 139, 459 N.W.2d 371 (1990).
From Chapman's allegations in Division II of his amended petition, we assume that the vehicle which collided with Union Pacific's vehicle was either uninsured for negligently caused personal injury to another person or, if covered by liability insurance *395 concerning personal injury to another, the insurance coverage was insufficient to indemnify Chapman's loss.
As we construe the cause of action asserted in Division II of the amended petition, Chapman sought a recovery for his damages caused by Union Pacific's alleged common-law negligence in failing to inform Chapman that the railroad had not provided any indemnity protection against an uninsured or underinsured motorist who might negligently operate a vehicle in collision with the railroad's vehicle driven by Chapman. However, according to Chapman's allegations for the cause of action asserted in Division II, any of Union Pacific's negligence was occasioned by the railroad's and Chapman's conduct in the course of interstate commerce. Since the Federal Employers' Liability Act preempts state law concerning an employee's negligence claim against the railroad employer, the cause of action asserted in Division II of Chapman's amended petition is exclusively controlled by the Federal Employers' Liability Act and, therefore, is not a cause of action determined or disposed by state law concerning an action based on common-law negligence. See § 25-806(1) (lack of subject matter jurisdiction). Thus, Chapman's alleged facts for the cause of action asserted in Division II of his amended petition failed to state a cause of action based on negligence determined by state law because there was no allegation that all alleged negligent conduct occurred in intrastate commerce. See § 25-806(6). Consequently, the district court correctly dismissed the common-law cause of action asserted by Chapman in Division II of his amended petition. Chapman's second assignment of error is without merit.
DIRECTED VERDICT
Chapman claims that there was evidence to establish a cause-and-effect relationship between Chapman's injuries and the lack of an appropriate seatbelt with shoulder harness and suitable headrest for the driver of Union Pacific's vehicle, and contends that the district court improperly excluded testimony of Chapman's expert witness, George F. Lynch, an accident reconstructionist, who sought to testify about feasibility of proper seatbelt and headrest devices. Therefore, according to Chapman, the district court erred in directing a verdict against Chapman on the issue of causation for Chapman's injury sustained in the motor vehicle accident.
An action brought under the Federal Employers' Liability Act must be submitted to a jury if the jury could reasonably find that "employer negligence played any part, even the slightest, in producing the injury... for which damages are sought." Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957). Therefore, "the role of the jury is significantly greater in ... FELA cases than in common law negligence actions. The right of a jury to pass upon a question of fault and causation must be most liberally viewed." Johannessen v. Gulf Trading & Transp. Co., 633 F.2d 653, 656 (2d Cir. 1980).
To recover under the Federal Employers' Liability Act, an employee must prove the employer's negligence and that the alleged negligence is a proximate cause of the employee's injury. In a case under the Federal Employers' Liability Act, a court cannot allow a jury to speculate concerning the cause of an employee's injuries and must withhold or withdraw the employee's case from the jury unless evidence provides a basis for the reasonable inference that the employee's injury was caused by the employer's negligence. A., T. & S.F. Ry. Co. v. Toops, 281 U.S. 351, 50 S.Ct. 281, 74 L.Ed. 896 (1930). Cf. Zeller v. County of Howard, 227 Neb. 667, 671, 419 N.W.2d 654, 657 (1988): "To prevail in an action based on negligence, a plaintiff must prove four essential elements: the defendant's duty not to injure the plaintiff, a breach of that duty, proximate causation, and damages." See, also, Rahmig v. Mosley Machinery Co., 226 Neb. 423, 412 N.W.2d 56 (1987). "`Expert evidence is often required to establish the causal connection between the accident and some item of physical or mental injury unless the connection is a kind that would be obvious *396 to laymen, such as a broken leg from being struck by an automobile.'" Moody v. Maine Cent. R. Co., 823 F.2d 693, 695-96 (1st Cir.1987) (quoting 4 F. Harper, F. James & O. Gray, The Law of Torts § 20.2 (2d ed. 1986)). Cf. Mendoza v. Omaha Meat Processors, 225 Neb. 771, 785, 408 N.W.2d 280, 289 (1987):
Unless the character of an injury is objective, that is, an injury's nature and effect are plainly apparent, an injury is a subjective condition, requiring an opinion by an expert to establish the causal relationship between an incident and the injury as well as any claimed disability consequent to such injury.
Accord Fees v. Rivett Lumber Co., 228 Neb. 617, 423 N.W.2d 483 (1988).
We bear in mind that Chapman alleged very specific negligence of Union Pacific in reference to its vehicular equipment, namely, lack of a proper seatbelt and headrest. In the histories given by Chapman to his two physicians who testified for him, and in the background for the medical opinions expressed in Chapman's trial, there is no reference to a seatbelt or headrest. Neither physician, testifying for Chapman, causally related Chapman's injury and the seatbelt or headrest questions raised by Chapman.
Dr. Patrick Bowman testified that "there is a relationship between [Chapman's] symptoms ... and the accident of 6 December 1985." Dr. Charles Pigneri testified that "a great portion of [Chapman's] low back pain and his symptoms were as a direct result of the accident occurring on 12-6-85."
Chapman's action is not against the driver whose car struck the rear end of the Union Pacific van driven by Chapman. Whether the medical testimony for Chapman would be sufficient to submit the causation issue to a jury in a negligence action against the other driver is immaterial. Rather, while Chapman does not allege that Union Pacific caused the collision, he does allege that Union Pacific negligently failed to equip its vehicle with certain devices which would have prevented or reduced Chapman's injuries.
Chapman presented no medical testimony which suggests that if Union Pacific's van had had a seatbelt and shoulder-harness arrangement, the belt system would have prevented Chapman's injury or reduced the extent of his injury. Furthermore, there is no medical testimony which indicates that if Union Pacific's vehicle had been equipped with a headrest, that device would have prevented or reduced Chapman's injury. Cf. Hartel v. Long Island Rail Road Company, 476 F.2d 462 (2d Cir.1973), cert. denied 414 U.S. 980, 94 S.Ct. 273, 38 L.Ed.2d 224 (a railroad's failure to install certain protective devices did not, as a matter of law, cause an employee's death when those devices, if installed, would have been ineffective).
We do not address the question concerning exclusion of Lynch's testimony regarding the seatbelt system and headrest for the Union Pacific van. Even if Lynch had testified about those devices as safety features on the van, Chapman's medical proof presented nothing for the jury on the issues of whether the seatbelt system and absent headrest caused Chapman's injury. Thus, Chapman's evidence failed to establish a prima facie negligence case for submission to the jury. See Ches. & Ohio Ry. v. Carnahan, 241 U.S. 241, 36 S.Ct. 594, 60 L.Ed. 979 (1916) (a Federal Employers' Liability Act plaintiff must prove proximate cause). See, also, Dale v. Thomas Funeral Home, 237 Neb. 528, 529, 466 N.W.2d 805, 807 (1991): "A `prima facie case' means that evidence sufficiently establishes elements of a cause of action and, notwithstanding a motion for a directed verdict in a jury trial or a motion to dismiss in a nonjury trial, allows submission of the case to the fact finder for disposition."
Accordingly, we affirm the district court's judgment in Chapman's case.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1913912/ | 981 A.2d 920 (2009)
COM.
v.
HARRISON.
No. 1267 MDA 2008.
Superior Court of Pennsylvania.
July 2, 2009.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610363/ | 76 Cal. App. 2d 693 (1946)
MELVIN J. KEANE, Appellant,
v.
GRACE E. PENHA, Respondent.
Civ. No. 15482.
California Court of Appeals. Second Dist., Div. Two.
Nov. 1, 1946.
Haas & Home and John D. Home for Appellant.
Macdonald & Pettit, Thomas H. McGovern and Albert W. Leeds for Respondent.
MOORE, P. J.
Plaintiff appeals from an order granting defendant's motion to set aside the order of default and the judgment against her. The grounds of the motion were (1) that the default and judgment were entered through her mistake, inadvertence, surprise and excusable neglect; (2) that defendant has disaffirmed the default and judgment for the reason that they were entered while she was a minor and she did not appear by a guardian.
On March 15, 1945, defendant entered into a contract whereby she employed the firm of attorneys, Keane and Collins, assignors of plaintiff, to protect her interests in the estate of Maude T. Belknap who had deceased in the State of Massachusetts. She agreed to pay assignors 25 per cent of her inheritance for their legal services to be rendered in connection with the estate. Thereafter, assignors performed certain services prior to September 26, 1945, when by writings defendant disaffirmed her contract with the attorneys and discharged them from further connection with the Belknap estate. On January 17, 1946, defendant was served with summons and complaint in the instant action whereby plaintiff as assignee of his firm demanded $12,500 for the services alleged to have been performed. Judgment by default was entered upon such demand on February 1, 1946. On that day defendant was six months less than 20 years of age.
The greater portion of defendant's supporting affidavit consists of allegations designed to show that she was entitled *695 to be relieved from the default and judgment by reason of her excusable neglect and inadvertence. (Code Civ. Proc., 473.) Inasmuch as the second issue presented by the motion is readily susceptible of demonstration only such portion of her testimony as might apply to her right of disaffirmance follows:
"To the best of my knowledge and belief said contract has never been approved by any court ... in any State in which any litigation pertaining to the Belknap estate was pending. ..."
"I have never had a guardian appointed for my person or estate, and no guardian ad litem was appointed to represent me in the above entitled action. I have fully and fairly stated all of the facts of the case to my attorneys, Albert W. Leeds and Thomas H. McGovern, and after such statement am advised by said attorneys that I have a good and substantial defense on the merits."
In response to that portion of defendant's affidavit relative to her disaffirmance of the default and judgment the affidavit of plaintiff concludes with the following:
"The contract, it is true, was not approved by any court for the reason that it was not a contract that required approval of any court. No guardian or guardian ad litem was ever appointed for the reason that during the time Miss Penha was represented by Messrs. Keane & Collins none was required. That at the time of the default hearing in the above entitled matter before the Honorable Henry M. Willis, Judge Presiding, affiant was called upon to, and did, in fact, testify in detail to the services that were rendered Miss Penha pursuant to the agreement of March 15, 1945, and as partially referred to herein and it was after a careful consideration of this testimony that the court fixed the reasonable value thereof as set forth in the judgment herein."
Whether defendant was entitled to disaffirm the contract with the attorneys or whether plaintiff was entitled to recover the sum provided by the contract are questions to be determined upon a trial of this action. It may be observed, however, that the default judgment rendered by Judge Willis is without significance in the absence of a showing that he was advised of defendant's infancy.
[1] Defendant's default was entered on January 29 and judgment was entered on February 1, 1946. She was married *696 on February 7 thereby attaining her majority. (Civ. Code, 25.) She filed her disaffirmance of the default and the judgment on February 21 on the ground of her infancy on the dates of her default and of the judgment. Such prompt action spells that kind of diligence which entitles the actor to every equitable consideration. Her motion for relief was filed on the twentieth day after entry of judgment and within two weeks after the removal of her disabilities. No detriment is shown to have been suffered by plaintiff as a result of such delay. She was therefore entitled to the benefits of the general rule relative to a minor's disaffirmance of a judgment as declared in both statute and decision.
[2] When an infant is defendant in an action he must appear either by his general guardian or by a guardian ad litem appointed by the court in which the action is pending. (Code Civ. Proc., 372.) It is the general rule that an omission to cause the appointment of a guardian if there be none is fatal to all subsequent steps taken in the action. (Code Civ. Proc., 373.) The exceptions to such rule establish the soundness of the principle therein embodied. [3] Unless a minor is "duly represented as provided by law" at the time a judgment is entered against him his right to disaffirm such judgment "continues until barred by laches after the minor has attained the age of majority." (Gouanillou v. Industrial Acc. Com., 184 Cal. 418, 420 [193 P. 937].) Such a judgment is voidable and may be disaffirmed. (Hughes v. Quackenbush, 1 Cal. App. 2d 349, 362 [37 P.2d 99].) [4] The right of disaffirmance by a minor of a judgment rendered voidable by the fact that he was not represented by a guardian in the action is absolute (Johnston v. Southern Pacific Co., 150 Cal. 535, 538 [89 P. 348, 11 Ann.Cas. 841]), and such right continues throughout his minority. (See Pacific Coast Joint Stock Land Bank of San Francisco v. Clausen, 8 Cal. 2d 364, 365 [65 P.2d 352]; Childs v. Lanterman, 103 Cal. 387, 390 [37 P. 842, 42 Am. St. Rep. 121]; Neilson v. Walker, 105 Cal. App. 23, 27 [286 P. 1091].)
The fact that a minor's disaffirmance of a judgment is sometimes denied does not impair the virtue of the general rule. Such exceptions were due to the minor's conduct which was deemed to have been tantamount to a ratification after overcoming his infirmities. But in the instant case the behavior of defendant was not similar to that of the minor in any of the exceptional cases. In King v. Wilson, 116 Cal.App. *697 191 [2 P.2d 833], the minor was past 20 years of age. He answered, announced ready and sat through the trial without informing the court or his counsel of his minority. His substantial rights did not suffer. In Childs v. Lanterman, 103 Cal. 387 [37 P. 842, 42 Am. St. Rep. 121], the infant filed his answer and was represented throughout the trial by attorney Stephen M. White. He attained his majority one day before the judgment was filed. Instead of seeking relief on the ground of irregularity or want of authority in the attorney to appear for him he moved for a new trial, thereby submitting to the court's jurisdiction. His application to vacate the judgment was wholly without right. In Foley v. California Horseshoe Company, 115 Cal. 184 [47 P. 42, 56 Am. St. Rep. 87], because of an error in the original order appointing a guardian ad litem the court made a new order at the trial. Such was a proper exercise of jurisdiction.
The order is affirmed.
McComb, J., and Wilson, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2768366/ | UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, HAM, and JOHNSON
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant CLINTON H. WOOD
United States Army, Appellant
ARMY 20080273
Headquarters, 4th Infantry Division (Mechanized)
Gregg A. Marchessault, Military Judge
Lieutenant Colonel Tania M. Martin, Staff Judge Advocate
For Appellant: Major Teresa L. Raymond, JA; Captain Pamela Perillo, JA.
For Appellee: Pursuant to A.C.C.A. Rule 15.2, no response filed.
24 September 2008
-----------------------------------------
SUMMARY DISPOSITION
-----------------------------------------
Per Curiam:
A military judge sitting as a general court-martial convicted
appellant, pursuant to his pleas, of dereliction of duty, wrongful use of
Diazepam, a Schedule IV controlled substance, wrongful distribution of
Diazepam, a Schedule IV controlled substance, wrongful possession of
Diazepam, a Schedule IV controlled substance, and larceny of military
property of a value over $500.00, in violation of Articles 92, 112a, and
121 of the Uniform Code of Military Justice, 10 U.S.C. §§ 892, 912, and 921
[hereinafter UCMJ]. The military judge sentenced appellant to a bad-
conduct discharge, forfeiture of all pay and allowances, confinement for
six months, and reduction to Private E1. The convening authority approved
the adjudged sentence. Appellate defense counsel submitted the case for
appellate review on its merits.
Upon review of the case before us under Article 66, UCMJ, we find
appellant’s guilty plea to The Specification of Charge IV, larceny of
military property over $500.00 to be improvident, but do find the
providency inquiry established this guilt to the lesser included offense of
larceny of military property under $500.00.
A providence inquiry into a guilty plea must: (1) establish that the
accused believes and admits he or she is guilty of the charged offenses;
and (2) provide a set of factual circumstances—admitted by the
accused—which objectively support the guilty plea. Rule for Courts-Martial
910(e); United States v. Simmons, 63 M.J. 89, 92 (C.A.A.F. 2006); United
States v. Barton, 60 M.J. 62, 64 (C.A.A.F. 2004); United States v. Morris,
58 M.J. 739, 742-43 (Army Ct. Crim. App. 2003).
While serving in Iraq as the unit’s Chemical, Biological,
Radiological, and Nuclear Non-Commissioned Officer, appellant stole
approximately 259 diazepam injectors, which he either used himself,
distributed or attempted to distribute to two other Soldiers, or possessed
at the time of a command authorized search of his trailer. As stipulated by
the parties at trial, Diazepam, also called valium, is a controlled
substance used to prevent or treat convulsions resulting from moderate to
severe nerve agent poisoning. The parties also agreed each injector was
worth $14.84, and the total value of all the stolen injectors was about
$3,170.00.
During the providence inquiry, appellant admitted he stole up to four
Diazepam injectors three times a week during a two month period and, on
three other occasions, stole a box containing fifteen injectors. The value
of each individual larceny was less than $500.00.
At trial, the government argued the maximum punishment for The
Specification of Charge IV included ten years confinement because the
aggregate value of the Diazepam injectors the appellant stole was greater
than $500.00, compared to a maximum authorized sentence to confinement of
one year if the value of the military property was less than $500.00. This
Court, however, has long held that “the record must show either that one
item of the property stolen has [a value of $500.00] or that several items
taken at substantially the same time and place have such an aggregate
value” for an accused to be convicted of the greater offense and subjected
to a maximum punishment that includes ten years of confinement. United
States v. Harding, 61 M.J. 526, 528 (Army Ct. Crim. App. 2005)(citing
United States v. Christensen, 45 M.J. 617, 619 (Army Ct. Crim. App.
1997)(quoting United States v. Rupert, 25 M.J. 531, 532 (A.C.M.R. 1987)).
Because appellant only admitted to committing separate larcenies of
military property of a value less than $500.00, the military judge failed
to elicit the factual predicate necessary to find appellant guilty of the
offense of larceny of military property of a value greater than $500.00.
Accordingly, the court affirms only so much of the finding of guilty
of The Specification of Charge IV as finds that the appellant did, at or
near LSA Anaconda, Iraq, and Camp Taji, Iraq, from about 15 September 2007
to about 5 January 2008, steal Diazepam, military property, of a value less
than $500.00, the property of the United States Army. The remaining
findings of guilty are affirmed. Reassessing the sentence on the basis of
the modified findings, the entire record, and in accordance with the
principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986), and United
States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include the factors
identified by Judge Baker in his concurring opinion, the sentence is
affirmed.
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
Clerk of Court | 01-03-2023 | 01-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2610185/ | 485 P.2d 1038 (1971)
26 Utah 2d 104
STATE of Utah, Plaintiff and Respondent,
v.
Gary D. ACKER, Defendant and Appellant.
No. 12268.
Supreme Court of Utah.
June 3, 1971.
*1039 Van Sciver, Florence, Hutchison & Sharp, Brian R. Florence, Odgen, for defendant-appellant.
Vernon B. Romney, Atty. Gen., Lauren N. Beasley, Chief Asst. Atty. Gen., Salt Lake City, for plaintiff-respondent.
ELLETT, Justice:
The defendant appeals from a conviction of violating Section 41-6-107.8, U.C.A. 1953 (Replacement Volume 5A). This statute requires any person operating or riding upon a motorcycle on a public highway where the posted speed limit is above 35 miles per hour to wear a crash helmet, etc.
The defendant contends that the statute is an invalid exercise of the police power in that it is an unreasonable infringement of his personal liberty and of his right to use his property as he sees fit. He further contends that the statute violates the equal protection clause of our constitution and is arbitrary and capricious in that one riding a motorcycle upon a street posted for speeds not exceeding 35 miles per hour does not need to wear the helmet. He further contends that the standards set forth for the type of headgear to be worn is not definitely set out.
We think the type of headgear prescribed is sufficiently specified and, besides that, he wore no headgear at all.
If the act is otherwise good, it is not bad because it applies only to those highways where speeds exceed 35 miles per hour. That harm from collisions and other mishaps increases directly as the square of speed is too well known to require any further discussion of this point. The legislature could well determine that 35 miles per hour should be the speed at which helmets would need to be worn in order to preserve life and limb.
The principal question to be answered is whether the legislature can require a motorcycle rider or operator to wear protective headgear at all. The defendant argues that since the statute requires riders as well as operators to wear the device, it must be assumed that the law was enacted solely for the purpose of protecting the individual wearer.
This does not necessarily follow. While it was undoubtedly the intention of the legislature to enact a measure which would protect the life and limb of its citizens, it also is evident that any measure taken which would protect the operator of a motorcycle would tend to avoid collisions with other traffic upon the highway. Even if it were to be assumed that the legislature intended to protect only those who were riding upon the motorcycle from harm, the public certainly has an interest in that regard. Whenever a citizen becomes maimed or is killed, the entire public is affected to some degree. As John Donne suggested, each citizen is a clod of the entire whole, and when one citizen is diminished, we all suffer. Both hospitals and relief rolls are crowded, and it is a proper exercise of police power for the legislature to enact statutes which would tend to keep citizens out of the one and off of the other. Whether the wearing of the helmet is likely to reduce accidents and thus avoid death and maiming is a matter for the legislative body to determine and not for the courts.
It is settled law that a statute is presumed to be constitutional unless it clearly violates some specific provision of *1040 the constitution.[1] We are unable to say that the statute clearly violates any provision of our constitution, and from what we have said above, it is obvious that we think the statute is valid.
While the courts of Michigan, Illinois, and Ohio have held motorcycle helmet statutes to be unconstitutional, the overwhelming weight of authority[2] is to the contrary, and Utah should and does align itself with the majority holding.[3]
The judgment and sentence of the trial court are affirmed.
TUCKETT, J., concurs.
HENRIOD, Justice (concurring):
I concur. I also concur in what is said generally in the dissent about the erosion of our liberties, but I believe this case, though a topic for lively debate, may be classified as a legitimate subject for regulation within the police power, just as a law would be to prevent the almost synonymous circumstance of suicide. I believe no one successfully would be convincing if he said one's freedom is so sacred as to demand an uninterrupted right to use heroin, or to indulge in scuba diving with dangerous, defective equipment. I believe that the police power is flexible enough reasonably to have included within it certain factual situations that are so hazardous personally to a large segment of the community as reasonably to be the subject of regulation, and that adequate protective headgear for the rapidly expanding number of cyclists in the country reasonably may be numbered among them.
CROCKETT, Justice (dissenting):
I am unable to agree with the decision affirming the defendant's conviction. It does not address itself to, nor in any way dispose of, Point I as stated in the defendant's brief: that the evidence failed to prove he had committed any crime.
The statute upon which the accusation is based, Section 41-6-107.8(a), Utah Code Annotated 1953, under which the appellant is charged, reads:
No person shall operate or ride upon a motorcycle or motor-driven cycle upon a public highway posted for speeds higher than 35 miles per hour, unless he is wearing protective headgear which complies with standards established by the commissioner of public safety.
*1041 Focusing attention upon the emphasized portion of the statute, he states:
* * * there is no evidence whatsoever as proof of the last required element of the offense, i.e., noncompliance with standards established by the Commissioner of Public Safety.
He further argues that he
* * * is unaware of and unable to find any standards in this area that have been established by the Commissioner of Public Safety.
On this first point of his brief defendant is uncontestably correct. There is nothing in the record as to any proof concerning any "standard established by the Commissioner of Public Safety" nor that any such standard was adopted, or in any manner promulgated and made available to the public. And the State does not even contend that there was in this record any such proof offered or referred to, or in any wise made part of the record. In the absence of proof to establish an essential element of the offense, the conviction cannot properly be sustained.
Proceeding beyond the question of the defendant's conviction: Inasmuch as the statute here in question is a new enactment, on a public issue, and consequently its validity must eventually be passed upon by this court, it does no violence to my sense of procedural propriety that the court go ahead and make an adjudication on this statute. But with respect thereto I desire to make some further observations. The first is that any such statute should state the regulation it imposes with sufficient certainty and clarity that persons of ordinary intelligence will be able to understand and ascertain from the statute itself what it means, and thus be enabled to comply with its requirements.[1] Moreover, it should not delegate the legislative function to some official such as a "Commissioner of Public Safety" so that he might, by his own ukase, set arbitrary or unreasonable standards which are neither known nor made reasonably accessible to the people they affect. Beyond this, even if such an arbitrary procedure were accepted as proper, there certainly should be provision made for some method of publicizing, or otherwise advising or making available to the public, information concerning the standard set. And all of the foregoing should be ascertainable within the four corners of the statute itself. The statute as set forth herein does not meet that test and is unenforceable for vagueness.[2]
I would decide this case on the bases stated above. Nevertheless, I appreciate the fact that the decision of the court goes to the heart of a more fundamental matter: Assuming as a hypothesis that there was adequate proof of violation of a properly drafted law requiring motorcyclists to wear helmets, would a conviction thereunder be sustained? This, I confess, poses an interesting and troublesome question. It is another example of the age-old and frequently-recurring controversy between the rights of an individual as compared to the rights of the group. In my opinion the answer depends upon where the greater emphasis is placed.
I have no reason to disagree that it is desirable for a motorcyclist to wear a helmet any more than that it is desirable for him to brush his teeth, wash his ears, or wear a coat in cold weather, or any number of things pertaining to personal behavior which may be beneficial for one's personal health, safety or welfare. But in such matters the fundamental premise is that each person should be accorded the highest degree of individual freedom of action consistent with respecting similar rights in all others. The correlative of this is that his rights and conduct can be *1042 restricted or prohibited if the greater good, the protection of the public health, safety or welfare is sufficiently involved to justify such restriction of individual rights. The application of that principle to this case requires consideration as to the degree this so-called "helmet law" is designed to protect the public as compared to the protection of the individual himself.
I am not quite overcome by the boldly declared generalities that "this law is for the protection of the public"; nor with what impresses me as the somewhat specious attempts to make it appear to be so rather than for the protection of the individual motorcyclist. Nearly all of the vehicles driven by the public, certainly more than 95 per cent, are automobiles and trucks. In any collision they certainly have a great advantage over the much lighter motorcycle; and it seems to me that in any collision the damage or injury to them (the public) would not be appreciably affected by whether the motorcyclist had on a helmet, or even a suit of armor, or not. I likewise think it is but an unsubstantial and conjectural figment, percentagewise, that motorcyclists might be struck by a pebble, disabled and thus made erratic drivers. In sum, the "helmet law" impresses me as being at least 95 per cent for the protection of the motorcyclist (which may be a good thing but it is his own business), with the rest of the effect, and a very minimal part, being for the protection of the public.
If the conclusion is to be based upon the possibility that they may become hospitalized, or on welfare, that opens a wide door indeed to paternalistic controls over innumerable aspects of human conduct as to what may or may not be good for one's individual health, morals or safety. The difficulty is that if the obliteration of individual rights is permissible whenever there is any possibility, even indirect or remote, of injury to the public, then the line of demarcation as to the permissible intrusions of law, and its implementing functionaries, into conduct which should be one's private and personal concern becomes blurred almost to the vanishing point.
I do not see how this court's decision can take much comfort in mere reference to a "greater number" of jurisdictions as giving it support.[3] Considerations of legal concept, reasoning and policy should carry much more weight.[4] This statute is a good example of the continuous process of imposing ever more limitations upon individual freedoms. This results from the combined bureaucratic and legislative ingenuity discovering practically everything everyone does that can be regulated, then implementing it with the imposition of multifarious duties, applications, specifications, procedures, inspections and fees. Howsoever necessary this may be in certain phases of our complex society, caution and restraint should be exercised not to destroy the spirit of individual liberty which has nurtured the initiative and enterprise which created the whole structure and upon which its continuance depends. Personal freedom should be given preference, except only where there is some compelling, or at least preponderant reason to restrict it for the common good.
It is well to reflect that history from ancient to modern times is dotted with examples of governments which have extended their controls until they have "controlled" themselves into decay and out of existence. As long ago as ancient Rome, the wise man, Tacitus, declared:
When the government is most corrupt, the laws are most multiplied.
Again in the era of the origins of our own government, one of the most perceptive of *1043 the founding fathers, James Madison, wrote:
I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.
The statute here under consideration joins the onward march of the ever-increasing volumes of regulatory laws concerning which it is extremely questionable whether the benefits outweigh the burdens in the loss of personal freedoms and the expanding bureaucracy involved in their enforcement. I have interposed this dissent as an objection to what appears to be a limitless process of spreading tentacles of control into what ought to be matters of personal and private conduct. There ought to be a halt somewhere, and in my judgment this law reaches that point.[5] (All emphasis added.)
CALLISTER, C.J., concurs in the views expressed in the dissenting opinion of CROCKETT, J.
NOTES
[1] State v. Nielsen, 19 Utah 2d 66, 426 P.2d 13 (1967).
[2] State v. Anderson, 3 N.C. App. 124, 164 S.E.2d 48 (1968); Bisenius v. Karns, 42 Wis. 42, 165 N.W.2d 377 (1969); State ex rel. Colvin v. Lombardi, 104 R.I. 28, 241 A.2d 625 (1968); Everhardt v. New Orleans, 253 La. 285, 217 So. 2d 400 (1969); People v. Albertson, 93 Idaho 640, 470 P.2d 300 (1970); Commonwealth v. Howie, 354 Mass. 769, 238 N.E.2d 373 (1968); State v. Laitinen, 459 P.2d 789 (Wash. 1969); State v. Eitel, 227 So. 2d 489 (Fla. 1969); Love v. Bell, 465 P.2d 118 (Colo. 1970).
[3] The dissent would give an undeserved break to the defendant. When an appeal is taken from a justice court to the district court, the ruling of the district court is final on all matters except that the defendant may raise the constitutionality of the statute on appeal to this court. In this particular case the defendant was charged and convicted in the City Court of Ogden, Utah. He thereafter appealed to the district court, where he was again found guilty. The only matter which he can present before this court is the constitutionality of the statute, and that was the main thrust of his defense in the courts below.
The reason why the record is silent as to any proof of what the standard was for wearing the helmet is because the parties stipulated as to the facts of the case. The following colloquy between defendant's counsel and the court shows that counsel did not require any proof nor offer any himself:
THE COURT: There is a standard. I have seen it. It has been quite sometime ago. I looked it up one time because I was concerned myself. In fact, I purchased a helmet one time, and I looked it up to find out. And there is a standard.
MR. FLORENCE: I will defer to Your Honor on that point.
* * * * *
[1] Skaggs Drug Centers, Inc. v. Ashley et al., 26 Utah 2d 38, 484 P.2d 723 (decided April 1971).
[2] The reference to Appendix A in respondent's brief, not a part of this record, which respondent apparently attempts to gratuitously import into this record, even if so considered, is no more comprehensible than the statute, and has all of the frailties pointed out in this dissent.
[3] See cases cited in footnote 2 of main opinion.
[4] American Motorcycle Ass'n v. Davids, 11 Mich. App. 351, 158 N.W.2d 72 (1968); Illinois v. Fries, 42 Ill. 2d 446, 250 N.E.2d 149 (1969); State v. Betts, 21 Ohio Misc. 175, 252 N.E.2d 866 (1969).
[5] To footnote 3 of the main opinion, which adds a reference to this dissent, I make these comments: Once this court acquires jurisdiction, it decides the case on the merits on all issues. The parties so assumed and did not raise that point. Nor, according to their briefs, did either party regard the quoted colloquy as a "stipulation." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610389/ | 76 Cal. App. 2d 536 (1946)
STATE OF CALIFORNIA et al., Respondents,
v.
C. B. DAY et al., Defendants; CARROLL S. BUCHER, Appellant.
Civ. No. 12975.
California Court of Appeals. First Dist., Div. One.
Oct. 18, 1946.
A. Dal Thomson for Appellant.
Robert W. Kenny, Attorney General, and Carl W. Wynkoop, Deputy Attorney General, for Respondents.
WARD, J.
This action was instituted against C. B. Day and Carroll S. Bucher for alleged misapplication of money of the State Compensation Insurance Fund, (hereinafter referred to as the fund), and Massachusetts Bonding and Insurance Company, a corporation, as surety on a bond which is conditioned upon any designated act of wrongful abstraction, or willful misapplication, etc. of the funds of the fund. A second cause of action is based upon an alleged conspiracy founded upon the facts alleged in the first cause of action. Judgment was entered for the plaintiffs.
Defendant Day and the bonding company have not appealed, but a chronological statement of the acts of both Day and Bucher--those of the former commencing in 1936, and those of the latter not until a few days subsequent to January 27, 1937--is necessary to understand the participation of Bucher. Such a recital is also necessary to a statement and understanding of the position taken by the respective parties on the appeal. The findings are lengthy but they succinctly narrate the necessary facts as to Day and Bucher. There is evidence to support the findings against Day. If the trial court disbelieved Bucher, then there is substantial evidence against him. If credence should be given to his sworn statements, then the sufficiency of the evidence is, to say the least, problematical. Certain findings sustained by the evidence will be quoted, and excerpts of evidence given verbatim or in substance to indicate that the court's findings and judgment, insofar as they apply to Bucher, are substantially upheld by the evidence.
The pertinent findings applicable to the appeal by Bucher which are supported by evidence which may be declared substantial, appear as follows: "1. Plaintiff State Compensation Insurance Fund is, and at all times herein mentioned was, a fund created by law and an agency of the State of California."
"2. C. B. Day, also known as Clark B. Day, was the duly appointed, qualified and acting Manager of said State Compensation Insurance Fund from December 1, 1934, to February 17, 1939. ..."
"5. On November 30, 1934, said C. B. Day, as principal, and said Massachusetts Bonding and Insurance Company, a Corporation, *539 as surety, executed, gave and delivered to State Compensation Insurance Fund an official bond for said C. B. Day, as Manager of said State Compensation Insurance Fund. ..."
"9. The condition of said bond was broken in this, that said C. B. Day while holding his said office and purporting to act in official discharge of certain duties appertaining thereto committed certain acts which did constitute acts of fraud, dishonesty, theft, wrongful abstraction or wilful misapplication in relation to the funds of State Compensation Insurance Fund and which acts were not in the faithful performance of the duties of said office and were in fact contrary to and in fraud of the rights of State Compensation Insurance Fund all as hereinafter set forth at length. ..."
"13. Each of said schedule bonds Nos. 41979 and 37149 was, during its said respective effective period, the official bond insuring State Compensation Insurance Fund against the wrongful acts of all employees of said State Compensation Insurance Fund, including said Carroll S. Bucher, and were conditioned alike and subject to the same terms and binding for the same breaches and as to the same class of persons. ..."
"18. During all the times hereinafter mentioned said C. B. Day and said Carroll S. Bucher, together with one Richard T. Hamilton, were officers and stockholders in the Tru-sheen Corporation, a corporation."
"19. One Clinton H. Resau was at one time an employee of the Gilro Machine and Stamping Co., a corporation, which said company during said employment was insured under a Workmen's Compensation Insurance policy of State Compensation Insurance Fund."
"20. Said Clinton H. Resau was and had been a very close friend of said C. B. Day for about fourteen or fifteen years prior to 1936, had gone on fishing trips with said C. B. Day nearly every year for twelve years during said time, and for a few years prior to and during 1936 had had dinner with said C. B. Day about once a week, accompanied by their respective wives and alternately visiting each other's home."
"21. Said Clinton H. Resau had been ill for several years, and early in 1936 he mentioned to said C. B. Day the fact that he thought his illness might be due to his work and that he thought he might be suffering from silicosis, whereupon said C. B. Day told said Clinton H. Resau he would be glad to have him sent to a doctor. *540"
"22. On and immediately prior to February 6, 1936, said C. B. Day, while occupying said office of Manager of State Compensation Insurance Fund, advised and encouraged said Clinton H. Resau to file with State Compensation Insurance Fund a claim for compensation for an alleged industrial injury alleged to have been sustained while said Clinton H. Resau was in the employ of said Gilro Machine and Stamping Co., a corporation."
"23. Said claim of Clinton H. Resau, after said Clinton H. Resau had been given a medical examination by a physician selected by State Compensation Insurance Fund, was rejected as a compensable injury or condition."
"24. Following said rejection of the claim filed by said Clinton H. Resau, said C. B. Day, while still acting as Manager of State Compensation Insurance Fund, on March 26, 1936, procured the filing by said Clinton H. Resau with the Industrial Accident Commission of an application for adjustment of said claim; and said C. B. Day, despite being Manager of State Compensation Insurance Fund, acted throughout the matter of said claim including its procurement and the subsequent award based thereupon, solely and exclusively in the interests of said Clinton H. Resau, and to further satisfy the personal interests of said C. B. Day, as hereinafter more fully appears."
"25. When said claim was filed with said Industrial Accident Commission it became the legal duty of said C. B. Day to thoroughly investigate the facts relative thereto or to cause the same to be investigated, and to ascertain or cause to be ascertained whether the same was an allowable claim or whether it should be rejected; and whether, if and when a petition for adjustment of said claim should be filed with said Industrial Accident Commission the allowance of such claim should be resisted; but that said C. B. Day failed to properly or sufficiently investigate the said claim or to cause the same to be investigated, and by various means, including specific instructions to subordinates in the employ of State Compensation Insurance Fund as to the manner of handling said claim, and also including the failure to make a full and complete disclosure to the Industrial Accident Commission of all the known facts in reference to said claim, induced and secured the allowance of an award to said Clinton H. Resau upon said claim by the said Industrial Accident Commission."
"26. Said C. B. Day accomplished the said allowance of *541 said claim by means of the following acts in particular: Said C. B. Day told those of his subordinate employees of State Compensation Insurance Fund who were assigned to act upon said claim that said Clinton H. Resau was a personal friend of his, and that he believed the said Clinton H. Resau had suffered a compensable injury; said C. B. Day had said Clinton H. Resau kept under medical observation and had further medical examinations made until a report favorable to the allowance of said claim was had; said C. B. Day kept out of the record submitted to said Industrial Accident Commission any medical evidence other than that which was favorable to the granting and allowance of said claim, and in particular in this connection instructed the [then] attorney assigned to protect the interests of State Compensation Insurance Fund at the hearing before said Industrial Accident Commission to refrain, and said attorney did refrain, from raising any issue in the proceedings as to the occupational connection of the alleged injury or illness which was the basis of said claim, and this despite the fact that, but for the actions of said C. B. Day in the normal handling of said claim, the same had been rejected by the Claims Department of State Compensation Insurance Fund as not having any industrial connection; and said claim would have remained rejected but for the said acts of said C. B. Day, all of which acts were contrary to and inconsistent with the usual practice adhered to by the State Compensation Insurance Fund and were designed by C. B. Day to and did influence and contribute to the granting of an award to said Clinton H. Resau; for said claim was in fact a questionable one in that the industrial nature of the alleged injury upon which said claim was based was highly controversial and would ordinarily have been carefully investigated and examined by State Compensation Insurance Fund and the said Industrial Accident Commission, and allowance of said claim would have been seriously contested by State Compensation Insurance Fund but for the said acts of said C. B. Day and the said acts of said C. B. Day did prevent a full and fair hearing of said claim upon its merits, and but for said acts of said C. B. Day said claim would have been rejected by said Industrial Accident Commission; and all of the said acts of said C. B. Day were done to the neglect of and were inconsistent with the official duties of said C. B. Day, and were in breach of his official bond, contrary *542 to the interests of State Compensation Insurance Fund and to the damage of State Compensation Insurance Fund."
"27. Said award of said Industrial Accident Commission was made on April 20, 1936, and was in favor of said Clinton H. Resau for the sum of Eighty- eight and 92/100 Dollars ($88.92), payable forthwith, and Twenty-two and 23/100 Dollars ($22.23) per week, commencing April 18, 1936, said weekly payments to continue during continuance of disability."
"28. Thereafter, and on June 25, 1936, said Industrial Accident Commission made its further order fixing a permanent disability rating for said award as follows: Twenty-two and 23/100 Dollars ($22.23) per week, beginning March 21, 1936, until two hundred and forty (240) weekly payments should have been made, and thereafter Thirteen and 68/100 Dollars ($13.68) per week for the remainder of the natural life of said Clinton H. Resau."
"29. Pursuant to the said award and the several orders aforesaid of the said Industrial Accident Commission, State Compensation Insurance Fund paid to said Clinton H. Resau, and on account of said award and order, a total of One Thousand Two Hundred Nine and 02/100 Dollars ($1209.02), of which amount One Thousand Forty-four and 81/100 Dollars ($1044.81) was paid out in indemnity payments and One Hundred Sixty-Four and 21/100 ($164.21) was paid out on account of medical services and expenses incurred by State Compensation Insurance Fund on account of said Clinton H. Resau."
"30. In the latter part of January, 1937, said C. B. Day further induced said Clinton H. Resau to apply to State Compensation Insurance Fund and to said Industrial Accident Commission, and said Clinton H. Resau did so apply for a commutation of the said award and orders to a lump sum payment, and by and with the assistance and advice of said Carroll S. Bucher, who had become counsel of State Compensation Insurance Fund on January 27, 1937, secured the granting of said commutation by said Industrial Accident Commission; said acts of said C. B. Day and said Carroll S. Bucher were done in the interests of and because of the friendship of said C. B. Day with said Clinton H. Resau, and also for the personal advantage of said C. B. Day and in order to furnish said Clinton H. Resau with sufficient money to invest in said Tru- Sheen Corporation, a corporation."
"31. Upon the filing by said Clinton H. Resau of said *543 application for commutation of award, by virtue of their said official positions, it became the duty of both C. B. Day and said Carroll S. Bucher to thoroughly investigate the same, or cause the same to be investigated, and to weigh the advisability of approving or resisting the same and to make a recommendation respecting the granting or denial of said application to said Industrial Accident Commission; but both and each of them failed and neglected to either investigate said application or cause the same to be investigated, or to consider the possibility of resisting it or to resist it, and, on the contrary, forthwith approved and caused the same to be approved and hurried through, and made every effort to have the same granted by said Industrial Accident Commission."
"32. A proper or any investigation of the facts would have disclosed that at the time said application for commutation was filed the said Clinton H. Resau could be expected to live but a short time, that the aneurism of the abdominal aorta might rupture at any time causing immediate death, and that the life expectancy of said Clinton H. Resau was further impaired by reason of an amputated leg."
"33. Shortly prior to February 8, 1937, the said C. B. Day ascertained or caused to be ascertained from Robert E. Haggard, superintendent of the permanent disability rating bureau of said Industrial Accident Commission, the value of a commutation of the life pension awarded said Clinton H. Resau; upon ascertaining said commutation value, said C. B. Day instructed said Carroll S. Bucher, who just a few days before had been appointed by said C. B. Day to be Chief Counsel of State Compensation Insurance Fund, to prepare a stipulation authorizing said Industrial Accident Commission to make a commutation of said permanent disability rating and life pension; in furtherance of said commutation said C. B. Day consulted with Frank McDonald, one of the duly appointed, qualified and acting Commissioners of said Industrial Accident Commission and assured him that the said Clinton H. Resau and his wife would never become public charges of the State of California if the said Industrial Accident Commission should grant said commutation; it was further represented to the Commissioner Frank McDonald that upon the granting of said commutation said Clinton H. Resau and his wife would go back East to make their home with a brother of said Clinton H. Resau."
"34. Pursuant to said instructions of said C. B. Day, said *544 Carroll S. Bucher prepared a stipulation authorizing said Industrial Accident Commission to commute said permanent disability rating and life pension; said stipulation was dated February 8, 1937, was filed with said Industrial Accident Commission the same day, on the same day the said Industrial Accident Commission made and issued its order granting said commutation, and on the same day a check in full payment of said commutation was executed and delivered to said Clinton H. Resau."
"35. Said stipulation authorizing said commutation was handled exclusively by said C. B. Day and said Carroll S. Bucher; the usual and regular procedure followed by State Compensation Insurance Fund in the handling of such matters was not followed; the request for commutation was not submitted to the committee established to pass upon such requests; the matter was not referred to the Claims Department for review and recommendation; and the said Carroll S. Bucher, as Chief Counsel of said State Compensation Insurance Fund, did not consult with any other member of the Legal Department of said State Compensation Insurance Fund nor did he refer said stipulation to the attorney who had previously handled proceedings in said Clinton H. Resau case before said Industrial Accident Commission; rather the entire matter regarding said stipulation was handled exclusively by the said C. B. Day and said Carroll S. Bucher, without the knowledge or consent of any other employee of State Compensation Insurance Fund, despite the fact that said C. B. Day had never known of a similar instance of a commutation of a 100% permanent disability rating and life pension."
"36. In presenting said stipulation to said Industrial Accident Commission the said C. B. Day and said Carroll S. Bucher did not advise said Industrial Accident Commission of any circumstances which did or would tend to reduce the life expectancy of said Clinton H. Resau, even though at the time of filing said stipulation with said Industrial Accident Commission the said C. B. Day and Carroll S. Bucher knew that said Clinton H. Resau had had one leg amputated and that he might suffer a rupture of said aneurism at any time causing immediate death; further, said C. B. Day and said Carroll S. Bucher did not have said Clinton H. Resau examined medically to determine at the time said stipulation was filed with said Industrial Accident Commission whether there had been any change in or what was the life expectancy of said Clinton *545 H. Resau, nor did the said C. B. Day or said Carroll S. Bucher take any steps to see that the best interests of State Compensation Insurance Fund were protected therein."
"37. Through the efforts of said C. B. Day and said Carroll S. Bucher and solely by reason thereof and by reason of representations made by them to said Industrial Accident Commission the said application was commuted to cash by said Industrial Accident Commission."
"38. Pursuant to said commutation, on or about February 8, 1937, State Compensation Insurance Fund paid to said Clinton H. Resau the sum of Six Thousand Nine Hundred Sixty-two and 56/100 Dollars ($6962.56) in full satisfaction of said award and in commutation thereof."
"39. On or about February 10, 1937, said Clinton H. Resau paid out of the said commutation payment of Six Thousand Nine Hundred Sixty-two and 56/100 Dollars ($6962.56), the sum of Two Thousand Four Hundred Dollars ($2400.00) in a cashier's check made payable to said R. T. Hamilton. Said cashier's check was endorsed by said R. T. Hamilton and said C. B. Day, cashed, and the proceeds placed in a safe deposit box which the said C. B. Day, said Carroll S. Bucher, and said R. T. Hamilton thereupon rented under an agreement whereby said safe deposit box could be opened only in the presence of at least two of said three persons."
"40. Thereafter the said Clinton H. Resau made further payments of One Thousand Dollars ($1000.00) on April 22, 1937, and Two Thousand Dollars ($2000.00) on May 21, 1937, making a total sum paid by said Clinton H. Resau to said C. B. Day, said R. T. Hamilton, and said Carroll S. Bucher of Five Thousand Four Hundred Dollars ($5400.00)."
"41. Said commuted lump sum of Six Thousand Nine Hundred Sixty-two and 56/100 Dollars ($6962.56) was greatly in excess of the aggregate of any weekly indemnity payments which it reasonably could be expected said Clinton H. Resau would be entitled to under the previous said award, to the knowledge of said C. B. Day and said Carroll S. Bucher and each of them, but in spite of said knowledge said C. B. Day and said Carroll S. Bucher and each of them approved and agreed to said application and caused the same to be approved and agreed to in violation of their respective duties and in breach of their said bonds and contrary to the interests of State Compensation Insurance Fund, and to the damage of the State Compensation Insurance Fund." *546
The findings continue upon practically the same facts as previously stated and set forth that a conspiracy was formed about February 6, 1936, with "other persons unknown" to do the alleged wrongful acts and to refrain from performing certain official duties. Bucher's connection with the alleged conspiracy is fixed as of the date he became counsel for the State Compensation Insurance Fund in the latter part of the month of January, 1937.
The findings further provide: "47. It was the purpose and object of said C. B. Day and said Carroll S. Bucher at that stage of the conspiracy to obtain the commutation for said Clinton H. Resau in order to put said Clinton H. Resau in possession of money that he would then loan or give or turn over to said C. B. Day or said Carroll S. Bucher for the purpose of financing said Tru-Sheen Corporation, a corporation, of which corporation said C. B. Day and said Carroll S. Bucher were then officers." There is also evidence that a day or two following the payment of the commuted award Day requested Bucher to meet him at a bank in San Francisco. It there developed that Resau was loaning part of the award to the Tru-Sheen company in which Day and one Hamilton owned stock, and Bucher, the attorney and secretary-treasurer, had been paid in shares of stock for legal services rendered. The money advanced by Resau was not deposited with a bank but was placed in a safe deposit box, which could only be opened by any two of the three parties mentioned.
In the narrative statement of the evidence, certified by the trial judge as a "full and correct narrative statement of the testimony taken, and the evidence adduced, at the trial" appears, as part of the testimony of appellant, Bucher, the following: "I next heard of Mr. Resau a few days after the commutation. That was in connection with the safe deposit box transaction. Mr. Day telephoned me to come down to the Anglo Bank at the corner of McAllister and Market Streets. I went down there and met Mr. Day and also Mr. Hamilton. Mr. Day told me that they had borrowed some money from Mr. Resau and he then, for the first time, called my attention to the fact that Mr. Resau was the man for whom a commutation had been made, that the Tru-Sheen Corporation had borrowed this money from Mr. Resau and that they desired to put it in the safe deposit box in the Bank. I asked him why they were putting it in the safe deposit box and he said there was a man who was the manager of the Company who *547 would be inclined to pay the money out more rapidly than it should be. The safe deposit box was opened in the names of all three of us, with any two to have access to it."
"I had nothing to do with the notes that were given to Mr. Resau for the loans. I never saw Mr. Resau at any time."
According to Day, when Resau received the check Mrs. Resau was physically ill and Resau determined that he would not go east--though eventually they journeyed to Resau's brother's home in the city of Baltimore. According to Day, Resau wanted to invest part of the money in securities that would return an income.
There is evidence that Bucher had never met Resau personally at any time during the various transactions, or knew anything about the industrial accident claim. Bucher was directed by Day within a short time after his appointment as counsel for the fund to prepare a commutation of award. The directions were followed and Bucher, as attorney for the fund, signed the stipulation. Where an application for commutation is presented by stipulation its passage or approval by the Industrial Accident Commission is automatic if the referee of the Industrial Accident Commission is satisfied after an examination of the file that it complies with Labor Code section 5100. In this case the referee of the Industrial Accident Commission not only approved the commutation but had the statisticians fix the amount, whereupon the referee prepared the order, which was duly approved by the commission.
There is some evidence that Day told officials and employees of the fund that Resau was his friend. Bucher did not deny that this information was given him, but stated in that regard that he could not remember. Whether the preparation of the stipulation of commutation by Bucher was an act that should have put Bucher on guard against a misapplication of funds is a question of fact. Bucher had 25 or more years of experience in the practice of industrial cases. There is evidence that the usual practice was to refer all commutations exceeding $500 to a committee to examine, and make recommendations to the manager of the fund, and that life pension cases were few in number. There is also evidence that the "committee" was not in existence, and other evidence that various officials and employees of the fund did not remember whether it existed at the time of the Resau commutation transaction.
[1] The rules necessary to establish the quantum of proof *548 of fraud or a conspiracy are stated in Campbell v. Birch, 19 Cal. 2d 778, 789 [122 P.2d 902], as follows: "The trial court is the exclusive judge of the weight of the evidence and the credibility of the witnesses. It is its province to give to the evidence that weight to which, in its judgment, it is entitled, and to draw all reasonable inferences therefrom, and if, in its judgment, the evidence is entitled to no weight it may disregard such evidence altogether. (24 Cal.Jur. 886, sec. 135.) The cases have frequently taken notice of the fact that it is next to impossible to secure direct evidence of a conspiracy, unless one of the participants has confessed, and that the proof must usually be inferential and circumstantial." In People v. Yant, 26 Cal. App. 2d 725, 737 [80 P.2d 506], the court said: "It is not often that the direct fact of an unlawful agreement which is the essence of a conspiracy can be proved otherwise than by the establishment of independent facts bearing upon the common design; and the question as to the existence of the conspiracy being one of fact, it is sufficient if the circumstances proved satisfy the jury, leaving the weight and sufficiency of the evidence to the triers of the questions of fact. (People v. Sampsell, 104 Cal. App. 431, 439 [286 P. 434].)" (See, also, Johnstone v. Morris, 210 Cal. 580 [292 P. 970]; Revert v. Hesse, 184 Cal. 295 [193 P. 943]; People v. Kauffman, 152 Cal. 331 [92 P. 861]; Beeman v. Richardson, 185 Cal. 280 [196 P. 774].) The trial court heard all of the evidence covering the securing of the commutation and the loan to a company in which Bucher held stock. Appellant contends that there is insufficient evidence to establish any wrongdoing on his part. The trial court evidently disbelieved his testimony. "In determining the disputed questions of fact presented at the trial of the case it was the province of the jury to disbelieve any testimony which appeared to them to lack verity. They were the exclusive judges of the credibility of the witnesses and the weight to be given their testimony. They could reject positive testimony and accept circumstantial evidence as proof of the facts, as it is elementary that direct evidence may be disbelieved and contrary circumstantial evidence relied upon to support a verdict or finding." (Gray v. Southern Pacific Co., 23 Cal. 2d 632, 640-641 [145 P.2d 561].) [2] Unless mandatory presumptions are prescribed by statute, and in the absence of a question of law, it is the duty of the court or jury (Code Civ. Proc., 2101, 2061) as the case may be, to deduce an inference from a fact legally proved *549 (Code Civ. Proc., 1958), or on a reasonable deduction based on such fact in conformity with the ordinary propensities or passions of men generally or of the particular person involved. The deduction may also be founded on the course of business or of nature. (Code Civ. Proc., 1960.) "From the secrecy with which unlawful undertakings are adopted it would be generally impossible to make such proof by direct testimony. Evidence is indirect as well as direct,--consisting of inferences and presumptions,--and it is code law that upon the trial of a case evidence may be given of any facts from which the facts in issue are presumed or are logically inferable." (People v. Donnolly, 143 Cal. 394, 398 [77 P. 177].) [3] Inferences which reasonably may be drawn from the evidence and which are legally admissible notwithstanding that a contrary inference might be drawn by an appellate court, must be accepted on appeal as evidence in favor of the prevailing party. The inference drawn by the trial court may not be the inference which the individual members of this court might draw. "The fact that some inference other than that which has been drawn by a jury may appear to an appellate tribunal to be the more reasonable, affords no sufficient reason for disturbing the inference in question. (10 Cal.Jur., p. 735, et seq.) It also appears to be well- established law that notwithstanding the fact that the evidence upon which the inference is founded is undisputed or without conflict, an appellate court has not the power to draw an inference different from that which the jury has deduced." (Juchert v. California Water Service Co., 16 Cal. 2d 500, 508 [106 P.2d 886].) (See, also, Mah See v. Northern American Acc. Ins. Co., 190 Cal. 421 [213 P. 42, 26 A.L.R. 123]; Webster v. Board of Dental Examiners, 17 Cal. 2d 534 [110 P.2d 992]; Hamilton v. Pacific Elec. Ry. Co., 12 Cal. 2d 598 [86 P.2d 829]; Barham v. Widing, 210 Cal. 206 [291 P. 173]; Arques v. National Superior Co., 67 Cal. App. 2d 763 [155 P.2d 643]; Palmer v. Palmer, 49 Cal. App. 2d 331 [121 P.2d 822].)
[4] The trial court, with the above rules in mind, could consider the long standing friendship between Day and Bucher; the fact that Bucher was selected by Day from three names submitted by the personnel board for appointment as chief counsel for the fund; Bucher's long experience with the particular class of work; the fact that he might have made an independent investigation; the preparation of the stipulation of the commutation of the award; the fact that Bucher signed *550 the stipulation as the legal representative of the compensation fund; the assent finally given to the deposit of the Resau money in a safe deposit box instead of with a bank; Bucher's actions and demeanor as a witness, to determine his credibility and participation in the scheme of Day.
Appellant cites Ryder v. Bamberger, 172 Cal. 791 [158 P. 753], and other cases to the same effect that it is the duty of the trial court to find in favor of fair dealing if there be two inferences that are equally susceptible of being adopted from all the facts and circumstances. The rule is set forth in Ryder v. Bamberger, supra, as follows (pp. 799-800): "For, if there be two inferences equally reasonable and equally susceptible of being drawn from the proved facts, the one favoring fair dealing and the other favoring corrupt practice, it is the express duty of court or jury to draw the inference favorable to fair dealing." The rule is applicable when the evidence is equally susceptible of two conflicting inferences. The opinion in the case of Ryder v. Bamberger, supra, page 800, seems to be that there was no substantial evidence of fraud. In the other cases cited the same principle is involved. In the present case, the testimony of Bucher was considered, but disbelieved. Added to that circumstance is the evident attitude of the trial court showing that he disbelieved any testimony of Day favorable to Bucher. This was the trial court's right. (Campbell v. Birch, supra.) This court as a matter of law is unable to say that the evidence is insufficient to sustain the findings and judgment.
The trial court decided this case on the theory of intentional wrong on the part of Day and Bucher, and a conspiracy between them to defraud the state; and that an agent of the state is jointly responsible with his coconspirator for damages suffered. (Civ. Code, 2343, subd. 3; Stirnus v. Adams, 50 Cal. App. 730 [195 P. 955].) "In an action for damages resulting from acts of conspirators, the major significance of the conspiracy lies in the fact that it renders each participant in the wrongful act responsible as a joint tort- feasor for all damages ensuing from the wrong, irrespective of whether or not he was a direct actor and regardless of the degree of his activity. And so, a plaintiff is entitled to a joint recovery of damages against such defendants as he can show have united or cooperated in inflicting a wrong upon him. A person is liable for his participation in a conspiracy, having for its object the commission of a wrongful act, even though he acts only as an *551 agent for another and is unacquainted with the details of the scheme, and although he expected no benefit from the wrongful act and in fact received none." (5 Cal.Jur. 30, p. 530; Mox, Incorporated v. Woods, 202 Cal. 675 [262 P. 302]; Revert v. Hesse, supra; Mary Pickford Co. v. Bayly Bros., Inc., 12 Cal. 2d 501 [86 P.2d 102].) [5] Bucher, found to be a conspirator, and found to have been a participant in a wrongful act, is, in the eyes of the law, equally liable with Day for the wrong perpetrated, though he may not have known the details of the scheme from its inception. They were joint tort feasors and liable equally for the full amount of damages. Day did not appeal from the judgment and it has become final as to him. [6] Respondents have not appealed from the judgment and, therefore, are not in a position to urge the point that as joint tort feasors Bucher's liability should be the same as Day's. The amount assessed against Bucher, in the absence of an appeal by the respondents, must stand.
The judgment against Bucher represents compensation for a permanent disability of Resau of 100 per cent as found by the Industrial Accident Commission, entitling him to $5,335.20, to be paid at the rate of $22.23 a week for 240 weeks, and thereafter the sum of $13.68 a week for the remainder of his natural life. The prospective term of Resau's natural life was of course uncertain. The chief of the compensation bureau of the commission testified in substance, as related in the narrative statement on appeal, that commutation is based primarily upon the amount of future payments, in turn based upon the normal expectancy of life; that the commission in making the permanent disability rating considered a well recognized mortality table, the history of the case, the condition of the ailment of the applicant, plus the experience of the commission in similar computations.
The trial court did not fix the amount of damages arbitrarily nor compute the various amounts mentioned during the trial of the case as a basis for damages, but followed the order of the Industrial Accident Commission which had previously fixed the amount, without appeal from that order by any of the parties interested. The order of the commission has long since become final.
Appellant contends (1) that respondents offered no evidence tending to show the amount for which the claim should have been commuted; (2) that, if the claim had not been commuted the fund would have been obliged to pay the death benefit, *552 from which the accrued compensation should have been deducted. [7] As to the first contention, since the conspiracy prevented a determination of the amount for which the claim should have been commuted, appellant cannot be heard to complain. "The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created." (Bigelow v. RKO Radio Pictures, Inc., __________ U.S. __________ [66 S. Ct. 574, 580, 90 L.Ed. __________]; see, also, Speegle v. Board of Fire Underwriters, 29 Cal. 2d 34, 46 [172 P.2d 867].) [8] On the second point, no citations are given and no argument presented in support of the bare statement. Under such circumstances the matter complained of will be deemed to be without prejudice to appellant's rights. (People v. Hermes, 73 Cal. App. 2d 947 [168 P.2d 44], and cases cited.)
The prayer of the complaint asks for judgment against Day, Bucher and the bonding company in the sum of $8,171.58 "together with interest thereon." The figure $8,171.58 was evidently arrived at by adding to the $6,962.56, the amount of the commuted award, the sum $1,044.81, the previous indemnity payments made to Resau, and $164.21 paid for medical services and expenses. The judgment provides: "1. That plaintiffs have and recover from defendants C. B. Day, Carroll S. Bucher and Massachusetts Bonding and Insurance Company, a corporation, the total sum of Twelve Thousand Nine Hundred Forty-five and 36/100 Dollars ($12,945.36) being the principal sum of Eight Thousand One Hundred Seventy-one and 58/100 Dollars ($8,171.58) together with interest thereon at the rate of Seven per centum (7%) per annum, compounded annually from February 8, 1937, to and including November 25, 1943, in the sum of Four Thousand Seven Hundred Seventy-three and 78/100 Dollars ($4,773.78), except, however, as to the defendant Carroll S. Bucher only plaintiffs have and recover the sum of Eleven Thousand Thirty-one and 97/100 Dollars ($11,031.97), being the principal sum of Six Thousand Nine Hundred Sixty-two and 56/100 Dollars ($6,962.56) together with interest thereon at the rate of Seven per centum (7%) per annum, compounded annually from February 8, 1937, to and including November 25, 1943."
"2. That plaintiffs have and recover from defendants C. B. Day, Carroll S. Bucher, and Massachusetts Bonding and Insurance Company, a corporation, interest at the rate of seven *553 per centum (7%) per annum compounded annually on the sum of Twelve Thousand Nine Hundred Forty-five and 36/100 Dollars ($12,945.36) from November 25, 1943; except, however, as to defendant Carroll S. Bucher interest as aforesaid shall be computed upon the principal sum of Eleven Thousand Thirty-one and 97/100 Dollars ($11,031.97)."
The judgment is dated April 19, 1944, and recorded April 20, 1944. The record, insofar as this court has been able to discover, does not disclose why November 25, 1943, was selected as a stopping point in the payment of interest, nor why there should be assessed on the first amount compound interest from that date as if it were the date of judgment. [9] It has been suggested that November 25, 1943, is the date of the order for preparation of findings and judgment, and that it automatically terminates the period of payment of interest prior to judgment. United Taxpayers Co. v. San Francisco, 55 Cal. App. 239 [203 P. 120], does not sustain such suggestion. At page 243 the court said: "An order for judgment is not a judgment. (Delger v. Jacobs, 19 Cal. App. 197 [125 P. 258]; Canadian etc. Co. v. Clarita etc. Co., 140 Cal. 672 [74 P. 301].) Interest, by the express language of section 1920 of the Civil Code, is allowable upon judgments from the date of their entry only." In Walters v. Bank of America etc. Assn., 9 Cal. 2d 46, 58 [69 P.2d 839], the court stated: "The trial court allowed interest from May 10, 1930, the date of the attachment. The respondent's right to interest did not accrue until July 14, 1930, the date of the judgment. The judgment should be modified to correct that error." (See, also, Bibend v. Liverpool & London F. & L. Ins. Co., 30 Cal. 78; Clark v. deSaisset, 5 Cal. App. 2d 23 [41 P.2d 945]; Wells Fargo & Co. v. City etc. of San Francisco, 25 Cal. 2d 37 [152 P.2d 625].) In Gillanders v. Da Silva, 212 Cal. 626 [299 P. 722], an action to reform a liability indemnity insurance policy, the form of the judgment resulted in a compounding of interest on the original judgment. The court said (p. 632): "Obviously this was an allowance of interest on interest for which there appears to be no authority in law in such a case." The order of the trial court was affirmed after modification of the amount. Whatever interest may be due in this case it will be necessary to order a modification, though the date November 25, 1943, assumed to be the date of the order for judgment, is not of great importance as the interest rule applies in this case.
[10] The first matter to be considered on the subject of *554 damages is whether the compound interest was proper in this case. The compounding of interest has not been approved, legislatively or judicially, in this state in a case like the present. (Doe v. Vallejo, 29 Cal. 385; Yndart v. Den, 116 Cal. 533 [48 P. 618, 58 Am. St. Rep. 200]; Schneider v. Turner, 10 Cal. 2d 771 [76 P.2d 668].)
"It should also be noted that the Legislature has expressly provided that 'in the computation of interest upon any bond, note, or other instrument or agreement, interest shall not be compounded, nor shall the interest thereon be construed to bear interest unless an agreement to that effect is clearly expressed in writing and signed by the party to be charged therewith.' (Emphasis ours.) (Deering's Gen. Laws (1937), Act 3757, 2; Stats. 1919, p. lxxxiii.)"
"How the defendant expects the court to imply an agreement to pay compound interest in view of this statute, he does not explain." (Robertson v. Dodson, 54 Cal. App. 2d 661, 665 [129 P.2d 726].)
The legal rate of interest in this state is seven per centum. (Cal. Const. art. XX, 22.) The general rule is that interest may not be computed on accrued interest unless by special statutory provision, or by stipulation of the parties, and in the latter event the amount may not be fixed in conflict with statutory provisions. (Yndart v. Den, supra; Usury Law, Stats. 1919, p. lxxxiii and Deering's Cal. Gen. Laws, Act 3757, et seq.; Schneider v. Turner, supra.)
In City of Los Angeles v. Aitken, 32 Cal. App. 2d 524 [90 P.2d 377], 531-532, a condemnation proceeding, it was held that the interlocutory decree "becomes a 'judgment' within the meaning of section 22, article XX, of the Constitution, and that pending an appeal by the condemnor, such judgment bears interest at the legal rate from the expiration of thirty days after its entry until paid. As we have stated, this is the precise situation which is found in any ordinary action for the recovery of a money judgment, and we see no valid reason why interest upon the judgment here should not be recovered as it is recovered in other cases."
"One who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers." (Civ. Code, 1709.) "Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled *555 also to recover interest thereon from that day, except during such time as the debtor is prevented by law, or by the act of the creditor, from paying the debt." (Civ. Code, 3287.) "The damages prescribed by this chapter are exclusive of exemplary damages and interest, except where those are expressly mentioned." (Civ. Code, 3357.) Civil Code section 3288 provides: "In an action for the breach of an obligation not arising from contract, and in every case of oppression, fraud, or malice, interest may be given, in the discretion of the jury." The discretion of the court does not include the right to make an order for interest upon interest because that would constitute a penalty over and above that expressly allowed in cases of oppression, fraud or malice. (Civ. Code, 3294.) The claim here involved was originally determined by the Industrial Accident Commission and subsequently declared by such commission to be based upon a permanent disability wherein interest was fixed by statute "at the rate of six per cent per annum." (Lab. Code, 5101(b).) The amount of the principal in this case was capable of being made certain (Civ. Code, 3287), and in fact was made certain by the action of the Industrial Accident Commission in the sum of $6,962.56, the commutation award.
The court explicitly found Bucher joined and entered into said conspiracy shortly after the time he became counsel of State Compensation Insurance Fund on or about January 27, 1937, and decreed that while the judgment against Day should be in the sum of $8,171.58, Bucher should be held liable for a lesser amount--$6,962.56.
Respondents at the time of oral argument admitted that appellant "might be" right on the question of compound interest. Under the cited cases and code sections it appears that simple interest at the legal rate may be charged against Bucher, but not compound interest.
The trial court evidently adopted the view that the fund was deprived of the use of $6,962.56 -- the amount of the commutation wherein Bucher played a part--on February 8, 1937. The respondents did not appeal from the amount of the judgment against Bucher, and hence may not object to it in that respect. [11] The court fixed the date for the commencement of interest on the $6,962.56 as February 8, 1937. The record does not disclose that plaintiffs requested interest from about February 6, 1936, the inception of the conspiracy. The allowance of interest in a fraud case *556 prior to judgment is in the discretion of the trial court. Though Day and Bucher were equally culpable from the inception of the conspiracy, the particular sum of $6,962.56 was not paid out until February 8, 1937. The fund may have been deprived of other money prior to that date, for which Day may have been responsible as a conspirator, and Bucher as a subsequent aider and abettor. But, right or wrong, the trial court has seen fit to hold Bucher only for the $6,962.56, the amount of the commuted award. Since the state was deprived of that sum on February 8, 1937, it is quite clear that interest, which the court in its discretion has determined should be paid, should start on that date. Since the trial court has seen fit, right or wrong, to exonerate Bucher for liability for the other principal sum involved, and the respondents have not appealed, it would appear that Bucher could not be made to pay interest on that principal sum for which he was held not liable.
The trial court is directed to modify the findings and the judgment against Bucher by striking out all amounts representing compound interest and inserting in lieu thereof simple interest at the legal rate from February 8, 1937, continuing until the judgment is paid. When so modified under the direction of the trial court, the judgment will stand affirmed; each side to pay its own costs.
Peters, P. J., and Schottky, J. pro tem., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610374/ | 76 Cal. App. 2d 511 (1946)
THE PEOPLE, Respondent,
v.
HERBERT POST et al., Appellants.
Crim. No. 1973.
California Court of Appeals. Third Dist.
Oct. 16, 1946.
Geo. E. Foote for Appellants.
Robert W. Kenny, Attorney General, and James O. Reavis, Deputy Attorney General, for Respondent.
THOMPSON, J.
The defendants were jointly tried and convicted of grand theft of money and travelers cheques, accomplished by means of a confidence game. Neither defendant was a witness at the trial. A motion for new trial was denied.
The appellants contend that the verdicts and judgment are not supported by the evidence for the asserted reason that there is an absence of proof of an intention to steal the property since the money and cheques were subsequently returned to the owner.
Bert Schulte, the prosecuting witness, is a farmer who resided in Minnesota. He came to California to purchase a ranch. He arrived at Sacramento about noon on February 10, 1946, on a Greyhound bus, and sat down in the station by the side of the defendant Post. The defendants were total strangers to him. Post began to twirl a device consisting of a match and a safety pin, to attract his attention. Post engaged Schulte in conversation, eliciting the information that he had on his person $56 in cash and travelers cheques of the value of $300. The man who sat with Post soon left the waiting room. Post remarked that it was "stuffy" in that room, and suggested that they walk down L Street to see the Capitol. Schulte consented to do so and they left the station together. After they had walked a distance of about one-half block, Post stopped and was talking with Schulte when the codefendant, Bishop, approached and addressed them, saying, "Fellows don't go out this way. I lost twenty dollars last night up there. A lady friend ... took the $20.00 and beat it." To this remark Post replied, "You mustn't work it that way. You should match; take all or nothing." Bishop said, "I don't know how you mean--'take all or nothing.' " Post explained, "Flip a coin." Bishop replied, "I don't know how to flip a coin." Then Post asked Schulte if he knew how to flip a coin, to which he replied that he had occasionally matched coins to determine who would pay for a cup of coffee. Post said "We will show him how to match." Post produced a 50 cent coin which he held in his closed hand. Schulte said he thought they were merely showing Bishop how to match coins. He did not think they were matching coins for a stake. *513 If Bishop had a similar coin, Schulte did not see it. Post stood between them. But Post announced to Bishop, "You lost. ... It will be $200." Schulte saw Post counting a roll of bills, but he did not see Bishop hand them to him. Post then said, "Yes, that is $200." Bishop then addressed Schulte, saying, "Now, you have to pay," to which Schulte replied, "I didn't match for any money." Bishop then said, "If I have to pay that man [Schulte] has to pay too." Post said to Schulte, "Why, you have some cash money? ... Give it to me and I will give it to you back." Bishop said, "I want to see you pay too first and you [Post] can give it back to him." At the request of Post, Schulte gave him $56 in cash. Post then said, "You have Travelers Cheques," and the witness replied, "Yes, I have six of them." At the further demand of Post, he signed the cheques and handed them to him. The witness testified, "He made me sign against the wall." Post put the money and cheques in his pocket and started to walk back toward the Greyhound station. After they had proceeded a short distance, Bishop seized Schulte by the arm and finally grabbed him by the throat and detained him while Post attempted to escape by leaving them and crossing the street. At that juncture a police officer, who was in uniform, and who had been watching them, observed Post in a "very hurried walk across the street," 20 feet in front of him. The officer called to Post, who stopped and the officer accompanied him to the point where Bishop and Schulte stood, and asked them what was going on. Bishop told him "they had a drink and were just arguing a little bit." He then started to walk away, but was stopped by the officer. The three men were taken into the Diamond Club for investigation of the affair. The officer said, "We are going to search you boys now." He took them into a back room for that purpose, and began to ask them questions. In their presence the officer phoned the police station for a car to pick them up. Post then shoved the money and travelers cheques over to Schulte, who took them and put them in his side pocket. The officer observed that act and inquired, "What have you got there?" Schulte told him, and upon request handed the cheques to the officer. The men were soon taken to the police station where the officer examined them regarding the affair. Schulte told his story as previously related. The officer said to him, "Don't you ever wake up? They are taking you for a ride." *514
[1] The foregoing evidence furnishes ample proof of the intention of the defendants to steal the money and travelers cheques. The confidence game by means of which they secured the property from the prosecuting witness was simple and crude, but it was successful. In spite of the fact that Schulte was told that he would get his money and cheques back, and that they were subsequently returned to him after the defendants had been apprehended by a uniformed policeman and he had phoned for a machine to take them to the police station, the jury was warranted in finding that the defendants took the property with the intention of stealing it. The entire story indicates that fact. Schulte had pledged no money or cheques in the matching of coins. He was forced to sign the cheques before delivering them to Post. Bishop deliberately seized and detained Schulte to prevent him from following Post who hastily left them and crossed the street with the property in his possession. Fortunately the alert officer apprehended him and took him into custody. The money and cheques were not returned until the officer phoned in their presence for a car to take them to the police station.
[2] Asportation of the property with the intention to appropriate it is sufficient to constitute larceny even though the property may subsequently be returned to the owner. [3] It is the sole province of the jury to determine from the evidence of the entire transaction the intention with which the property is secured. [4] The fact that a thief is prevented by an officer from getting away with the property, or that he may change his mind and return the property to escape prosecution for the crime, does not relieve him from the consequences of the theft. (People v. Quiel, 68 Cal. App. 2d 674 [157 P.2d 446]; People v. Meyer, 75 Cal. 383 [17 P. 431]; People v. Dukes, 16 Cal. App. 2d 105 [60 P.2d 197]; 15 Cal.Jur. 11 and 12, p. 905; 144 A.L.R. 1385, note.) [5] Grand theft may be committed when the accused persons, with a preconceived design to obtain and appropriate property by means of fraud or trickery, thereby gain possession of the property, even though they do not retain or use it for their own benefit. (People v. Gatlin, 75 Cal. App. 2d 288 [170 P.2d 1013].) [6] When the owner is induced by trick or device to part with his money or property without conveying title thereto, and the perpetrator of the fraud thereby obtains possession with the intention of appropriating it to his own use, it constitutes larceny. (People v. McCabe, 60 Cal. App. 2d 492 [141 P.2d 54].) *515
Clearly the defendants in this case procured the money and cheques from Schulte with the intention of stealing them. They were properly convicted of grand theft.
The judgment and the order are affirmed.
Adams, P. J., and Peek, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4274106/ | People v Cox (2018 NY Slip Op 03447)
People v Cox
2018 NY Slip Op 03447
Decided on May 10, 2018
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on May 10, 2018
Friedman, J.P., Tom, Kapnick, Kahn, Kern, JJ.
6524 4621/12
[*1]The People of the State of New York, Respondent,
vLindell Cox, Defendant-Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Allen Fallek of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Michael D. Tarbutton of counsel), for respondent.
Judgment, Supreme Court, New York County (Charles H. Solomon, J., at severance motion; Daniel P. Conviser, J. at jury trial and sentencing), rendered September 9, 2014, convicting defendant of robbery in the first degree (two counts), robbery in the second degree (four counts) and assault in the second degree, and sentencing him to an aggregate term of five years, unanimously affirmed.
Defendant's severance motion was properly denied. The counts relating to the two incidents were properly joined pursuant to CPL 200.20(2)(b) based on mutually admissible evidence to demonstrate identity, as well as the intent required for accessorial liability (see e.g. People v Mitchell, 24 AD3d 103, 104 [1st Dept 2005], lv denied 6 NY3d 778 [2006]). The crimes were closely related because they both involved the continuing animosity between competing gangs, and we have repeatedly held that "a pattern of crimes employing a unique modus operandi is not the exclusive situation in which uncharged crimes may be probative of identity" (People v Laverpool, 267 AD2d 93, 94 [1st Dept 1999], lv denied 94 NY2d 904 [2000]). Thus, a discretionary severance was not available. In any event, the counts were also properly joined as legally similar pursuant to CPL 200.20(2)(c), and defendant failed to make a sufficient showing for a discretionary severance pursuant to CPL 200.20(3).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 10, 2018
CLERK | 01-03-2023 | 05-10-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/1876489/ | 247 S.W.3d 223 (2008)
Leofric Darrell TAYLOR, Appellant
v.
The STATE of Texas.
No. PD-1681-07.
Court of Criminal Appeals of Texas.
February 27, 2008.
April E. Smith, Mesquite, for Appellant.
Michael R. Casillas, Asst. Criminal District Atty., Dallas, Jeffrey L. Van Horn, State's Atty., Austin, TX, for State.
Before the Court En Banc.
OPINION
PER CURIAM.
Appellant was convicted of indecency with a child and the trial court assessed punishment at twenty-five years' confinement. Appellant filed a motion for new trial. The trial judge signed the "Order" portion of the motion and circled "granted." The judge also appointed counsel for appeal and certified the case for appeal. When the reporter's record was not timely filed, the court of appeals abated the appeal and ordered the trial court to make certain findings, including "whether appellant desires to prosecute the appeal[, and] whether appellant is indigent," among others. In compliance with the order, the trial court made findings which were subsequently adopted by the court of appeals, including a finding that appellant desired to prosecute the appeal. Thereafter, the record was filed and briefs were filed by both parties.
The State subsequently filed a motion to abate the appeal, asking that the case be sent back to the trial court to determine whether the trial court "intended to grant Appellant a new trial or intended for Appellant to attempt to gain relief via resort to the appellate process." The court of appeals dismissed the appeal, holding that because the trial court granted the motion for new trial, it had no jurisdiction to consider appellant's appeal or the State's motion to abate. Taylor v. State, No. 05-06-01076-CR, 2007 WL 2703135 (Tex. App.-Dallas Sept.18, 2007). The State has filed a petition for discretionary review, contending that because there is a conflict in the record as to whether the trial court intended to grant a motion for new trial or an appeal, the court of appeals should have *224 abated the appeal to ascertain the trial court's intent. We agree.
The record contains both a granted motion for new trial, and a perfected appeal. The trial court could not have intended both. Faced with a conflicting record concerning its jurisdiction, the court of appeals should have abated to clarify which action was intended by the trial court. TEX.R.APP. P. 44.4; LaPointe v. State, 225 S.W.3d 513, 520 (Tex.Crim.App.2007), cert. denied, ___ U.S. ___, 128 S. Ct. 544, 169 L. Ed. 2d 381 (2007). We grant the State's petition for discretionary review, vacate the judgment of the court of appeals, and remand this case to that court with instructions to abate the appeal and order appropriate findings by the trial court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1768481/ | 892 S.W.2d 855 (1995)
S & A RESTAURANT CORPORATION D/B/A Steak & Ale Restaurant, Petitioner
v.
Annie Marie LEAL, Respondent.
No. 94-0844.
Supreme Court of Texas.
February 16, 1995.
*856 Marie R. Yeates, Penelope Nicholson, Stephanie K. Crain, Catherine Bulowski Smith, Houston, Lewin Plunkett, and Kerby A. Johnson, San Antonio, for petitioner.
Pat Maloney, Sr., Michael D. Maloney, Charles Nicholson, San Antonio, Christa Brown, Austin, and Sean F. O'Neill, San Antonio, for respondent.
PER CURIAM.
The question presented by this appeal is whether S & A Restaurant Corporation d/b/a Steak & Ale Restaurant (Steak & Ale) revoked its consent to a settlement agreement with Annie Marie Leal prior to the trial court's rendition of judgment. The trial court purported to render an agreed judgment on the settlement agreement. The court of appeals determined that the trial court rendered judgment before Steak & Ale's revocation of consent, but remanded the case to the trial court for a hearing on Steak & Ale's motion for new trial. 883 S.W.2d 221, 228-30. A majority of this Court reverses the judgment of the court of appeals and remands this case for a new trial.
Leal filed this personal injury suit against Steak & Ale claiming that she sustained serious head, back, and neck injuries when a waiter at a Steak & Ale Restaurant dropped a large tray of double-plated dinners on her. According to Leal's testimony at trial and the depositions of Leal's doctors, Leal was confined to a wheelchair as a result of the accident. At a hearing on May 14, 1991, the parties agreed to settle for $2 million, at which time the following exchange took place:
THE COURT: Yes. We need to go on the record.
[PLAINTIFF'S ATTORNEY]: And I would say to you, just listen to this. So that we have now asked the Court to approve a settlement in the total sum of $2 million.
Before doing that, however, and we need to know that you understand it, that you want it settled, that you approve of it, and that you understand that forever concludes your claim against Steak & Ale.
*857 Do you understand all of that?
MS. LEAL: Yes, sir.
[PLAINTIFF'S ATTORNEY]: And do you ask the Judge and want the Judge to approve the conclusion and settlement?
MS. LEAL: Yes, sir.
THE COURT: You realize that once this Judgment is signed and I approve it, everything else, it's full, final and complete? You can't come back later and say, "Well I made a mistake," or "We should have gone for more"? Whatever? Do you understand?
MS. LEAL: Yes, I do.
THE COURT: Are the court costs going to be paid by Defendants?
[PLAINTIFF'S ATTORNEY]: Yes.
[DEFENDANT'S ATTORNEY]: Normally we pay for the court costs. Yes, we'll agree to pay the costs.
THE COURT: You realize now, and you are sufficiently aware of the facts now, and there isn't any question about your understanding the total settlement is $2 million? Do you understand that?
MS. LEAL: Yes, sir. I understand that. Mike and I
THE COURT: And you want me to approve the settlement and sign the Judgment?
MS LEAL: Yes, sir.
[PLAINTIFF'S ATTORNEY]: And you understand that once you settle the claim you will be responsible for paying all of your medical bills?
THE COURT: And the attorneys' fees come out of that. Do you understand?
MS. LEAL: Yes, sir.
THE COURT: I'll approve the settlement.
One month after the May 14 hearing, a legal assistant employed by Steak & Ale's counsel in this case, saw Leal walking without apparent difficulty in a San Antonio restaurant. Steak & Ale hired private investigators who watched and videotaped Leal for five days. During that time, none of the investigators saw Leal use a cane, walker, or wheelchair. On June 18, Steak & Ale sent letters to the trial court and to Leal's counsel advising that Steak & Ale was withdrawing its consent to the settlement agreement based on its newly discovered evidence that Leal was not confined to a wheelchair. At a hearing on June 19, the trial court refused to allow Steak & Ale to present its new evidence and signed a judgment against Steak & Ale and for Leal for $2 million.
A party may revoke its consent to a settlement agreement at any time before judgment is rendered on the agreement. Quintero v. Jim Walter Homes, Inc., 654 S.W.2d 442, 444 (Tex.1983); Samples Exterminators v. Samples, 640 S.W.2d 873, 874-75 (Tex.1982). A judgment rendered after one of the parties revokes his consent is void. Samples, 640 S.W.2d at 875. Thus, the question before us is whether the trial court rendered judgment before or after Steak & Ale revoked its consent to the settlement agreement on June 18.
Leal argues that the trial court rendered judgment on May 14 at the time the settlement agreement was dictated into the record, and that the trial court rendered judgment before Steak & Ale's revocation of consent. Both parties agree that the trial court approved the settlement agreement at the May 14 hearing.[1] However, approval of a settlement does not necessarily constitute rendition of judgment. Buffalo Bag Co. v. Joachim, 704 S.W.2d 482, 484 (Tex.App. Houston [14th Dist.] 1986, writ ref'd n.r.e.). Judgment is rendered when the trial court officially announces its decision in open court or by written memorandum filed with the clerk. Samples, 640 S.W.2d at 875; Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 59 (Tex.1970). As we explained in Reese v. Piperi:
*858 The judge's intention to render judgment in the future cannot be a present rendition of judgment. The rendition of judgment is a present act, either by spoken word or signed memorandum, which decides the issues upon which the ruling is made. The opportunities for error and confusion may be minimized if judgments will be rendered only in writing and signed by the trial judge after careful examination. Oral rendition is proper under the present rules, but orderly administration requires that form of rendition to be in and by spoken words, not in mere cognition, and to have effect only insofar as those words state the pronouncement to be a present rendition of judgment.
534 S.W.2d 329, 330 (Tex.1976). The words used by the trial court must clearly indicate the intent to render judgment at the time the words are expressed.
The application of these principles leads us to the conclusion that the trial court did not render judgment during the May 14 settlement hearing. The trial court distinguished between the acts of approving the settlement and rendering judgment, as evidenced by the following statements to Leal:
You realize that once this judgment is signed and I approve it, everything else, it's full, final and complete? ... And you want me to approve the settlement and sign the judgment? ... I'll approve the settlement.
Although the trial court expressly approved the settlement, he did not clearly indicate that he intended to render judgment during the May 14 hearing. Rather, the trial court stated that the case would not be "full, final, and complete" until the signing of the judgment, which did not occur until June 19. The fact that the trial court believed that he had rendered judgment during the May 14 hearing is not dispositive.[2] As we stated in Reese, "orderly administration requires [a] rendition [in open court] to be in and by spoken words, not in mere cognition." 534 S.W.2d at 330.
The court of appeals, however, determined that there was a rendition on May 14 because everyone at the May 14 hearing "clearly understood that the case was all over (`full, final, and complete') and that thereafter [Leal] could not come back seeking further recovery." 883 S.W.2d at 228. But the words of the trial court do not evince, as they must, such a "clear" understanding. In fact, the trial court's express words were that the case was not to be "full, final and complete" until after the judgment was signed.
Therefore, a majority of this Court holds that the trial court did not render judgment during the May 14 settlement hearing, and that the trial court did not render judgment until after Steak & Ale's revocation of consent.[3] The judgment of the court of appeals is reversed and this case is remanded to the trial court for a new trial. See Tex.R.App.P. 122.
NOTES
[1] Steak & Ale acknowledges that Leal could sue Steak & Ale for breach of the settlement agreement, but that Leal's claim would be subject to Steak & Ale's defense of fraudulent inducement.
[2] At the motion for new trial hearing on July 25, 1992, the trial court described the events at the May 14 hearing: "I approved the settlement. I also rendered Judgment."
[3] We note that our holding today does not affect TEX.R.CIV.P. 306a, which provides that the appellate timetable begins to run on the date that the judgment is signed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2156626/ | 870 A.2d 850 (2005)
Eric FINE, Appellant,
v.
Mary Anne CHECCIO, D.D.S., Appellee.
Rosezetta Marie Ward, Appellee,
v.
Jeffrey W. Rice, D.M.D. and Jeffrey W. Rice, D.M.D., P.C., Appellants.
Nos. 55 EAP 2003, 68 WAP 2003.
Supreme Court of Pennsylvania.
Argued April 15, 2004.
Decided March 30, 2005.
*853 Allen Paul Neely, Esq., State College, for Jeffrey W. Rice, D.M.D., P.C.
Patrick John Loughren, Esq., for Rosezetta Marie Ward.
BEFORE: CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.
OPINION
Chief Justice CAPPY.
These are consolidated appeals, in which Appellant Eric Fine ("Fine") sued Appellee Mary Anne Checcio, D.D.S. ("Dr. Checcio"), and Appellee Rosezetta Marie Ward ("Ward") sued Appellants Jeffrey W. Rice, D.M.D. and Jeffrey W. Rice, D.M.D., P.C. (collectively, "Dr.Rice"), for dental malpractice. Dr. Checcio and Dr. Rice each filed a motion for summary judgment based on the two year statute of limitations *854 in 42 Pa.C.S. § 5524(2).[1] In their respective responses, Fine and Ward raised the discovery rule and the doctrine of fraudulent concealment. At the trial court level, Dr. Checcio's motion for summary judgment was denied, but Dr. Rice's motion for summary judgment was granted. The Superior Court reversed the trial court in both cases. We conclude that neither Dr. Checcio nor Dr. Rice was entitled to summary judgment. Accordingly, for the reasons that follow, we reverse the Superior Court's order in the appeal brought by Fine and affirm the Superior Court's order in the appeal brought by Dr. Rice.
The record on summary judgment in each of these cases may be summarized as follows:
Fine v. Dr. Checcio
In June of 1998, Dr. Checcio recommended that Fine's four wisdom teeth, three of which were impacted and one malaposed, be surgically extracted. Fine accepted Dr. Checcio's recommendation and signed a consent form, which set forth the complications and physical conditions that could follow the surgery. The consent form included: "Lip, tongue, chin, gums, cheeks, and teeth, Parasthesia/Anesthesia (Numbness may be permanent)". (R.198a). Dr. Checcio and Fine discussed the procedure and what Fine could expect. While Dr. Checcio testified in her deposition that she explained to Fine that the risk in his case for post-operative numbness was higher than usual because of the position of the inferior alveolar nerve in his mouth, Fine testified in his deposition that Dr. Checcio did not do so.
Dr. Checcio removed Fine's four wisdom teeth on July 17, 1998, cutting soft tissue and drilling bone. At that point, Fine had pain, bleeding, infection, swelling, and numbness on both sides of his face. As of July 17, 1998, Fine knew he was "hurt"; considered the conditions he was experiencing to be "normal"; believed the facial numbness to be one of several "after-surgery effects"; and found the numbness "significant" in scope. (R. 175a, 343a, 347a). Except for the numbness, these conditions disappeared entirely. From July 20, 1998 to October 9, 1998, Fine saw Dr. Checcio in her office on ten separate occasions. During each of the visits, Fine and Checcio discussed the lack of sensation that Fine continued to experience in his face. According to Fine, Dr. Checcio repeatedly told him that it would take about six months for the numbness to subside. According to Dr. Checcio, she consistently gave Fine a balanced prognosis, informing' him that in the worst case scenario, she would refer him to an oral maxillofacial surgeon for an evaluation. While sensation returned to most of Fine's face, the numbness in an area approximately two fingers in width and an inch in length on the left side of his lip and chin persisted. On April 16, 1999, Fine signed an authorization that permitted his attorney to retrieve his medical records from the surgery. About a year after the surgery was performed, Fine came to believe that the persistent numbness was abnormal.
*855 On August 8, 2000, Fine commenced an action in tort against Dr. Checcio. In his amended complaint, Fine alleged, inter alia, that Dr. Checcio was negligent in transecting his inferior alveolar nerve during the surgery and for failing thereafter to refer him to a neurosurgeon. Fine also alleged that the damage to the nerve caused him permanent facial numbness. Dr. Checcio raised the statute of limitations as an affirmative defense in her answer and new matter.
On November 5, 2001, Dr. Checcio filed a motion for summary judgment, asserting that Fine's action, filed on August 8, 2000, was time-barred under 42 Pa.C.S. § 5524(2), inasmuch as it was not filed within two years of July 17, 1998, the date of Fine's surgery. In response, Fine asserted that there existed material, disputed facts as to whether the limitations period was tolled under the discovery rule or the doctrine of fraudulent concealment. The trial court denied Dr. Checcio's motion for summary judgment, without opinion. The case proceeded to trial. On April 26, 2002, a jury returned a $500,000 verdict in Fine's favor. Dr. Checcio's post-trial motions were denied. A judgment was entered in Fine's favor on August 28, 2002. Dr. Checcio filed a timely appeal in the Superior Court.
On appeal, Dr. Checcio asserted, inter alia, that the trial court erred in denying her motion for summary judgment. In an unpublished opinion, the Superior Court agreed and reversed the judgment for Fine.[2] The Superior Court found that on July 17, 1998, when the surgery ended, Fine knew that he was hurt and that he was experiencing significant and unexpected numbness. Based on these facts, the Superior Court concluded that the discovery rule was inapplicable because Fine knew of his injury and its cause at the time the injury was inflicted. Determining that Fine failed to establish that Dr. Checcio either intentionally or unintentionally concealed the true nature of his injury from him, the Superior Court also concluded that the doctrine of fraudulent concealment was not triggered. Thus, the Superior Court ruled that the limitations period in 42 Pa.C.S. § 5524(2) began to run on July 17, 1998, and held that Fine's action, having been commenced more than two years from that date, was time-barred.
Fine filed a petition for allowance of appeal, which this court granted.
Ward v. Dr. Rice
On February 8, 1995, Dr. Rice recommended to Ward that her four impacted wisdom teeth be surgically removed and explained the surgical procedure he would perform. In Dr. Rice's experience, temporary paresthesias and anesthesias commonly followed the procedure. It was Dr. Rice's customary practice to inform patients like Ward that paresthesia and numbness to the lip were complications of wisdom tooth extraction. In his deposition, Dr. Rice testified that because Ward was older, he told her that the risk of numbness increases with age. Ward testified in her deposition that no such conversation with Dr. Rice took place. Dr. Rice's assistant provided Ward with a consent form, which she signed. In the consent form, Ward acknowledged that Dr. Rice had explained the nature, purpose, and results of the operation to her.
Dr. Rice surgically extracted Ward's four wisdom teeth on March 28, 1995, cutting tissue and drilling bone. Immediately following the surgery, Ward's face was *856 sore and numb. When the hospital where the surgery was performed telephoned Ward the next day to inquire about her condition, Ward indicated that she was fine and did not mention the soreness or numbness. The numbness on the left side of Ward's face continued. Ward had numerous post-operative office visits with Dr. Rice, starting on April 5, 1995, and ending on January 22, 1996. During the visits, Ward and Rice discussed her facial numbness. Ward testified that Dr. Rice repeatedly told her that sensation would return in two months' time. Dr. Rice testified that he advised Ward that numbness is a complication of the operation he performed; that statistics show that feeling could return in about two months; and that because no one can know what the future holds, there was hope and a chance of recovery. At Ward's seventh office visit with Dr. Rice on September 20, 1995, Dr. Rice referred her to Steven Kaltman, D.M.D. On October 11, 1995, Ward consulted with Dr. Kaltman, who outlined options for treating the numbness and pain. Ward returned to Dr. Rice for one last office visit on January 22, 1996. In March of 1997, Dr. Rice referred Ward to another oral surgeon for a consultation. At that point, Ward decided to sue Dr. Rice.
On September 26, 1997, Ward commenced an action in tort against Dr. Rice. Ward alleged that Dr. Rice committed a battery in performing the surgery without her informed consent, and was negligent in severing her inferior alveolar nerve and for failing to refer her to a neurosurgeon for repair. Ward also alleged that Dr. Rice's battery and negligence caused her nerve damage, severe pain, numbness, and discomfort. Dr. Rice raised the statute of limitations as an affirmative defense in his answer and new matter.
On February 15, 2002, Dr. Rice filed a motion for summary judgment, asserting that the limitations period in 42 Pa.C.S. § 5524(2) expired on March 29, 1997, which was two years after the surgery, and that Ward's action, commenced on September 26, 1997, was barred under the statute. Ward responded that her action was timely insofar as the record showed that the statute of limitations was tolled under the discovery rule and the doctrine of fraudulent concealment.
On June 18, 2002, the trial court granted Dr. Rice's motion and ordered summary judgment in Dr. Rice's favor. The trial court determined that the discovery rule did not toll the statute of limitations on Ward's claims because Ward knew of her injury and its cause immediately following the surgery and knew that her condition was not improving. The trial court also determined that Ward did not sustain her burden of showing that Dr. Rice concealed Ward's condition from her inasmuch as she experienced pain and numbness as soon as the surgery was completed. Ward filed a timely appeal.
In a published opinion, the Superior Court reversed the judgment entered for Dr. Rice and remanded to the trial court for further proceedings. Ward v. Rice, 828 A.2d 1118 (Pa.Super.Ct.2003). Observing that Ward remained under Dr. Rice's care after the surgery and relied upon his assurances that her pain and numbness would subside, the Superior Court determined that "a jury could conceivably conclude that [Ward's] failure to investigate the possible causes of her condition until the first referral to Dr. Kaltman on October 11, 1995, was reasonable...." Id. at 1125. The court also determined that Dr. Rice's assurances of full recuperation, which lulled Ward into a false sense of security, and Dr. Rice's failure to refer her at the optimum time to a neurosurgeon, which impeded her ability to rectify her condition, constituted "concealment." *857 Id. & n. 2. Based on the view that the statute of limitations begins to run when an injured person in Ward's position loses confidence in her doctor, the Superior Court next determined that Ward's office visit to Dr. Kaltman on October 11, 1995, was evidence of Ward's loss of confidence in Dr. Rice and was reasonable, such that the commencement of her action on September 26, 1997, was timely. Id.
Dr. Rice filed a petition for allowance of appeal, which this court granted. Because Dr. Rice's and Fine's respective requests for review covered the same issues; namely, whether the Superior Court erred in its determinations regarding the discovery rule and the doctrine of fraudulent concealment in connection with a motion for summary judgment that is based on the statute of limitations, we consolidated these appeals.
The Pennsylvania Rules of Civil Procedure that govern summary judgment instruct in relevant part, that the court shall enter judgment whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense that could be established by additional discovery. Pa.R.C.P.1035.2(1). Under the Rules, a motion for summary judgment is based on an evidentiary record that entitles the moving party to a judgment as a matter of law. Note to Pa.R.C.P.1035.2.[3] In considering the merits of a motion for summary judgment, a court views the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Jones v. SEPTA, 565 Pa. 211, 772 A.2d 435, 438 (2001). Finally, the court may grant summary judgment only where the right to such a judgment is clear and free from doubt. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205, 206 (1991).
Our analysis begins with the principles in this area of the law that are settled. The Judicial Code provides in pertinent part that limitations periods are computed from the time the cause of action accrued. 42 Pa.C.S. § 5502(a). In Pennsylvania, a cause of action accrues when the plaintiff could have first maintained the action to a successful conclusion. Kapil v. Association of Pa. State College and Univ. Faculties, 504 Pa. 92, 470 A.2d 482, 485 (1983). Thus, we have stated that the statute of limitations begins to run as soon as the right to institute and maintain a suit arises. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468, 471 (1983). Generally speaking, in a suit to recover damages for personal injuries, this right arises when the injury is inflicted. See Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788, 791 (1959). Mistake, misunderstanding, or lack of knowledge in themselves do not toll the running of the statute. Nesbitt v. Erie Coach Co., 416 Pa. 89, 204 A.2d 473, 475 (1964). Pocono International, 468 A.2d at 471. Once a cause of action has accrued and the prescribed statutory period has run, an injured party is barred from bringing his cause of action. Id.
*858 There are exceptions that act to toll the running of a statute of limitations. The discovery rule and the doctrine of fraudulent concealment are such exceptions. As both are implicated in this appeal, we will discuss them seriatim.
The discovery rule originated in cases in which the injury or its cause was neither known nor reasonably knowable. See Lewey v. H.C. Frick Coke Co., 166 Pa. 536, 31 A. 261 (1895) (concluding that the statute of limitations did not bar the lawsuit of a plaintiff who could not know that a trespasser had subterraneously extracted coal from his land); Ayers, 154 A.2d at 788 (concluding that the plaintiff was entitled to present evidence that he did not and could not know that his pain was the result of a sponge left in his body during an operation performed nine years before). The purpose of the discovery rule has been to exclude from the running of the statute of limitations that period of time during which a party who has not suffered an immediately ascertainable injury is reasonably unaware he has been injured, so that he has essentially the same rights as those who have suffered such an injury. Hayward v. Medical Center of Beaver County, 530 Pa. 320, 608 A.2d 1040, 1043 (1992).
As the discovery rule has developed, the salient point giving rise to its application is the inability of the injured, despite the exercise of reasonable diligence, to know that he is injured and by what cause. Pocono International, 468 A.2d at 471. We have clarified that in this context, reasonable diligence is not an absolute standard, but is what is expected from a party who has been given reason to inform himself of the facts upon which his right to recovery is premised. As we have stated: "`[T]here are [very] few facts which diligence cannot discover, but there must be some reason to awaken inquiry and direct diligence in the channel in which it would be successful. This is what is meant by reasonable diligence.'" Crouse v. Cyclops Industries, 560 Pa. 394, 745 A.2d 606, 611 (2000) (quoting Deemer v. Weaver, 324 Pa. 85, 187 A. 215, 217 (1936) (citation omitted)). Put another way, "[t]he question in any given case is not, what did the plaintiff know of the injury done him? [B]ut, what might he have known, by the use of the means of information within his reach, with the vigilance the law requires of him?" Scranton Gas & Water Co. v. Lackawanna Iron & Coal Co., 167 Pa. 136, 31 A. 484, 485 (1895). While reasonable diligence is an objective test, "[i]t is sufficiently flexible ... to take into account the difference[s] between persons and their capacity to meet certain situations and the circumstances confronting them at the time in question." Crouse, 745 A.2d at 611 (quotation omitted). Under this test, a party's actions are evaluated to determine whether he exhibited "those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of their own interest and the interest of others." Id.
Therefore, when a court is presented with the assertion of the discovery rules application, it must address the ability of the damaged party, exercising reasonable diligence, to ascertain that he has been injured and by what cause. Id. Since this question involves a factual determination as to whether a party was able, in the exercise of reasonable diligence, to know of his injury and its cause, ordinarily, a jury is to decide it. Hayward, 608 A.2d at 1043. See Smith v. Bell Telephone Co. of Pennsylvania, 397 Pa. 134, 153 A.2d 477, 481 (1959). Where, however, reasonable minds would not differ in finding that a party knew or should have known on the exercise of reasonable diligence of his injury and its cause, the court determines that *859 the discovery rule does not apply as a matter of law. Pocono International, 468 A.2d at 471.
When the discovery rule applies, the statute of limitations does not commence to run at the instant that the right to institute suit arises, i.e., when the injury occurs. Id. at 611; Ayers, 154 A.2d at 791. Rather, the statute is tolled, and does not begin to run until the injured party discovers or reasonably should discover that he has been injured and that his injury has been caused by another party's conduct. Id. Whether the statute of limitations has run on a claim is a question of law for the trial court to determine; but the question as to when a party's injury and its cause were discovered or discoverable is for the jury. Hayward, 608 A.2d at 1043.
While these broad parameters of the discovery rules operation are established, there is an aspect of the rule that has remained unsettled. Based on language in one of our cases, Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963), this court has been evenly divided as to whether there is a principle that further qualifies the discovery rules application. See Murphy v. Saavedra, 560 Pa. 423, 746 A.2d 92 (2000); Baumgart v. Keene Building Products Corp., 542 Pa. 194, 666 A.2d 238 (1995). In Schaffer, we held that the plaintiff should have been allowed to amend his reply to defendants motion for judgment on the pleadings, which was based on the statute of limitations, to add allegations that his knowledge of defendants negligence was delayed by defendants deliberate concealment. Id. at 270. In doing so, we observed that statutes of limitations may be tolled under different theories and then stated that "if the existence of the injury is not known to the complaining party and such knowledge cannot be reasonably ascertained within the prescribed period, the limitation does not begin to run until discovery of the injury is reasonably possible." Id. (emphasis added).
Relying on this language in subsequent cases, some Justices have indicated that the discovery rule requires that it first be determined whether the injury and its cause were reasonably ascertainable at any point within the prescribed statutory period. If they were, then the discovery rule does not apply and the statute of limitations is not tolled, even though a party did not know nor could have reasonably known of his injury and its cause at the time the injury occurred. See Saavedra, 746 A.2d at 93-95 (opinion in support of affirmance); Baumgart, 666 A.2d at 239-41 (same). Other Justices, however, have believed that the discovery rule is not restricted to those cases where an injury or its cause is not reasonably discovered until after the expiration of the limitations period, despite Schaffer's language. Rather, the discovery rule always applies to toll the statute of limitations if at the time the injury occurs, the injury or its cause is neither known nor reasonably knowable. See Saavedra, 746 A.2d at 98-101 (opinion in support of reversal); Baumgart, 666 A.2d at 241-45 (same).
Today, we hold that it is not relevant to the discovery rules application whether or not the prescribed period has expired; the discovery rule applies to toll the statute of limitations in any case where a party neither knows nor reasonably should have known of his injury and its cause at the time his right to institute suit arises.
We have several reasons for our holding. First, the observation made in Schaffer, to the extent that it was intended to limit the discovery rules application, constitutes non-binding dicta inasmuch as our holding therein concerned whether the plaintiff was permitted to amend a pleading to *860 assert that defendant had concealed the facts underlying his negligent conduct. Schaffer, 189 A.2d at 270. See Albert v. Zoning Hearing Bd. of North Abington Twp., 578 Pa. 439, 854 A.2d 401, 410 (2004). Second, an interpretation of a statute of limitations that premises a party's access to the discovery rule on whether he knew or was able to know of his injury and its cause within the prescribed period would in many instances lead to unreasonable and arbitrary results and would be contrary to our long-standing approach in this area. Under such a conclusion, for example, a party who is reasonably diligent, but is unable to ascertain that he is injured until the day before the limitations period has run, must file suit within twenty-four hours or be time-barred by the statute of limitations. If that same party, however, reasonably discovers his injury the day after the prescribed period has expired, he has the full statutory period within which to commence an action. In Ayers, we stated that a statute of limitations, like all statutes, must be read with reason and common sense; that its application to a given set of circumstances, must not be made to produce something that the General Assembly could never have intended; and that its interpretation must be guided by the presumption in the Statutory Construction Act that the legislature does not intend a result that is absurd, impossible of execution or unreasonable. Ayers, 154 A.2d at 789. See 1 Pa.C.S. § 1922(1) (formerly, 46 P.S. § 552). Third and finally, the recognized purpose of the discovery rule to see to it that persons who are reasonably unaware of an injury that is not immediately ascertainable have essentially the same rights as those who suffer an immediately ascertainable injury would be nullified if the rule were applied only to those persons who reasonably discover their injury and its cause after the limitations period has run. See Hayward, 608 A.2d at 1043.[4]
In addition to the discovery rule, the doctrine of fraudulent concealment serves to toll the running of the statute of limitations. The doctrine is based on a theory of estoppel, and provides that the defendant may not invoke the statute of limitations, if through fraud or concealment, he causes the plaintiff to relax his vigilance or deviate from his right of inquiry into the facts. Deemer, 187 A. at 215. The doctrine does not require fraud in the strictest sense encompassing an intent to deceive, but rather, fraud in the broadest sense, which includes an unintentional deception. Id. The plaintiff has the burden of proving fraudulent concealment by clear, precise, and convincing evidence. Molineux v. Reed, 516 Pa. 398, 532 A.2d 792, 794 (1987). While it is for the court to determine whether an estoppel results from established facts, it is for the jury to say whether the remarks that are alleged to constitute the fraud or concealment were made. Nesbitt, 204 A.2d at 476.
As of yet, we have not directly considered and ruled upon the circumstances under which a defendant, once estopped under the doctrine of fraudulent concealment, may invoke the statute of limitations and commence its running. Inasmuch as the doctrine is premised on a defendant's obstructionist conduct, there is an argument *861 that a plaintiff's actual knowledge, of his injury and its cause, as opposed to the knowledge that reasonable diligence would give him, should control. See e.g., Urland v. Merrell-Dow Pharmaceuticals, Inc., 822 F.2d 1268, 1277-83 (3d Cir.1987) (Becker, J., dissenting) (arguing that under Pennsylvania law, the doctrine of fraudulent concealment requires a plaintiff's actual knowledge of his injury and its cause before the statute of limitations begins to run).
We are of the view, however, that the standard of reasonable diligence, which is applied to the running of the statute of limitations when tolled under the discovery rule, also should apply when tolling takes place under the doctrine of fraudulent concealment. This is, we believe, the standard that will serve one of the overarching tenets in this area of our jurisprudence the responsibility of a party who seeks to assert a cause of action against another to be reasonably diligent in informing himself of the facts upon which his recovery may be based. Pocono International, 468 A.2d at 471. Moreover, because the doctrine captures even unintentional conduct on a defendants part and the standard of reasonable diligence requires from a party only that knowledge which is reasonably attained under the circumstances, we do not believe that deviation from that standard to a higher threshold of knowledge is warranted. Thus, we conclude that a statute of limitations that is tolled by virtue of fraudulent concealment begins to run when the injured party knows or reasonably should know of his injury and its cause.
We now apply these exceptions to the running of the statute of limitations in each of the cases before us. We begin with Fine's appeal. With respect to the discovery rule's application, we must address what the record reveals as to Fine's ability, exercising reasonable diligence, to know of his injury and its cause. See Pocono International, 468 A.2d at 471. Dr. Checcio argues that the record established that Fine knew or was able to know, in the exercise of reasonable diligence, that he was injured by another's conduct at the time the injury was inflicted on July 17, 1998 as a matter of law, because on that date, he knew that his face was numb. Fine argues that such was not the case and that it was for the jury to decide whether he knew or should have known that he was injured at that point insofar as the record showed that he had every reason to believe that the numbness he was experiencing was merely a normal side-effect of the wisdom tooth extraction.
Viewing the summary judgment record as we must, in the light most favorable to the non-moving party, see supra, p. 8, we agree with Fine. It is important to keep in mind that in this case, the record revealed that facial numbness was indicative of two distinct phenomena. Facial numbness was either a temporary physical consequence that resulted from the very nature of the procedure that Dr. Checcio performed on Fine or it was a manifestation of Fine's injury, a permanent condition that resulted from underlying nerve damage. Until conflicts in the record were resolved, see supra, pp. 2-3, and inferences from relevant facts were drawn, the issue of whether Fine knew, or should have known through the diligence that a reasonable person would have exercised under the circumstances, that the numbness he was experiencing on July 17, 1998, was a manifestation of injury, as, opposed to, or in addition to, the typical condition that dental surgery produces remained disputed. Therefore, to rule against the discovery rule's application, the Superior Court had to undertake these fact-resolution and inference-drawing functions. *862 In doing so, the court erred. We emphasize that it is not the court's function upon summary judgment to decide issues of fact, but only to decide whether there is an issue of fact to be tried. See Pa.R.C.P. 1035.2(1).
Turning to the doctrine of fraudulent concealment, while Fine argues that the issue had to be resolved at trial, Dr. Checcio argues that Fine failed to show that he could sustain his burden of proof on the doctrine's application. Here too, we agree with Fine. We conclude that the Superior Court's determination that Fine failed to establish that the statute of limitations was tolled by the doctrine disregarded the court's proper role when presented with a motion for summary judgment and was erroneous. Fine based his assertion for the application of the doctrine on post-surgery statements he attributed to Dr. Checcio. As is reflected in their respective depositions, however, the parties disputed what Dr. Checcio actually said. See supra, p. 3. As we have instructed, it is for the jury to determine what remarks a defendant made to a plaintiff, before a court can decide whether they amounted to fraudulent concealment. See Nesbitt, 204 A.2d at 476 (concluding that unless disputed facts as to what was said to the plaintiff are resolved, a fair and intelligent judgment by the court as to whether the defendant is estopped from asserting the statute of limitations due to concealment is impossible).
Therefore, we hold that Dr. Checcio was not entitled to summary judgment because there were genuine issues of material fact necessary to her statute of limitations defense. See Pa.R.C.P. 1035.2(1).[5]
We now turn to Dr. Rice's appeal. With respect to the discovery rule, the arguments made by Ward and Dr. Rice reflect those made by the parties in Fine's appeal. Dr. Rice argues against the discovery rule's application, contending that since Ward knew immediately after the surgery on March 28, 1995, that she was numb, she also knew at the same time that she had suffered an injury. Ward responds that given the nature of the procedure that she underwent and what she understood the procedure to involve, the record does not establish that she knew or reasonably could have known on March 28, 1998 that her numbness was indicative of an injury, and not a temporary post-operative condition.
Ward is correct. For the same reasons we stated in Fine's appeal, the facts and inferences that are relevant to the discovery rule's application whether Ward knew or could have reasonably known that the numbness she admitted to experiencing upon the surgery's completion was a manifestation of an injury, as opposed to, or in addition to, the typical and temporary conditions that dental surgery produces are disputed and must be resolved at trial. See supra, p. 5. Therefore, as the Superior Court determined, Dr. Rice's motion for summary judgment should have been denied. See Pa.R.C.P. 1035; Hayward, 608 A.2d at 1040.
At this point, however, we observe that although we affirm the Superior Court's result, we do not embrace the court's analysis. The court focused on whether a jury could find Ward's failure to investigate the causes of her condition until some seven months after the surgery to be reasonable. See Ward, 828 A.2d at 1125. This is not *863 the question that Dr. Rice's motion for summary judgment and Ward's response raising the discovery rule required the court to address. The court should have asked and answered whether there are genuine issues of material fact as to whether Ward knew or was unable to know, despite the exercise of reasonable diligence, that she was injured and by what cause at the time the injury was inflicted. See Pocono International, 468 A.2d at 471.
Likewise, with regard to the doctrine of fraudulent concealment, while we agree that the Superior Court correctly determined that the doctrine precluded the entry of summary judgment for Dr. Rice, we disagree with the court's approach. The court was in no position to base its ruling on the conclusion that Dr. Rice's post-surgery statements were "assurances" of "full recuperation" that amounted to concealment. Ward, 828 A.2d at 1125. This is because the record shows that the statements that Dr. Rice made to Ward about the numbness during post-operative visits are disputed. See supra, p. 5. Thus, application of the doctrine cannot be resolved until the jury determines at trial what Dr. Rice said to Ward in this regard. See Nesbitt, 204 A.2d at 476. Finally, we also take issue with the Superior Courts conclusion that Dr. Rice's failure to refer Ward to a neurosurgeon in a timely fashion, which prevented her from securing corrective measures, constituted a second act of concealment. In doing so, the Superior Court usurped the province of the jury, finding facts regarding Dr. Rice's conduct that remain disputed, and misapprehended the inquiry that the doctrine of fraudulent concealment entails, which is whether a defendant's statements caused the plaintiff to relax his vigilance or deviate from inquiring into the facts. See Deemer, 187 A. at 215.[6]
Therefore, we hold that Dr. Rice was not entitled to summary judgment because there are genuine issues of material fact as to his statute of limitations defense. See Pa.R.C.P. 1035.2(1).[7]
For these reasons, in Fine's appeal, we reverse the order of the Superior Court reversing the order of the trial court denying Dr. Checcio's motion for summary judgment; we reinstate the order of the trial court; and we remand the case to the Superior Court for the resolution of any properly preserved outstanding issues. For these reasons, in Dr. Rice's appeal, we affirm the order of the Superior Court and remand the case to the trial court for further proceedings.
Madame Justice Newman did not participate in the consideration or decision of this case.
NOTES
[1] It is undisputed in both appeals that 42 Pa.C.S. § 5524(2) controls. The statute states:
§ 5524. Two year limitation
The following actions and proceedings must be commenced within two years:
* * *
(2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.
42 Pa.C.S. § 5524(2).
[2] Dr. Checcio raised two other issues on appeal. Given its decision in regard to Dr. Checcio's motion for summary judgment, the Superior Court did not reach these additional issues.
[3] An appellate court may reverse the granting of a motion for summary judgment if there has been an error of law or an abuse of discretion. Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812 A.2d 1218, 1221 (2002). As the issue as to whether there are no genuine issues as to any material fact presents a question of law, our standard of review is de novo; thus, we need not defer to the determinations made by the lower tribunals. Our scope of review, to the extent necessary to resolve the legal question before us, is plenary. Buffalo Township v. Jones, 571 Pa. 637, 813 A.2d 659, 664 n. 4 (2002); Pa.R.A.P. 2111(a)(2).
[4] The language in Schaffer underlying this court's division as to the discovery rule's application has been repeated in many opinions in boilerplate fashion. See, e.g., Hayward, 608 A.2d at 1043; Bradley v. Ragheb, 429 Pa.Super. 616, 633 A.2d 192, 194 (1993). Any of this court's decisions in which the discovery rule was not applied merely because the injury and its cause were known or knowable within the prescribed period are overruled in that regard. Any such decisions of other courts are disapproved.
[5] Given our conclusion, we need not and do not address Fine's additional argument that the Superior Court erred in ignoring his argument concerning the effect of his claim that Dr. Checcio failed to make a timely referral to a neurosurgeon on the running of the statute of limitations.
[6] Because we conclude that application of the doctrine of fraudulent concealment to toll the statute of limitations is an open question to be resolved at trial, we need not and do not address the Superior Court's determination that the tolled statute of limitations began to run in October 1995 when Ward consulted with another oral surgeon. See id. at 1125 n. 2.
[7] Given our conclusion, we need not and do not address Dr. Rice's argument that Ward is prohibited from avoiding the statute of limitations by asserting a negligent failure to refer claim. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2899924/ | NO. 07-08-0519-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JANUARY 14, 2009
______________________________
IN RE BARRY DWAYNE MINNFEE,
Relator
_______________________________
Opinion on Original Proceeding for Writ of Mandamus
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Pending before this court is the application of Barry Dwayne Minnfee for a writ of mandamus. He requests that we compel “disclosure or discovery [of] party’s right to own statement.” We deny the application for the reasons that follow.
First, relator fails to state who he is wishing to mandamus. That is, nothing in the petition discloses any relevant details surrounding his discovery request or the trial court involved.
Second, rules of procedure obligate one seeking mandamus relief to accompany his petition with an appendix.
Tex. R. App. P.
52.3(j). The latter must include, among other things, a certified or sworn copy of the document showing the matter complained of. In this case, the document showing the matter complained of would be the motion requesting discovery of his own statement with the trial court. Minnfee failed to provide us with that motion or request.
Accordingly, the application for writ of mandamus pending before this court is denied.
Per Curiam | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2327157/ | 297 F.Supp.2d 1154 (2004)
HY CITE CORPORATION, Plaintiff,
v.
BADBUSINESSBUREAU.COM, L.L.C. d/b/a Badbusinessbureau.Com and/or Ripoffreport.com, Defendant.
No. 03-C-0421-C.
United States District Court, W.D. Wisconsin.
January 8, 2004.
*1155 John C. Scheller, Michael Best & Freidrich, LLP, Madison, WI, for Plaintiff.
Sonali S. Srivastava, Lafollette, Godfrey & Kahn, Madison, WI, Maria Crimi Speth, *1156 Jabur & Wilk, P.C., Phoenix, AZ, for Defendant.
ORDER
CRABB, Chief Judge.
Defendant badbusinessbureau.com owns and operates a website that displays consumer complaints against various businesses. In this civil action, plaintiff Hy Cite Corporation contends that by operating this website, defendant has engaged in unfair competition, false advertising, disparagement and trademark infringement in violation of state and federal law. Now before the court is defendant's motion to dismiss the case for lack of personal jurisdiction. Subject matter jurisdiction is present under 28 U.S.C. §§ 1331 and 1367.
I conclude that plaintiff has failed to show that defendant has sufficient contacts with Wisconsin to satisfy the personal jurisdiction requirements of the Fourteenth Amendment's due process clause. Accordingly, plaintiff's motion to dismiss for lack of personal jurisdiction will be granted.
For the sole purpose of deciding this motion, I find as facts the following material facts from the allegations in the complaint and the averments in the affidavits. See Purdue Research Foundation v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir.2003) (court accepts all well-pleaded allegations in complaint as true, unless controverted by challenging party's affidavits; any conflicts concerning relevant facts are to be decided in favor of party asserting jurisdiction).
JURISDICTIONAL FACTS
Plaintiff Hy Cite Corporation is a Wisconsin corporation with a principal place of business in Madison, Wisconsin. Plaintiff markets and sells china and porcelain dinnerware, glass beverageware, cookware and related products under its Royal Prestige trademark.
Defendant badbusinessbureau.com is a limited liability company organized and existing under the laws of St. Kitts/Nevis, West Indies. Defendant does not own any assets in Wisconsin or have any offices or employees in the state. Defendant owns and operates a website, "The Rip-Off Report," located at http://www.badbusinessbureau.com. The website operates primarily as a forum for consumer complaints about various businesses. Consumers submit complaints, or "rip-off reports," about a product or service; defendant posts the complaints on its website. Consumers have submitted at least 61,000 complaints to defendant. Plaintiff's products have been the subject of 30 to 40 of these complaints.
Subjects of a consumer complaint may post a rebuttal. Defendant screens the rebuttals and charges a $25 fee to post more than four of them. No Wisconsin company has purchased a rebuttal. In addition to posting rebuttals, subjects of a complaint may enroll in defendant's "Corporate Customer Advocacy Program," which is advertised on its website.
Plaintiff contacted defendant on June 24, 2003, by e-mail to inquire about ways of resolving the consumer complaints posted on defendant's website. In a July 11, 2003 e-mail, defendant informed plaintiff of the advocacy program. After determining the number of complaints posted against plaintiff, defendant informed plaintiff that the cost of enrollment would consist of an initial $30,000 fee and an additional $20,000 at a later time. Plaintiff did not enroll in this program. No other Wisconsin company has enrolled.
Defendant's website serves several functions apart from the consumer complaint and rebuttal forum. First, any company may purchase ad space on defendant's *1157 website. No Wisconsin company has purchased any ad space. Second, defendant's website displays a link to purchase a book, Rip-Off Revenge Guide. One Wisconsin resident has purchased the book. Third, defendant solicits donations for the company on its website. Defendant does not recall whether the company has received any donations from Wisconsin. Fourth, defendant's website allows website viewers to enlist as volunteer "rip-off reporters." Finally, defendant offers to contact consumers who post rip-off reports if a class action suit is being considered against the company about which the consumer complained. Defendant has not organized any class action suits in Wisconsin.
OPINION
A. General Principles
On a motion to dismiss for lack of personal jurisdiction under Fed.R.Civ.P. 12(b)(2), the burden of proof rests on the party asserting jurisdiction. Hyatt International Corp. v. Coco, 302 F.3d 707, 713 (7th Cir.2002). Unless the court holds an evidentiary hearing, a party meets this burden by making a prima facie showing that personal jurisdiction exists. Id.
A federal court has personal jurisdiction over a non-consenting, nonresident defendant to the extent authorized by the law of the state in which that court sits. Giotis v. Apollo of the Ozarks, Inc., 800 F.2d 660, 664 (7th Cir.1986). This rule applies in diversity and federal question cases, unless the federal statute at issue permits nationwide service or the defendant is not subject to personal jurisdiction in any state in the United States. Fed.R.Civ.P. 4(k); Janmark, Inc. v. Reidy, 132 F.3d 1200, 1201-02 (7th Cir.1997); see also Bird v. Parsons, 289 F.3d 865, 871 (6th Cir.2002). Neither of the exceptions apply to this case. Nationwide service of process is not authorized under any of the statutes at issue in this case. Defendant admits that it could be sued in Arizona because it maintains a distribution center in that state.
Generally, Wisconsin courts require plaintiffs to satisfy the requirements of the state's long-arm statute, Wis. Stat. § 801.05, as well as the due process clause of the United States Constitution. Logan Productions, Inc. v. Optibase, Inc., 103 F.3d 49, 52 (7th Cir.1996). Both parties appear to assume that the Wisconsin long-arm statute extends as far as due process. As a result, they have focused almost entirely on the requirements of the Constitution. The parties' assumption may be erroneous. In a number of recent decisions, courts in Wisconsin have analyzed the requirements of § 801.05 separately from the requirements of due process. See, e.g., Kopke v. A. Hartrodt S.R.L., 2001 WI 99, ¶ 8, 245 Wis.2d 396, 629 N.W.2d 662; Bushelman v. Bushelman, 2001 WI App 124, ¶ 7, 246 Wis.2d 317, 629 N.W.2d 795. However, because I conclude that plaintiff has failed to meet the constitutional requirements for jurisdiction, it is unnecessary to decide whether plaintiff has met the requirements of Wis. Stat. § 801.05. See Steel Warehouse of Wisconsin, Inc. v. Leach, 154 F.3d 712, 714 (7th Cir.1998).
Due process requires that a nonresident defendant have "certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). The contacts between the defendant and the forum state may not be "random, isolated, or fortuitous." Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984). Instead, "the sufficiency *1158 of the contacts is measured by the defendant's purposeful acts." NUCOR Corp. v. Aceros Y Maquilas de Occidente, S.A. de C.V., 28 F.3d 572, 580 (7th Cir. 1994). The minimum contacts with the forum state must be the result of the defendant's purposefully availing itself of the privilege of conducting business in the forum state, thereby invoking the protections and benefits of the forum state's law. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); International Medical Group, Inc. v. American Arbitration Ass'n, Inc., 312 F.3d 833, 846 (7th Cir.2002). The minimum contacts requirement serves two objectives: "[i]t protects against the burdens of litigation in a distant or inconvenient forum" unless the defendant's contacts make it just to force him or her to defend there, and "it acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).
Depending on the nature of the contacts, a court may exercise general or specific jurisdiction. When the defendant's contacts with the state are sufficiently continuous, systematic and general, the court may exercise jurisdiction over the defendant in any suit based on any controversy. International Medical Group, 312 F.3d at 846. When a defendant's contacts with the state are more limited, but are related to or give rise to the specific controversy in issue, a court may exercise specific jurisdiction over the defendant with respect to that controversy. Logan Productions, 103 F.3d at 52. Because the implications are far greater, the constitutional standard for general jurisdiction is considerably more stringent than the standard for specific jurisdiction. Purdue Research Foundation, 338 F.3d at 787.
B. Personal Jurisdiction and the Internet
Almost fifty years ago, the United State Supreme Court noted that federal courts should be sensitive to changes in technology, communication and transportation when conducting a personal jurisdiction analysis. Hanson, 357 U.S. at 250-51, 78 S.Ct. 1228. These constant changes demand a flexible constitutional standard that can evolve alongside society. Id. at 251, 78 S.Ct. 1228 (citing Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, and International Shoe, 326 U.S. 310, 66 S.Ct. 154). Nevertheless, the Court has rejected a view that technological advances will lead to "the eventual demise of all restrictions on the personal jurisdiction of state courts." Id.
The Court's advice in Hanson still applies today, and particularly in this case, which requires consideration of the appropriate reach of jurisdiction in the internet context. The internet is an exemplar of recent technological progress that tests the personal jurisdiction standard developed by International Shoe because it is not restricted by distance or territorial boundaries. Reno v. American Civil Liberties Union, 521 U.S. 844, 851, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (noting that "cyberspace" is accessible to anyone, located anywhere, with internet connection). The accessibility and breadth of internet use make it a unique mode of communication and conducting business. "Unlike newspaper, mailing, radio, television and other media containing advertisements and solicitations, most Internet advertisements and solicitations are not directed at a specific geographic are[a] or marke[t]; to the contrary, advertising on the Internet targets no one in particular and everyone in particular in any given geographic location." Millennium Enterprises., Inc. v. *1159 Millennium Music, LP, 33 F.Supp.2d 907, 914 (D.Or.1999).
For several years courts have struggled to determine the appropriate test for personal jurisdiction when a defendant's contacts with the forum state are primarily through the internet. One early attempt can be found in Inset Systems, Inc. v. Instruction Set, Inc., 937 F.Supp. 161 (D.Conn.1996). The plaintiff sued the defendant in Connecticut, contending that the defendant's domain name for its website infringed the plaintiff's trademark. The defendant's only alleged contact with Connecticut was its website, which it used to advertise its products. Although there was no evidence in the record that the defendant targeted Connecticut residents or even that any Connecticut residents had accessed the defendant's website, the district court concluded that exercising jurisdiction would be consistent with due process because Connecticut residents could access the defendant's website. Id. at 165 ("Advertisement on the Internet can reach as many as 10,000 Internet users within Connecticut alone.... [The defendant] has therefore purposefully availed itself of the privilege of doing business within Connecticut.") As many courts now recognize, the problem with the approach in Inset Systems is that it would allow anyone with a website to be sued anywhere in the world, even in jurisdictions to which the website was not expressly aimed, because access to a website is not limited geographically. See Digital Control, Inc. v. Boretronics, Inc., 161 F.Supp.2d 1183, 1186 (W.D.Wash. 2001); Millennium Enterprises, 33 F.Supp.2d at 922; Rothschild Berry Farm v. Serendipity Group LLC, 84 F.Supp.2d 904, 908-10 (S.D.Ohio 1999); E-Data Corp. v. Micropatent Corp., 989 F.Supp. 173, 177 (D.Conn.1997).
Cognizant of the potential dramatic effect that the Internet could have on the law of personal jurisdiction, other courts have adopted specialized tests that attempt to place manageable limits on a state's reach over defendants that maintain websites. The most prevalent of these tests was first enunciated in Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D.Pa.1997). The court concluded that "the likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet." Id. at 1124. The court set out a sliding scale of website interactivity to determine whether personal jurisdiction should be exercised. On one end of the spectrum are defendants that "clearly" conduct business over the internet. In other words, the "defendant enters into contacts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet...." Id. At this end, personal jurisdiction is proper. At the opposite end of the spectrum are defendants whose websites are "passive," meaning that the "defendant has simply posted information on an Internet Website which is accessible to users in foreign jurisdictions." Id. In this situation, personal jurisdiction is not proper. In the middle are defendants whose websites allow internet users to interact with the website by exchanging information. Whether personal jurisdiction should be asserted over defendants falling into this middle ground depends on "the level of interactivity and commercial nature of the exchange of information that occurs on the Website." Id.
The Zippo test has proved to be influential. Courts across the country have adopted the sliding scale approach, at least nominally, in personal jurisdiction cases involving internet contacts. See, e.g., Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446, 452-54 (3d Cir.2003); ALS Scan v. *1160 Digital Service Consultants, Inc., 293 F.3d 707, 714 (4th Cir.2002); Revell v. Lidov, 317 F.3d 467, 470 (5th Cir.2002); Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 890 (6th Cir.2002); Soma Medical International v. Standard Chartered Bank, 196 F.3d 1292, 1296-97 (10th Cir. 1999); Multi-Tech Systems, Inc. v. Vocal-Tec Communications, Inc., 122 F.Supp.2d 1046, 1050 (D.Minn.2000); Nida Corp. v. Nida, 118 F.Supp.2d 1223, 1229-30 (S.D.Fla.2000).
The Court of Appeals for the Seventh Circuit has not yet decided a personal jurisdiction case in the internet context, though several district courts in this circuit have followed Zippo. E.g., Aero Products International, Inc. v. Intex Corp., 2002 WL 31109386 (N.D.Ill. Sep.20, 2002); Euromarket Designs, Inc. v. Crate & Barrel, Ltd., 96 F.Supp.2d 824, 833 (N.D.Ill.2000). I am reluctant to fall in line with these courts for two reasons. First, it is not clear why a website's level of interactivity should be determinative on the issue of personal jurisdiction. As even courts adopting the Zippo test have recognized, a court cannot determine whether personal jurisdiction is appropriate simply by deciding whether a website is "passive" or "interactive" (assuming that websites can be readily classified into one category or the other). Even a "passive" website may support a finding of jurisdiction if the defendant used its website intentionally to harm the plaintiff in the forum state. See Panavision International, LP v. Toeppen, 141 F.3d 1316, 1322 (9th Cir.1998). Similarly, an "interactive" or commercial website may not be sufficient to support jurisdiction if it is not aimed at residents in the forum state. See GTE New Media Services, Inc. v. BellSouth Corp., 199 F.3d 1343, 1349-50 (D.C.Cir.2000). Moreover, regardless how interactive a website is, it cannot form the basis for personal jurisdiction unless a nexus exists between the website and the cause of action or unless the contacts through the website are so substantial that they may be considered "systematic and continuous" for the purpose of general jurisdiction. Thus, a rigid adherence to the Zippo test is likely to lead to erroneous results.
Second, in Zippo, the court did not explain under what authority it was adopting a specialized test for the internet or even why such a test was necessary. The Supreme Court has never held that courts should apply different standards for personal jurisdiction depending on the type of contact involved. To the contrary, the Court "long ago rejected the notion that personal jurisdiction might turn on `mechanical' tests." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting International Shoe, 326 U.S. at 319, 66 S.Ct. 154). The purpose of the "minimum contacts" test set forth in International Shoe was to create a standard flexible enough that specialized tests were not needed. As one judge in this circuit has observed in the context of writing about technology, specialized tests are often "doomed to be shallow and to miss unifying principles." Frank H. Easterbrook, Cyberspace and the Law of the Horse, U. Chi. Legal F. 207, 207 (1996). "[T]he best way to learn the law applicable to specialized endeavors is to study general rules." Id. Other courts have rejected Zippo while noting that traditional principles of due process are sufficient to decide personal jurisdiction questions in the internet context. See, e.g., Winfield Collection, Ltd. v. McCauley, 105 F.Supp.2d 746, 750 (E.D.Mich.2000) ("[T]he need for a special Internet-focused test for `minimum contacts' has yet to be established. It seems to this court that the ultimate question can still as readily be answered by determining whether the defendant *1161 fendant did, or did not, have sufficient `minimum contacts' in the forum state.").
Although I decline to adopt the Zippo test as a substitute for minimum contacts, this does not mean that a website's level of interactivity is irrelevant in deciding whether the exercise of jurisdiction is appropriate. The website's level of interactivity may be one component of a determination whether a defendant has availed itself purposefully of the benefits or privileges of the forum state. For example, a finding that a defendant uses its website to engage in repeated commercial transactions may support the exercise of personal jurisdiction, so long as there is a corresponding finding that the defendant is expressly targeting residents of the forum state and not just making itself accessible to everyone regardless of location. See, e.g., Bancroft & Masters, Inc. v. Augusta National, Inc., 223 F.3d 1082, 1087 (9th Cir.2000) (interactivity is insufficient by itself; there must be "express aiming" at forum state); B.E.E. International Ltd. v. Hawes, 267 F.Supp.2d 477, 484-85 (M.D.N.C.2003); Millennium Enterprises, 33 F.Supp.2d at 921; Hasbro, Inc. v. Clue Computing, Inc., 994 F.Supp. 34 (D.Mass. 1997). However, the ultimate question remains the same, that is, whether the defendant's contacts with the state are of such a quality and nature such that it could reasonably expect to be haled into the courts of the forum state.
C. General Jurisdiction
To meet the constitutional requirement for general jurisdiction, the defendant must have "continuous and systematic general business contacts" with the forum state. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); NUCOR, 28 F.3d at 580. A defendant's lack of physical presence in the forum state is not determinative. Burger King, 471 U.S. at 473-74, 476, 105 S.Ct. 2174; Purdue Research Foundation, 338 F.3d at 781. However, the defendant's contacts with the forum "must be so extensive to be tantamount" to the defendant's "being constructively present in the state to such a degree that it would be fundamentally fair to require it to answer in [a Wisconsin] court in any litigation arising out of any transaction or occurrence taking place anywhere in the world." Purdue Research Foundation, 338 F.3d at 787.
Plaintiff's argument that general jurisdiction exists in this case borders on the frivolous. Plaintiff has not alleged that defendant has an office in Wisconsin, that defendant does a substantial amount of business in Wisconsin or that agents of defendant spend any time in the state, much less substantial amounts. See Helicopteros, 466 U.S. at 411-12, 104 S.Ct. 1868. Instead, all but two of the alleged contacts relied on by plaintiff arise out of defendant's website. The combination of these contacts fails to come close to being continuous and systematic. International Medical Group, 312 F.3d at 847. With the exception of the book sale to one Wisconsin resident and the communication between the parties, all of the activities identified by plaintiff consist of nothing more than potential contacts. Further, although plaintiff characterizes defendant's internet-based activities as "soliciting" Wisconsin business, plaintiff has not alleged that defendant has done anything to target internet users in Wisconsin.
Plaintiff has cited no authority that would support a finding of general jurisdiction under facts similar to this case. Rather, courts have concluded repeatedly that the maintenance of a website does not provide a sufficient basis to subject a party to any suit in a particular state. See Bird, 289 F.3d at 874; Bancroft & Masters, 223 *1162 F.3d at 1086; Panavision International, 141 F.3d at 1320; Vinten v. Jeantot Marine Alliances, S.A., 191 F.Supp.2d 642, 647 n. 10 (D.S.C.2002) (noting that as case law has developed on topic of personal jurisdiction and internet, majority of courts have rejected arguments to exercise jurisdiction on sole basis of accessibility to website in forum state); Euromarket Designs, 96 F.Supp.2d at 833; Molnlycke Health Care AB v. Dumex Medical Surgical Prods. Ltd., 64 F.Supp.2d 448, 451 (E.D.Pa.1999).
If defendant were engaging in substantial sales to Wisconsin residents through its website, this could support a finding of general jurisdiction. See Gator.com Corp. v. L.L. Bean, Inc., 341 F.3d 1072, 1078 (9th Cir.2003) (general jurisdiction properly exercised when defendant solicited business in forum state and targeted its advertising and sold its products to residents of forum state). However, defendant cannot seriously argue that one sale is a sufficient ground to hale defendant into a Wisconsin court for any suit.
The only case plaintiff cites in support of its general jurisdiction argument is Decker v. Circus Circus Hotel, 49 F.Supp.2d 743 (D.N.J.1999). In Decker, the court found that a website established the existence of jurisdiction because it concluded that "the defendants have effectively placed their hotel and its services into an endless stream of commerce." Id. at 748 (citing World-Wide Volkswagen, 444 U.S. at 298, 100 S.Ct. 559). Beyond its citation to Decker, plaintiff has failed to develop any argument that personal jurisdiction is appropriate in this case under a stream of commerce theory. In any event, in this circuit, the stream of commerce theory applies only in the context of specific jurisdiction. Purdue Research Foundation, 338 F.3d at 788-89. The doctrine has no relevance to general jurisdiction analysis.
Defendant's website is accessible to anyone connected to the internet anywhere in the world. Under plaintiff's argument, defendant could be haled into court in any state for any controversy, regardless whether defendant had any contact with a resident of that state. This result would be inconsistent with the Supreme Court's understanding of the requirements of due process. In World-Wide Volkswagen, 444 U.S. at 293, 100 S.Ct. 559, the Court stated, "we have never accepted the proposition that state lines are irrelevant for jurisdictional purposes, nor could we, and remain faithful to the principles of interstate federalism embodied in the Constitution." Territorial boundaries remain significant even in the internet context. "`Cyberspace' ... is not some mystical incantation capable of warding off the jurisdiction of courts.... Just as our traditional notions of personal jurisdiction have proven adaptable to other changes in the national economy, so too are they adaptable to the transformations wrought by the Internet." Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 510-11 (D.C.Cir. 2002).
Because plaintiff has not met its burden of proving that defendant has engaged in continuous and systematic contacts with Wisconsin, defendant is not subject to general jurisdiction in this court.
D. Specific Jurisdiction
In order to exercise specific jurisdiction, a court must find that the defendant has purposefully established minimum contacts with the forum state, that the cause of action arises out of or relates to those contacts and that the exercise of jurisdiction is constitutionally reasonable. RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1277 (7th Cir.1997). The first and second part of this analysis require the court to *1163 evaluate the relationship among the defendant, the forum state and the cause of action. Calder v. Jones, 465 U.S. 783, 788, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984) (citing Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977)). The Court has identified two ways in which minimum contacts may be established for the purpose of specific jurisdiction: (1) purposeful availment by the defendant of the benefits and protections of the forum state's laws, Asahi Metal Indus. Co., Ltd. v. Superior Court of California, 480 U.S. 102, 109, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987); or (2) harm to an individual within the state caused by the defendant when the harm is both intentional and aimed at the forum state, Calder, 465 at 788-90, 104 S.Ct. 1482. Plaintiff argues that both kinds of specific jurisdiction exist.
1. Defendant's contacts with Wisconsin
Plaintiff contends that the following contacts meet the constitutional standard for exercising specific jurisdiction: (1) defendant operates a consumer complaint forum that permits any internet user to post a consumer complaint about any company, and, for a fee, companies may post rebuttals to a complaint; (2) defendant sells the Rip-Off Revenge Guide on its website; (3) defendant sold a copy of the Rip-Off Revenge Guide to one Wisconsin resident; (4) defendant's website allows individuals to make donations to badbusinessbureau.com; (5) defendant offers to help coordinate class actions against companies about which consumers complain; (6) defendant sells advertising space on its website, and the purchaser may target its ad at a particular state; and (7) defendant and plaintiff discussed the Corporate Customer Advocacy Program via email and phone. Plt's Br., dkt. # 11 at 6-8. As indicated by this list, the only actual contacts are the one book sale and the communication between the parties.
2. Purposeful availment
The purposeful availment requirement is satisfied when the defendant purposefully establishes sufficient minimum contacts with the forum state to create a "substantial connection" between the defendant and the forum state. Burger King Corp., 471 U.S. 462 at 475-76, 105 S.Ct. 2174; Central States, Southeast and Southwest Areas Pension Fund v. Reimer Express World Corp., 230 F.3d 934, 943 (7th Cir.2000). A substantial connection is created when the defendant "purposefully avails itself of the privilege of conducting activities" in the forum. Hanson, 357 U.S. at 253, 78 S.Ct. 1228. The objective of the purposeful availment requirement is to provide predictability and give notice to the defendant that it is subject to suit in the forum state, so that the company "can act to alleviate the risk of burdensome litigation by procuring insurance, passing the expected cots on to customers, or, if the risks are too great, severing its connection with the State." World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. 559; see also Young v. Colgate-Palmolive Co., 790 F.2d 567, 572 (7th Cir.1986).
Plaintiff has failed to show how defendant has made such purposeful availment of the benefits of Wisconsin's laws that it could reasonably anticipate being haled into court in this state. As noted above, most of plaintiff's alleged contacts with Wisconsin are only potential contacts. Plaintiff has adduced no evidence that defendant has received any donations from Wisconsin citizens, that any Wisconsin businesses advertise on its website or that it has coordinated any class actions involving people from Wisconsin. Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 419 (9th Cir.1997) (holding that accessibility of defendant's website in forum state was insufficient for establishing purposeful availment; *1164 although residents of forum state could have purchased services from defendant through the website, no business transactions took place); see also GTE New Media Services, 199 F.3d at 1349-50 (website may form basis for specific jurisdiction if defendant takes action to maximize usage of website in forum, markets website in forum, puts forum-specific content in website or has business plan that targets users within forum).
Although even solicitation of business in a state can support an exercise of personal jurisdiction, Travelers Health Association v. Commonwealth of Virginia ex rel. State Corp. Commission, 339 U.S. 643, 70 S.Ct. 927, 94 L.Ed. 1154 (1950), no evidence exists to show that defendant has done anything to target Wisconsin consumers. Defendant does not send mailings or unsolicited e-mails to the state. It does not advertise for its site within Wisconsin. See Logan Productions, 103 F.3d at 53 (specific jurisdiction proper when defendant advertised in specific trade magazines with Wisconsin subscribers, mailed newsletters to 144 Wisconsin residents, sold its products to at least twelve Wisconsin residents, entered into distributor agreement with Wisconsin company, and conducted dealer training in Wisconsin); Metropolitan Life Insurance Co. v. Robertson-Ceco Corp., 84 F.3d 560, 572-73 (2d Cir.1996) (direct mail campaign within forum state supported finding of jurisdiction). The defendant's website is akin to an advertisement in a magazine with a national circulation; the defendant does not control who views it or responds to it. See Sunbelt Corp. v. Noble, Denton & Associates, Inc., 5 F.3d 28, 33 n. 10 (3d Cir.1993) (advertisement in national periodical circulated in forum state insufficient to establish personal jurisdiction); Singletary v. B.R.X., Inc., 828 F.2d 1135, 1136-37 (5th Cir.1987) (same).
The closest plaintiff comes to a showing of solicitation is defendant's exchanges with plaintiff about the Corporate Customer Advocacy Program. However, it is undisputed that it was plaintiff who contacted defendant without any prompting on the part of defendant. Further, no transaction occurred; plaintiff declined to participate in the program.
Defendant has had contact with various Wisconsin citizens who have posted consumer complaints on defendant's website. Again, however, plaintiff has not targeted Wisconsin citizens more than the citizens of any other state. More important, plaintiff has not shown what benefit or privilege from Wisconsin has incurred to defendant through the posting of these complaints.
What remains is the one book sale to a Wisconsin resident. The Supreme Court has held that a single contract may be sufficient to establish specific jurisdiction, so long as there is a "substantial connection" between the contract and the forum state. Burger King, 471 U.S. at 475, 105 S.Ct. 2174; McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). Even assuming the one book sale was sufficient by itself, plaintiff would have to show that there was a nexus between the sale and the cause of action.
The nexus requirement gives potential defendants control over the "jurisdictional consequences of their actions." Hyatt, 302 F.3d at 716. This requirement is not met by a loose connection between the defendant's contacts and the forum state. RAR, 107 F.3d at 1278. "[S]pecific jurisdiction is not appropriate `merely because a plaintiff's cause of action arose out of the general relationship between the parties; rather, the action must directly arise out of the specific contacts between the defendant and the forum state.'" Id. (quoting Sawtelle *1165 telle v. Farrell, 70 F.3d 1381, 1389 (1st Cir.1995)).
The book sale has no connection with this cause of action. Plaintiff is not suing plaintiff for breach of contract or fraud but for defamation and trademark infringement arising from the consumer complaints and other references to plaintiff on the website. The only relationship between the sale and the lawsuit is that the sale occurred through the website. Such a tenuous connection is insufficient to show that the lawsuit "directly arose" from this sale.
3. Effects test
The effects test is satisfied when the plaintiff alleges that the defendant committed an intentional tort expressly aimed at the forum state; the actions caused harm, the brunt of which was suffered in the forum state; and the defendant knew that the effects of its actions would be suffered primarily in the forum state. Calder, 465 U.S. at 788-90, 104 S.Ct. 1482; Wallace v. Herron, 778 F.2d 391, 394 (7th Cir.1985). In Calder, a California actress filed a lawsuit for libel and invasion of privacy in California against the publisher and writer of a tabloid news article, both of whom lived and worked in Florida. Upholding the exercise of jurisdiction, the Court emphasized the geographic "focal point" of the defendants' conduct:
The allegedly libelous story concerned the California activities of a California resident. It impugned the professionalism of an entertainer whose television career was centered in California. The article was drawn from California sources, and the brunt of the harm, in terms both of respondent's emotional distress and the injury to her professional reputation, was suffered in California.
Id. at 788-89, 104 S.Ct. 1482. The Court emphasized that the defendants had aimed their actions expressly at California and knew that the "potentially devastating" effects of their article would be felt primarily in the state. Id. at 789-90, 104 S.Ct. 1482. The defendants knew that plaintiff lived and worked in California and that the largest number of subscribers lived in California. Id.
Plaintiff contends that the express aiming element of the effects test is met because its trademarked names appear in headings and text of allegedly defamatory consumer complaints posted on defendant's website. Plaintiff alleges that defendant solicits and posts these headings and the corresponding complaints.
The express aiming requirement under the effects test insures that personal jurisdiction comports with traditional due process principles. In Wallace, 778 F.2d at 395, the Court of Appeals for the Seventh Circuit emphasized that the effects test was not intended to supplant traditional due process analysis. Rather, it is a means of evaluating the defendant's relevant contacts; the plaintiff must still show that the defendant purposefully established minimum contacts with the forum state. Id. The court stated, "[w]e do not believe that the Supreme Court, in Calder, was saying that any plaintiff may hale any defendant into court in the plaintiff's home state, where the defendant has no contacts, merely by asserting that the defendant has committed an intentional tort against the plaintiff." Id. at 394
Plaintiff fails to allege any facts demonstrating that defendant expressly aimed its activities at Wisconsin. The facts of record do not indicate that defendant creates the text of the consumer complaints. It is the consumers that are using plaintiff's name and making allegedly defamatory statements. If defendant is not creating *1166 the text, then defendant is not purposefully directing its activities toward any particular company or state. Nelson v. Bulso, 149 F.3d 701, 704 (7th Cir.1998) (because defendant himself did not direct re-publication of allegedly defamatory material, such material could not serve as basis to exercise personal jurisdiction over defendant).
Although plaintiff's allegations are not entirely clear, it could be inferred that plaintiff is alleging that defendant is creating the headings for the consumer complaints and that these headings themselves constitute trademark infringement. However, I agree with the majority of courts that simply placing the name of trademark on a website is not enough to show that a defendant has intentionally targeted the forum state. E.g., Carefirst of Maryland, Inc. v. Carefirst Pregnancy Centers, Inc., 334 F.3d 390, 400 (4th Cir.2003); Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446, 454 (3d Cir.2003); Rio Properties, Inc. v. Rio International Interlink, 284 F.3d 1007, 1020 (9th Cir.2002); Neogen Corp., 282 F.3d at 890; Panavision International, 141 F.3d at 1322; Bensusan Restaurant Corp. v. King, 937 F.Supp. 295, 301 (S.D.N.Y.1996). To hold otherwise would subject millions of internet users to suit in the state of any company whose trademarked name they happen to mention on a website.
In its complaint, plaintiff alleges that defendant created metatags associated with its website that included plaintiff's trademarked names. Plaintiff does not explain the function of the metatags, how they work or how they support the exercise of specific jurisdiction. Accordingly, I conclude that plaintiff has waived this argument. Central States, Southeast and Southwest Areas Pension Fund v. Midwest Motor Express, Inc., 181 F.3d 799, 808 (7th Cir.1999) ("Arguments that are not developed in any meaningful way are waived."); see also Finance Investment Co. (Bermuda) Ltd. v. Geberit AG, 165 F.3d 526, 528 (7th Cir.1998); Colburn v. Trustees of Indiana University, 973 F.2d 581, 593 (7th Cir.1992) ("[plaintiffs] cannot leave it to this court to scour the record in search of factual or legal support for this claim"); Freeman United Coal Mining Co. v. Office of Workers' Compensation Programs, Benefits Review Bd., 957 F.2d 302, 305 (7th Cir.1992) (court has "no obligation to consider an issue that is merely raised, but not developed, in a party's brief").
Even if plaintiff could meet the express aiming requirement, plaintiff has failed to show that it has suffered the brunt of its injury in Wisconsin. Plaintiff suggest that a court may assume that its injury is in Wisconsin because its principal place of business is in Wisconsin. Plaintiff cites one case that supports this assumption, Euromarket Designs, Inc. v. Crate & Barrel, Ltd., 96 F.Supp.2d 824, 833 (N.D.Ill. 2000). Euromarket Designs was a suit for trademark infringement in which the district court found the plaintiff had met the injury requirement of the effects test by showing that its principal place of business was in the forum state. The court made this finding without explaining why the principal place of business is invariably the locus of an injury to the business.
When an injured party is an individual, it is reasonable to infer that the brunt of the injury will be felt in the state in which he or she resides. This is not necessarily the case when the injured party is a corporation. "A corporation does not suffer harm in a particular geographic location in the same sense that an individual does." Core-Vent Corp. v. Nobel Industries AB, 11 F.3d 1482, 1486 (9th Cir.1993). Calder, 465 U.S. at 789, 104 S.Ct. 1482, still requires that the harm be particularized to the forum state. see Janmark, 132 F.3d at *1167 1202. Even if a corporation has its principal place of business in the forum state, it does not follow necessarily that it makes more sales in that state than any other or that harm to its reputation will be felt more strongly in that state.
Thus, I agree with the majority of courts that merely identifying the plaintiff's principal place of business is not enough without more to show that the plaintiff has suffered the brunt of an injury in the state. See, e.g., Dole Food Co., Inc. v. Watts, 303 F.3d 1104, 1112 (9th Cir.2002); IMO Industries, Inc. v. Kiekert AG, 155 F.3d 254, 265 (3d Cir.1998); Far West Capital, Inc. v. Towne, 46 F.3d 1071, 1079 (10th Cir. 1995); Dakota Indus., Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1391 (8th Cir.1991); Southmark Corp. v. Life Investors, Inc., 851 F.2d 763, 773 (5th Cir.1988) (the location of plaintiff's place of business is a "mere fortuity" when other minimum contacts are not established).
Despite plaintiff's protestations to the contrary, this conclusion is consistent with circuit precedent. Although the Court of Appeals for the Seventh Circuit has not addressed this issue, plaintiff relies on Indianapolis Colts, Inc. v. Metropolitan Baltimore Football Club Ltd. Partnership, 34 F.3d 410 (7th Cir.1994), to support its argument under the effects test. In Colts, the court of appeals held that an Indiana court could exercise jurisdiction over the defendants because the Indianapolis Colts trademark that plaintiffs sought to protect was used primarily in Indiana, making it reasonable to infer that the injury would be felt primarily in Indiana. In addition, the court noted that the defendants would know that the brunt of the injury would be felt in the state because the team's home is in Indianapolis: "By choosing a name that might be found to be confusingly similar to that of the Indianapolis Colts, the defendants assumed the risk of injuring valuable property located in Indiana." Id.
The facts in Colts are a far cry from the situation in this case. It would be perfectly reasonable to infer that a plaintiff would feel the brunt of the injury in the forum state when the claim is trademark infringement of a sports team based in the forum state. A large number of the team's fans would be located in the forum state. Much if not most of the team's revenue would be generated from the forum state's citizens. Plaintiff does not have the same obvious connection with Wisconsin that the Indianapolis Colts have with Indiana.
In sum, plaintiff has failed to meet its burden to show the existence of specific jurisdiction under either the purposeful availment test or the effects test. It is therefore unnecessary to consider whether the exercise of jurisdiction would be improper under the reasonableness factors set forth in World-Wide Volkswagen, 444 U.S. at 294, 299, 100 S.Ct. 559.
ORDER
IT IS ORDERED that defendant badbusinessbureau.com's motion to dismiss for lack of personal jurisdiction is GRANTED. The clerk of court is directed to enter judgment in favor of defendant and close this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1793485/ | 528 So. 2d 637 (1988)
Cain DIXON, Plaintiff/Appellant,
v.
Jerald L. PERLMAN, Attorney, et al., Defendant/Appellee.
No. 19575-CA.
Court of Appeal of Louisiana, Second Circuit.
May 4, 1988.
*638 Jo Ann Gines-Shepherd, Shreveport, for plaintiff/appellant.
Cook, Yancey, King & Galloway by Eskridge E. Smith, Jr., Shreveport, for defendant/appellee.
Before HALL, FRED W. JONES, Jr., and LINDSAY, JJ.
HALL, Chief Judge.
This is a legal malpractice action. The plaintiff is Cain Dixon. The defendant is Jerald L. Perlman, a Shreveport, Louisiana attorney. The basis for this malpractice action was the dismissal, on a plea of prescription, of a tort suit that Perlman filed on Dixon's behalf. See Dixon v. Houck, 466 So. 2d 57 (La.App. 2d Cir.1985). The tort suit, alleging that the accident occurred on February 4, 1983, was filed on January 23, 1984. The plea of prescription was sustained on a finding that the accident happened on January 4, 1983.
Subsequent to the dismissal of his tort suit, Dixon filed suit against Perlman individually and the law firm of Walker, Feazel, Tooke, Grubb and Perlman.[1] Perlman individually filed a motion for summary judgment in which he contended that the handling of Dixon's tort suit had been transferred to him by another member of his firm; that he relied on information already in the file to determine the prescription date, and that he was not aware that the accident date contained in the file was wrong until the exception of prescription was filed by the defendants in the tort suit. The trial court granted Perlman's motion *639 for summary judgment and dismissed Dixon's legal malpractice action against Perlman. Dixon appealed and for reasons expressed herein, we reverse the judgment of the trial court and remand for further proceedings.
Facts
In early 1983, while incarcerated in the Ruston City Jail, Cain Dixon slipped and fell in the shower injuring his head, back and leg. He received emergency treatment in Ruston at Lincoln General Hospital and then was returned to the jail. An incident report prepared by police officers, Dixon's handwritten account of the accident, and the Lincoln General records all reflect that this accident occurred on January 4, 1983.
Dixon re-entered Lincoln General on January 24, 1983 for treatment of back and leg pain. He remained hospitalized there until January 28, 1983. In February another incident involving Dixon's legs occurred at the jail. This incident led to his being admitted to LSU Medical Center in Shreveport for tests in early March 1983.
Dixon's personal injury claim against the City of Ruston and Lincoln Parish officials was handled by at least two attorneys. Barry G. Feazel, a partner in the law firm of Walker, Feazel, Tooke & Grubb, stated in his deposition that he worked on Dixon's file from February, 1983 until at least August, 1983 and possibly longer. He stated that he did not know how Dixon came to be a client of the firm and that he did not remember who gave Dixon's file to him. He stated that the file had already been "set up" when he received it, that the prescription date was already on the file, and that interview notes were in the file. Feazel stated however that he did not know who had conducted the interviews. Feazel also testified that he never met Dixon and that he did not recall any conversations with Dixon. He stated that he assumed that he spoke with Dixon on the phone on one or two occasions but that he did not recall asking Dixon about the accident that occurred when he slipped and fell in the shower at the jail nor did he recall discussing with Dixon the legal significance of the date of the accident. He stated that he does not specifically recall Dixon telling him that the accident occurred on February 4, 1983. He did remember that Dixon contended that he had two separate accidents.[2]
Feazel testified in his deposition that Mr. Dixon contacted him regularly by correspondence and that on August 1, 1983, in response to a letter from Dixon inquiring whether pleadings had been filed, Feazel wrote him a letter describing the status of his case. It stated in part: "I will file your suit immediately." Feazel did not file suit immediately and eventually the responsibility for handling Dixon's file was shifted to Perlman. According to Feazel this transfer took place in either August, September or October of 1983.
Perlman testified in his deposition that he joined the Walker firm[3] in October 1983 and that within a week or ten days of joining the firm he was assigned responsibility for Dixon's file. He testified that there were several pages of handwritten notes in the file when he got it but that he did not recognize the handwriting. He stated that the file also contained some medical records from LSU Medical Center in Shreveport. One of these medical reports indicated that Dixon fell in the Lincoln Parish Jail on February 4, 1983. This report also indicates that Dixon injured his head and back in the fall, lost consciousness after the fall, and lost strength in his lower extremities on February 18. Another LSU Medical Center record dated March 4, 1983 on his admission to LSU Medical Center states that Dixon fell "three weeks ago".
The file also contained a letter dated March 14, 1983 from Dr. Gray, a physician *640 in Ruston, addressed to Feazel in response to a letter Feazel had written requesting information. The letter relates that Dixon slipped and fell while in jail receiving an injury to his back, describes out-patient treatment administered, later hospitalization at Lincoln General, discharge back to jail, another incident a week or so later, treatment for about a week, and then admission to LSU Medical Center. The letter contains no dates of the accident, hospitalization or treatment. Dr. Gray stated that the Sheriff's office had the most complete records, a medical record folder, and suggested that the attorney try to get records from the Sheriff's office and Lincoln General.
Perlman stated in his deposition that he did not conduct an investigation prior to filing suit and that he never at any time discussed the date of the accident with Dixon. He explained that he felt the information in the file was sufficient to state a cause of action and to file a law suit. Perlman stated that Dixon's name first appears on his time records on November 8, 1983. Perlman testified that he never spoke to Dixon in person but that he did speak to him on the phone on at least one occasion, that being on December 2, 1983, and that the subject of the date of the accident did not come up.
Perlman testified that he drafted a petition which alleged that the slip and fall accident occurred on February 4, 1983 and sent it to Dixon, who at that time was incarcerated in Angola, for verification. In a letter dated December 7, 1983 Perlman informed Dixon that the suit must be filed no later than February 4, 1984. Dixon signed the verification affidavit on December 16, 1983 and mailed the papers back to him. He then received a letter from Dixon dated December 19, 1983 which stated that a change (other than the date) needed to be made in the petition. The petition was corrected by Perlman on December 28, 1983 but was not filed until January 23, 1984.
Perlman testified that he became aware of the prescription problem in March, 1984 and that he withdrew as Dixon's counsel in May, 1984. Feazel withdrew from the Walker partnership in March, 1984 and the name of the firm was changed to Walker, Tooke, Grubb, Perlman and Lyons. In May 1985, Dixon filed suit against Perlman individually and the law firm of Walker, Feazel, Tooke, Grubb and Perlman. Dixon filed the suit in proper person but is now represented by counsel who enrolled in the district court prior to the granting of the motion for summary judgment.
Contentions of the Parties
Dixon contends that Perlman was negligent in failing to properly investigate his personal injury claim and in failing to file suit within the one-year prescriptive period. He alleges that Perlman knew that he had suffered head injuries and that he was incarcerated and therefore did not have access to records with which to verify the date of the accident. He contends that knowledge of these circumstances gave rise to a duty on Perlman's part to investigate his claim further and independently verify the date of the accident rather than relying on the LSU Medical Center records in the file to establish the date of the accident. He contends that the person who prepared the medical records did not have first hand knowledge of when the accident occurred and that Perlman should have realized this. Dixon also alleges that he expressed uncertainty about the date of the accident to Perlman and that this gave rise to a duty on Perlman's part to investigate the accident. He complains that Perlman failed to take witness statements and failed to make any notes on the case. Dixon also argues that he was promised in August, 1983 by Feazel that suit would be filed immediately and that Perlman could have filed suit sooner than he did with the information that he had. He contends that there was a failure to communicate information between Feazel and Perlman when the file was transferred and that the lack of a specific office procedure in the Walker firm for the transferring of files constituted negligence. Dixon also contends that the importance of the exact date of the accident was never made known to him.
*641 Perlman, on the other hand, contends that he did not have any indication that the date of Dixon's accident was January 4, 1983 rather than February 4, 1983 and that therefore he was justified in relying on the handwritten notes and the medical records contained in the file. Perlman denies that Dixon ever expressed to him any doubt as to the date that the accident occurred, and in support of this argument cites the fact that he wrote Dixon a letter telling him that the petition had to be filed by February 4 and that Dixon verified the petition without requesting that the accident date be changed.
Summary JudgmentApplicable Legal Principles
The sole purpose for the motion for summary judgment is to determine in advance of trial whether a genuine issue of material fact exists between the litigants. Indus. Sand and Abrasives v. L. & N.R. Co., 427 So. 2d 1152 (La.1983). It is designed to dispose of frivolous demands and is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La.C.C.P. Art. 966.[4] Cases which require a judicial determination of subjective facts, e.g., knowledge, motive, intent, good faith, are not appropriate for summary judgment. New South Advertising v. Krock-O-Cheese, Inc., 486 So. 2d 1115 (La. App. 2d Cir.1986); Watson v. Cook, 427 So. 2d 1312 (La.App. 2d Cir.1983). Nor is summary judgment appropriate as a vehicle for the disposition of a case, the ultimate decision in which will be based on opinion evidence. Verrett v. Cameron Telephone Co., 417 So. 2d 1319 (La.App. 3d Cir.1982) writ denied 422 So. 2d 164 (La. 1982).
The party who moves for summary judgment has the burden of clearly showing that there is not a genuine issue of material fact in dispute. In determining if the mover has satisfied his burden, the court will closely scrutinize the pleadings, affidavits and documents of the mover and will resolve any reasonable doubt as to the existence of a genuine issue of material fact against the mover and in favor of trial on the merits. Indus. Sand & Abrasives v. L. & N.R. Co., supra. If the supporting documents presented by the moving party are insufficient to resolve all material fact issues, summary judgment must be denied. If sufficient, the burden shifts to the opposing party to present evidence showing that material facts are still at issue. LSA-C.C.P. Art. 967[5]; Sanders v. Hercules *642 Sheet Metal, Inc., 385 So. 2d 772 (La.1980). The opposing party need not file affidavits unless the moving party has established both that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Dement v. Red River Valley Bank, 506 So. 2d 1329 (La.App. 2d Cir.1987).
Legal MalpracticeApplicable Legal Principles
An attorney is obligated to exercise at least that degree of care, skill and diligence exercised by prudent attorneys practicing in his community or locality. He is not required to exercise perfect judgment in every instance but his license to practice and his contract for employment hold out to the client that he possesses certain minimal skills, knowledge and abilities. Ramp v. St. Paul Fire and Marine Insurance Company, 263 La. 774, 269 So. 2d 239 (1972); Gifford v. New England Reinsurance Corp., 488 So. 2d 736 (La.App. 2d Cir.1986). The client is entitled to rely on the expertise and diligence of his attorney, particularly when the client has little experience or knowledge regarding the matter which the attorney was engaged to handle. In some cases, the duty of the attorney may extend to the protection of his client's own substandard conduct, carelessness, or error. Meyers v. Imperial Cas. Indem. Co., 451 So. 2d 649 (La.App. 3d Cir.1984).
The extent of the attorney's duty to the client may depend in part on the client's particular circumstances and situation. In Louisiana State Bar Association v. Causey, 393 So. 2d 88 (La.1980), citing Disciplinary Rule 6-101Failure to Act Competently, the court held:
"In Louisiana, the attorney-client contract is not an arm's length transaction, especially as between a compensated attorney and an incarcerated prisoner. The parties do not enter the bargaining process as equals. One comes as a member of a highly privileged profession; the other is stripped of most of society's freedoms, including the ability freely to communicate and seek information. For this reason, the Disciplinary Rules, which seek to justify the attorney's privilege of practicing law by imposing responsibility for the welfare of his client, must be scrupulously obeyed in this kind of relationship."
An attorney owes his client the duty of diligent investigation and research. Muse v. St. Paul Fire and Maine Insurance Company, 328 So. 2d 698 (La.App. 1st Cir.1976).
Expert testimony is admissible to establish the standard of care exercised by attorneys in the locality. In certain cases the opinion of experts may be essential to prove the standard of care an attorney must meet. In other cases where the trial court is familiar with the standards of practice in its community or where the attorney's conduct obviously falls below any reasonable standard of care, the assistance of expert testimony may be unnecessary. Watkins v. Sheppard, 278 So. 2d 890 (La. App. 1st Cir.1973); Muse v. St. Paul Fire and Marine Insurance Company, supra.
Conclusion
After closely scrutinizing the pleadings, depositions, and supporting affidavits of Perlman, we conclude that Perlman has failed to satisfy the threshold requirement of LSA-C.C.P. Art. 966 in that he has failed to show that there is no genuine issue of material fact and he has failed to show that he is entitled to judgment as a matter of law. The papers filed in support of the motion for summary judgment do not disclose that either Feazel or Perlman ever talked to plaintiff about the date of the accident. Instead both attorneys relied *643 on handwritten notes found in the file which indicated that the accident occurred on February 4. The record does not disclose who made the notes or that person's source of information. The notes do not show that Dixon provided the interviewer with the February 4th date. Although it seems likely that the notes were taken by an attorney in the Walker firm and that they were the result of a conversation with the plaintiff, who repeated the February 4 date to others in other communications, these facts are not established with certainty in the record. The reasonableness of Perlman relying on these notes of unknown origin, which admittedly contain an inaccurate date, to the exclusion of further independent investigation, is a genuine issue of material fact which can only be resolved at trial. Along these same lines, the source of the information concerning the accident date contained in the medical records in the file is not disclosed. The doctors preparing the report obviously had no personal knowledge of the date of the accident. The reasonableness of Perlman relying on this information is also at issue. Additional unresolved material issues of fact raised in this proceeding include:
(1) Plaintiff's physical and mental capacity.
(2) Plaintiff's awareness of the exact date of the accident and its importance.
(3) The means of verification that a prudent personal injury lawyer would use to ascertain an accident date prescription date.
(4) Whether mailing a multi-page petition which includes the date of the accident to a prisoner of limited education for verification is a reasonably reliable method of ascertaining or verifying the date of the accident.
(5) Whether plaintiff did in fact express uncertainty as to the date of the accident to Perlman.
In addition to there being unresolved and material factual issues, Perlman has not shown that he is entitled to judgment as a matter of law. Although an attorney may ordinarily be entitled to rely on his client's statement of the date of the accident in determining the prescriptive period within which suit must be filed, in certain cases the client's circumstances or other information which comes to the attorney's attention may give rise to a duty on the part of the attorney to further investigate the claim and to verify the date of the accident. See Watkins v. Sheppard, supra. The record in this case, pre-trial, does not disclose all of the facts and circumstances surrounding the communications between the client and attorneys as to the date of the accident. It cannot be determined pre-trial that the information conveyed to the attorneys by the client was given under circumstances that would indicate that the information was reasonably certain and reliable, negating any responsibility on the part of the attorney to verify the all-important information as to the date of the accident.
Here, what Perlman knew from the file passed on to him was that someone told the interviewer, who may or may not have been another lawyer in his firm, that the accident happened on February 4; that plaintiff was treated at LSU Medical Center in March and that the doctors there reported (obviously second-hand) that the accident happened on February 4, that the client was treated earlier by a Dr. Gray in Ruston and was hospitalized at Lincoln General on dates not disclosed; that there was more than one accident or incident; and that the client signed a petition which alleged that February 4 was the date of the accident. The reasonableness of defendant's conduct in relying on this information without further investigation cannot be determined by way of summary judgment. Expert testimony regarding the practice of prudent local attorneys who handle personal injury cases will be required to establish the applicable standard of care, skill and diligence and is important to the ultimate resolution of this case.
Here, a personal injury suit entrusted to an attorney by a client shortly after the accident was not filed timely and was dismissed as prescribed. This circumstance presents a prima facie case of negligence *644 and the burden of proof is on the attorney to establish that he was free from fault or neglect and that he exercised the appropriate degree of care, skill and diligence under the circumstances of this case.
Since there remains several genuine issues as to material fact and since Perlman has not clearly established that he was free of fault and therefore entitled to judgment as a matter of law, we find that the trial judge erred in granting the motion for summary judgment.
Decree
For the foregoing reasons, the judgment of the trial court granting the motion for summary judgment in favor of Perlman is reversed, and the case is remanded to the district court for further proceedings in accordance with law. Cost of the appeal and those incurred in connection with the motion for summary judgment are cast against defendant-appellee.
REVERSED AND REMANDED.
NOTES
[1] The trial court sustained an exception of insufficiency of citation and service of process in favor of the law firm on the grounds that the partnership no longer existed and gave plaintiff thirty days to amend his petition. Dixon much later filed an amending petition naming the same firm and New England Insurance Company as defendants. Exceptions were filed by these defendants which were pending at the time this appeal was taken. Dixon has not amended his petition to name the successor firm of Walker, Tooke, Grubb, Perlman and Lyons as a party nor has he amended his petition to name as defendants the individual former partners of the dissolved partnership or the individual partners of the successor firm other than Perlman. Therefore, the only defendant presently before this court on appeal is Perlman.
[2] Another member of the firm, Laurie Lyons, testified by deposition that when she was preparing a class action suit concerning the Ruston jail in May, 1983, she talked to Dixon and he told her he had fallen a couple of times in the jail and the first time was in February, 1983. She testified she did not discuss this with any other member of the firm.
[3] When Perlman joined the Walker firm it's name was changed to Walker, Feazel, Tooke, Grubb & Perlman.
[4] Art. 966. Motion for summary judgment; procedure
A. The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff's motion may be made at any time after the answer has been filed. The defendant's motion may be made at any time.
B. The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the date of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.
C. A summary judgment may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
[5] Art. 967. Same; affidavits
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.
If it appears from the affidavits of a party opposing the motion that for reasons stated he cannot present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
If it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this article are presented in bad faith or solely for the purposes of delay, the court immediately shall order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney's fees. Any offending party or attorney may be adjudged guilty of contempt. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1822065/ | 565 So. 2d 1078 (1990)
Dorothy B. NELSON
v.
Dorothy WALDRUP.
No. 89-CA-2397.
Court of Appeal of Louisiana, Fourth Circuit.
July 31, 1990.
J. Courtney Wilson, Metairie, for plaintiff-appellant Dorothy Nelson.
Albert H. Hanemann, Jr., Bryan C. Misshore, Lemle & Kelleher, New Orleans, for defendant-appellee Dorothy Waldrup.
Before GARRISON, KLEES and CIACCIO, JJ.
KLEES, Judge.
This is an action alleging legal malpractice against the defendant, Dorothy Waldrup. We affirm.
Plaintiff Dorothy Nelson filed a claim with the Equal Employment Opportunity Commission (EEOC) alleging sexual harassment by her former employer, Leitz-Eagan Funeral Home, Inc. Miss Nelson was fired after Mr. Eagan learned that she misrepresented her status as a graduate from Delgado College. On July 22, 1985, and again by letter dated August 13, 1985, EEOC attorney Jeffrey Agular informed *1079 Miss Nelson that the EEOC would not be seeking back pay and lost wages on her behalf but would only seek injunctive relief. Mr. Agular further informed Miss Nelson that she had the right to hire private counsel to intervene in the case and thus protect her interests.
On August 21, 1985, Miss Nelson took that letter to attorney William Noland who agreed to represent Miss Nelson by filing the intervention. (Noland was also sued in this action but was later dismissed). Mr. Noland's office repeatedly assured Miss Nelson during the next few weeks that her interests were being protected. However, on September 27, 1985, Mr. Noland informed Miss Nelson that he would not represent her (no intervention had been filed at that time).
Miss Nelson then took the letter to defendant/attorney Dorothy Waldrup's office on October 2, 1985. Miss Waldrup told Miss Nelson that she would be leaving town on October 4, 1985 and would not return until October 9, 1985, and that she would file the intervention subsequent to her return. While Miss Nelson was still in her office, Miss Waldrup spoke with Mr. Agular concerning her representation of Miss Nelson and the continuation of a status conference which was to be held on October 3, 1985, before a U.S. Magistrate. Mr. Agular agreed to the continuance. Miss Waldrup then called the magistrate's office and was advised by the law clerk that the status conference would be rescheduled in two weeks.
Upon Miss Waldrup's return she went to the EEOC to inspect their files for information in order to file the intervention. Miss Waldrup later examined the court records and discovered that the EEOC and Leitz-Eagan had already negotiated a consent decree sometime between August 27 and October 3, 1985. That decree was signed by the magistrate on October 9, 1985. Miss Waldrup had no prior knowledge of any ongoing negotiations between the parties. She filed an intervention on October 16, 1985, which was denied.
Miss Nelson subsequently filed this suit against Miss Waldrup alleging legal malpractice. The trial court found in favor of Miss Waldrup, and Miss Nelson took this appeal.
In an action for legal malpractice, the plaintiff must show that the attorney failed to exercise that degree of care, skill and diligence which is exercised by prudent practicing attorneys in his locality; however, he is not required to exercise perfect judgment in every instance. Ramp v. St. Paul Fire & Marine Ins. Co., 263 La. 774, 269 So. 2d 239 (1972); Jenkins v. St. Paul Fire & Marine Ins. Co., 422 So. 2d 1109 (La.1982). The burden then shifts to the defendant attorney to prove that the client could not have succeeded on the original claim. Jenkins, supra.
In a case of obvious negligence, the court may, without expert testimony, take judicial notice of a legal duty which was breached by an attorney. Ramp v. St. Paul Fire & Marine Ins. Co., supra. Although this case is one involving timeliness, it is not a case of obvious negligence such as missing a set and determinable prescription date as was the situation in Jenkins. Miss Nelson presented no expert testimony in this case, and the trial court was not erroneous in refusing to take judicial notice that Miss Waldrup's conduct was substandard. Plaintiff claims that Miss Waldrup should have taken additional steps to ensure that no further action was taken in the case, such as contacting the attorney representing Leitz-Eagan and confirming the continuance by letter to both attorneys and the judge. Miss Waldrup was presented with very little information by her client, and took steps to satisfy herself that nothing further would be done in the case until she had time for more extensive research. The only expert testimony in the case was presented by defendant's expert, and that testimony stated that Miss Waldrup was correct in relying upon the assurances of Mr. Agular and the presiding magistrate's law clerk.
We find that the plaintiff in this case failed to meet her initial burden of proof. Thus it is not necessary for us to decide whether Miss Nelson would have been successful *1080 in her claim if not for the actions of Miss Waldrup.
Accordingly, for the reasons stated, the judgment of the trial court is affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2984276/ | Petition for Writ of Mandamus Denied and Memorandum Opinion filed
April 15, 2014.
In The
Fourteenth Court of Appeals
NO. 14-14-00013-CV
IN RE VILLAGIO BUILDERS, LLC, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
270th District Court
Harris County, Texas
Trial Court Cause No. 2011-46564
MEMORANDUM OPINION
On January 7, 2014, relator Villagio Builders, LLC filed a petition for writ
of mandamus in this Court. See Tex. Gov’t Code § 22.221; see also Tex. R. App.
P. 52. In the petition, relator asks this Court to compel the Honorable Brent
Gamble, presiding judge of the 270th District Court of Harris County, to vacate an
order imposing sanctions on relator.
Relator has not satisfied its burden to demonstrate entitlement to mandamus
relief. Accordingly, we deny relator’s petition for writ of mandamus. We also lift
our stay granted on January 15, 2014.
PER CURIAM
Panel consists of Justices Boyce, Christopher, and Brown.
2 | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2356710/ | 149 N.J. Super. 220 (1977)
373 A.2d 680
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HENRY HARRISON, DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Submitted April 5, 1977.
Decided April 29, 1977.
*222 Before Judges LORA, CRANE and MICHELS.
Mr. Stanley C. Van Ness, Public Defender, attorney for appellant (Ms. Ellen Shiever, Assistant Deputy Public Defender, of counsel and on the brief).
Mr. Joseph P. Lordi, Essex County Prosecutor, attorney for respondent (Mr. David B. Glazer, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM.
Henry Harrison was charged with robbery of a paycheck in the amount of $55 (N.J.S.A. 2A:141-1) and being armed (N.J.S.A. 2A:151-5). The jury returned a verdict of guilty of larceny from the person (N.J.S.A. 2A:119-1) on the first count and not guilty on the second count. Defendant was sentenced to a term of 12 months at the Essex County Correction Center. A motion for a new trial was denied.
Defendant appeals, contending that (1) the trial judge erred in refusing to charge the jury on ordinary larceny, pursuant to N.J.S.A. 2A:119-2, (2) the charge on reasonable doubt constituted plain error, (3) the prosecutor made prejudicial statements in his summation which denied *223 defendant a fair trial, and (4) the prosecutor made an improper reference to defendant's prior criminal record in his opening statement which constituted reversible error.
The alleged victim, Wendell Daniels, testified that he had left a check-cashing facility on Broad Street in Newark where he had attempted to cash a paycheck for $55.02 he had received from his employer and which the check-cashing facility had refused to cash because he did not have proper identification. The check and his Social Security card were placed in an envelope in his inside pocket. On the sidewalk Daniels was approached by a tall man who spoke with a Jamaican accent and who asked Daniels the location of a certain hotel where he said he was supposed to meet a girl. The man asked Daniels to show him to the hotel but Daniels refused, stating that he was in a hurry.
At this point defendant Henry Harrison approached and Daniels suggested to the Jamaican that defendant might be able to help him, whereupon the Jamaican told defendant the story about the girl in the hotel and said that he would pay if Daniels and defendant would show him the way.
The Jamaican promised Daniels $25. He then pulled a roll of bills from his pocket and handed $100 to defendant. Daniels started to walk away but the Jamaican pulled him back. Daniels repeated that he was in a hurry and had to go. He then observed what appeared to be a gun barrel protruding under a newspaper Harrison had draped over his hand. Either the Jamaican or Harrison told Daniels to get into the car parked in front of the check-cashing facility. Daniels slid across the back seat to the driver's side. Harrison got into the driver's seat and the Jamaican sat next to Daniels. The Jamaican took the envelope with the check and Social Security card from Daniels and said that the Social Security card wasn't good enough, that they needed more identification. He then pushed Daniels over and removed Daniels' wallet from his back pocket, took his draft card and threw the wallet back to Daniels.
*224 Daniels stated that the Jamaican did not have a Jamaican accent when he spoke in the automobile. After a short ride, Daniels was permitted to leave the car. He immediately notified the police and on police advice notified his employer to stop payment on the check. On cross-examination Daniels conceded that in a statement given to the police he had said that the incident occurred across the street from the check-cashing facility and that neither the Jamaican nor defendant had verbally threatened him. However, Daniels made it clear that he was afraid because he thought defendant had a gun, admitting, however, that he was not sure whether defendant's newspaper concealed a gun or a pipe.
Daniels' grand jury testimony indicated that he alleged at that time that it was defendant who took his check and Social Security card, not the Jamaican. At trial he insisted, however, that his trial testimony was the truth.
Defendant Harrison testified in his own defense and stated that on the day in question he was visiting one Robert Henry at the Belmont Hotel in Newark, located across the street from the check-cashing facility in front of which the incident here involved occurred. Henry asked defendant if he wanted to make some money and described the "handkerchief game." Thereafter, defendant went to the corner of Broad and West Kinney Streets while Henry proceeded to a spot approximately 100 yards from the check-cashing facility. Neither he nor Henry had a car parked on Broad Street that day.
Harrison stated that Henry stopped Daniels as the latter emerged from the check-cashing facility and spoke to him. Upon a prearranged signal defendant walked in the direction of the pair. As he neared them Daniels stopped him and asked if he knew the location of a certain hotel. Defendant said that he did and began to walk away. Henry displayed a large amount of play money with a real $5 bill on top and offered defendant and Daniels each $10 to help him find the hotel. They agreed, and the three began walking from Broad and West Kinney Streets to Mulberry Street.
*225 Henry then indicated that he wanted a prostitute. Defendant told him of a place nearby, whereupon Henry entered a bar in order to use the bathroom. While Henry was out of their presence, defendant told Daniels they should take Henry's money. He described a plan to Daniels, in which they would suggest to Henry that they hold his money to prevent the prostitute from stealing it. Daniels agreed. When Henry emerged from the bar the offer was made to hold his money. Henry agreed. Defendant then produced a handkerchief and Henry placed his money in it. Defendant, who said that he would accompany Henry into the hotel, did the same. Since Daniels had no cash, he placed his check, Social Security card and draft card in the handkerchief, defendant explaining that Henry wanted the two cards so that he would have the necessary identification to cash the check. Henry then tied the handkerchief and handed it to Daniels.
As Daniels started to place the handkerchief in his pocket, Henry took it back stating Daniels should keep the money "skin tight," demonstrating by placing the handkerchief inside his shirt. At this point he switched to a handkerchief filled with newspaper which he returned to Daniels. Defendant and Henry departed.
Defendant denied having a newspaper or gun during the incident, denied having a car at the scene and that Daniels was ordered to get into any type of vehicle. Defendant was unable to explain why Daniels did not complain when he was asked to put his identification in the handkerchief, even though, according to defendant's story, Daniels was to have his check returned to him. He simply stated that he did not know the handkerchief game until the day in question.
Defendant contends that, in view of the testimony outlined above, the trial judge committed reversible error in refusing to charge the jury on simple larceny.
The record indicates that after the close of all the evidence, the judge advised counsel that he was considering *226 charging the jury as to a lesser-included offense in addition to charging them as to robbery and being armed, as set forth in the indictment. Defense counsel argued that defendant's version of the facts constituted "larceny by trick" and that defendant was entitled to a charge which was consistent with that characterization of defendant's testimony. The prosecutor conceded that such a charge might be warranted.
The trial judge discussed the possibility of charging larceny of a check but finally decided not to do so. N.J.S.A. 2A:119-3 proscribes the stealing or taking by robbery or obtaining possession by false statements, representations or promises, of a negotiable or nonnegotiable instrument for the payment of money. However, since the indictment charged armed robbery of a check, in violation of N.J.S.A. 2A:141-1 and N.J.S.A. 2A:151-5, we believe that absent a count in the indictment charging a violation of N.J.S.A. 2A:119-3, the trial judge correctly decided not to charge larceny of a check under that statute. State v. Mergott, 140 N.J. Super. 126, 133 (App. Div. 1976).
While defense counsel did not in so many words request a charge on larceny, he persistently argued both before and after the charge to the jury that the charge as proposed and as given failed to include any crimes or offenses which were consistent with defendant's story, i.e., larceny by trick. In addition to robbery and being armed, the trial judge charged only the lesser-included offense of larceny from the person. N.J.S.A. 2A:119-1. The jury acquitted defendant of being armed and convicted him of larceny from the person.
Larceny from the person, for which defendant was convicted, and larceny, which defendant contends the trial judge should have charged, are lesser included offenses of the crime of robbery. State v. McDonald, 89 N.J.L. 421 (Sup. Ct. 1916), aff'd 91 N.J.L. 233 (E. & A. 1918); State v. Hoag, 35 N.J. Super. 555 (App. Div. 1955), aff'd *227 21 N.J. 496 (1956), aff'd 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958); State v. Ford, 92 N.J. Super. 356 (App. Div. 1966); State v. Bowden, 62 N.J. Super. 339 (App. Div. 1960).
It is clear that a trial judge is obliged to charge the jury as to a lesser-included offense
* * * where [an] appropriate request for a suitable jury charge is made [and where] there is a rational basis in the evidence for a finding that the defendant was not guilty of the higher offense charged but guilty of the lesser included offense.
[State v. Saulnier, 63 N.J. 199, 206-207 (1973)]
Here, there was indeed a rational basis in the evidence for the trial judge to charge larceny from the person. In view of the sharply conflicting testimony with respect to the events leading up to the offense, the jury could reasonably conclude, as they apparently did, that there was no force or fear involved in the commission of the offense and that defendant was not armed. However, if defendant's story were believed, the facts he admitted would not support a conviction of larceny from the person. Larceny from the person is a taking of property from the person of another or from an area within his immediate custody and control which raises a danger of confrontation and involves an invasion of the victim's person and privacy but is not accomplished through the use of force or fear. State v. Blow, 132 N.J. Super. 487 (App. Div. 1975). Defendant claimed that Daniels voluntarily placed his paycheck in the handkerchief and that there was then no "taking" within the ambit of the statute proscribing larceny from the person.
There being no statute denominated "larceny by trick" and defendant not being charged under N.J.S.A. 2A:119-3, ordinary larceny, N.J.S.A. 2A:119-2, was the only additional lesser-included offense for which there was present a rational basis in the evidence for a charge thereon. See State v. Garvin, 44 N.J. 268 (1965), in which a conviction *228 for larceny in violation of N.J.S.A. 2A:119-2 was upheld where a defendant posed as a stranger with considerable cash in pocket and, assisted by an accomplice who pretended to have just happened along, led the victim to withdraw the balance of his savings account, thereby to persuade defendant that banks are places of safe deposit; the victim's cash, totalling $405, was purportedly wrapped with defendant's cash in a handkerchief and left with the victim for interim holding. There had been a switch, the handkerchief held newspaper.
We are of the view that defense counsel's repeated requests to charge a lesser-included offense consistent with his characterization of defendant's testimony as larceny by trick constituted an "appropriate request for a suitable jury charge" within the meaning of the two-part test enunciated in State v. Saulnier, supra, and that the trial judge erred in failing to charge on ordinary larceny. Accord, State v. Inman, 140 N.J. Super. 510 (1976). The charge as given effectively precluded the jury from finding defendant guilty of the offense he admitted simple larceny. Rather, it compelled the jury to find defendant guilty of no less an offense than larceny from the person.
In light of the fact that the check stolen from the complaining witness had a value of $55 and that if defendant had been convicted of ordinary larceny he could have received a maximum six-month jail term for the disorderly person offense of larceny of less than $200, N.J.S.A. 2A:170-30.1, N.J.S.A. 2A:169-4, the trial judge's failure to charge ordinary larceny was clearly prejudicial and accordingly we are constrained to reverse. Moreover, we find without merit the State's assertion that the larceny of a check statute evidences a legislative policy that all thefts of checks be considered high misdemeanors and since defendant was convicted of the high misdemeanor of larceny from the person he has not been disserviced. Defendant was entitled to have submitted to the jury any and all offenses within the scope of the indictment consistent with *229 the factual patterns presented, and, if found guilty, that his judgment of conviction reflect a consonant offense.
Since the case must be retried, we deem it advisable to consider defendant's contention that the trial judge's charge on reasonable doubt constituted plain error.
During the course of his otherwise proper charge on reasonable doubt the trial judge stated:
It must, however, be a real and substantial doubt not for instance the ideal [sic] reflection that nothing is perfectly certain in this life. It is a doubt that bases itself on serious gaps or loopholes in the evidence that persists actively and positively. [Emphasis supplied]
The italicized portions of the charge are clearly erroneous and do not constitute a proper explanation of reasonable doubt.
With respect to defendant's contention that the prosecutor made prejudicial statements in his summation which deprived defendant of a fair trial, we have considered each of the remarks complained of and are satisfied that they were not improper and did not deny defendant a fair trial.
Finally, on the retrial we suggest that the State refrain from making any comment in its opening which could possibly be construed as being a reference to defendant's prior criminal record.
Reversed and remanded to the Law Division for a new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2218001/ | 437 Mich. 441 (1991)
473 N.W.2d 249
AMALGAMATED TRANSIT UNION, LOCAL 1564, AFL-CIO
v.
SOUTHEASTERN MICHIGAN TRANSPORTATION AUTHORITY
Docket No. 85589, (Calendar No. 5).
Supreme Court of Michigan.
Argued October 2, 1990.
Decided July 15, 1991.
Sachs, Nunn, Kates, Kadushin, O'Hare, Helveston & Waldman, P.C. (by Theodore Sachs and I. Mark Steckloff), for the plaintiff.
Dickinson, Wright, Moon, Van Dusen & Freeman (by John Corbett O'Meara, Thomas G. Kienbaum, and Theodore R. Opperwall) for the defendant.
BOYLE, J.
This action arises under MCL 423.210(1)(e); MSA 17.455(10)(1)(e) of the public employment relations act. Amalgamated Transit Union has charged that the Southeastern Michigan Transit Authority (now the Suburban Mobility Authority for Regional Transportation) committed an unfair labor practice by unilaterally altering a term or condition of employment, specifically the disciplinary scheme applicable to probationary employees. We affirm the decision of the Court of Appeals, which upheld the conclusion of the Michigan Employment Relations Commission that SEMTA did engage in an unfair labor practice by unilaterally altering the disciplinary policy it applied to probationary employees.
I
In 1975, the parties drew up a letter of understanding specifying penalties for an operator's failure to appear for work at the scheduled time and place. This letter was substantially incorporated in the 1977 contract between the parties as article *445 37, § 1, providing a seven-step "Miss-Outs" procedure.[1]
The 1977 contract also contained the following provision regarding probationary employees:
All new OPERATORS coming within the scope of this Agreement shall be on probation for a period of ninety (90) calendar days from the date they complete their training requirements. Such probationary period shall constitute a trial period during which the AUTHORITY judges the ability, competency, fitness, and other qualifications of new OPERATORS to do the work for which they were employed....
During such probationary period, the AUTHORITY may discharge the OPERATOR at any time and its right to do so shall not be questioned by the UNION; nor shall the UNION assert or present any grievance on behalf of any such new OPERATOR.
The above provisions of article 6, §§ 1-2, of the 1977 contract were also contained in the 1974-77 contract between the parties; however, the earlier contract provided that both the union and SEMTA were to judge the qualifications and fitness of probationary employees.[2]
*446 The evidence presented at the hearing in this matter showed that SEMTA generally applied the provisions of article 37, § 1 to probationary employees. In July or August of 1979, SEMTA altered this practice and began applying a new "miss" policy to probationary employees. Union officers met with members of SEMTA management to protest this change. On August 15, 1979, SEMTA posted the new policy whereby probationary employees would be automatically terminated from employment after only four misses.
The union filed the instant unfair labor practice charge on February 12, 1980. Upon a motion by SEMTA, the MERC stayed its proceedings pending the conclusion of the arbitration proceedings.
After considering the terms of the contract as well as the practices of the parties, the arbitrator initially found that article 37, § 1 of the 1977-80 collective bargaining agreement, specifying a seven-step disciplinary scheme for "misses," did apply to probationary employees, and "that [article 6, § 2] does not prevent the Union from questioning disciplinary action, including discharge, by SEMTA of probationary employees for engaging in miss-outs, or the presentation of grievances by the Union on behalf of such operators in such circumstances."
*447 On appeal, the circuit court again examined the contract, particularly articles 6 and 37, and concluded that the miss policy applicable to probationary employees was not subject to arbitration. The court's analysis turned on the article 6 provision that SEMTA was to judge the "ability, competency, fitness, and other qualifications" of probationary employees. Any contract provision relating to the "ability, competency, fitness, and other qualifications" of probationary employees, the court concluded, was not subject to arbitration.[3] The court found that misses failure to appear at the scheduled time and place related to the qualifications of probationary employees. The court thus found that the arbitrator lacked jurisdiction and granted summary disposition in favor of SEMTA.
The Court of Appeals affirmed the decision of the circuit court on somewhat different grounds. Relying on the language of article 6, § 2 and article 10, § 1, the Court of Appeals concluded that the contract dispute was not arbitrable:
Article 6, § 2 of the collective-bargaining agreement between plaintiff and defendant states that the union will not assert or present any grievance on behalf of any probationary employee. Article 10, § 1 of the agreement defines a grievance as any matter involving the interpretation or application of the terms of the agreement and any dispute concerning the suspension or discharge of an employee. Under these articles, defendant is prohibited *448 from bringing a grievance to arbitration if it concerns a probationary employee. Because defendant was prohibited from bringing the grievance to arbitration by a specific clause of the collective-bargaining agreement, we can say with positive assurance that the arbitration clause did not cover this agreement. [116 Mich. App. 154, 158; 321 NW2d 876 (1982).]
The union did not appeal the Court of Appeals determination.
With arbitration thus concluded, the MERC proceedings relating to the union's unfair labor practice charges resumed. In a decision and recommended order, the hearing referee rejected SEMTA'S argument that the circuit court's order granting SEMTA summary disposition was res judicata regarding the matters raised in the unfair labor practices charge. The hearing officer reasoned that since the instant charge alleged statutory issues and not merely a contract violation, it raised issues which were not and could not have been resolved in the arbitration proceedings. She concluded next that the application of the miss policy contained in article 37 of the parties' collective bargaining agreement to probationary employees became a term or condition of employment which could not be altered unilaterally. The hearing officer viewed the crux of the dispute as being whether article 6, § 2 of the collective bargaining agreement waived the union's right to bargain over changes in the disciplinary policy applicable to probationary employees and concluded that the union did not waive such right.
The Michigan Employment Relations Commission affirmed the decision of the hearing officer. 1987 MERC Lab Op 721. The MERC agreed that SEMTA'S consistent application of the seven-step miss procedure set forth in article 37, § 1 had rendered the procedure a term or condition of *449 employment for probationary employees. The MERC cast the waiver question as "whether [SEMTA'S] practice should be regarded as subservient to Article 6, and the duty to bargain over changes in the practice waived, or whether the existence of the practice served to limit the grant of broad discretion contained in Article 6 to the extent of requiring [SEMTA] to give notice to and bargain with [the union] before changing this policy." Id. at 730. The MERC concluded that the latter was the case, emphasizing the stringent standard applied to the waiver of statutory rights. The MERC also rejected SEMTA'S argument that the prior circuit court and the Court of Appeals determinations in the arbitration proceedings estopped consideration of the union's charge of unfair labor practices.
The Court of Appeals affirmed the commission's decision, Amalgamated Transit Union v Southeastern Michigan Transportation Authority, unpublished opinion per curiam of the Court of Appeals, decided February 10, 1989 (Docket No. 103428). This Court granted leave to appeal in an order issued April 16, 1990. 434 Mich. 900 (1990). Appellant has raised three issues for this Court's consideration: 1) whether the doctrine of collateral estoppel precludes the union from asserting the instant unfair labor practice charge, 2) whether the MERC erred when it concluded that the seven-step miss procedure had become a term or condition of employment for probationary employees, and 3) whether the MERC erred in finding that the union did not waive its statutory right to bargain over such term or condition of employment.
II
The PERA imposes a duty to negotiate in good faith over mandatory subjects of bargaining which persists during the life of the collective bargaining *450 agreement. MCL 423.215; MSA 17.455(15).[4] Thus, while the parties may by contract agree to grant the right to take unilateral action, it is well established that neither party may take unilateral action on such a subject unless it either has satisfied the statutory obligation or has been freed from it. NLRB v C & C Plywood Corp, 385 U.S. 421; 87 S. Ct. 559; 17 L. Ed. 2d 486 (1967).
Our review of the commission's decision is circumscribed by the statutory mandate that factual findings of the commission are conclusive if supported by competent, material, and substantial evidence on the record considered as a whole. MCL 423.216(e); MSA 17.455(16)(e), Const 1963, art 6, § 28. Review of factual findings of the commission must be undertaken with sensitivity, and due deference must be accorded to administrative expertise. Reviewing courts should not invade the exclusive fact-finding province of administrative agencies by displacing an agency's choice between two reasonably differing views of the evidence. MERC v Detroit Symphony Orchestra, 393 Mich. 116, 124; 223 NW2d 283 (1974).
Legal rulings of administrative agencies are not given the deference accorded factual findings. Legal rulings of an administrative agency are set aside if they are in violation of the constitution or a statute, or affected by a substantial and material error of law. MCL 24.306(1)(a), (f); MSA 3.560(206)(1)(a), (f). Southfield Police Officers Ass'n v Southfield, 433 Mich. 168; 445 NW2d 98 (1989).
III
Thus we turn to the first issue on appeal. SEMTA *451 argues that the issue now cast as an unfair labor practice in violation of the PERA presents the same factual question that was resolved in the earlier arbitration proceedings.
Collateral estoppel applies to preclude relitigation of issues actually determined by final judgment and essential to the judgment in a prior action between the parties. Senior Accountants v Detroit, 399 Mich. 449, 459; 249 NW2d 121 (1976). 1 Restatement Judgments, 2d, § 27, p 250. In order for collateral estoppel to apply, the issue must be identical to that determined in the prior action. NAACP v Detroit Police Officers Ass'n, 821 F2d 328, 330 (CA 6, 1987).
SEMTA characterizes the dispositive issue determined in the prior action as the finding "that `misses' for probationary operators related to their `qualifications' as judged by SEMTA under Article 6, and that Article 37's seven-step procedure simply did not apply to probationary operators." (Emphasis in the original.)
Assuming that the circuit court did in some sense resolve what SEMTA generally refers to as the "Article 37 versus Article 6" issue, it did so as a matter of contractual interpretation. The question of contract interpretation which was decided in arbitration is not identical to the statutory issue in this case.[5] It is true that this action is based upon the same events that underlay the earlier arbitration proceedings, specifically SEMTA'S application of a four-step disciplinary procedure to probationary employees beginning in July or August, 1979. But as this Court recognized in Bay City Schools v Bay City Ed Ass'n, 425 Mich. 426, *452 430; 390 NW2d 159 (1986), contractual and statutory claims, even when based on the same controversy, generally involve different factual and legal issues.[6]
The determination whether SEMTA engaged in an unfair labor practice prohibited by the PERA requires inquiries beyond interpretation of articles 6 and 37 of the collective bargaining agreement. The hearing officer and the MERC were required to determine whether the application of the seven-step miss procedure to probationary employees had become a term or condition of employment by virtue of its consistent application to probationary employees.[7] A determination that article 37 of the collective bargaining agreement did not apply to probationary employees would not settle the question whether the application of the seven-step miss procedure had become a term or condition of employment which, pursuant to the PERA, could not be unilaterally altered absent impasse or waiver. In connection with the unfair labor practice charge upon which this case is based, the hearing officer and the MERC both considered whether article 6 constituted a waiver of the union's statutory right to negotiate over changes in disciplinary policy. Because this question must be answered by application of the stringent standard *453 for waiver of statutory rights,[8] the issue is not the same as that settled in the prior action.
We disagree with SEMTA'S contention that the applicability of article 37 to probationary employees was a necessary predicate for the circuit court or the Court of Appeals determinations. By deciding that the union could not bring a grievance on behalf of probationary employees, the courts did not, and were not required to, determine whether article 37 applied to such employees. A decision on the question of arbitrability does not decide the merits of the underlying claim. AT&T Technologies, Inc v Communications Workers of America, 475 U.S. 643; 106 S. Ct. 1415; 89 L. Ed. 2d 648 (1986).
Finally, assuming that the circuit court actually decided that article 37 was applicable to probationary employees, we conclude that the circuit court's decision was not a final judgment for purposes of collateral estoppel. The Court of Appeals, affirming the circuit court's summary disposition, decided only that article 6, § 2 precluded the union from asserting any grievance on behalf of probationary employees. Because the rationale used by the circuit court was never reached by the Court of Appeals, the circuit court's judgment is not given conclusive effect:
A judgment affirmed on appeal has conclusive effect, but if the appellate court affirms on grounds that differ from those relied upon by the lower court, the conclusiveness of the judgment as res judicata and as collateral estoppel are governed by the appellate decision. Thus if the trial court rests its judgment on two grounds, each of which is independently adequate to support it, the judgment is conclusive as to both; but i[f] the appellate court affirms on one ground without passing on the other, the second ground is no longer conclusively *454 established under the collateral estoppel doctrine. [1B Moore, Federal Practice, ¶ 0.416(2), p 518.]
Having concluded that collateral estoppel does not bar the instant action, we turn to the merits of the appeal.
IV
The next question is whether SEMTA'S application of the seven-step miss procedure to probationary employees became a term or condition of employment so that it could not be unilaterally altered absent impasse or waiver.[9] A past practice which does not derive from the parties' collective bargaining agreement may become a term or condition of employment which is binding on the parties.[10] The creation of a term or condition of employment by past practice is premised in part upon mutuality; the binding nature of such a practice is justified by the parties' tacit agreement *455 that the practice would continue.[11] The nature of a practice, its duration, and the reasonable expectations of the parties may justify its attaining the status of a "term or condition of employment."[12]
The inquiry whether a past practice has given rise to a term or condition of employment is not limited to the consideration of the consistency and duration of the practice itself. Whether the parties have bargained regarding the subject or dealt with it in their collective bargaining agreement are also relevant considerations. In finding that there was substantial evidence in support of a board finding that a Christmas bonus had become a term or condition of employment, the United States Circuit Court of Appeals for the First District in Isla Verde Hotel Corp v NLRB, 702 F2d 268 (CA 1, 1983), considered not only the past practice of paying bonuses, but also the bargaining relationship of the parties which had included discussions about bonus payments. Id. at 271. In Office & Professional Employees Int'l Union v NLRB, 136 US App DC 12; 419 F2d 314 (1969), the court considered "past practice" not only in terms of the consistent use of unit employees to perform audits, but also took note that the union had bargained on the matter in the past, and that discussions had resulted in no contractual provision on the subject. Id. at 19.[13]
*456 SEMTA argues in the instant case that the requisite element of agreement that the practice of applying the terms of article 37 to probationary employees would continue was not present because SEMTA used article 37 merely as a "guide" for probationary employees, consistent with its discretionary rights under article 6.[14] Thus, SEMTA argues, the seven-step procedure did not become a term or condition of employment because SEMTA, pursuant to article 6, § 1, retained discretion to discharge probationary employees. When a practice *457 is consistent with discretion conferred upon an employer by contract, but is not required by contract, a factual question is presented regarding the existence of the mutuality necessary for a binding past practice. While the existence of a management-rights clause would be evidence that the mutuality upon which a "past practice" term or condition of employment must be based is not present, it is not determinative of the question.
Thus, in NLRB v Merill & Ring, Inc, 731 F2d 605, 608 (CA 9, 1984), the court concluded that a "uniform past practice and policy" that employees summoned for jury service were not required to report for work in the morning before jury duty had become a term or condition of employment, notwithstanding the employer's claim that this practice was affirmatively permitted by a clause in the contract.
Similarly, in Trenton v Trenton Fire Fighters, 166 Mich. App. 285, 289-290, 295; 420 NW2d 188 (1988), the Court of Appeals upheld the MERC'S conclusion that the fire department's "long-standing policy" regarding minimum manpower requirements established a term or condition of employment, notwithstanding the arbitrator's conclusion in prior proceedings that the contract management-rights clause reserving the employer's right to control "operations" permitted a change in manpower requirements.
The relevance of a contractual provision or other policy of employer discretion to the question whether a term or condition of employment has arisen from past practice was recognized in Battle Creek Fire Dep't v Organization of Supervisory Personnel, 1989 MERC Lab Op 726, where the union charged that the city committed an unfair labor practice when it unilaterally began assigning overtime work previously performed by battalion *458 chiefs to persons outside the bargaining unit. The commission found no evidence of "the mutuality necessary for a binding past practice," noting specifically that the contract had been changed to remove the requirement that overtime be assigned to battalion chiefs, instead making the practice permissive. Id. at 736.
Similarly in AFSCME v Detroit Transportation Dep't, 1989 MERC Lab Op 30, the MERC declined to find a past practice constituting a term or condition of employment where, pursuant to express written policy, the employer retained the option to deviate from the alleged "past practice."[15]
The approaches of the federal courts, of the Michigan Court of Appeals, and of the commission reveal that the existence of a term or condition of employment is a factual matter. While the existence of a contractual clause granting management discretion to engage in a particular practice *459 may be evidence that the mutuality required for a binding "past practice" is lacking, Battle Creek, supra, it does not preclude the creation of a "term or condition of employment." The courts must examine all pertinent evidence, including the specificity of the reservation, the practices of the parties, the policies of the employer, and the bargaining history to determine whether a term or condition of employment is established.
In this case, the existence of a contractual clause reserving SEMTA'S right to judge the "ability, competency, fitness, and other qualifications" of probationary employees and to discharge at any time provides some evidence against the conclusion that a term or condition of employment was created. However, the evidence is not so strong as it was in Detroit Transportation Dep't, for example, where the written policy specifically permitted the annual readjustment of the disciplinary "triggers." The evidentiary weight of the management-rights clause is counterbalanced by the highly consistent manner in which the seven-step disciplinary procedure was applied to probationary employees.
A review of the exhibits admitted before the hearing officer reveals that at least ninety percent of probationary employees disciplined before August, 1979, were disciplined consistent with the seven-step procedure in article 37. Significantly, most of the violation records make express reference to article 37. At the hearing, two SEMTA operators testified that in their initial training, which immediately preceded the probationary period, they received literature summarizing the seven-step miss procedure. The union introduced as an exhibit a booklet which had been compiled for distribution to probationary employees. That *460 booklet contained a page headed "Article 37 Miss-Outs" and stated the provisions of article 37.
We find the MERC'S conclusion that the application of the provisions of article 37 to probationary employees had become a term or condition of employment to be supported by competent, material, and substantial evidence on the record. The commission's view that the application of the seven-step procedure to probationary employees became a term or condition of employment is clearly a reasonable view of the evidence, and one which should not be displaced by this Court.
V
Thus we turn to the final issue raised by SEMTA and conclude that the commission's finding that the union did not waive its right to bargain over the disciplinary policy applied to probationary employees was not erroneous and was supported by competent, material, and substantial evidence on the whole record.
The waiver of statutorily protected rights in a contractual provision should not be inferred unless the undertaking is "explicitly stated"; such a waiver must be "clear and unmistakable." Metropolitan Edison Co v NLRB, 460 U.S. 693, 708; 103 S. Ct. 1467; 75 L. Ed. 2d 387 (1983). In applying this standard, the NLRB has looked for evidence of an actual intent to waive a bargaining right:
In order for contract language to effect a waiver of bargaining rights, it must be "clear and unmistakable." In assessing that question, the Board considers the bargaining history of the contract language and the parties' interpretation of the language. Where an employer relies on contract language as a purported waiver to establish its right to change terms and conditions of employment *461 not contained in the contract unilaterally, the Board requires evidence that the matter in issue was "fully discussed and consciously explored during negotiations and the union must have consciously yielded or clearly and unmistakably waived its interest in the matter." [1 Morris, Developing Labor Law (2d ed, 5th supp), ch 13, pp 332-333.]
The "clear and unmistakable" standard is applied by the MERC, as well as our Court of Appeals. See Lansing Fire Fighters v Lansing, 133 Mich. App. 56; 349 NW2d 253 (1984); Kent Co Ed Ass'n v Cedar Springs, 157 Mich. App. 59, 66; 403 NW2d 494 (1987); Westland Fire Fighters Ass'n v Westland, 1987 MERC Lab Op 793, 801; Royal Oak Police Officers Ass'n v Royal Oak, 1988 MERC Lab Op 605, 611. The MERC frequently looks for an "explicit" waiver as well. See Roseville Fire Fighters Ass'n v Roseville, 1982 MERC Lab Op 1377, 1386 (clear and explicit waiver is required, absent past practice or other evidence of explicit intent to waive a bargaining right); Teamsters Union v Mt Clemens, 1986 MERC Lab Op 30, 33.
The MERC'S conclusions regarding whether the union clearly and unmistakably waived its right to bargain over a specific matter is typically reviewed as a factual finding. See Kent Co Ed Ass'n, supra at 66; Mid-Michigan Ed Ass'n v St Charles, 150 Mich. App. 763, 771; 389 NW2d 482 (1986) (a management-rights clause was not a sufficiently clear and explicit waiver when viewed in the context of the parties' past practice). See also Int'l Union v NLRB, 802 F2d 969, 973 (CA 7, 1986). We cannot dispute the commission's finding that the management-rights clause did not represent a clear and unmistakable waiver of the duty to bargain before altering the disciplinary procedure applicable to probationary employees.
*462 We consider first the language of article 6, § 1 providing that SEMTA "judges the ability, competency, fitness, and other qualifications of new operators to do the work for which they were employed." This wording is not so unequivocal as to justify this Court's overturning the commission's conclusion that the union did not clearly and unmistakably waive the right to bargain over changes in disciplinary policy with respect to probationers. The MERC, as well as the NLRB, typically look for a waiver of the duty to bargain about a specific subject.
The degree of specificity which will indicate an intent to waive a statutory bargaining right is illustrated in NLRB v United Technologies Corp, 884 F2d 1569, 1574 (CA 2, 1989), where the court considered whether a contractual management-rights clause constituted a waiver of the union's right to bargain concerning a change in the company's progressive discipline policy. The contractual clause reserved management's right "`to make and apply rules and regulations for production, discipline, efficiency, and safety.'" On the basis of this language and additional contractual language specifically granting the employer the right "`to discharge or otherwise discipline any employee for just cause,'" the court found a waiver of union's right to negotiate over disciplinary policy.
By contrast, the NLRB in Dearborn Country Club & Hotel Employees, 298 NLRB ___; 134 LRRM 1211 (1990), found that the language of a management-rights clause was not sufficiently specific to constitute a waiver of the union's right to bargain over changes in an established practice of offering over-time first to full-time employees. The board found the contractual clause reserving the employer's right "to arrange its work schedules, to designate *463 days off, and to fix hours worked by employees," "lacking in specific authorizations to make the change in question." The board distinguished the clause held to constitute a waiver in United Technologies, supra, noting its specific reference "to the creation and application of rules and regulations for discipline."
In Spring Lake Ed Ass'n v Spring Lake Schools, 1988 MERC Lab Op 362, the commission found no waiver of the union's right to bargain over a change in the content of the form used to evaluate teachers, despite a contractual clause reserving management's right to hire teachers and to "`determine their qualifications and the conditions for their continued employment....'" The MERC noted the absence of explicit reference to the evaluation instrument. The MERC also reviewed the parties' bargaining history, which did not reveal an intent by the union to waive its right to bargain over the evaluation form. Id. at 366.
The contract in this case is lacking the specificity which would indicate that the union "consciously yielded" its right to negotiate concerning the discipline applied to probationary employees.[16] Article 6, § 1 of the agreement contains no mention of the employer's right to discipline probationary employees. While the right to discipline, not referenced in the contract, is certainly closely related to the employer's judgment of ability, competency, fitness, and "other qualifications," which right is contractually reserved, it is not the same matter. We conclude that the management-rights clause contained in article 6, § 1 of the contract *464 between the parties is not sufficiently specific to demonstrate that the union clearly and unmistakably waived its right to bargain over changes in the disciplinary policies applied to probationary employees.[17]
SEMTA also relies on the "sweepingly broad" language of article 6, § 2 which provided that SEMTA could discharge a probationary employee "at any time and its right to do so shall not be questioned by the union; nor shall the union assert or present any grievance on behalf of any such new operator." We accept the commission's conclusion that this language did not clearly and explicitly waive the union's right to bargain over changes in the disciplinary policy applied to probationary employees. Article 6, § 2 refers to discharge, but not to discipline. Nor has SEMTA cited any evidence which would indicate an actual intent by the union to relinquish the statutory right to negotiate concerning the disciplinary scheme applicable to probationary employees.
SEMTA contends that article 6, § 2's broad language providing that the union will not "question" the discharge of probationary employees would be rendered meaningless if interpreted only as a waiver of the right to grieve since article 6, § 2 expressly provides that the union shall not "assert or present any grievance" on behalf of probationary operators.[18] However, the record supports the *465 union's contention that article 6, § 2 contemplated only the waiver of the union's right to grieve on behalf of probationers.
In 1980, the ambiguous language of article 6, § 2 was changed to provide that a probationary operator "may be discharged by the Authority without such discharge being subject to grievance."[19] Union representative Phillip Don Leo testified that Daniel Morrill, SEMTA Director of Operations, indicated that this change only clarified what was intended in the 1977-80 contract. That intent, Leo stated, was that the union was able to file grievances for probationary employees relating to actions short of discharge, but not including discharge. According to Leo, the 1980 negotiations involved no discussion about the union's right to go to the MERC or any other agency on behalf of probationary employees, focusing solely on grievance matters.
In view of this testimony, it appears unlikely that the language of the 1977 contract was intended to waive the union's statutory right to negotiate concerning the discipline imposed on probationary employees. We conclude that the commission's findings were supported by competent, substantial, and material evidence.
CONCLUSION
The MERC and the Court of Appeals correctly *466 found that the instant unfair labor practice charge was not precluded by the prior decisions of the circuit court and Court of Appeals concerning the arbitrability of the parties' contractual dispute. We affirm the commission's finding that the parties' consistent practice with respect to the discipline of probationary employees gave rise to a term or condition of employment, as supported by competent, material, and substantial evidence on the whole record. We also affirm the commission's finding that the management-rights clauses contained in articles 6, § 1 and 6, § 2 did not constitute a "clear and unmistakable" waiver of the union's right to negotiate concerning the disciplinary policy applicable to probationary employees.
The decision of the Court of Appeals is affirmed.
CAVANAGH, C.J., and LEVIN, J., concurred with BOYLE, J.
BRICKLEY, J. (dissenting).
I agree with the majority that collateral estoppel (issue preclusion) does not foreclose this appeal. However, because I believe that the litigation below did not adequately resolve the question whether the employer's conduct created through practice a term of employment unamenable to unilateral change, I respectfully dissent.
Labor law has long prohibited an employer from unilaterally changing a term or condition of employment embracing a mandatory subject of bargaining. NLRB v Katz, 369 U.S. 736; 82 S. Ct. 230; 8 L. Ed. 2d 230 (1962). A unilateral change by an employer violates the duty to bargain and thus contravenes "[o]ne of the primary purposes of the Act [designed to] promote the peaceful settlement of industrial disputes by subjecting labor-management controversies to the mediatory influence of *467 negotiation [in awareness that] refusals to confer and negotiate had been one of the most prolific causes of industrial strife." Fibreboard Paper Products Corp v NLRB, 379 U.S. 203, 211; 85 S. Ct. 398; 13 L. Ed. 2d 233 (1964).
In the instant case, however, the employer did not violate the duty to bargain over a term or condition. The union and the employer did in fact bargain to vest an unconditional right of the employer to discharge probationary employees.[1] The employer's exercise of discretion in establishing an orderly and fair disciplinary procedure for probationary employees short of discharge did not comprise a unilateral change of a material term or condition under the facts presented. Rather, it constituted an exercise of an agreed-upon provision of the collective bargaining agreement.
Unilateral change of term or condition cases generally appear in two factual configurations. In the first configuration, the contract/collective bargaining agreement is silent or ambiguous with respect to the alleged term or condition created by a past practice. However, the fact that the contract does not explicitly allow a term or condition is of no practical import, since "[the] statutory duty to bargain is independent of any obligation the employer may incur under [the] contract." Road Sprinkler Fitters Local Union v NLRB, 219 *468 US App DC 228, 233; 676 F2d 826 (1982). Thus, for example, an employer that consistently provides Christmas bonuses to employees, and then rescinds those bonuses without bargaining may commit an unfair labor practice. NLRB v Nello Pistoresi & Son, Inc, 500 F2d 399 (CA 9, 1974).
In the second configuration, the contract may explicitly allow or prohibit a particular practice. Even so, courts have found that a consistent policy or practice contrary to the contractual provision may yet ripen into a term or condition which if unilaterally changed initiates an unfair labor practice violation. Thus, in Mid-Michigan Ed Ass'n v St Charles Community Schools, 150 Mich. App. 763, 767, 769; 389 NW2d 482 (1986), the Court of Appeals held that "the [employer's] past practice of providing health care benefits, although contrary to the contract provision, constituted a term of employment which could not be unilaterally changed." The Court reasoned that "[b]ecause the district instituted the practice and permitted it to continue, knowing that it was contrary to the contract, the district cannot now rely on the contractual language to unilaterally change the practice."
The Employment Relations Commission relied on St Charles in concluding that in the instant case "[w]hile the broad language of Article 6 gave [the employer] discretion to discharge probationary employees, it did not give [the employer] the explicit right to change a disciplinary policy which constituted an established term or condition of employment without giving [the union] notice and an opportunity to demand bargaining." 1987 MERC Lab Op 721, 730. This statement, of course, begs the question. The obvious answer is that the language of article 6 did give the employer the discretion to discharge probationary employees, *469 and the appropriate question is having been given that discretion in very clear and unmistakable language, is the rule relating to unilateral change of a term or condition applicable?
The instant case is distinguishable both from case in which the contract does not refer to the alleged term or condition created by past practice and cases in which a contractual provision conflicts with an established term or condition. Here, the parties bargained, and the resulting bargain provided the employer unfettered discretion to establish any policy to discharge probationary employees during the probationary period, or no policy at all. In exercise of that discretion, the employer chose to utilize the seven-step procedure of article 37 for failure to report for duty, and apparently did so in a fairly consistent manner. However, under the analysis of the MERC, as adopted by the majority, an employer confronts a Hobson's choice. Either an employer could establish no policy regarding discharge, and discharge probationers for the first infraction, or the employer could strive for perfect inconsistency in meting discipline to probationers. Only these courses would avoid the establishment of a uniform past practice and prevent an obligation to bargain over what had previously been bargained.
Under the analysis of the MERC and the majority, an employer that bargains for and obtains discretion to act independently relinquishes that discretion the moment it exercises discretion in a consistent fashion. If the employer exercises bargained-for discretion in an arbitrary and inconsistent manner, the creation of a term or condition through practice does not arise. In the instant case, the employer did not act contrary to the collective bargaining agreement, but in accordance with its terms. Under these circumstances, it cannot *470 be said that the employer's conduct created a term or condition of employment. Such an analysis frustrates the preeminent goal of fostering peaceful and orderly collective bargaining.
The majority states that "while the parties may by contract agree to grant the right to take unilateral action, it is well established that neither party may take unilateral action on such a subject unless it either has satisfied the statutory obligation or has been freed from it." Ante, p 450, citing NLRB v C & C Plywood Corp, 385 U.S. 421; 87 S. Ct. 559; 17 L. Ed. 2d 486 (1967). If that were a correct reading of the Plywood Court, it would be the end of the matter. I read the case differently, however, and, in fact, believe that it supports the opposite conclusion.
In Plywood, a classified wage scale had been agreed upon in the contract, and management had reserved the right to give premium pay to some employees. It subsequently attempted to give such premium pay to a class of employees, and the union brought an unfair labor practice petition. In granting the petition, the NLRB ruled that "the union had not ceded power to the employer unilaterally to change the wage system as it had." Id. at 425. The Supreme Court said, "In refusing to enforce the Board's order, the Court of Appeals did not decide that the premium pay provision of the labor agreement had been misinterpreted by the Board." Id. (Emphasis added.) Because the United States Supreme Court accepted the factual finding of the meaning of the contract, it reversed the decision of the United States Court of Appeals and reinstated the decision of the NLRB. In doing so, the United States Supreme Court further stated,
But in this case the Board has not construed a labor agreement to determine the extent of the *471 contractual rights which were given the union by the employer. It has not imposed its own view of what the terms and conditions of the labor agreement should be.... The Board's interpretation went only so far as was necessary to determine that the union did not agree to give up these statutory safeguards. Thus, the Board, in necessarily construing a labor agreement to decide this unfair labor practice case, has not exceeded the jurisdiction laid out for it by Congress. [Id. at 428. Emphasis added.]
It seems to be implicit in this NLRB case before the Supreme Court that if the contract had specifically given the employer the discretion to give this premium pay in the manner in which it did, it would not have had to bargain before instituting the premium pay. The Supreme Court seemed to think that that was the controlling factor. Plywood clearly suggests that the MERC should have made a determination of whether or not the employer was changing its seven-step procedure to a four-step procedure pursuant to the contract. The hearing referee's conclusion, affirmed by the MERC, about the meaning of article 6 is as follows:
In my view, the contract language here simply removed Respondent's obligation to demonstrate, with respect to discharged probationary employees, that the discharges were fair and in accord with established policies. [1987 MERC Lab Op 737.]
The specific language of article 6 by any fair and objective reading does not permit such a watering down of its obvious intent.
The parties in this case vested in the employer the sole authority to establish how and under what conditions probationary employees could be discharged. No violation of the duty to bargain *472 exists under these facts because the parties bargained over the terms, and the employer's conduct clearly is consistent with the bargain. Even under the mutuality analysis applied by the majority, it cannot be said that the employer's conduct created a reasonable expectation that the probationers were entitled to the seven-step procedure for failure to report for duty.
The rule requiring compulsory bargaining over terms created by past practice is designed to foster collective bargaining and ought not be distorted to obliterate a term of a contract that results from the process of collective bargaining. Such a result places the cart before the horse, or, better stated, allows the end to serve the means. For these reasons, I respectfully dissent.
I would hold that an exercise of a practice that is clearly pursuant to, consistent with, and in fulfillment of a term or terms of a collective bargaining agreement does not become a term or condition of employment apart from the collective bargaining agreement that requires midterm bargaining.
I would reverse the decision of the Court of Appeals and remand the case to the MERC for the application of this standard to the case at hand.
GRIFFIN, J., concurred with BRICKLEY, J.
RILEY and MALLETT, JJ., took no part in the decision of this case.
NOTES
[1] each failure to report for duty at the proper time and place, an OPERATOR will be charged with a miss. Discipline for misses will be as follows:
A. First miss written warning.
B. Second miss without sixty (60) days free of misses since the last miss one (1) day violation.
C. Third miss without sixty (60) days free of misses since the last miss three (3) days violation.
D. Fourth miss without sixty (60) days free of misses since the last miss one (1) day suspension.
E. Fifth miss without sixty (60) days free of misses since the last miss three (3) days suspension.
F. Sixth miss without sixty (60) days free of misses since the last miss seven (7) days suspension.
G. Seventh miss without sixty (60) days free of misses since the last miss dismissal.
[2] Article 5 of the 1974-77 contract provided:
All new EMPLOYEES coming within the scope of this Agreement shall be on probation for a period of sixty (60) days from the date they complete their training requirements and report to an assigned station designated by the AUTHORITY, ready for work. Such probationary period shall constitute a trial period during which the AUTHORITY and the UNION are to judge the ability, competency, fitness, and other qualifications of new EMPLOYEES to do the work for which they were employed. During such probationary period, the AUTHORITY may discharge the EMPLOYEE at any time and its right to do so shall not be questioned by the UNION; nor shall the UNION assert or present any grievance on behalf of any such new EMPLOYEE because of any matter or occurrence whatsoever falling within such probationary period.
[3] The court contrasted "vested" rights or interests granted probationers by contract, which it found were plainly intended to be enforceable. The court viewed these as interests which were "an award of compensation," such as free passes to travel on SEMTA buses, or medical benefits. The circuit judge gave effect to article 6, § 1 by distinguishing between "vested" rights of probationers relating to benefits or compensation, and other contract provisions relating to the ability, competence, fitness or other qualifications of probationary employees.
[4] The statute requires bargaining with respect to "wages, hours, and other terms and conditions of employment." Subjects falling within the scope of this phrase are known as mandatory subjects of bargaining, Detroit Police Officers Ass'n v Detroit, 391 Mich. 44, 54; 214 NW2d 803 (1974).
[5] The MERC expressly noted that the applicability or nonapplicability of article 37 was not at issue. 1987 MERC Lab Op at 729, n 1.
[6] The strict holding in Bay City Schools was that the pendency of unfair labor practices in the Michigan Employment Relations Commission does not preclude arbitration of a contract claim arising from the same controversy. Because of the procedural stance of that case, the Court was not faced with the dilemma which might occur if the factual findings in arbitration conflicted with those made in an unfair labor practice case on the basis of the same incidents. Nor are we faced with that dilemma here, where the circuit court and Court of Appeals decisions were limited to the arbitrability of the asserted grievance, see pp 452-454.
[7] SEMTA does not dispute that discipline in general is a mandatory subject of bargaining. Rules governing attendance and setting forth disciplinary policies constitute a mandatory subject of bargaining, Pontiac Police Officers Ass'n v Pontiac (After Remand), 397 Mich. 674, 681; 246 NW2d 831 (1976).
[8] See pp 460-465.
[9] In Pontiac Police Ass'n, n 7 supra at 677, this Court decided that disciplinary procedures fall within the scope of "`other terms and conditions of employment'" and are a mandatory subject of bargaining.
[10] See Mid-Michigan Ed Ass'n v St Charles Community Schools, 150 Mich. App. 763, 768; 389 NW2d 482 (1986) (the practice of allowing teachers with employed spouses to coordinate health care benefits became a term or condition of employment although not required by contract [for further discussion see n 14]); Plymouth Fire Fighters Ass'n v Plymouth, 156 Mich. App. 220; 401 NW2d 281 (1986) (the city's practice of using fire fighters for "first response" ambulance work, an area not covered by contract, was a term or condition of employment); Westland v Westland Firefighters Ass'n, 1988 MERC Lab Op 853 (the practice of paying mileage to overtime employees required to travel to different locations for the rest of the shift, a matter not covered by the contract, was a term or condition of employment; the practice of basing overtime pay for union business on time reported by a union officer also became a term or condition of employment by virtue of past practice); Mid-Michigan Ed Ass'n v Lake Fenton Community Schools, 1988 MERC Lab Op 178 (the employer's past practice of providing long-term disability benefits not subject to offset, although not required by contract, had become a term or condition of employment).
[11] This principle is explicitly stated in two recent decisions of the commission: "To be binding, a past practice must rest on the tacit consent of both parties to the continuation of the practice." AFSCME v Detroit Transportation Dep't, 1989 MERC Lab Op 30, 35, see also Battle Creek Fire Dep't v Organization of Supervisory Personnel, 1989 MERC Lab Op 726, 735-736.
[12] For example, in NLRB v Nello Pistoresi & Son, Inc, 500 F2d 399, 400 (CA 9, 1974), the court, considering whether Christmas bonuses were protected terms or conditions of employment, stated that bonuses "are considered wages if they are of such a fixed nature and have been paid over a sufficient length of time to have become a reasonable expectation of the employees and, therefore, part of their anticipated remuneration."
[13] We have located a lone federal circuit case taking the position that "[i]n the face of ... established practice, the contract is only relevant to the extent that it may indicate the union's waiver of its right to bargain." Road Sprinkler Fitters Local Union v NLRB, 219 US App DC 228, 233; 676 F2d 826 (1982). Curiously, the court cited Office & Professional Employees Int'l Union, supra, where the court considered not only the bargaining history but the absence of a contractual provision regarding audits or auditors before concluding that the consistent use of unit employees to perform audits had become a term or condition of employment, id. at 19. The two other cases cited in Road Sprinkler Fitters for the statement that the contract is only relevant to the issue of waiver, Rose Arbor Manor v Retail Clerks Union, 242 N.L.R.B. 795 (1979), and NLRB v Sweet Lumber Co, 515 F2d 785 (CA 10, 1975), cert den 423 U.S. 986 (1975), do analyze management-rights clauses within the analytical framework of waiver. However, they do not limit the relevance of the contract to that question, nor is such a limitation required or suggested by the analyses.
[14] SEMTA would thus distinguish this case from St Charles, supra, which it apparently accepts as standing for the proposition that a practice which is contrary to a contractual term may give rise to a term or condition of employment. However, as the MERC pointed out on the remand initially ordered in St Charles, the practice of providing coordinated benefits to married teachers was not contrary to contractual provision; rather, the contract did not require such benefits but did not forbid them either. The MERC thus treated the situation as presenting the question whether a term or condition had arisen with regard to a practice not covered by the contract. 1985 MERC Lab Op 721, 723. In the Court of Appeals, the panel's characterization of the practice as contrary to contract appeared to relate to the Court's reasoning that the employer, having instituted such practice, could not rely on the contract to unilaterally alter the practice. Thus, the result was in the nature of a waiver of the waiver defense. 150 Mich. App. 769. We are not faced today with a practice that is "contrary" to contract, and we do not pass on the correctness of the rule, for which St Charles has been cited, that a practice contrary to contract may establish a term or condition of employment.
[15] In Detroit Transportation Dep't, the union charged that the transportation department had committed an unfair labor practice by unilaterally altering the "triggers" for various levels of discipline. The City of Detroit had a written policy specifying "triggers," defined by the number of hours a DOT operator had been absent in a one-year period, which would dictate what level of the six-step disciplinary procedure would be applied to a particular employee. Pursuant to the written policy, the "triggers" were to be set by reference to the average absences of the city's DOT employees in the previous year. Thus, for example, step 3 discipline would be "triggered" by fifty percent of average absences; step 4 discipline would be "triggered" by one hundred percent of average absences. Id. at 32. Despite its express reservation of the right to adjust the "triggers" each year on the basis of actual absences, DOT did not do so for seven years. Relying on St Charles, supra, the union contended that the city's "past practice" of failing to readjust the "triggers" created a term or condition of employment which could not be unilaterally altered. Id. at 33. The commission rejected this theory. First, the commission distinguished St Charles, noting that there was no conflict between the failure to readjust and the language of the policy, which allowed, but did not require, readjustment. The commission opined that merely refraining from action does not establish a "past practice" precluding future action, and found no evidence that the city had consented to the elimination of its express option contained in the written policy to readjust the "triggers" for disciplinary action. Id. at 35.
[16] However, to the extent that the Court of Appeals would require express reference to the "duty to bargain," "unfair labor practices," or the use of the word "waiver" in order to effect a valid waiver of the statutory bargaining right, it is in error. Clear and unmistakable is a high standard, but it does not require the use of key words to waive the statutory bargaining right.
[17] Hollins v Kaiser Foundation Hosps, 727 F2d 823 (CA 9, 1984), cited by SEMTA as containing contract provisions "virtually identical" to those at issue here, is distinguishable in one crucial regard. Hollins was a breach of contract action, not a statutorily based unfair labor practice claim. The stringent "clear and unmistakable" standard for waiver, thus, was not applicable in that case.
[18] such probationary period, the AUTHORITY may discharge the OPERATOR at any time and its right to do so shall not be questioned by the UNION; nor shall the UNION assert or present any grievance on behalf of any such new OPERATOR.
[19] The 1980-83 version of article 6, § 2 was read into the record in its entirety at the hearing before the hearing referee:
"During such probationary period, the operator may be represented by the Union in matters regarding wages and hours. However, during such period, the operator may be discharged by the Authority without such discharge being subject to a grievance. The Authority agrees to provide the Union with a written statement setting forth the reasons for discharge."
[1] Article 6, §§ 1-2, of the contract provided:
All new OPERATORS coming within the scope of this Agreement shall be on probation for a period of ninety (90) calendar days from the date they complete their training requirements. Such probationary period shall constitute a trial period during which the AUTHORITY judges the ability, competency, fitness, and other qualifications of new OPERATORS to do the work for which they were employed....
During such probationary period, the AUTHORITY may discharge the OPERATOR at any time and its right to do so shall not be questioned by the UNION; nor shall the UNION assert or present any grievance on behalf of any such new OPERATOR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610346/ | 76 Cal. App. 2d 639 (1946)
JOSEPH J. BURNS et al., Appellants,
v.
EUGENE R. BROWN et al., Respondents.
Civ. No. 7114.
California Court of Appeals. Third Dist.
Oct. 29, 1946.
Abraham Glicksberg, Thomas Cotter and John L. Childs for Appellants.
W. T. Miller and Paul A. Brunk for Respondents. *640
ADAMS, P. J.
This appeal is now before this court on a record consisting of a clerk's transcript and what is entitled an Engrossed Statement on Appeal. The clerk's transcript consists of the complaint and an amendment thereto, a demurrer which was overruled, the answer of defendants, findings of fact and conclusions of law, judgment, notice of appeal, and "notice by appellants pursuant to rules 6 and 7."
From the engrossed narrative statement the following appears. The trial was had on February 3, 1943, and testimony was given by the parties and other witnesses. Thereafter, on April 23, 1943, the court filed a "Memorandum of Decision" which is set forth in the statement. Defendants proposed findings and conclusions which are also set forth. Plaintiffs proposed "other and different findings contrary to the findings as proposed by defendants and contrary to the memorandum of decision," but said proposed findings are not set forth. Thereafter, on or about August 15, 1943, appellants proposed additional findings which are set forth. At a hearing before the court subsequent to the trial it was orally stipulated by counsel for the parties that the property be surveyed under the direction of the court by a disinterested surveyor for the sole purpose of ascertaining the correct description of an overlap. It was also stipulated that, there being no disinterested surveyor in Del Norte County, Hal C. Acheson, a licensed surveyor from Humboldt County, be appointed to survey the overlap. In accordance with said stipulation the court made what is designated as "An Order, on Court's own motion, appointing Surveyor to determine exterior boundaries of premises claimed by the parties hereto." Said order is set forth. Thereafter, "pursuant to said oral stipulation and said order," Acheson and the trial judge proceeded to the claims and "under the direction of the court, solely from evidence produced at the trial," Acheson surveyed the overlap of the two claims on September 3, 1943. Acheson thereafter filed in the court a map showing the overlap, copy of same was furnished to counsel for both parties, and no objection to said map was made by either party. The court's findings and judgment are included in the engrossed statement. It then recites that judgment was entered January 5th, notice was served on plaintiffs' attorneys on January 10th, and on February 2d plaintiffs filed notice of intention to move for a new trial. Said motion was heard on February 28th, but no ruling made thereon for the reason that it was not filed in *641 time. The Order Settling Narrative Statement is dated September 19, 1944, and the engrossed statement, amended, was certified and approved November 6, 1944.
The substance of plaintiffs' complaint filed in the action was that they located a mining claim in Del Norte County on September 19, 1939, known as the "High Plateau"; that while they were in possession of same, defendants, "by force of arms and great violence," ousted plaintiffs from said claim and have ever since withheld possession from plaintiffs. Defendants in their answer denied that plaintiffs had located the said claim, alleged that the premises in controversy had been located by them and had been in their lawful possession long prior to November, 1939, and that plaintiffs had trespassed thereon.
The trial court found that both plaintiffs and defendants had made valid locations, but that there was an overlapping of the two claims, and that defendant Eugene R. Brown was the prior locator of the overlapping portion. The judgment quieted the plaintiffs' title to the location claimed by them except as to the overlap, and quieted defendants' title to their claim including the overlap. A blueprint of the survey of the overlap made by Acheson is attached to and made a part of the judgment.
Plaintiffs on February 25, 1944, filed notice of appeal from the portions of the judgment in favor of defendants, and on March 6, 1944, filed a notice "Pursuant to rules 6 and 7," stating therein that they desired in "lieu of a reporter's transcript to pursue and perfect their appeal upon an agreed or settled statement as provided for in said Rules 6 and 7."
On August 7, 1944, defendants filed in this court a motion to dismiss plaintiffs' appeal on the ground that no notice to the clerk to prepare a transcript had been filed, and that no transcript was on file as required by rule 5 of the Rules on Appeal. In a written opposition to this motion to dismiss, appellants alleged that said motion was premature in that there was pending before the trial court the matter of settlement of a narrative statement on appeal "pursuant to Rule 7b of the Rules on Appeal." Said written opposition was accompanied by an affidavit of counsel for appellants which averred that an order settling a narrative statement pursuant to rule 7(b) had been made by the trial court, and that appellants *642 intended to cause said statement to be engrossed and to prosecute their appeal regularly.
In view of the foregoing allegations of appellants a dismissal of the appeal was denied without prejudice (Burns v. Brown, 66 Cal. App. 2d 142 [151 P.2d 899]). On November 27, 1944, the engrossed statement was filed in this court. On December 4, 1944, appellants filed herein a petition to prove transcript under section 652 of the Code of Civil Procedure in which they averred that the statement settled by the trial court was not in accordance with the facts in that it did not include the judgment roll, the notice of appeal, the notice to the clerk of election to proceed by settled statement, the complaint, the answer, or any statement of the oral proceedings; and, particularly, that it excluded appellants' proposed statement of oral proceedings reflecting additional evidence taken out of court in connection with the survey of the overlap, which appellants contended was irregular and prejudicial to their rights; and that all of said omitted matters were "necessary and proper parts of the record on appeal, necessary and material to a determination of the appeal on the merits, and necessary and material to the presentation and substantiation of the points relied upon by appellants on appeal, and specified in their proposed statement of the case." This petition was denied by this court without opinion, whereupon appellants petitioned for a hearing in the Supreme Court, asserting in their petition therefor that "appellants' points on appeal cannot be adequately presented in the absence of a proper record in accordance with the facts."
The Supreme Court granted a hearing, and on February 8, 1946, rendered a decision which relieved appellants from default in failing to include in their notice of appeal a request for a clerk's transcript, and directed the trial court to include in the record on appeal the judgment roll, notice of appeal, and notice of election to proceed under rule 7 (Burns v. Brown, 27 Cal. 2d 631 [166 P.2d 1]). It held, however, that section 652 of the Code of Civil Procedure was not applicable to the preparation of a record under the new rules; that appellants, in effect, were asking an appellate court to settle a statement of the case when they had been unsuccessful in obtaining settlement of their statement by the trial court, but that the object of the settled statement procedure would be frustrated by such a procedure; that rule 12 of the Rules on Appeal does not authorize a reviewing court to take the *643 place of the trial court and determine whether a proposed statement accurately and fairly reflects the proceedings in that court; and that having failed to make a timely motion for a new trial on the ground of asserted impropriety of the survey of the overlap, appellants cannot demand that their version of the proceedings surrounding the survey be incorporated in a settled statement as the authentic description of the proceedings when the trial judge denies its authenticity.
Subsequent to the decision of the Supreme Court there was filed in this court the clerk's transcript aforementioned, and the case is before us on that record and the engrossed statement as originally settled.
In their briefs before us on this appeal appellants contend that the parts of the judgment from which they appealed should be reversed for two reasons, the one that the evidence is insufficient to support the part respecting the overlap, and the other because of alleged irregularities in the proceedings of the court and the surveyor which operated to the prejudice of appellants.
[1] Since the record before us does not contain the evidence in the case obviously we cannot review same to determine the sufficiency of that evidence to sustain the judgment. All intendments are in favor of such judgment, and it will be presumed that the omitted evidence supports the findings (Hughes v. DeMund, 7 Cal. 2d 504, 505-506 [61 P.2d 455]; Loewenberg v. Schneider, 14 Cal. 2d 305, 307 [93 P.2d 1014]; Fares v. Morrison, 54 Cal. App. 2d 773, 775 [129 P.2d 735]; Klein v. Maddox, 59 Cal. App. 2d 141, 144 [138 P.2d 28]; 4 C.J.S. 1675-1677).
[2] Regarding the alleged irregularities in the proceedings pertaining to the survey, appellants persist in stating that the order appointing the surveyor was made on the court's own motion, though the agreed statement as settled and signed by appellants' counsel states that it was orally stipulated by counsel for the parties that it be surveyed under the direction of the court by a disinterested surveyor for the purpose of ascertaining the correct description of the overlap, and that Hal C. Acheson be appointed to make such survey; and that the order of the court was made "in accordance with said stipulation." They also set forth in their brief a statement of their version of how said survey was conducted, saying that it was made in the presence of defendant Eugene R. Brown and one *644 of his attorneys, and a third person, and in the absence of plaintiffs and their attorneys, and that the trial judge conferred with those present and with the surveyor; that the surveyor did not attempt to locate the alleged corners on the south side of defendants' claim, and was instructed by the trial judge not to attempt to do so. Appellants admit that no reference to the record can be made in support of these statements, but assert that they were "omitted from the record through no fault of appellants," and that they are supported by two affidavits, which affidavits are set forth in an appendix to the brief though nowhere made a part of the record on appeal. Appellants then state that if respondents challenge the truth of such statements appellants "invoke Rule 12(c) of the Rules on Appeal and ask this court to submit to the superior court for settlement the differences of the parties with respect to such omissions to the end that the superior court shall make the record conform to the truth."
Substantially the same argument as this was made on appellants' prior motion to augment the record under rule 12. That argument was disposed of by the Supreme Court when it said that any such conflict could not be solved by an appellate court's authority under rule 12; that appellants' version of the proceedings surrounding the survey, and the affidavits supporting it would have constituted part of the record had appellants made a timely motion for a new trial; and that having failed to make such a motion within the period prescribed therefor, they cannot demand that their version be incorporated in a settled statement as the authentic description of the proceedings when the trial judge denies its authenticity.
As for appellants' assertion that the statements which they make in their brief were omitted from the record through no fault on their part, this is contradicted on the face of the record, for, as pointed out by the Supreme Court, they could have secured their incorporation by a timely motion for a new trial. And as for the record of the oral proceedings during the trial, appellants could have exercised the right given under the rules to bring up a reporter's transcript upon failure to obtain a settled statement, as was also pointed out by the Supreme Court, citing Averill v. Lincoln, 24 Cal. 2d 761 [151 P.2d 119].
We agree with appellants' assertion in their petition to the Supreme Court that their "points on appeal cannot be adequately *645 presented in the absence of a proper record"; and since appellants have failed to present such a record the judgment must be and it is hereby affirmed.
Peek, J., and Thompson, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2984278/ | Petition for Writ of Mandamus Dismissed and Memorandum Opinion filed
April 15, 2014.
In The
Fourteenth Court of Appeals
NO. 14-14-00269-CR
IN RE JASON RAY BOUCHARD, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
178th District Court
Harris County, Texas
Trial Court Cause No. 1374815
MEMORANDUM OPINION
On April 4, 2014, relator Jason Ray Bouchard filed a petition for writ of
mandamus in this Court. See Tex. Gov’t Code § 22.221; see also Tex. R. App.
P. 52. In the petition, relator asks this Court to compel his appointed defense
attorney and the State’s attorney to provide relator copies of any documents filed
with this Court in his related appeal.
Our mandamus jurisdiction is limited. By statute, we have authority to issue
a writ of mandamus against a judge of a district or county court in our court of
appeals district, and as necessary to enforce our appellate jurisdiction. See Tex.
Gov’t Code § 22.221. Relator does not identify as a respondent a judge of a district
or county court. Nor is issuance of the writ against either of the named respondents
necessary to enforce our jurisdiction. Therefore, we have no jurisdiction to grant
the requested relief.
Accordingly, we dismiss relator’s petition for writ of mandamus for lack of
jurisdiction.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Donovan and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).
2 | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2899945/ | NO. 07-08-0279-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JANUARY 12, 2009
______________________________
TEXAS MUTUAL INSURANCE COMPANY,
Appellant
V.
GOETZ INSURORS, INC. AND
GOETZ INSURORS, INC., AS ASSIGNEE
OF THE CLAIMS OF CATTLECO, INC.,
Appellees
______________________________
FROM THE 64th DISTRICT COURT OF SWISHER COUNTY;
NO. A-10810-05-11; HON. ROBERT W. KINKAID, JR., PRESIDING
_______________________________
ON ABATEMENT AND REMAND
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant Texas Mutual Insurance Company appeals from the final judgment of the trial court. On August 11, 2008, the clerk’s record was filed. The reporter’s record was due on October 15, 2008. No extension motion or reporter’s record was filed. On October 22, 2008, this court directed the court reporter by letter “to advise the Court of the status of the reporter’s record on or before November 3, 2008." In response, the Court received a motion for extension of time to file the record, which was granted to November 14, 2008. No extension motion or record was filed by that date. On December 1, 2008, the Court again notified the reporter that the record had not been filed and the reporter was asked to provide the status of the record by December 10, 2008. On December 10, 2008, the reporter filed her second extension motion requesting until January 12, 2009, to file the record, which was granted. On January 5, 2009, this Court received the court reporter’s third extension request asking for an additional thirty days to file the record.
Accordingly, we abate this appeal and remand the cause to the 64th District Court of Swisher County (trial court) for further proceedings. Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine:
when the reporter’s record can reasonably be transcribed into written form and filed in a manner that does not further delay the prosecution of this appeal or have the practical effect of depriving the appellant of their right to appeal.
The trial court shall cause the hearing to be transcribed. So too shall it 1) execute findings of fact and conclusions of law addressing the foregoing issues, 2) cause to be developed a supplemental clerk’s record containing its findings of fact and conclusions of law and all orders it may issue as a result of its hearing in this matter, and 3) cause to be developed a reporter’s record transcribing the evidence and arguments presented at the aforementioned hearing, if any. Additionally, the district court shall then file the supplemental clerk’s and reporter’s records transcribing the hearing with the clerk of this court on or before February 11, 2009. Should further time be needed by the trial court to perform these tasks, then same must be requested before February 11, 2009.
It is so ordered.
Per Curiam
Do not publish. | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/703301/ | 65 F.3d 161
Coldwell, Banker & Company, Coldwell, Banker Residential Real Estatev.Louis DeMauro, Homes International, Inc., PreviewsProperties, Previews International, Inc.
NO. 94-5597
United States Court of Appeals,Third Circuit.
July 07, 1995
Appeal From: D.N.J., No. 90-cv-03058,
Brown, J.
1
AFFIRMED. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2430576/ | 339 S.W.2d 933 (1960)
HARBISON-WALKER REFRACTORIES COMPANY et al., Appellants,
v.
UNITED BRICK AND CLAY WORKERS OF AMERICA, AFL-CIO LOCAL NO. 702, Appellee.
Court of Appeals of Kentucky.
November 4, 1960.
*934 Thos. D. Theobald, Jr., Grayson, for appellants.
O. F. Duval, Olive Hill, for appellee.
CLAY, Commissioner.
This is an appeal from a summary judgment confirming an arbitration award between the appellant employer (hereinafter referred to as Company) and appellee defendant labor union, and further directing appellant employees to acquire and maintain membership in the union.
The suit was initiated as a declaratory judgment action by the Company and certain of its employees who were not members of the defendant union. The questions raised were whether or not (1) the Company's employees in Morgan County, Kentucky, were covered by the labor union contract, (2) such employees were required to join the union, and (3) the dispute was a proper subject of arbitration. Shortly after this suit was filed the defendant union brought an independent action to enforce the ex parte award of the arbitrator (which had decided these questions favorably to the union) and the cases were consolidated.
The union contract was between the Company, the parent union and Local Union No. 702 "whose members are employed at the Company's Olive Hill, Kentucky Works and Brinegar and/or Sparkman Mines and/or Olive Hill, Kentucky clay pit and/or Brinegar and/or Sparkman stripping operations."
About six months after the execution of this contract the Company began new operations in Morgan County, which were not directly related to the operations referred to in the contract. The employees there were not "members" of the union designated as parties to the agreement. The union demanded jurisdiction of the Morgan County operations and two grievances alleged the Company had violated the contract by failing to post jobs available in Morgan County and by refusing to recognize the seniority right of a union member to a job in Morgan County. (Another grievance is unimportant here.) The Company took the position that the Morgan County operation could not be the basis for "grievance" procedure under the contract and it refused to join in the appointment of an arbitrator (provided for therein) to settle the dispute.
The union thereupon requested appointment of an arbitrator by the American Arbitration Association (procedure authorized by the contract), who conducted a hearing and entered an award. In substance the arbitrator found that (1) this was an arbitrable dispute involving the "interpretation or application of the provisions of this contract * * *" (the language used in the contract), (2) the Morgan County jobs were covered by it, and (3) the complaining union members had justifiable claims.
The basic contentions of the Company and the non-union Morgan County employees are that the dispute between the parties is not a proper subject of arbitration under the contract, the arbitrator could not decide this question, and the court erroneously confirmed the award.
1. Jurisdiction of State Court
*935 In its original brief the Company contended the circuit court did not have jurisdiction of the subject matter because the enforcement of arbitration agreements is exclusively a federal matter under section 301(a) of the Labor Management Act of 1947, which relates to "Suits for violation of contracts." 29 U.S.C.A. § 185. This contention was made despite the fact that the Company initiated these proceedings to contest the arbitration award in the state court. We gather from its later brief that it has abandoned this untenable position.
Both parties apparently assume these proceedings are within the scope of section 301(a) and no question is presented on that score. See Mengel Company v. Nashville Paper Prod. and Spec. Workers Union, 6 Cir., 221 F.2d 644. Accepting this view, it appears that both federal and state courts have concurrent jurisdiction to enforce collective bargaining agreements, particularly agreements to arbitrate. See McCarroll v. Los Angeles County District Council of Carpenters, 49 Cal. App. 2d 45, 315 P.2d 322, and Coleman Company, Inc. v. International Union, Etc., 181 Kan. 968, 317 P.2d 831. The circuit court had jurisdiction.
2. Validity of Ex Parte Arbitration Procedure
The Company next takes the position that the contract does not authorize the ex parte appointment of an arbitrator whose award shall be binding on the parties. The contract provides that in the event the parties cannot agree upon an arbitrator "either party shall have the right to request the American Arbitration Association to appoint an arbitrator." We are unable to comprehend what could possibly be the purpose of this provision unless the arbitrator so appointed would have the right to arbitrate the dispute and finally to settle it. Otherwise the language would be meaningless. The sentence following this provision in the contract, at least by implication, shows plainly that such arbitrator does have the full power to act on the dispute (provided it is an arbitrable matter.)
The many cases cited by the Company involve contracts containing no such wording. A comparable arbitration provision was considered and ex parte proceedings upheld in Battle v. General Cellulose Company, 23 N.J. 538, 129 A.2d 865. It seems clear on this record that the union scrupulously followed the only proper procedure to secure an arbitrator when the Company refused to participate. There was no procedural impropriety.
3. Authority of Arbitrator to Determine Conclusively Whether or Not the Dispute was an Arbitrable One
We are now approaching the heart of this controversy. The contract provides that a dispute may be finally settled by an arbitrator "if the issue involves the interpretation or application of this Contract." It also provides "The Arbitrator shall not, however, have the power to alter, disregard, or amend any of the provisions of this Contract." It does not specifically provide (as some contracts do) that the arbitrator shall have the power to determine whether or not the matter presented is a proper subject of arbitration.
As an original proposition, some members of this Court are inclined to the view that if an arbitrator has authority to determine the "application" of the contract, this may well include the right to determine whether or not a particular grievance is one subject to arbitration. However, since this proceeding involves a controversy arising under the Federal Labor Management Act of 1947, and since we are treating it as a suit under section 301(a) of that Act, we have been enjoined by the Supreme Court of the United States to apply the federal substantive law. In Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S. Ct. 912, 1 L. Ed. 2d 972, that Court declared that federal interpretation of the federal law will govern the remedial *936 rights of the parties. This was recognized by the California Supreme Court in McCarroll v. Los Angeles County District Council of Carpenters, 49 Cal. App. 2d 45, 315 P.2d 322, wherein it was acknowledged that state courts must apply the federal law pertaining to collective bargaining agreements.
On the question of whether or not an arbitrator has the authority to decide if the matter is arbitrable, the federal courts have created a solid body of substantive law. They have consistently held that in actions brought to compel arbitration (and these proceedings may be said to involve the same considerations) the issue of arbitrability is one of law to be decided by the courts in the absence of a specific agreement that the arbitrator shall decide it. Cases so deciding, in which was considered the identical language we have here ("interpretation or application" of the contract), are: Local No. 149 of American Federation of Technical Engineers v. General Electric Co., 1 Cir., 250 F.2d 922; Boston Mutual Life Ins. Co. v. Insurance Agents' Int. Union, 1 Cir., 258 F.2d 516; New Bedford Defense Products Division of Firestone Tire & Rubber Co. v. Local No. 113, Etc., 1 Cir., 258 F.2d 522; Brass & Copper Workers Federal Labor Union No. 19322 A.F.L.-C.I.O. v. American Brass Company, 7 Cir., 272 F.2d 849.
In Lodge No. 12, Dist. No. 37, International Ass'n of Machinists v. Cameron Iron Works, 5 Cir., 257 F.2d 467, 470, 471, where the words "meaning, application or interpretation" of the contract were construed, the court summed up the governing principle (with numerous citations in support thereof) in the following language:
"Initially, the appellant earnestly contends that the question of arbitrability should be determined by the arbitration board in this case, saying that the lower court should not have decided the issue of arbitrability in view of the contract provision that `any grievance' could be arbitrated. While there is much to say in favor of appellant's argument, the courts have, with practical uniformity, held the question of arbitrability to be an issue for the courts that is, the courts decide if the particular grievance is arbitrable under the terms of the collective bargaining contract. This is true even where the contract specifies that any controversy relating to the meaning or interpretation or application of the contract is arbitrable. Perhaps, if the contract expresses that the arbitrators will decide arbitrability, the courts would refrain from a decision."
See also United Steelworkers of America v. Warrier & Gulf Navigation Co., 5 Cir., 269 F.2d 633, 636 ("meaning and application"), and Cuneo Eastern Press, Inc., of Pennsylvania v. Book Binders and BWU, 176 F. Supp. 956, 958 ("interpretation or enforcement").
The strongest language on this question (although similar wording was not involved) appears in American Stores Company v. Johnston, D.C., 171 F. Supp. 275, 277, as follows:
"The cases have almost uniformly held that, absent clear evidence of a contrary intent, the question of arbitrability vel non is to be judicially determined. Only where the parties have unequivocally expressed a desire that the arbitrators shall determine their own jurisdiction will that issue be withdrawn from the Courts."
We believe we are bound by the construction of these contracts which has been adopted in the cited cases. The union fails to cite a single authority to the contrary. Its only case on this point is Local 201, International Union of Elec., Radio and Machine Workers, A.F.L.-C.I.O. v. General Electric Company, 1 Cir., 262 F.2d 265, wherein the court used language to the effect that an agreement may be interpreted to empower the arbitrator finally to determine the issue of arbitrability, but strangely this case involved an agreement which *937 specifically provided that the arbitrator could not decide this question.
Under the contract before us there does not appear any specific language to indicate the arbitrator was empowered to determine his own jurisdiction of the controversy. Much less is there clear evidence of such an intent. Basically this is a question of law and when there is a dispute about it, as here, the matter must be determined by a court.
4. Is the Dispute an Arbitrable One?
As we have indicated, the question of arbitrability under this contract is an issue of law. The trial court did not decide it, but simply confirmed the finding of the arbitrator (which included the determination). We believe the issue must be independently tried by the court. We are doubtful that in the state of this record it may be adjudicated on motion for summary judgment. One of the basic problems in the controversy is whether or not drillers and drill helpers, in places other than those referred to in the contract, are subject to its provisions. Another is whether or not the rights of the individual appellants, who are not parties to the contract, can be conclusively decided by an arbitrator. Apparently there are disputed questions of fact upon which proof should be introduced before a correct conclusion with respect to arbitrability may be reached. This determination involves both findings of fact and conclusions of law. It is possible the parties may stipulate the material facts, but in any event, the court must make an independent determination of whether or not the dispute is arbitrable.
5. Conclusion
From the foregoing it is our conclusion that the summary judgment confirming the arbitrator's award was erroneous; that the issue of arbitrability must be reconsidered independently by the court (upon proof if necessary); and that if it is determined the dispute is arbitrable under the provisions of the contract, the award may be confirmed. If a contrary conclusion is reached, the award must be adjudged of no legal effect. In the latter event further proceedings and/or additional determinations may be required to adjudicate finally the respective rights of the parties.
The judgment is reversed for proceedings consistent with this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3354277/ | This habeas corpus petitioner has briefed three claims upon which he bases his prayer for relief that his guilty plea to an escape charge be vacated.
FACTS
The factual circumstances leading up to this proceeding may be summarized as follows. The petitioner was convicted of the crimes of escape from custody in violation of 53a-171 of the C.G.S. and possession of weapons in a motor vehicle, in violation of 29-38. He was later transferred to the Supervised Home Release Program (hereinafter referred to as "SHR").
On April 18, 1990, the petitioner executed a Corrections Department form entitled "Conditions of Community Residence." This form stated in part that "I agree that failure to report to my assigned supervisor as directed will be regarded as the crime of escape."
On August 28, 1990, the petitioner made his last appearance at the parole office, and on October 24, 1990, the parole officer decided to charge him with escape from custody.
The petitioner offered his version of these failures to report, suggesting the parole officer was in error and that he had not been ordered to report in person.
I.
In a habeas corpus proceeding, the petitioner is required to allege and prove that he did not deliberately bypass the opportunity to take an appeal. Nardini v. Manson, 207 Conn. 118, 123
(1988). In this matter, the petitioner was not advised of his right to appeal. The court therefore finds that he did not deliberately bypass the orderly procedure of a direct appeal.
II.
The petitioner has briefed the claim that 53a-169 is void for vagueness. The court notes that his petition contains no such claim as to this statute and therefore it should not be considered by the court. Actually, the petitioner's other attack on this same CT Page 5493 statute as set forth in his petition is at variance with this claim, and there was evidence offered to support the other theory. The court does not find merit to this claim, noting parenthetically that as statutes go, it is a model of simplicity and clarity.
III.
The petitioner also argues that since 53a-169 contains no language that a failure to report to a parole officer is an escape, his due process rights have been violated. He relies in great part on our Supreme Court's decision in State v. Lubus, 216 Conn. 402
(1990). In so doing, however, he overlooks the language of the Supreme Court at page 409:
The unifying overall theme of Sec. 53a-169 is that an individual will risk punishment for `escape' for an unauthorized departure from, or failure to return to, whatever may be designated as his plan of incarceration on confinement.
The Court goes on to conclude that a single failure to report cannot reasonably be construed as an unauthorized departure or failure to return. It also notes this, however:
We need not decide today whether, at some juncture, repeated failures to report as scheduled would reasonably support an inference of present or imminent custodial irregularity and thus evidence a violation of Sec. 53a-169 (a)(2).
The Court would appear to have had cases such as this one in mind when it decided the Lubus case and this court finds nothing in that case to support the petitioner's position.
IV.
The petitioner also argues that the plea canvass was deficient in that the judge who accepted his guilty plea did not determine that he understood the nature of the offense to which he pleaded and that he was aware of the consequences of the plea.
While the plea canvass was not in conformity with 711 of the Practice Book, this does not automatically permit the petitioner to vacate his guilty plea. The right to vacate only follows a further finding of prejudice to the petitioner as a result of the faulty canvass. D'Amico v. Manson, 193 Conn. 144 (1984).
The petitioner signed a Community Residence Agreement with his parole officer on April 18, 1990. That document indicated that a failure to report would be considered an escape. In addition, prior to the acceptance of the plea, the state's attorney recited the factual basis for the plea. In the course of his narration, he CT Page 5494 stated the dates which were pertinent and explained what acts led to the charge of escape.
Then, in the canvass, the petitioner waived his rights to a court or jury trial with the assistance of counsel, indicated the plea was voluntary, and stated he was aware of the sentence he would receive.
It appears clear that the recitation of the facts, coupled with his prior agreement to report, and the canvass, combined to give this petitioner notice of the nature of the offense and his agreement with the sentence he would receive. It should be noted also that this petitioner was not a total stranger to escape charges, as a conviction of 53a-171, escape from custody, was one of the charges on which he was paroled.
Our courts are under no constitutionally-imposed duty to establish a factual basis for a guilty plea prior to its acceptance unless the judge is put on notice that there may be some need for such an inquiry. Parker v. Manson, 203 Conn. 484, 490-91 (1987).
The simple, plain, unadorned truth is and was that Mr. Thompson dropped out of sight and failed to report to his parole officer on several occasions. He could not be located. There was nothing about this simple scenario to indicate to the judge who accepted the plea that some further inquiry was appropriate.
The petitioner in his brief has made a legal attack on 53a-169
and argued as to its applicability to the petitioner's action. However, it is doubtful at best that had the court read the statute or discussed it, the petitioner would have decided not to plead to it. He knew nothing of the Lubus decision on which the legal attack in his brief relies. The petitioner had no alternative but to plead to the charge. He has demonstrated no prejudice thereby and his attack on the plea canvass must fail.
V.
The petitioner's prayers for relief are denied.
[EDITORS' NOTE: CT Page 5495 to 9497 are blank.] CT Page 5498 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/91506/ | 116 U.S. 108 (1885)
COYLE
v.
DAVIS & Another.
Supreme Court of United States.
Submitted December 4, 1885.
Argued December 9, 1885.
Decided December 21, 1885.
APPEAL FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.
*109 Mr. Benjamin F. Butler and Mr. O.D. Barrett for appellant.
Mr. W.D. Davidge and Mr. Henry E. Davis for appellees.
MR. JUSTICE BLATCHFORD delivered the opinion of the court.
This is an appeal from a decree of the Supreme Court of the District of Columbia, made in general term, July 6, 1880, dismissing the bill of complaint, in a suit in equity brought by John F. Coyle against Henry S. Davis, William E. Spalding, and William W. Rapley. The bill was filed May 24, 1869, to redeem a parcel of land in the city of Washington alleged to be covered by a mortgage held by the defendant Davis. The substantial averments of the bill are, that Coyle, Spalding, and Rapley, in April, 1863, purchased the land, as tenants in common, and it was, by their mutual consent, deeded to Rapley; that Coyle's share was encumbered by a deed of trust executed as security for a loan made to Coyle by one Riggs; that, in order to pay Riggs, Coyle, in June, 1866, applied to Davis for a loan of $6000; that Davis had, for a long time, made many professions of warm friendship for Coyle, and of willingness and desire to serve him, and had acquired Coyle's full confidence, and, upon such application, offered to make to Coyle such a loan as would both pay Riggs and settle up all Coyle's accounts with Spalding and Rapley, in respect of the land, and, as security for the loan, asked a mortgage on Coyle's undivided one-third of the land, which would thus be free from all encumbrance and indebtedness, and suggested that a statement of Coyle's accounts with Spalding and Rapley be furnished to him, Davis; that, on or about June 12, 1866, Davis was furnished with a written instrument signed by Spalding and Rapley, fully setting forth Coyle's account in respect of the land; that, thereupon, Davis, *110 well knowing that one-third interest in the land was worth about $30,000, and would increase in value, urged Coyle to take a loan from him of about $17,000, in order to settle his account with Spalding and Rapley, as well as pay his debt to Riggs, and to give him, Davis, a mortgage on Coyle's interest, as security; that, as inducement to this course, Davis represented that the arrangement proposed by him would be freer from complication than any other, and would give him an independent security for the loan, and that his business, as well as his desire to serve Coyle, would afford him opportunity to effect, for the benefit of Coyle, a highly advantageous sale of said interest in the premises, from the proceeds of which he could retain the balance due on his loan, and pay over the residue to Coyle, and that this arrangement would tend to the benefit of both parties; that Coyle acceded to the proposition, and Davis loaned to Coyle $17,659.46, by advancing $6000 to pay the debt to Riggs, and assuming the payment, to be made as it should fall due, of the unpaid balance on Coyle's one-third interest, viz., $11,659.46; that, as security for the loan, Davis took a mortgage on Coyle's undivided one-third of the land, in the manner following, to wit: Rapley and Coyle, on or about July 6, 1866, conveyed to Davis Coyle's undivided one-third interest in the land, by a deed absolute in form, but the force and operation of which were defeated by the understanding, agreement, and contract between Coyle and Davis, that the deed was executed as security for the loan, and that between the parties the conveyance should have the operation, force, and effect of a mortgage, and none other, and that Davis should enter upon, and take possession of, the mortgaged property, as security for the loan, and subject to an account for its rents and profits, and whenever Coyle should offer to redeem the property an account should be had in respect of the rents and profits received by Davis, on the one hand, and of Coyle's debt, principal, and interest, on the other hand, and, on proffer of payment of the sum thus found due, if any, from Coyle to Davis, Davis, by conveyance of the property to Coyle, should surrender possession of it to Coyle, and while Davis should continue in possession as mortgagee, if he should have an opportunity *111 to effect an advantageous sale of the property, he should do so for the benefit of Coyle, and should convey title to it and receive the purchase-money, and deduct the balance, if any, due on the loan, over and above the rents and profits meanwhile received by him, and pay over the residue to Coyle; and that Davis went into possession of the property and had received its rents and profits for three years, and had frequently admitted that the transactions between him and Coyle were as above set forth.
The answer of Davis alleges that Rapley, on taking a conveyance of the land, encumbered it, by a deed of trust, with a debt of $20,000, to secure unpaid purchase-money, which was not paid when the deed from Coyle to Davis was made; and that at that time there was a further encumbrance on Coyle's interest of $4100 as a debt to Riggs, secured by a deed of trust of that interest. It denies the allegations of the bill as to the application for a loan, or the offer of a loan, or the asking for a mortgage, or the suggesting or furnishing of a statement of account, and all the other allegations of the bill as to the making of a loan or of a mortgage, or of a deed as security for a loan or as a mortgage. It alleges the facts to be that, about six or eight weeks before the making of the deed to Davis, he was applied to by one Winder, acting as agent for Coyle, to make a loan to Coyle, to be secured by a deed in fee of Coyle's interest in the property, which application was rejected, and it was renewed in person by Coyle, with the same result; that when Coyle renewed it, he exhibited to Davis a paper purporting to show the cost of the property and the money value of the one-third interest of Coyle, after deducting the balance due by him on account of such interest, and $6666.66 as one-third of the unpaid purchase-money; that, afterwards, Coyle proposed to Davis to sell his interest to him for $20,000, but he rejected that proposition, and finally, in July, 1866, offered Coyle $18,000 in cash for such interest, which offer Coyle accepted; that Davis insisted that before the purchase-money should be paid the account of Coyle in respect of the property should be settled; that thereupon the indebtedness of Coyle to Spalding and Rapley in respect of the property was ascertained by a settlement *112 dated July 7, 1866, a copy of which is annexed to the answer, to be $6258.71; that Davis paid the $6258.71 to Spalding and Rapley, and paid to Riggs what was due to him, and paid the balance in cash to Coyle, less the $6666.66, which was reserved, with the approbation of Coyle, to pay his share of the unpaid purchase-money, and was afterwards paid by Davis; that, on July 7, 1866, Davis received from Coyle a deed executed by Coyle and Rapley and their wives, conveying to him in fee-simple the one-third interest of Coyle; that he took possession of it, and has received its rents and profits, as absolute owner, recognized as such by Coyle and his co-tenants; that Coyle's interest at the time Davis purchased it was not worth $30,000, and Coyle never asked from Davis more than $20,000 for it; and that Davis never admitted that he was mortgagee in possession in respect of Coyle's interest.
The volume of proof taken on the issue thus raised is large, and the evidence is contradictory, as is common in such cases, where, admittedly, a loan of some kind was at some time talked about. The conveyance to Davis of the undivided one-third interest of Coyle being to him, his heirs and assigns, forever, with a covenant of warranty, and without a defeasance, either in the conveyance or in a collateral paper, the parol evidence that there was a debt, and that the deed was intended to secure it and to operate only as a mortgage, must be clear, unequivocal and convincing, or the presumption that the instrument is what it purports to be must prevail. This well-settled rule of equity jurisprudence was applied by this court in Howland v. Blake, 79 U.S. 624, 626. The case stated in the bill herein is not supported by the weight of evidence. On the contrary, it sustains the allegations of the answer. Especially, the force of the letter of Coyle to Davis, of June 11, 1867, is not broken by any satisfactory explanation. It would serve no useful purpose to discuss the testimony at length. There is but one point to which it is needful to refer. Great stress is laid, in cases of this kind, on inadequacy of consideration, where there is a considerable disproportion between the price paid and the real value of the property. Russell v. Southard, 12 How. 139, 148. There is testimony on both sides, on the question of disproportion, in this *113 case. But the preponderance is very large on the part of Davis, that the share of Coyle in the property was sold for about its sale value, in view of its condition. There was a poorly built and poorly arranged building on the premises, which was incapable of actual partition; the law did not permit a partition by a sale in invitum; and Coyle's interest was a minority interest. These considerations made it difficult of sale at all.
Decree affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1523623/ | 226 B.R. 385 (1998)
In re Frank P. FRANCIS, also known as Francis General Construction, Debtor.
ED SCHORY & SONS, INC. and Robert G. Schory, Jr., Plaintiffs-Appellees,
v.
Frank P. FRANCIS, also known as Francis General Construction, Defendant-Appellant.
BAP No. 98-8023.
United States Bankruptcy Appellate Panel of the Sixth Circuit.
Argued September 2, 1998.
Decided November 10, 1998.
*386 Richard A. Princic, Day, Ketterer, Raley, Wright & Rybolt, Canton, OH, for Appellees.
Joseph F. Scott, Canton, OH, for Appellant.
Before LUNDIN, RHODES, and STOSBERG, Bankruptcy Appellate Panel Judges.
OPINION
The Debtor, Frank P. Francis, has appealed the bankruptcy court's grant of summary judgment in favor of the Plaintiffs (Schory) in a nondischargeability action under § 523(a)(2)(A). The bankruptcy court determined that due to several prior state court decisions, collateral estoppel barred Francis from relitigating whether his debt resulted from his fraud. The Ohio Supreme Court had previously held that a letter in which Francis admitted that he had fraudulently misappropriated funds from Schory was substantially true. The bankruptcy court further determined that a prepetition settlement agreement between the parties did not operate as a novation which extinguished Schory's fraud claim for purposes of § 523(a)(2)(A).
The issue of novation in the context of § 523(a)(2)(A) is a novel issue in the Sixth Circuit. The Panel finds the reasoning of United States v. Spicer, 57 F.3d 1152 (D.C.Cir.1995) persuasive, and holds that a general release as part of a tort settlement does not constitute a novation which extinguishes a creditor's fraud claim in the context *387 of § 523(a)(2)(A). Furthermore, the bankruptcy court properly applied collateral estoppel. Accordingly, the Panel affirms the bankruptcy court's order finding that the debt is nondischargeable.
I. ISSUES ON APPEAL
There are two issues on appeal. The first is whether the bankruptcy court erred in granting summary judgment on the basis of collateral estoppel. The second is whether the parties' prepetition settlement agreement operates as a novation that extinguishes Schory's nondischargeability claim under § 523(a)(2)(A), which did not exist at the time of the prepetition settlement agreement.
II. JURISDICTION AND STANDARD OF REVIEW
The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide this appeal. The United States District Court for the Northern District of Ohio has authorized appeals to the BAP. A "final order" of a bankruptcy court may be appealed by right under 28 U.S.C. § 158(a)(1). For purposes of appeal, an order is final if it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989) (citations omitted).
Conclusions of law are reviewed de novo. Nicholson v. Isaacman (In re Isaacman), 26 F.3d 629 (6th Cir.1994). Determinations regarding summary judgment are reviewed de novo. Myers v. IRS (In re Myers), 216 B.R. 402 (6th Cir. BAP 1998). "De novo review requires the Panel to review questions of law independent of the bankruptcy court's determination." First Union Mortgage Corp. v. Eubanks (In re Eubanks), 219 B.R. 468, 469 (6th Cir. BAP 1998) (citing In re Schaffrath, 214 B.R. 153, 154 (6th Cir. BAP 1997)).
III. FACTS
In 1987, Francis and Schory formed a partnership which ultimately resulted in litigation between the two parties. Schory filed a lawsuit against Francis alleging fraud, misrepresentation, and misappropriation of funds. Francis filed counterclaims. On March 14, 1991, the parties reached a settlement. Pursuant to the settlement agreement, Francis signed a cognovit note for $130,000 secured by a mortgage on Francis's real property. The parties agreed to release each other from all claims relating to the litigation.
Ultimately, Francis defaulted on the cognovit note and Schory filed a foreclosure action against the real property securing the note. The parties eventually entered into an amended settlement agreement on March 2, 1991. The following letter dated May 1, 1991, was attached to the settlement agreement:
Dear Bob:
I am sincerely sorry for all the grief and aggravation I have caused you and your family. I acknowledge by this letter that I fraudulently misappropriated the sum of $370,000 from the Arlington General Partnership on the Arlington Road and Whipple Avenue Projects. This was done by knowingly misrepresenting the construction expenses of Francis General Construction, Inc. I regret any problems which I may have caused your family and your business. I also apologize for filing the counterclaim and calling the police.
Very truly yours,
/s/
Frank P. Francis, Individually and as
/s/
Frank P. Francis, President
Francis General Construction, Inc.
Francis defaulted on the amended settlement agreement, and Schory again filed a foreclosure action. Francis filed a counterclaim asserting that he had been coerced into signing the letter and that Schory had defamed him by showing the letter to others.
The Ohio Court of Common Pleas granted summary judgment in favor of Schory on all of Francis's claims. Francis appealed to the Ohio Court of Appeals, which affirmed the trial court's decision that there was no defamation because the admissions in the letter were "substantially true." Francis appealed *388 to the Ohio Supreme Court, which affirmed the judgment of the Court of Appeals on the basis that truth is an absolute defense to defamation and the letter was true. Ed Schory & Sons. v. Francis, 75 Ohio St.3d 433, 662 N.E.2d 1074 (Ohio 1996).
On May 30, 1997, Francis filed a petition under Chapter 7 of the Bankruptcy Code. Schory filed an adversary proceeding for a determination that the debt is nondischargeable under 11 U.S.C. §§ 523(a)(2)(A) and (a)(4). The bankruptcy court applied collateral estoppel and determined that the debt was nondischargeable under § 523(a)(2)(A) based on Francis's admissions in his letter of May 1, 1991. Francis appealed.
IV. DISCUSSION
A. The bankruptcy court properly applied collateral estoppel in determining that the debt is nondischargeable under § 523(a)(2)(A) due to Francis's fraud.
The bankruptcy court held that the principle of collateral estoppel bound the court to follow findings of the state courts that Francis's admission of fraud was substantially true. Therefore, the bankruptcy court granted summary judgment, holding the debt nondischargeable under § 523(a)(2)(A).
Collateral estoppel requires "that `the determination of a factual or legal issue in a judgement is conclusive in subsequent litigation if it was "actually litigated and determined," and the determination was essential to the judgment.'" Corzin v. Fordu (In re Fordu), 209 B.R. 854, 862 (6th Cir. BAP 1997) (quoting Shelar v. Shelar, 910 F.Supp. 1307, 1312 (N.D.Ohio 1995)). The Sixth Circuit has held that the application of collateral estoppel in a nondischargeability action depends upon whether the applicable state law would give collateral estoppel effect to the judgment. Bay Area Factors v. Calvert (In re Calvert), 105 F.3d 315 (6th Cir.1997).
In order to successfully assert collateral estoppel under Ohio law, a party must plead and prove the following elements: (1) the party against whom estoppel is sought was a party or in privity with a party to the prior action; (2) there was a final judgment on the merits in the previous case after a full and fair opportunity to litigate the issue; (3) the issue must have been admitted or actually tried and decided and must be necessary to the final judgment; and (4) the issue must have been identical to the issue involved in the prior suit. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 649, 58 L.Ed.2d 552 (1979).
The first element is clearly met in this case, as the adversary proceeding involved the same parties as the state court litigation.
The bankruptcy court also properly determined that the second element is met. "In Ohio, a grant of summary judgment represents `a final determination of the rights of the parties in an action and hence comes within the definition of a judgment as set forth in Ohio Revised Code Section 2323.01. (Repealed; see now CIV. R. 54).'" (Bankruptcy Court Mem. Of Decision 3/17/98 at 8) (citing Priester v. State Foundry Co., 172 Ohio St. 28, 173 N.E.2d 136 (Ohio 1961)).
The bankruptcy court also properly found that the third element is met, stating:
Both the Ohio Court of Appeals and the Ohio Supreme Court affirmed the trial court's granting of summary judgment in favor of Schory by holding that the trial court did not err in finding the letter was "substantially true" and was, thus, a complete defense to any libel claims asserted by the Debtor. Under these circumstances, the "actually litigated" requirement for the application of collateral estoppel is met and the state court judgment and its appellate affirmances that the Debtor committed a fraud upon Schory through the misappropriation of partnership funds is entitled to collateral estoppel effect under Ohio law.
(Mem. Of Decision 3/17/98 at 8-9.) The state court actually decided the issue of the truth of the letter. Furthermore, the finding that the letter was true was essential to the judgment, as it was the basis for granting summary judgment.
The fourth element requires that the issues be identical.
*389 If the same facts or evidence would sustain both, the two actions are considered the same within the rule that the judgment in the former is a bar to the subsequent action. If, however, the two actions rest upon different facts, or if different proofs would be required to sustain the two actions, a judgment in one is no bar to the maintenance of the other.
Monahan v. Eagle Picher Indus., 21 Ohio App.3d 179, 486 N.E.2d 1165, 1168 (1984) (citing Norwood v. McDonald, 142 Ohio St. 299, 27 O.O. 240, 52 N.E.2d 67 (1943) (internal citations omitted)).
When the Ohio courts addressed the defamation issue, they found that Francis's admission of fraud was true. The elements required to prove fraud under Ohio law are:
(a) representation or, when there is a duty to disclose, concealment of a fact, (b) which is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury proximately caused by the reliance.
Gaines v. Preterm-Cleveland, Inc., 33 Ohio St.3d 54, 514 N.E.2d 709, 712 (Ohio 1987).
In order to make the determination that Francis's admission was true, the Ohio courts necessarily had to consider the elements of fraud. The bankruptcy court properly noted, "Although the state courts were not presented with a fraud claim, by finding that the contents of the May 1, 1991, letter were true, these courts did determine that the Debtor committed a fraud upon Schory." (Mem. Of Decision 3/17/98 at 12.) Accordingly, if the elements of fraud under Ohio law are the same as the elements required under § 523(a)(2)(A), the bankruptcy court was bound by the Ohio court's determination that Francis committed fraud.
Section 523(a)(2)(A) provides:
(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt
. . . . .
(2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by
(A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor's or an insider's financial condition[.]
11 U.S.C. § 523(a)(2)(A).
A finding of fraud under § 523(a)(2)(A) requires proof of the following elements:
(1) the debtor obtained money through a material misrepresentation that, at the time, the debtor knew was false or made with gross recklessness as to its truth; (2) the debtor intended to deceive the creditor; (3) the creditor justifiably relied on the false representation; and (4) its reliance was the proximate cause of loss.
Rembert v. AT & T Universal Card Servs., Inc. (In re Rembert), 141 F.3d 277, 280-81 (6th Cir.1998).
The Panel concludes that the bankruptcy court properly found "that the elements of a dischargeability claim under 11 U.S.C. § 523(a)(2)(A) are virtually identical to the elements of a fraud claim in Ohio." (Mem. Of Decision 3/17/98 at 11.) Therefore, the bankruptcy court correctly applied collateral estoppel in this case.
B. The bankruptcy court properly found that the parties' prepetition settlement agreement was not a novation which extinguished Schory's subsequent nondischargeability claim under § 523(a)(2).
The question whether execution of a promissory note extinguishes a prior cause of action has been debated for almost 50 years, resulting in a substantial case history. In 1949, the Seventh Circuit held,
The general rule is that a promissory note is but the evidence of indebtedness and does not discharge the debt for which it was given. . . . But if it is shown that the note, by express agreement, is given and received, as payment or waiver of the antecedent tort action, and if the agreement is *390 that the note operates to discharge the original obligation and substitute a new one therefor-in other words, that it is taken in payment of the debt then the original debt is fully satisfied by acceptance of the note.
Maryland Casualty Co. v. Cushing, 171 F.2d 257, 258-59 (7th Cir.1948) (internal citations omitted.)
Later, the Eleventh Circuit considered the issue in Greenberg v. Schools, 711 F.2d 152 (11th Cir.1983), holding, "a debt which originates from the debtor's fraud should not be discharged simply because the debtor entered into a settlement agreement." Id. at 156.
In re West, 22 F.3d 775 (7th Cir.1994), held that a general release included a release of a nondischargeability claim in bankruptcy, stating, "even if the obligation arising from Ms. West's embezzlement would have been non-dischargeable due to its fraudulent nature, no allegations of fraud surround the note, and the note substituted a contractual obligation for a tortious one. . . . Thus, pursuant to Maryland Casualty, dischargeability turns on the note, rather than the superceded obligation." Id. at 777.
On the other hand, United States v. Spicer, 57 F.3d 1152 (D.C.Cir.1995), declined to follow West and Maryland Casualty because "it improperly elevates legal form over substance" to allow a debtor to discharge a debt based on fraud. Id. at 1155. The court rejected the argument that a settlement extinguishes a nondischargeability claim "because it is contrary to the public policy embodied in § 523(a)(2)(A) of preventing fraudulent debtors from escaping their obligations at the expense of innocent defrauded creditors." Id. The court found that it was more appropriate to "inquire into the factual circumstances behind the settlement agreement to ascertain whether . . . the debt . . . was derived from the alleged fraudulent conduct. . . ." Id. (quoting Greenberg, 711 F.2d at 156). The court stated, "We cannot agree with a rule under which, through the alchemy of a settlement agreement, a fraudulent debtor may transform himself into a nonfraudulent one, and thereby immunize himself from the strictures of § 523(a)(2)(A)." Id.
The Sixth Circuit has not yet ruled on the issue of novation in the context of § 523(a)(2)(A). The Panel holds that a general release as part of a settlement of a tort claim does not serve as a novation allowing a debt incurred by fraud to be discharged in bankruptcy. In the context of this case, the Panel agrees with Spicer and rejects West for several reasons.
First, West overextended the holding of Maryland Casualty, which was that a novation can only occur through a settlement if it was the parties' express intention that a contract claim be substituted for the original fraud debt. However, a generally worded release in a tort settlement agreement does not state or suggest any intention by either party to release bankruptcy rights and claims. Indeed, in the present case, nothing in the parties' agreements suggests either that Francis intended to release his right to claim bankruptcy or that Schory intended to release his bankruptcy nondischargeability claims.
Second, the Spicer holding parallels the law applicable when a creditor claims that a debtor has contractually waived the right to seek a discharge. 11 U.S.C. § 727(a)(10) permits a waiver of the bankruptcy discharge but only if executed postpetition. Further, case law provides that a provision in a prepetition settlement agreement which waives a party's right to file bankruptcy is unenforceable as against public policy. See Giaimo v. Detrano (In re Detrano), 222 B.R. 685, 687 (Bkrtcy.E.D.N.Y.1998).
Third, the West holding undermines the settlement of tort claims. If a prepetition general release is sufficient to extinguish a later nondischargeability claim in bankruptcy, a defendant might be motivated to settle a tort claim for any amount and then simply file bankruptcy to seek to discharge the settlement debt. On the other side, a plaintiff, naturally concerned about that strategy, might be less willing to settle the tort claim. The law ought to facilitate settlements, not obstruct them.
*391 Fourth, the West holding circumvents the explicit limitation in Bankruptcy Code against the discharge of debts incurred by fraud. Section 523(a)(2)(A) plainly provides that a debt incurred as a result of fraud is nondischargeable in bankruptcy. In the present case, Francis committed a fraud against Schory and has admitted both the fraud and the resulting debt. The settlement did not negate either the fraud, the admission, or the debt.
On several occasions, the Supreme Court has stated that Congress clearly intended fraud debts to be nondischargeable. Most recently the Court stated, "The Bankruptcy Code has long prohibited debtors from discharging liabilities incurred on account of their fraud, embodying a basic policy animating the Code of affording relief only to an `honest but unfortunate debtor.'" Cohen v. Hilda de la Cruz, ___ U.S. ___, 118 S.Ct. 1212, 1216, 140 L.Ed.2d 341 (1998) (quoting Grogan v. Garner, 498 U.S. 279, 287, 111 S.Ct. 654, 659-60, 112 L.Ed.2d 755 (1991)). See also Brown v. Felsen, 442 U.S. 127, 128, 99 S.Ct. 2205, 2208, 60 L.Ed.2d 767 (1979) ("[A]s the Court has noted, the Act limits [the bankruptcy] opportunity to the `honest but unfortunate debtor.'" quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1934)).
The Supreme Court has also concluded, "[I]t is unlikely that Congress . . . would have favored the interest in giving perpetrators of fraud a fresh start over the interest in protecting victims of fraud.'" Cohen v. Hilda de la Cruz, ___ U.S. at ___, 118 S.Ct. at 1219 (quoting Grogan v. Garner, 498 U.S. at 287, 111 S.Ct. at 659-660). Because Spicer recognizes this clear Congressional intent, we choose to follow it.
The Panel also follows Spicer because Brown v. Felsen compels the Spicer result. In Brown v. Felsen, the creditor filed suit alleging both contract and fraud claims against the debtor, but the stipulation and judgment by which the parties later settled did not specifically identify the basis of the liability. The debtor then filed bankruptcy. That filing, the Supreme Court noted, "placed the rectitude of his prior dealings squarely at issue. . . ." Brown, 442 U.S. at 128, 99 S.Ct. at 2208.
In response to the creditor's claim that the debt was nondischargeable due to the debtor's fraud, the debtor asserted that under the doctrine of res judicata, the creditor was precluded from asserting fraud, as the prior stipulated judgment did not include a finding of fraud. After reviewing the policy of repose that underlies the doctrine of res judicata, the Court rejected its application in this context, stating:
Because res judicata may govern grounds and defenses not previously litigated, however, it blockades unexplored paths that may lead to truth. For the sake of repose, res judicata shields the fraud and the cheat as well as the honest person. It therefore is to be invoked only after careful inquiry. Petitioner [creditor] contends, and we agree, that here careful inquiry reveals that neither the interests served by res judicata, the process of orderly adjudication in state courts, nor the policies of the Bankruptcy Act would be well served by foreclosing petitioner from submitting additional evidence to prove his case.
Id., 442 U.S. at 132, 99 S.Ct. at 2210. (Emphasis added.)
The Court went on to note that the creditor's nondischargeability claim was not an attack upon the original judgment; rather, it was a new defense to the "bankruptcy which the respondent [debtor] has interposed between petitioner and the sum due him." Id. Thus, the Court concluded that it was the debtor's bankruptcy filing, not the creditor's nondischargeability complaint, that had upset the repose that would otherwise justify treating their earlier stipulated judgment as final.
The Court then rejected the debtor's argument that a creditor can avoid the application of res judicata and preserve a nondischargeability claim simply by bargaining for a preservation of that right in their stipulated judgment. The Court stated, "It makes little sense, however, to resolve a federal dischargeability question according to whether or not the parties in the state court waived their right to engage in hypothetical litigation *392 in an inappropriate forum." Id., 442 U.S. at 137, 99 S.Ct. at 2212.
Finally, the Court quoted from the legislative history of this discharge exception, which stated that the exception was intended "to exclude beyond peradventure certain liabilities growing out of offenses against good morals." The Court offered this legislative history as evidence that "Congress intended the fullest possible inquiry . . ." Id., 442 U.S. at 138, 99 S.Ct. at 2213 (citing H.R.Rep. No. 1698, 57th Cong., 1st Sess., 3, 6 (1902). See 36 Cong. Rec. 1375 (1903)). The Court then concluded, "[A]ll debts arising out of the conduct specified in § 17 should be excepted from discharge and the mere fact that a conscientious creditor has previously reduced his claim to judgment should not bar further inquiry into the true nature of the debt." Id., 442 U.S. at 138, 99 S.Ct. at 2213.[1]
The only difference between Brown v. Felsen and this case is that in Brown, the parties' settlement was incorporated into a judgment, and as a result, the debtor's arguments focused on res judicata instead of release. Thus, the question becomes whether the result should be different in the case of a judgment. The court in West distinguished Brown v. Felsen with this single sentence, "A judgment, however, is far removed from a release voluntarily given by a creditor." 22 F.3d at 778. But this distinction is unsatisfactory on two levels. First, it ignores that the judgment in Brown was a consent judgment, and was thus the functional equivalent of "a release voluntarily given by the creditor." Second, although the doctrines of release and res judicata are different in significant respects, West offers no explanation as to why those differences are significant in the context of a nondischargeability claim under 523(a)(2) and the Panel cannot find any such explanation.
Indeed, in this case, if the agreement between Schory and Francis had been incorporated into a consent judgment as it was in Brown, then that decision would plainly compel a result for Schory. There is no principled basis on which to conclude that Schory should be barred from the opportunity to prove the true nature of the debt just because the parties elected to keep their settlement agreement private and not to burden the state court with an unnecessary consent judgment. Accordingly, the Panel concludes that under Brown, Schory's settlement with Francis did not release Schory's bankruptcy nondischargeability claim.
The Panel rejects the dissent's arguments that because nothing in the Bankruptcy Code precludes a creditor from a prepetition release of a nondischargeability claim under § 523(a)(2), state law controls the result. The state law result on whether a creditor can release a § 523(a)(2) claim is simply not relevant, because the Congressional mandate in § 523(a)(2) for the nondischargeability of fraud debts is so strong that it trumps any state release law (or res judicata law) that might otherwise apply in favor the debtor.
The Panel also rejects the dissent's argument that there is no parallel provision in the Code that protects creditors in the way that § 727(a)(10) protects debtors. Rather, we conclude that § 523(a)(2), as interpreted and applied by the Supreme Court, is itself the parallel to § 727(a)(10) that the dissent seeks. Within its context, each section effectively limits to the bankruptcy process the parties' exercise of their bankruptcy rights, as well as their waivers of those rights. Thus, when Schory and Francis settled and exchanged mutual releases before Francis filed bankruptcy, Francis did not give up his right to seek a discharge of his debts in bankruptcy and Schory did not give up his right to object to the discharge of Francis's fraud debt under § 523(a)(2) in the event of such a bankruptcy.
V. CONCLUSION
The bankruptcy court properly applied collateral estoppel to determine that the debt evidenced by the cognovit note is nondischargeable. The Panel follows Spicer and holds that a prepetition general settlement agreement does not extinguish a claim for *393 bankruptcy nondischargeability. The bankruptcy court's order holding that the debt is nondischargeable under § 523(a)(2)(A) is AFFIRMED.
LUNDIN, dissenting.
I have no disagreement with the Panel's careful analysis of how collateral estoppel might operate in this adversary proceeding, but I believe the Panel has the cart before the horse: if this creditor's prepetition Settlement and Release Agreement with the Debtor includes an enforceable release of this § 523(a)(2) action, then it was not appropriate for the bankruptcy court to reach the merits of the creditor's collateral estoppel argument. On summary judgment, the bankruptcy court and the Panel have resolved as a matter of law that the creditor could not have released its nondischargeability action in the prepetition settlement agreement with the Debtor. Nothing in bankruptcy law requires this result. Because I find the settlement agreement ambiguous under applicable principles of state law, I would reverse the bankruptcy court's grant of summary judgment and remand to resolve the parties' intent at the time of settlement.
Although Congress has legislated that a written waiver by a debtor of discharge in bankruptcy is enforceable only if executed after the petition and approved by a bankruptcy court, see 11 U.S.C. § 727(a)(10), there is no analogous provision of federal law that conditions or prohibits enforcement in bankruptcy of a creditor's prepetition agreement to release its cause of action under § 523(a)(2). Put another way, nothing in the Bankruptcy Code interrupts the ordinary capacity of creditors under nonbankruptcy law to contract for the release of claims that are or might be nondischargeable in bankruptcy. As recognized by the Seventh and Ninth Circuits, if enforceable under state law, a creditor's prepetition release of a potential cause of action under § 523 of the Bankruptcy Code precludes that creditor's § 523 complaint without regard to the merits of the underlying dispute. In re West, 22 F.3d 775 (7th Cir.1994); Key Bar Invs., Inc. v. Fischer (In re Fischer), 116 F.3d 388 (9th Cir.1997).
The basis of this nondischargeability action is the fraud confessed by the Debtor in the letter attached to the Amended Settlement Agreement. That fraud predates the Settlement Agreement and there is no allegation of fraud or other misconduct in connection with the Settlement Agreement itself. That earlier fraud cannot be the basis for this § 523(a)(2) action if the Settlement Agreement released the Plaintiff's right to bring a § 523 action based on the earlier fraud. This is the horse that must be ridden by the Plaintiff before we reach the collateral estoppel arguments addressed by the Panel.
The lengthy March 14, 1991, agreement is titled "Settlement Agreement and Release." Its preamble refers to all pending litigation between the parties including the claims of fraud that the Debtor later confessed. The agreement contains these important statements of intent:
WHEREAS, the parties desire to fully settle, adjust and compromise any and all claims between and among them, whether alleged or not-alleged, and whether contained or not contained, in Case Number 90-1691 in the Common Pleas Court of Stark County, Ohio;. . . . Plaintiffs, Robert G. Schory, Jr., and Ed Schory & Sons, Inc., for their part, agree to dismiss with prejudice the action pending in Stark County Court of Common Pleas, Case Number 90-1691, and further agree to release and forever discharge Defendants, Frank P. Francis and Francis General Construction . . . from any and all debts, claims, demands, damages, actions, causes of action, of any kind whatsoever, whether known, unknown or unforeseen, arising to the date of this Settlement Agreement, including without limitation any claim or interest Plaintiffs, . . . may have with respect to any partnership arrangements between the parties. . . . The parties hereto declare that they fully understand the terms of the Settlement Agreement and Release and that the other promises and covenants exchanged between them here in are the sole consideration for this Agreement and they voluntarily accept said exchanges, said mutual promises and covenants for the purpose of making a full and final compromise, judgment and settlement *394 of all claims, debts and damages arising out of or to arise out of the disputed matter set forth above.
The Debtor executed the $130,000 "Installment Cognovit Note" required by the Agreement. When the Debtor defaulted on the Note, a "First Amendment to Settlement Agreement and Release" dated May 2, 1991, resulted. This amendment required the letter of confession discussed by the Panel. The amendment also states: "In all other respects the Settlement Agreement and Release shall remain in full force and effect."
Under Ohio law, "[a] release of a cause of action for damages is ordinarily an absolute bar to a later action on any claim encompassed within the release." Haller v. Borror Corp., 50 Ohio St.3d 10, 552 N.E.2d 207, 210 (Ohio 1990) (citing Perry v. M. O'Neil & Co., 78 Ohio St. 200, 85 N.E. 41 (1908)). "Whether the parties to a release actually intended it to discharge all liability is a question of fact for the trier of the facts." Sloan v. Standard Oil Co., 177 Ohio St. 149, 203 N.E.2d 237 (1964) (paragraph two of syllabus). The Court of Appeals for this Circuit discussed Sloan and Ohio law on releases in AM International, Inc. v. International Forging Equipment Corp., 982 F.2d 989 (6th Cir. 1993):
In Sloan v. Standard Oil Co., 177 Ohio St. 149, 203 N.E.2d 237 (1964), the Ohio Supreme Court held that verbatim terms of a general release are not controlling under circumstances where the parties to a release did not actually intend to discharge all liability. The court set out the Ohio rule for avoiding releases in the syllabus to that opinion:
1. A release may be avoided where the releasor can establish by clear and convincing evidence that it was executed by mutual mistake, as between himself and the release, of a past or present fact material to the release, as where there was a mutual mistake as to the existence of any injury of the releasor, unless it appears further that the parties intended that claims for all injuries, whether known or unknown at the time of the execution of the release, be relinquished.
2. Whether the parties to a release actually intended to discharge all liability is a question of fact for the trier of the facts.
3. The terms of a release cannot circumvent the powers of equity to correct mistakes.
Id. at 149, 203 N.E.2d at 238 (citation omitted). The court went on to point out that "[t]he dispositive inquiry in each case is what did the parties intend? . . . Because intent is a question of fact, it is necessary in each case to examine all the circumstances surrounding the execution of the release." Id. at 152-53, 203 N.E.2d at 240.
The Ohio Supreme Court set out factors to be considered in determining the intent of the parties:
Certain factors have been judicially recognized as aids whereby the intent of the parties at the time the release was executed may be determined. Stated favorably to the party seeking rescission or cancellation, these factors are: The absence of bargaining and negotiating leading to settlement; the releasee is clearly liable; absence of discussion concerning [the type of injuries suffered]; the contention that the injuries were in fact unknown at the time the release was executed is reasonable; an inadequate amount of consideration received compared with the risk of the existence of unknown injuries; haste by the releasee in securing the release; and the terms of the release exclude the injuries alleged.
Id. at 153, 203 N.E.2d at 240 (citations omitted).
AM Int'l, 982 F.2d at 995-96 (alterations in original).
Because both the bankruptcy court and the Panel mistakenly resolved the effect of the Settlement and Release Agreement as a matter of law against the Debtor, neither addressed the fact questions the Ohio Supreme Court considers outcome determinative of whether the Plaintiff released its right to bring this § 523 action. Was an action to determine the dischargeability in bankruptcy of the debt created by this Debtor's fraud a "known, unknown or unforeseen" cause of *395 action at the time of the Settlement and Release Agreement? Was the confession attached to the amended agreement intended by the parties to give the Plaintiff a slamdunk nondischargeability action in the event of bankruptcy; or, was the confession "a pound of flesh" extracted for the psychic compensation of the Plaintiff? Nothing is known of the respective bargaining positions of these parties, their knowledge of the facts or other "circumstances surrounding the execution" of this release.
Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979), does not require the result reached by the Panel. Brown is a res judicata or claim preclusion case. Brown holds that a prebankruptcy state court judgment that does not find fraud does not preclude the creditor's claim that the judgment debt is nondischargeable under (the predecessor to) § 523(a)(2). Brown does not purport to resolve the question whether a creditor (with or without a judgment) is bound by its voluntary prebankruptcy release of a fraud claim. The seminal circuit court cases addressing the effect of a prebankruptcy release predate Brown[1] and (appropriately) are not mentioned in Justice Blackmon's comprehensive list of the res judicata cases at issue in Brown. See Brown, 442 U.S. at 130-31 & n. 4, 99 S.Ct. 2205. Both the Seventh and Ninth Circuits have recognized that the claim preclusion principles in Brown are not determinative of whether a creditor has released its § 523(a)(2) action. See Fischer, 116 F.3d at 391 ("Brown v. Felsen . . . [does] not control our case, which involves a voluntary agreement between two parties that created a novation."); West, 22 F.3d at 778 ("The holding in Brown is immaterial. . . . Brown addressed the preclusive effect of a state court judgment, not a creditor's voluntary release of a debtor.").
The factors that determine whether a judgment is entitled to claim preclusion are different than the factors that determine the effect of a release. Claim preclusion bars (re)litigation of causes of action that were or could have been raised in prior litigation. Rivers v. Barberton Bd. of Ed., 143 F.3d 1029, 1031 (6th Cir.1998). In contrast, the effect of a release is tightly bounded by the actual intent of the parties. Claim preclusion requires a final judgment on the merits by a court of competent jurisdiction. Id. Releases typically are found in contracts that may or may not be incorporated into a court judgment and which do not depend for their legal effect on the validity of any judgment.[2]
The Panel's counter-intuitive notion that incorporation of a release into a prebankruptcy judgment voids the release seems to flow from a mistaken conclusion that release analysis and preclusion principles are mutually exclusive. A voluntary release incorporated into a state court judgment would appropriately be interpreted in subsequent dischargeability litigation under principles of claim preclusion (Brown) and issue preclusion (Grogan)[3] and analyzed under contract principles.
The Panel cites policy to support its rule that release of a nondischargeability action is not enforceable. Public policy favors the opposite rule: to encourage nonbankruptcy dispute resolution, the intent of the parties should control whether a prepetition settlement agreement precludes § 523(a)(2) litigation. See West, 22 F.3d at 778. The Panel's rule removes a major incentive for debtors to settle with creditors before bankruptcy and imposes a previously unrecognized "bankruptcy penalty." A debtor willing to give valuable collateral to a prebankruptcy victim in exchange for release of potentially nondischargeable personal liability bargains for a worthless promise under the Panel's rule. And what about performance by the debtor? A rule that the voluntary release of § 523(a)(2) claims is not enforceable in bankruptcy means a creditor can accept performance of a settlement agreement secure in the knowledge that a bankruptcy petition *396 absolves the creditor of its obligations and frees the creditor to seek a nondischargeable personal judgment against the debtor in excess of what it willingly accepted in full satisfaction for the wrong done. In contrast, enforcement of prebankruptcy releases in § 523(a)(2) litigation does not threaten a windfall for debtors (or creditors); it only reinforces the actual intent and expectations of the parties.
Congress has acted in a related context to impose a public policy limitation on the prebankruptcy substitution of a dischargeable obligation for a nondischargeable debt. It was anecdotally demonstrated that before bankruptcy some taxpayers used credit cards to pay income taxes-substituting a dischargeable debt, the charge on a credit card, for a nondischargeable claim, the prepetition taxes. See The Bankruptcy Amendments Act of 1993: Hearings on S. 540 Before the Subcomm. on Courts and Admin. Prac. of the Comm. on the Judiciary, 103d Cong. 265 (statement of the American Bankers Ass'n), 370-71 (statement of Mastercard Int'l Inc. and Visa U.S.A. Inc.) (March 31, 1993). In 1994, Congress enacted 11 U.S.C. § 523(a)(14) to bar the dischargeability in bankruptcy of ordinary loans "incurred to pay a tax to the United States that would be nondischargeable pursuant to [§ 523(a)(1)]." Bankruptcy Reform Act of 1994, Pub.L. No. 103-394, § 221, 108 Stat. 4106, 4129 (1994). Congress could but has not enacted an exception to discharge in bankruptcy for debts "incurred to pay a claim that would be nondischargeable pursuant to § 523(a)(2)." The judiciary typically refrains from creating new exceptions to discharge.
NOTES
[1] When the Bankruptcy Act was repealed in 1979, § 17 was replaced by § 523 of the Bankruptcy Code.
[1] See Maryland Casualty Co. v. Cushing, 171 F.2d 257 (7th Cir.1948); Gonder v. Kelley, 372 F.2d 94 (9th Cir. 1967).
[2] For example, a prebankruptcy judgment incorporating a release agreement entered by a court that lacked jurisdiction would not have preclusive effects, but the contractual release might well be separately enforceable.
[3] Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1869529/ | 451 So.2d 227 (1984)
Bobby Lee HAYNES
v.
STATE of Mississippi.
No. 54881.
Supreme Court of Mississippi.
June 6, 1984.
*228 Herman F. Cox, Gulfport, for appellant.
Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.
HAWKINS, Justice, for the Court:
Bobby Lee Haynes was convicted in the Circuit Court of Harrison County of the crime of manslaughter. The indictment also charged him with being a habitual offender, and this likewise being proved to the circuit judge, he was sentenced to twenty (20) years without parole.
The appeal challenges the sufficiency of the evidence, and assigns other errors. No error is assigned as to his conviction of being a habitual offender. The victim, John Mitchell, died from a severe beating by Haynes in a local saloon. This is a classic jury case, Haynes had unquestionably been previously assaulted by Mitchell, and provoked; yet it was a matter for the jury to determine whether this slaying was in self-defense or anger at Mitchell.
We reverse upon the assignments of error we address: (1) the right of an accused to an instruction that in order to invoke the defense of self-defense, it is not necessary for the defendant to flee, and (2) oral response *229 by the circuit judge to an inquiry by the jury during its deliberation.
At the conclusion of the trial, the defense requested the following instruction:
The court instructs the jury that while the danger which will justify the taking of another's life must be imminent, pending, and present, such danger need not be unavoidable except by killing in self-defense. The court instructs the jury that the accused, Bobby Lee Haynes, need not have avoided the danger to his person presented by the deceased, John Mitchell, by flight. So long as the defendant was in a place where he had the right to be and was not the immediate provoker or aggressor, he may stand his ground without losing the right of self-defense. [R. 359]
It has always been the law in this state that a defendant is not deprived of the right to claim self-defense in a slaying even if he could have avoided the threat to his safety by fleeing.
In Long v. State, 52 Miss. 23 (1876), p. 34, it is stated:
Flight is a mode of escaping danger to which a party is not bound to resort, so long as he is in a place where he has a right to be, and is neither engaged in an unlawful, nor the provoker of, nor the aggressor in, the combat. In such case he may stand his ground and resist force by force, taking care that his resistance be not disproportioned to the attack.
It is thus clear that the latter part of the requested instruction correctly stated the law. Such an instruction is not often applicable to the facts of a case, however. In this case we think the judge should have either granted the instruction, or some instruction that embraced this principle. There was some testimony by Haynes that he began to walk away when the trouble started, and the jury could have wondered why he did not simply leave. Whenever, from the facts of the case, it appears that the defendant could have avoided the fatal difficulty only by precipitous retreat, but did not leave, if the other requisite factors are present as stated in Long, supra, then the defendant is entitled to such an instruction.
The following instruction, S-4, was granted the state:
The court instructs the jury that to make a homicide justifiable on the grounds of self-defense or defense of another, the danger to the defendant must be either actual, present and urgent or the defendant must have reasonable grounds to apprehend a design on the part of the deceased to kill him, or to do him some great bodily harm, and in addition to this, that there was imminent danger of such design being accomplished; and hence mere fear, apprehension or belief, however sincerely entertained by one person that another designs to take his life or do some great bodily harm, will not justify the former in taking the life of the latter party. A party may have an apprehension that his life is in danger, and believe that the grounds of his apprehension just and reasonable, and yet he acts at his peril. He is not the final judge; the jury may determine the reasonableness of the ground upon which he acted. [R. 350]
The defense made no objection to this instruction.
The record reveals that when the jury had been deliberating three hours, the following transpired:
BY THE COURT:
We have a question from the Jury.
"Does fearful apprehension alone in light of previous events justify a ruling of self-defense?
BY MR. JOHNSON:
I think the Court should answer with the simple word "no".
BY THE COURT:
I'm going to do it this way.
In reply to your inquiry the phrase "fearful apprehension" is not used in any of the instructions that you have before you. The two instructions on the question of self-defense are numbered D-11 and S-4. As I have stated you read the instructions together, however, your attention is invited to *230 that part of instruction S-4 following the semi-colon on the seventh line from the top.
BY MR. COX:
Your Honor, we would object on the previous grounds stated, and also the Court is singling out one part of one instruction and I think that's improper, Your Honor, being S-4.
BY THE COURT:
You may be right, Herman, in one sense of the word, but that's the part where apprehension is mentioned, and the only place in either of the instructions where apprehension is mentioned if I read them correctly. Let's see if I'm not right.
All right, add this to it. "I trust this will answer your question inasmuch as this is the only place where the word `apprehension' is mentioned."
BY MR. COX:
We still object for the same reasons.
BY THE COURT:
All right, sir.
(At this time, the Court and Counsel for the Defendant presented the following Motion for Mistrial.)
BY MR. COX:
Comes now the Defendant, Bobby Lee Haynes, and moves the Court of a mistrial and states the following grounds: That at approximately 3:33 P.M. the Jury sent out a written question to the Court and said question being in the Record. And in response to this particular question, the Court made the response to, reference to Instruction D-11 and Instruction S-4, and further commented to look at a certain part or particular part of Instruction S-4, and the Defendant would state that this is error and that a certain Instruction has been singled out and, therefore, is an improper comment, and that the Court should grant a mistrial.
BY THE COURT:
Overruled.
Five minutes later the jury reached its verdict.
After the jury was dismissed, the record shows the following transpired before the circuit judge:
BY MR. COX:
Your Honor, we renew our Motion for Mistrial on the grounds state before, and those grounds are as follows:
That while the Jury was deliberating, they sent out a written question to the Court, which is in the Record, and asked the Court a specific question, and in response thereto the Court advised them basically that they ought to refer to Jury Instruction D-11 and Jury Instruction S-4, and specifically point out a certain part of Instruction S-4, and we think that is error, and the Court should consider this again, and grant a mistrial.
BY THE COURT:
Well, after the Newell case, I think the Judge was given a wider discretion in their Instructions to the Jury, and a wider latitude about how to handle it. Of course, in the inquiry that they handed to me, it was quite obvious that at least one person on the Jury had read something into the Instructions that was not there. They read into it the phrase "fearful apprehension". Well, nowhere in any of the Instructions was that phrase even mentioned. I don't know how they gathered that. I have agreed that immediately after I pointed out that it didn't exist, it wasn't five minutes until they came back. I'll let the Record show that for you. So it'll be overruled.
In three recent cases we have either criticized or condemned this kind of instruction. See: Robinson v. State, 434 So.2d 206 (Miss. 1983); Lenoir v. State, 445 So.2d 1371 (Miss. 1984); Scott v. State, 446 So.2d 580 (Miss. 1984).[1]
*231 As Justice Dan Lee so aptly pointed out in Robinson v. State, P. 210, "the instruction is fraught with redundancy". In this case the trial judge's oral comment to the jury served to accentuate the very portion of the instruction which we have criticized.
We cannot say that this did not influence the jury. This court has always cautioned circuit judges making any comments, or giving instructions to the jury after it retires to reach a verdict. Our two most recent cases are: Girton v. State, 446 So.2d 570 (Miss. 1984) and Stubbs v. State, 441 So.2d 1386 (Miss. 1983).
In this case the jury had already been amply instructed, indeed, more than amply instructed in S-4. There was no need to further instruct them. While the circuit judge was undoubtedly trying to deal with a vexing type of problem as best he could, we believe the proper response to the jury would have been that they had already been properly instructed on this question and to read their instructions.
The answer the court gave may very well have accentuated an instruction even further, which was error.
As stated in 23A C.J.S., Criminal Law, No. 1304, although it is not necessarily reversible error, court instructions should avoid repetition of the same or different forms of the same rule of law, once the jury has been fully and fairly instructed thereon. This authority also states, pp. 738-739:
... the repetition of instructions should be avoided as tending to confuse and mislead rather than to enlighten the jury. The mere fact, however, that an instruction or a part thereof is repeated does not constituted reversible error, unless such repetition gives such undue prominence to some principle or phase of the case as is calculated to impress it unduly on the jurors' minds, or results in an unfair statement of law in relation to accused's rights.
In the Florida case of Beckham v. State, 209 So.2d 687 (Fla. 1968), the court stated, pp. 688-689:
The defendant has also complained on appeal of the trial judge's repetition of the manslaughter charge in his instructions to the jury. It appears from the record that the trial judge, while instruction the jury, experienced some difficulty. As a result of this the manslaughter charge was given three times and it was given once again when the jury returned and expressed confusion as to the instructions. We believe that this repetition, although inadvertent, was harmfully prejudicial to defendant's case and that it constitutes additional grounds for reversal. [Emphasis added]
In the recent case of Wall v. State, 413 So.2d 1014 (Miss. 1982), this court stated, p. 1015:
We are constrained to add as a caution to prosecuting attorneys that there appears to be no necessity for the above instruction. When the circuit judge has adequately instructed a jury on all the points of law involved in a case, the State should eschew a needless risk of reversal by adding pure surplusage or repetitious instructions.
For these reasons, the case is reversed and remanded for a new trial.
REVERSED AND REMANDED.
PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, DAN M. LEE, PRATHER and SULLIVAN, JJ., concur.
BOWLING, J., PATTERSON, C.J., and DAN M. LEE, J., specially concurring.
ROBERTSON, J., not participating.
BOWLING, Justice, specially concurring:
Since I have been a member of the Court, I have done my best to rid the criminal jurisprudence of this state of a part of the usual self-defense instruction that reads as follows:
A party may have an apprehension that his life is in danger, and believe that the grounds of his apprehension just and reasonable, and yet he acts at his own peril.
*232 I expressed my sincere concern about this instruction in a dissenting opinion in Robinson v. State, 434 So.2d 206 (Miss. 1983) and re-iterate here what I said then. This instruction that continually is being given is confusing, misleading and contradictory. It gives a defendant a right of self-defense and then takes it away by telling the jury that he acted at his peril. As I pointed out in the dissent in Robinson, supra, this Court has been trying to correct this instruction for forty-eight years since the case of Bailey v. State, 174 Miss. 453, 165 So.2d 122 (1936). Bailey warned prosecutors not to request the instruction set out in that opinion. The warning has gone unheeded. As I stated in Robinson, supra, I have no sympathy for criminals, but I do insist on fairness under the law.
I sincerely hope that a very few of the prosecutors of this state, who do not read this Court's opinions, please make it a practice to do so, so that the warning of forty-eight years ago might finally soak in.
I hope and pray that whatever funded agencies conduct prosecutors' seminars will someday have his problem on their agenda.
PATTERSON, C.J., and DAN M. LEE, J., join this specially concurring opinion.
NOTES
[1] In Robinson v. State, the majority and a special concurring opinion suggested the kind of instruction which this court would approve. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/770539/ | 227 F.3d 759 (6th Cir. 2000)
RALPH MOORE, JR., Plaintiff-Appellant,v.CITY OF HARRIMAN; HARRIMAN POLICE DEPARTMENT; ROY JENKINS, Chief of Police, Harriman Police Department; DARREN MCBROOM; TERRY FINK; RANDY HEIDLE; VIRGIL MCCART; JERRY SINGLETON, Defendants-Appellees.
No. 99-5258
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
September 12, 2000.
Before: MARTIN, Chief Judge; MERRITT, NELSON, BOGGS, NORRIS, SUHRHEINRICH, SILER, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, and GILMAN, Circuit Judges.
ORDER
1
A majority of the Judges of this Court in regular active service have voted for rehearing of this case en banc. Sixth Circuit Rule 35(a) provides as follows:
2
"The effect of the granting of a hearing en banc shall be to vacate the previous opinion and judgment of this court, to stay the mandate and to restore the case on the docket sheet as a pending appeal."
3
Accordingly, it is ORDERED, that the previous decision and judgment of this court is vacated, the mandate is stayed and this case is restored to the docket as a pending appeal.
4
It is FURTHER ORDERED that the appellant file a supplemental brief not later than Tuesday, October 10, 2000 and the appellees file supplemental brief not later than Tuesday, November 7, 2000.
5
The Clerk will schedule this case for oral argument as directed by the court. | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2764824/ | STATE OF MICHIGAN
COURT OF APPEALS
A&D DEVELOPMENT, POWELL UNPUBLISHED
CONSTRUCTION SERVICES, L.L.C., DICK December 23, 2014
BEUTER d/b/a BEUTER BUILDING &
CONTRACTING, JIM’S PLUMBING &
HEATING, JEREL KONWINSKI BUILDER, and
KONWINSKI CONSTRUCTION, INC.,
Plaintiffs-Appellants,
v No. 317024
Ingham Circuit Court
MICHIGAN COMMERCIAL INSURANCE LC No. 10-000879-NI
MUTUAL and ELEANOR POWELL-YODER,
Defendants-Appellees.
Before: K. F. KELLY, P.J., and SAWYER and METER, JJ.
K. F. KELLY (concurring).
I concur in the result only.
/s/ Kirsten Frank Kelly
-1- | 01-03-2023 | 12-25-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/3097134/ | John
Fourth Court of Appeals
San Antonio, Texas
July 18, 2014
No. 04-14-00124-CV
WESTFREIGHT SYSTEMS INC.,
Appellant
v.
John Michael HEUSTON, individually and as dependent administrator of the Estate of Juana
Garza, deceased, and Geronimo Rodriguez, individually,
Appellees
From the 79th Judicial District Court, Jim Wells County, Texas
Trial Court No. 12-03-50966-CV
Honorable Richard C. Terrell, Judge Presiding
ORDER
Appellant Westfreight's Unopposed Motion for Extension of Time to File Brief is hereby
GRANTED. Appellant's brief is due on before September 2, 2014.
_________________________________
Catherine Stone, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 18th day of July, 2014.
___________________________________
Keith E. Hottle
Clerk of Court | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1000759/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-7556
RODNEY EUGENE EDWARDS,
Petitioner - Appellant,
versus
RONALD J. ANGELONE,
Respondent - Appellee.
Appeal from the United States District Court for the Western Dis-
trict of Virginia, at Roanoke. Samuel G. Wilson, Chief District
Judge. (CA-99-770-7)
Submitted: January 20, 2000 Decided: February 2, 2000
Before WILLIAMS, MICHAEL, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Rodney Eugene Edwards, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Rodney Eugene Edwards seeks to appeal the district court’s
order denying relief on his petition filed under 28 U.S.C.A. § 2254
(West 1994 & Supp. 1999). We have reviewed the record and the dis-
trict court’s opinion and find no reversible error. Accordingly,
we deny a certificate of appealability and dismiss the appeal on
the reasoning of the district court. See Edwards v. Angelone, No.
CA-99-770-7 (W.D. Va. Oct. 28, 1999).* We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
*
Although the district court’s order is marked as “filed” on
October 27, 1999, the district court’s records show that it was
entered on the docket sheet on October 28, 1999. Pursuant to Rules
58 and 79(a) of the Federal Rules of Civil Procedure, it is the
date the order was entered on the docket sheet that we take as the
effective date of the district court’s decision. See Wilson v.
Murray, 806 F.2d 1232, 1234-35 (4th Cir. 1986).
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3354276/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION ON MILLS DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Certain defendants in this case have filed a motion for summary judgment. The plaintiffs here formerly worked for Gravymaster Inc. That corporation leased a building from several defendants in this case which the motion for summary judgment refers to as the Mills defendants. The plaintiffs claim to have become ill due to the manner in which the building they worked in was constructed and maintained. Counts 1 and 3 are directed against the Mills defendants by two separate plaintiffs. However, the counts contain the same factual allegations of negligence.
Certain facts do not appear to be in dispute between the Mills defendants who have filed this motion and the plaintiffs. The lease between Gravymaster and the defendants provides that Gravymaster must indemnify the Mills defendants for any liability or expense arising from the use and occupation of the building. The plaintiffs made workers compensation claims against their employer Gravymaster and its insurer for the injuries they allegedly received at work and which also are the basis of the claim in this suit. The plaintiffs have been compensated for their claims through the workers compensation act.
In June 1995 the Mills defendants filed a motion for summary judgment.
Several cases have defined the scope of the remedy in motions for summary judgment. In United Oil Co. v. Urban RedevelopmentCommission, 158 Conn. 364, 377 (1969) the court said that in passing on a defendant's motion "the trial court is limited to deciding whether an issue of fact exists but in passing on that motion it cannot try that issue if it does exist." On the other hand it is not enough if the party opposing summary judgment claims that there is an issue of material fact. Some evidence by way of counter affidavit or documentation must be presented, Hartmann v.Smith, 158 Conn. 613, 614 (1969); "Mere statements of legal CT Page 4010-LLLL conclusions or that an issue of fact does exist are not sufficient to raise the issue". United Oil Co. v. Urban RedevelopmentCommission, 158 Conn. at p. 377.
The parties have spent much time discussing the case ofStevens v. Polinsky, 32 Conn. Sup. 96 (1974) cited by the defendants. In Stevens the plaintiff was an employee of Loring Studios, Inc. She was injured after falling on a portion of the premises leased by her employer from the defendant landowners. The jury gave a verdict in the amount of $25,000 in favor of the plaintiff against the building owners. On the indemnification claim of the owners against the employer Loring the jury awarded $27,750.00 — the additional sum of $2750. being for attorneys' fees.
The general rule is that a lessor is not liable for accidents or injuries on wholly demised property. There are exceptions to this general rule one of which for example is so-called "public use" exception. Stevens I suppose could be read as standing for the broad proposition that the public use or other exceptions to lessor non-liability on wholly demised property does not apply to permit an employee of the lessee to sue the lessor. The problems such a rule would create were obviated in the specific factual setting of Stevens since the trial on the underlying claim and the indemnification claim had been held and the monetary awards were the same. No one could argue under the worker's compensation statute or otherwise that the employee should be entitled to double recovery.
But Stevens can be more narrowly read for the unremarkable proposition that the owner landlord cannot be subject to suit by the lessee's employee where the injury or accident occurred in a portion of the premises not under the landlord's control because control of the demised premises had been given to the tenant. That's all the several cases cited by the defendants really stand for, Bruno v. Benequista, et al., 572 N.Y.S.2d 497, 498 (1991), Jamesv. Boines, 294 A.2d 94, 95, 96 (Del. 1972), Phillips v. Stowe MillsInc., 167 S.E.2d 817, 820 (1969), McCurtis v. Detroit Hilton,242 N.W.2d 541, 543 (Mich. 1976), Stokenberg v. Forte Towers SouthInc., 430 So.2d 558, 559 (Fla., 1983).
So Stevens or even an analysis of the terms of the lease do not allow the court to avoid what is basically at issue here — the questions of control or possession of the leased premises or at least the portion whose condition caused injury and/or the question CT Page 4010-MMMM of whether liability should attach because the landlord knew or should have known of a hidden defect at the time the premises were leased.
Or to put it another way Section 31-293(a) makes clear that the worker does not give up his or her rights because of workers' compensation to any claim he or she might have against a person other than the employer. That is, the employer can waive its rights under the act and despite the existence of an indemnification clause the employer as well as the owner must be presumed to know of the common law liabilities the owner could be exposed to in a claim by the employee. If despite that the employer decided to have an indemnification clause in the lease that should be its problem not the worker's as long as double recovery can be avoided.
Because of all this the court cannot escape the necessity of deciding the issue raised by the plaintiff's request to rely on Practice Book § 382. The plaintiff wishes the opportunity to pursue discovery by way of interrogatories and deposition so that it can develop its theory of owner control of the premises and knowledge of the defective condition which would preclude the ordinary rules barring landlord liability to injured parties arising from injury on wholly demised premises. On the Practice Book § 382 issue certain matters must be discussed.
On February 1, 1996 the plaintiffs filed an objection to this motion "for the reason that discovery is still ongoing in this case." The objection goes on to state that the plaintiffs have filed a "comprehensive set of interrogatories" and requests for production directed toward the Mills defendants. The information that is sought it is claimed is needed so that the plaintiffs can respond to the defendants' motion.
The objection also notes the defendants have refused "to answer a single interrogatory or request posed to them." It is also said that depositions of two of the Mills defendants were noticed but the defendants have refused to produce the witnesses so that they will have to be subpoenaed to produce their attendance. The plaintiffs therefore objected to the motion relying of Practice Book § 382 and noted they had previously filed a motion for extension of time to respond to the defendants motion for summary judgment to which the defendants also objected.
The plaintiffs filed a brief to on February 16, 1996 and the CT Page 4010-NNNN above mentioned theme is picked up at page 10 of this brief. The brief argues that the case depends on issues of knowledge and control. The plaintiffs argue that: "these factual questions of control and knowledge cannot be resolved at this time by way of summary judgment. It is inappropriate to do so. Further, plaintiffs do not have available to them at this time much of the information that would allow them to answer these questions. It was primarily in an effort to obtain this information that the plaintiffs had requested in extension of time to respond to GM's (Mills defendants) Motion for Summary Judgment. Many of Plaintiff's interrogatories are designed to obtain this information" (excerpts from the plaintiffs' interrogatories are attached to the decision).
Practice Book § 382 states that:
Should it appear from the affidavits of a party opposing the motion that he cannot, for reasons stated, present facts essential to justify his opposition, the court may deny the motion for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just. (P.B. 1963, Sec. 301).
Defense counsel opposes the plaintiffs' request to be allowed discovery in this matter, relies on Dorazio v. M.B. Foster ElectricCo., 157 Conn. 226, 230 (1968), other cases, and the procedural history of the case to argue that a further continuance would be unfair to her clients and should not be permitted under Practice Book § 382.
Most of the procedural history is cited by the defendants in their brief of February 22, 1996.
The court will set forth the procedural history necessary to decide this issue.
• July 19, 1991 — Plaintiffs file their complaint.
• December 2, 1994 — Plaintiffs first serve discovery on the Mills defendants.
• January 30, 1995 — Mills defendants serve responses to plaintiffs' interrogatories.
CT Page 4010-OOOO
• March 6, 1995 — Mills defendants serve response to plaintiffs' requests for production.
• March 8, 1995 — Mills defendants serve their answer, which (i) denies control of the building and (ii) includes a special defense asserting that others controlled and created conditions which allegedly caused plaintiffs injury.
• June 19, 1995 — Mills defendants file the motion for summary judgment now before the Court.
• June through August, 1995 — Plaintiffs request and receive from Mills defendants two extensions of time to respond to motion for summary judgment. Plaintiffs serve no further discovery on Mills defendants.
• August 10, 1995 — Plaintiffs file a motion for a 90-day extension of time to respond to summary judgment to do discovery from Mills defendants. No motion for non-standard discovery filed.
• October 19, 1995 — The court grants 90-day extension to reply to summary judgment.
• January 17, 1996 — Ninety-day extension ends. No discovery or opposition to summary judgment yet served on Mills defendants.
• January 19, 1996 — Mills defendants reclaim summary judgment motion and file supplemental memorandum to attempt in their words to deflect further efforts by plaintiffs to delay.
• January 22, 1996 — Pretrial scheduled for March 1, 1996.
• January 23, 1996 — Plaintiffs (i) file CT Page 4010-PPPP request for permission to serve 647 non-standard interrogatories including sub-parts and 32 requests for production, (ii) serve deposition notices and (iii) seek a second 90-day extension to conduct discovery.
• February 5, 1996 — Objection to motion for summary judgment based on need for further discovery.
• February 13, 1996 — Summary judgment motion on short calendar.
• February 26, 1996 — Summary judgment on short calendar and argued.
Other facts that may be relevant to a decision on this matter should be noted. The court spoke to the trial assignment clerk, Mr. Hildrich. He informed me that 1991 cases such as this case will be brought in for status conferences in June or July of 1996. Trials will not be scheduled before August 31, 1996. Trials on these 1991 cases will be scheduled to commence at some date between September 1, 1996 and February 1997 — the date or week of trial to be selected by the parties.
Practice Book § 382 obviously places a great deal of discretion in the trial court to decide whether the non-moving party should be given additional time for discovery so it can prepare affidavits and other documentation to counter a motion for summary judgment. The section seems to require "affidavits" from parties setting forth reasons why for example the non-moving party should be given additional time to prepare a response. I think representations in court by officers of the court submitted to writing in two documents filed in court as to why additional time is needed would be the equivalent of the affidavit procedure.
Dorazio v. M.B. Foster Electric Co., 157 Conn. 226 (1968) is one of the leading cases discussing appropriate practice under Practice Book § 382. Dorazio involved a negligence action where the defendant filed a motion for summary judgment along with appropriate affidavits. The lawyer for the plaintiff filed his own affidavit in which he made statements supporting his `client's position which were based on hearsay communications from people who purportedly had knowledge about the case. This the court said was clearly inadequate. CT Page 4010-QQQQ
At the hearing on the motion counsel for the plaintiff said it was difficult to obtain the necessary affidavits and the defendants themselves had exclusive knowledge of the facts surrounding the issue of control of scaffolding at a construction site. But the trial court did not accept that excuse for not responding to the defendant's motion. The Supreme Court upheld the trial court's granting of the summary judgment motion noting seven months had passed since the motion had been filed.
In its brief of February 16, 1996 the plaintiff did attach interrogatories which certainly seem geared to elicit information relevant to the control and knowledge aspects of this case and which would seem to refer to facts that would lie exclusively within the exclusive possession of the defendants. In that sense the case is not like Dorazio where counsel for the plaintiff did not indicate "what facts (were) within the exclusive knowledge of the moving party and what steps (they) have taken to attempt to acquire those facts", 157 Conn. at page 230.
This case is like Dorazio in the sense that as in that case over seven months went by after the summary judgment motion was filed and the plaintiffs still had not procured the necessary information through discovery to prepare the necessary affidavits and/or documentation to attempt to rebut the motion. There are differences between this case and Dorazio, however, Dorazio
involved a simple negligence claim against a single defendant. Here there are multiple defendants and an examination of the file indicates there was fairly vigorous motion activity occurring in the fall of 1995 and January 1996.
Failure to rebut the motion for summary judgment in Dorazio
seems ascribable to mere inattentiveness by counsel. It is more difficult to say that here. Counsel did file another motion for extension for time to prepare its response although it was filed several days after the October 19 extension expired. The same is true of the interrogatories filed by the plaintiff along with the notice of deposition of the Mills defendants all of which post dated the January 17, 1996 extension date. However, the interrogatories were filed January 23, 1996 and comprise some 54 pages with over 600 individual questions and over thirty requests for production. Although counsel for the plaintiff apologizes for the delay and admits she should have filed the interrogatories and I supposed conducted the depositions sooner, it is apparent that we do not have a situation here where a lawyer frittered away her time CT Page 4010-RRRR and cavalierly ignored court orders or the responsibilities owed to the clients. To the contrary the interrogatories submitted indicate counsel spent a great deal of time preparing her case.
All of this is of small comfort of course to the Mills defendants and their lawyer who filed a motion for summary judgment in the summer of 1995 and certainly prepared their case vigorously in advancing that motion. There is really no good reason that the interrogatories and depositions could not have been submitted and gone forward in the fall of 1995 while the October 19, extension period had not expired. On the other hand if these interrogatories had been filed a week or two sooner and the depositions had been similarly noticed I probably would have granted a further extension for some period of time if not for a full ninety days. Under the circumstances presented here counsels failure to file these interrogatories or make a request for further extension of time is probably as counsel for the plaintiff says, based on pure oversight on her part.
The question is what do I do now in an attempt to be "just" as Practice Book § 382 so artfully and unavoidably puts it. The problem here is that I am being asked to grant a dispositive motion which will throw these plaintiffs out of court as regards these particular defendants without a chance to develop the full factual basis for a decision on the merits of the motion. The ready answer to that by the defendants is that plaintiffs' counsel had that chance and did not take advantage of it for over seven months. But if I enforce the rules here in the way being suggested the people I am really punishing are the clients and before that should be done, at least for me, certain criteria must be met. The conduct of the lawyer in not preparing his or her response to a motion by the moving party must be done in such a way as to indicate intentional discourteousness to opposing counsel with little or no effort to prepare the case at the point at which the court is required to take action. Another consideration is the effect of the delay on the moving parties. No one wants or should have to face the prospect of having a suit hanging over their heads when our rules of practice are supposed to provide an expeditious method of settling litigation through motions to dismiss, to strike and for summary judgment. However, where a party seeks dispositive relief on a claim it makes or against which it defends itself, I believe there is more reason for a party to prevail in circumstances such as presented here when the party can show the very nature of the suit strongly impinges on their ability to engage in ongoing underlying activity in their business or personal CT Page 4010-SSSS life or where the delay has prejudiced their ability to secure evidence or witnesses to support their position.
Here there has been a delay of several weeks if we concentrate on the date the October 19 extension period ran out and the dates on which the interrogatories and deposition came into this litigation. It might be appropriate although I am not deciding to do so now, to impose sanctions of some sort since the defendants have been forced to file a series of motions and make court appearances which would not have been necessary if the plaintiffs had proceeded more expeditiously.
I will permit further discovery in this case but will only extend the time for the plaintiffs to file affidavits and documentary evidence 60 days from the date of this decision. I suggest during that time they conduct the necessary depositions which might obviate the need for voluminous interrogatories. I further suggest that if any interrogatories or production requests are felt by the plaintiff to be necessary to deal with the issues of control and knowledge they should be immediately identified for opposing counsel. If defense counsel opposes any of the interrogatories or production requests the matter should be set down for argument before me on short calendar day or any other day convenient to the parties and the court but as soon as possible. I will set final argument on this motion down before me on July 29, 1996. The plaintiffs must have all the affidavits and documentation necessary for a hearing on this motion prepared by that date, however such material must be delivered to defense counsel by July 22, 1996. Under the circumstances of this case if defense counsel needs more time to prepare counter-affidavits she may select a date for the hearing on the motion later in August informing my clerk and opposing counsel of the date. I will make every effort to decide this matter then before the end of August 1996.
Thomas Corradino, Judge | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1876503/ | 247 S.W.3d 69 (2008)
Meleigh Carlene GRAY, Respondent,
v.
Howard Andrew GRAY, Appellant.
No. WD 68010.
Missouri Court of Appeals, Western District.
March 4, 2008.
Gary M. Steinman, Gladstone, MO, for appellant.
Susan E. Long, Liberty, MO, for respondent.
Before RONALD R. HOLLIGER, P.J., HAROLD L. LOWENSTEIN, and THOMAS H. NEWTON, J.J.
ORDER
PER CURIAM.
Mr. Howard Andrew Gray appeals the trial court's judgment modifying child support and maintenance obligations.
For reasons stated in the memorandum provided to the parties, we affirm. Rule 84.16(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1869736/ | 451 So. 2d 649 (1984)
Stacey MEYERS, Individually and Stacey Meyers, Inc., Plaintiff-Appellee,
v.
IMPERIAL CASUALTY INDEMNITY COMPANY, Roderick L. Miller and Debaillon & Miller, Attorneys At Law, Defendants-Appellants.
No. 83-662.
Court of Appeal of Louisiana, Third Circuit.
May 16, 1984.
*651 Bienvenu, Foster, Ryan & O'Bannon, David E. Walle, New Orleans, for defendants-appellants.
Andrus, Preis & Kraft, Gregory LaBorde, Lewis & Lolley, James Lewis, Lafayette, for plaintiff-appellee.
Before FORET, LABORDE and YELVERTON, JJ.
*652 FORET, Judge.
Alleging legal malpractice, plaintiffs, Stacey Meyers and Stacey Meyers, Inc., filed suit against defendants, Roderick L. Miller, the legal partnership of Debaillon & Miller, and their malpractice insurer, Imperial Casualty Indemnity Company. The jury rendered verdict in favor of plaintiffs, finding that defendant, Roderick L. Miller, had breached the duty of care and diligence he owed as plaintiffs' attorney. The jury found that plaintiffs had suffered damages amounting to $355,200.00, but determined that plaintiffs were 20% at fault. In accordance with the jury's apportionment of fault, the trial court entered a judgment in favor of plaintiffs for $284,160.00. Defendants appealed the judgment of the lower court and plaintiffs specified several errors in their answer to that appeal.
The issues on appeal are:
(1) Whether the jury was clearly wrong in its determination that defendant, Roderick Miller, was negligent and that his negligence was the proximate cause of the harm that plaintiffs suffered.
(2) Whether the jury's determination that plaintiff, Stacey Meyers, was 20% at fault was clearly wrong.
(3) Whether the jury abused its discretion in determining the amount of plaintiffs' damages.
FACTS
Stacey Meyers (plaintiff) undertook the construction of an apartment complex in Milton, Louisiana. This apartment complex, Country Place Apartments, included ten duplexes, nine of which contained two 2-bedroom apartments each, with the remaining one containing two 1-bedroom apartments. Located at the rear of the property was a free-standing 2-bedroom unit. Construction on the project began in 1979, with interim construction financing provided by Guaranty Bank & Trust Company of Lafayette, Louisiana. After several of the duplex units were completed, Guaranty Bank required that plaintiff secure a permanent loan commitment prior to the advancement of future interim construction funds.
Plaintiff had some difficulty attaining such financing and retained the services of Wayne Rabalais, an investment broker. Mr. Rabalais contacted the Gerhardt Agency of Mobile, Alabama, who, in turn, contacted Investment Corporation of America (ICA). ICA agreed to provide plaintiff with long-term financing, and the requested loan commitment, dated October 16, 1979, was issued.
The commitment provided for a loan of $300,000.00 at 11¾% interest per year, amortized over twenty-five years, with a ten-year call date. This loan would not have been sufficient to provide long-term financing for all of the construction debt which, by October of 1980, totalled approximately $405,000.00. As a result, plaintiff intended to finance approximately $105,000.00 of his debt through Guaranty Bank at a rate of 13½% interest per year.
The commitment specified a closing date of no later than October 31, 1980, and set out two deadlines in connection with that date. First, ninety days in advance of the closing date, the borrower had to submit a formal notice of his intention to execute the commitment. Secondly, forty-five days in advance of the closing date, the borrower had to deliver the required mortgage documentation. The first deadline was met, but the second one was missed.
In February of 1980, plaintiff had consulted Roderick L. Miller (defendant), an attorney practicing in Lafayette, regarding a title opinion needed for the loan closing with ICA. At some point in time, plaintiff also hired defendant to handle the loan closing. The exact date on which it was agreed that defendant would handle the closing is disputed by the parties. According to plaintiff, it was some time in February of 1980, while defendant maintains it was several months later.
Three letters introduced into evidence at trial help to provide a framework for the events surrounding the missed deadline. The first letter dated July 11, 1980, is from *653 defendant to ICA. This letter gives formal notice of plaintiff's intent to execute the commitment and requests closing instructions from ICA. It is clear from this letter that, by this time, defendant had been engaged to handle the loan closing with ICA. The second letter, ICA's response (to defendant's letter), dated July 28, 1980, listed the documentation that had to be provided and, without specifically mentioning the forty-five-day deadline, made reference to the paragraph of the loan commitment which contained it. The third letter dated August 4, 1980, is from defendant to plaintiff. In this letter, defendant asks for the loan commitment and encloses a copy of the July 28, 1980 letter from ICA listing the documentation needed for the closing.
On August 2, 1980, plaintiff went to defendant's office and left a message that some of the documents had been prepared. Plaintiff testified that he also left a copy of the commitment for defendant. At this point, all activity concerning the loan commitment seems to have ceased until plaintiff received a letter from ICA informing him that the commitment had expired.
It appears from the record that between the time defendant received the loan commitment and the date of its expiration, defendant did not examine it to determine what deadlines it contained. As a result, he did not know of the forty-five-day deadline until after plaintiff received the cancellation letter from ICA. For his part, plaintiff testified that he was aware of the forty-five-day deadline, although he did not know the exact date on which it fell.
After the commitment expired, defendant tried to get an extension from ICA but ICA refused to grant one. This was not surprising since by the October 31, 1980 closing date, the prime lending rate was considerably higher than the 11¾% interest rate provided for by the commitment.
As a result of the loss of the long-term loan from ICA, plaintiff had to continue using interim financing with Guaranty Bank. At the time of trial, due to difficulties in attaining a long-term loan at a suitable rate, plaintiff was still relying on this interim financing. Because of the relatively high interest paid on that loan (it averaged approximately 17.04% between October 31, 1980 and December 31, 1982), plaintiff was unable to reduce the principal amount and faced the prospect of having to pay interim interest costs until he could attain a replacement loan at some future date to finance the same amount that would have been financed by the ICA loan. All indications were that a replacement loan would have a higher interest rate and less favorable terms than the ICA loan.
In order to service the interim loan, plaintiff alleges that he had to sell several pieces of property, including his family home. Plaintiff was also unable to obtain any additional financing from Guaranty Bank because of the outstanding interim loan.
This matter was tried before a jury. The jury heard testimony from January 18, 1983, through January 21, 1983. At that point, the matter was recessed. On March 1, 1983, the jury was brought back to deliberate. On this same date, the jury rendered its verdict finding defendant liable to plaintiff for his negligence, but also finding plaintiff 20% at fault. The trial judge entered judgment in accordance with the jury's verdict.
DEFENDANT'S NEGLIGENCE
The jury found that defendant breached the duty he owed as plaintiff's attorney. This determination of the jury is entitled to great respect and should not be disturbed unless it is clearly wrong. Fisk v. Chamblee, 430 So. 2d 1332 (La.App. 3 Cir.1983); Oatis v. Catalytic, Inc., 433 So. 2d 328 (La.App. 3 Cir.1983); Soileau v. South Central Bell Telephone Company, 406 So. 2d 182 (La.1981).
An attorney is obligated to exercise at least that degree of skill and diligence which is exercised by prudent practicing attorneys in his locality. Davis v. United Parcel Service, Inc. 427 So. 2d 921 (La.App. 3 Cir.1983); Ramp v. St. Paul Fire and Marine Insurance Company, 263 La. 774, 269 So. 2d 239 (1972). An *654 attorney, appearing on behalf of plaintiff as an expert on the local practice of real estate law, testified that an attorney handling a loan closing had a duty to read the loan commitment and ascertain any deadlines contained in it. At trial, defendant testified that he did not know of the forty-five-day deadline until after it had expired. Although there was conflicting testimony as to the date on which defendant received the copy of the loan commitment, given the evidence before it, the jury could have concluded that the defendant had a copy of the commitment no later than August 12, 1980.[1] This would have been over a month before the forty-five-day deadline of September 15, 1980. Therefore, although he had a copy of the loan commitment more than a month before the forty-five-day deadline, it appears that defendant did not examine the commitment to determine what time delays it contained. It was not until plaintiff received a letter from ICA informing him that the loan commitment had expired that defendant became aware of the deadline. Defendant's failure to inspect the loan commitment and ascertain the existence of the forty-five-day deadline was clearly a breach of the duty he owed to plaintiff and constituted negligence on his part.
Defendant also breached his duty to plaintiff by failing to properly inform plaintiff regarding the loan closing. Plaintiff was responsible for gathering some of the documentation due by the forty-five-day deadline. Because defendant was unaware of the deadline, he did not inform plaintiff that this documentation was needed in advance of the deadline. This failure to inform plaintiff of the time by which the documentation had to be delivered constituted, in and of itself, negligence on defendant's part.
WAS DEFENDANT'S NEGLIGENCE THE PROXIMATE CAUSE OF PLAINTIFF'S DAMAGES?
It is not enough that defendant was negligent. An attorney is liable for the harm caused by his negligence only if the client proves that such negligence is a proximate cause of that harm. Jenkins v. St. Paul Fire & Marine Insurance Co., 393 So. 2d 851 (La.App. 2 Cir.1981). An attorney's negligence would be a proximate cause or a cause-in-fact of harm to a client if the harm would not have occurred except for that negligence. If the harm would have resulted irrespective of such negligence, then that negligence is not a substantial factor or cause-in-fact. Ganey v. Beatty, 391 So. 2d 545 (La.App. 3 Cir.1980); State Farm Mutual Insurance Company v. South Central Bell Telephone Company, 343 So. 2d 758 (La.App. 3 Cir.1977).
In his brief, defendant argues that even if the jury did not err in finding him negligent, it erred in finding that his negligence was the proximate cause of the harm that plaintiff suffered. Defendant's argument is as follows: Plaintiff was responsible for gathering some of the documentation needed to meet the forty-five-day deadline. However, plaintiff did not provide defendant with most, if not all, of these documents until after the commitment expired. Therefore, even if defendant had been aware of the forty-five-day deadline and done everything required of him, the commitment would have nonetheless expired for want of the documentation that plaintiff was responsible for.
As discussed above, defendant was not only negligent in his initial failure to ascertain the existence of the forty-five-day deadline, but also in his failure to instruct plaintiff as to the time by which defendant needed plaintiff's documentation. Defendant's negligence in failing to inform plaintiff of the date on which defendant needed to receive the documentation was clearly the proximate cause of the expiration of the loan commitment. That plaintiff failed to deliver the documents in time for defendant to meet the deadline was the direct *655 result of defendant's omission to properly inform plaintiff as to the date by which defendant needed that documentation.
Furthermore, it is important to remember that the commitment expired, not because all of the documentation required from plaintiff was not delivered to defendant by the forty-five-day deadline, but because all the documentation was not received by ICA on that date. Although plaintiff was responsible for gathering certain documents, defendant was responsible for preparing certain others, and, in addition, defendant had undertaken the responsibility of forwarding all the necessary documentation to ICA. Defendant testified that he needed certain of the documents that plaintiff was gathering in order to draw up the documents that he was responsible for preparing. Even if plaintiff had delivered the documentation he was responsible for to defendant by the deadline, there would not have been time for defendant to finish the preparation of the necessary documents and forward everything to ICA. As a result, it is evident that defendant needed to receive the documentation from plaintiff some time before the expiration of the forty-five-day deadline if he was going to have time to finish drafting the documents and then forward everything to ICA by the September 15, 1980 deadline. If plaintiff had delivered all of the required documentation to defendant on the day of the deadline, it would have been too late. All of the documentation had to be delivered to defendant some time before that date. Only defendant could know how far in advance of the forty-five-day deadline he needed to receive the documentation from plaintiff in order to have sufficient time to meet the deadline. It fell to defendant to inform plaintiff by what date the documentation was needed. Of course, since defendant had negligently failed to ascertain the existence of the forty-five-day deadline, he did not realize that he needed the documentation before September 15, 1980, and, consequently, did not inform plaintiff of that fact. As defendant testified, until he learned that the commitment had expired, he was working under the impression that everything had to be ready for the closing date, October 31, 1980.
Accordingly, we find that the jury was correct in finding that defendant's negligence was the proximate cause of the harm which plaintiff suffered.
PLAINTIFF'S FAULT
The jury found that plaintiff was 20% at fault. We find that the jury was clearly wrong in this determination.
From the record, it is clear that the only action of plaintiff which might have been negligent was his failure to deliver, before the passing of the deadline, the documents he was responsible for. However, we do not think that this omission constitutes legal fault on plaintiff's part. Although plaintiff did know that there was a forty-five-day deadline, he did not know the exact date on which it fell. As he testified, he was relying on defendant to handle the loan closing and thought that defendant would inform him of any impending deadline. We think that plaintiff was clearly entitled to rely on defendant in this fashion.
In cases involving medical care, courts have, in effect, held that a patient has a right to rely on the skill and diligence of medical personnel. Fairchild v. Brian, 354 So. 2d 675 (La.App. 1 Cir.1977); Favalora v. Aetna Casualty & Surety Company, 144 So. 2d 544 (La.App. 1 Cir.1962), cert. denied, (La.1962). The situation is similar in cases involving legal services. In an attorney-client relationship, a client is entitled to rely on the expertise and diligence of his attorney. This is particularly true where, as in the present case, it is demonstrated that the client had little experience or knowledge regarding the matter which the attorney was engaged to handle. An omission or oversight by a client will not constitute legal fault where that omission is a result of the client's legitimate reliance on his attorney. In other words, in such a case, the duty of an attorney extends to the protection of his client against that client's *656 own substandard conduct[2]. In the present case, plaintiff's failure to provide most of the documentation by the deadline resulted from his legitimate reliance on defendant. The jury was clearly wrong in finding plaintiff at fault.
QUANTUM
The jury found that plaintiffs suffered damages in the following amounts:
(1) Expenses incurred with the loss of the
original financing ....................... $ 17,200.00
(2) Interim construction interest from
October 31, 1980 (the closing date)
until October 31, 1982 ................... 150,000.00
(3) Future interest on the interim
financing ................................ 20,000.00
(4) Increased cost of permanent financing 50,000.00
(5) Losses on the sale of certain real
estate ................................... 28,000.00
(6) Loss of business opportunity ............. 40,000.00
(7) Mental anguish ........................... 50,000.00
Only the awards for expenses incurred with the loss of the original financing (No. 1) and the increased cost of permanent financing (No. 4) are not contested on appeal.
When a jury award itemizes damages, a reviewing court may review the evidence as to each element without regard to the correctness of any other element of damage. Chaney v. Our Lady of Fatima Catholic Church, 391 So. 2d 501 (La.App. 3 Cir.1980); Blancher v. Samuels, 354 So. 2d 213 (La.App. 4 Cir.1977), writ refused, 355 So. 2d 257, 263 (La.1978). Accordingly, we will consider each of the disputed items of damages in its turn.
Before considering the specific items of damage which are at issue, we note that the trier of fact is vested with considerable discretion to fix the amount of damages. The appropriate standard of appellate review dictates that we refrain from disturbing the jury's decision on each item of damages absent an abuse of discretion.
INTERIM FINANCING FROM THE CLOSING DATE THROUGH DECEMBER 31, 1982
In its brief, defendant contends that the amount awarded for interim financing should have been the difference between the 11¾% interest rate which plaintiff would have paid under the long-term loan with ICA and the amount plaintiff actually paid from the closing date until the time of trial[3]. An examination of the evidence indicates that the jury did not award the difference between the two amounts but, rather, awarded a sum approximating the total amount of interim interest paid and accrued during this period of time. In doing so, we think that the jury acted within its discretion.
If the loan commitment had not expired, plaintiff would have begun paying off a long-term loan for the principal amount of $300,000.00, as of October 31, 1980. Because of the expiration of the loan commitment, plaintiff has had to continue to search for a long-term loan. In the meantime, he is forced to pay interest on the interim loan with Guaranty Bank. Only when plaintiff is finally successful in attaining a long-term loan, at some future date, will he be able to begin paying off this long-term loan which, because plaintiff has not been able to reduce the principal in the interim, will be for the same principal *657 amount of $300,000.00. Except for the loss of the long-term loan with ICA, plaintiff would not have had to pay interest for interim financing after October 31, 1980.
For his part, plaintiff contends that the jury's determination of the amount of this item of damage should be amended to $158,900.00, claiming that the amount of $150,000.00 was the jury's "best recollection" of the testimony of their expert regarding this element of damage. In cases of clear clerical errors, an appellate court is empowered to make appropriate adjustments in a jury's verdict. LSA-C.C.P. Article 2164; Woods v. Ratliff, 407 So. 2d 1375 (La.App. 3 Cir.1981). However, we do not think that this is such a case.
Even if we accept plaintiff's contention that his proof as to the interest paid and accrued on the interim loan from the date of closing through December 31, 1982, was clear and convincing to the point that it was an abuse of discretion for the jury not to accept the figure given by their expert as the cost of the interim financing, we would still not consider that the jury was bound to have awarded that amount in damages. The question of the exact cost of the interim financing is not the only question which the jury had to decide in order to determine the amount of this item of damages. They also had to determine that defendant's negligence proximately caused this cost. Jenkins v. St. Paul Fire & Marine Insurance Co., supra. The record provides support for the conclusion that all the costs of this interim financing was not causily related to defendant's negligence. Even if plaintiff had been able to attain the long-term loan with ICA, he still would have had to finance approximately $105,000.00 of the construction debt with Guaranty Bank. This amount was to have been financed at a rate of approximately 13½% per year. The interim finance cost as testified to by defendant's expert included the cost of financing this $105,000.00. Taking this into account, the jury might well have concluded that not all of the costs of the interim financing was a result of the loss of the loan with ICA, but would have been paid in one form or another even if the long-term loan would not have been lost. The jury did not abuse its discretion in setting the amount for this item of damages at $150,000.00.
FUTURE INTERIM INTEREST
Plaintiff contends that the jury's award for future interest on the interim financing should be increased because plaintiff has not attained permanent financing during the pendency of this appeal, and has been forced to continue financing the debt with the interim loan. Plaintiff speculates that, in making this award, the jury did not contemplate that plaintiff would have to continue with the interim financing for such a long period of time. In his brief, plaintiff asks this Court to grant him an open-ended judgment regarding this element of damage. We decline to do so.
At the outset, we note that plaintiff bases his argument on speculation as to what the jury intended when it determined the amount of this element of damage. Even if we accept plaintiff's theory that he is entitled to an open-ended judgment, we would be reluctant to engage in such speculation. As it is, we find that plaintiff's request for an increase in the award must be rejected, regardless of whether the jury's determination made on the basis of evidence elicited at trial has been borne out by subsequent events. The reasonableness of the jury's determination should be judged in light of the evidence in the record, and that evidence amply supports the jury's finding.
Any evidence regarding plaintiff's continued failure to attain permanent financing is not properly before this Court. Except where facts subsequent to trial are not disputed and admitted, the general rule is that a court of appeal has no jurisdiction to review new evidence. Absent a joint stipulation of facts, such new evidence may not be considered. Salter Bus Lines, Inc. v. Leitch, 322 So. 2d 793 (La.App. 3 Cir. 1975); Leger v. Delano Plantation, Inc., 352 So. 2d 743 (La.App. 3 Cir.1977), writ *658 refused, 354 So. 2d 211 (La.1978). There being no joint stipulation as to plaintiff's continued use of the interim financing, any evidence of that fact may not be considered by us. We will not disturb the jury's determination as to this element of damages.
LOST BUSINESS OPPORTUNITY
Defendant maintains that the jury erred in awarding damages for lost business opportunity. We agree, feeling that this element of damage was purely conjectural.
Although there was testimony to the effect that plaintiff had discussed developing a piece of property with a banker, there was no evidence indicating that this development was likely to occur in the foreseeable future. Plaintiff admitted that he had no cost estimates nor plans. Evidence elicited at trial indicated that there had been a severe slowdown in the construction trade and that many builders had stopped building altogether. Additionally, plaintiff presented no evidence indicating what profits he might have expected from any future project if he had, in fact, been able to undertake one.
Given the evidence concerning the building slowdown and the total lack of evidence concerning what plaintiff might have earned from any anticipated construction project, we find that any damages resulting from loss of business opportunity were purely conjectural. Loss profits resulting from an offense or quasi offense must be proven with a reasonable certainty, and damages which are purely conjectural will not be allowed. Smith v. White, 411 So. 2d 731 (La.App. 3 Cir.1982), writ denied, 413 So. 2d 508 (La.1982); Coco v. Richland General Contractors, Inc., 411 So. 2d 1260 (La.1982), writ denied, 413 So. 2d 909 (La.1982). The burden of proving the existence of damages and the causal connection between them and the delictual act rests with the plaintiff. Such proof must be shown by a preponderance of the evidence. A mere possibility is not sufficient. Coco v. Richland General Contractors, Inc., supra. In the present case, plaintiff did not carry his burden of proof. The jury was clearly wrong in awarding damages for lost business opportunity.
LOSSES ON THE SALE OF CERTAIN REAL ESTATE
The jury found that plaintiff suffered financial losses from the sale of certain real estate which he was forced to sell as a result of loss of the long-term loan with ICA. We feel that the jury was wrong in awarding this item of damage because the plaintiff did not carry his burden of proof to show that the loss of the long-term loan proximately caused any of the financial loss suffered by plaintiff as a result of the sale of real estate.
As we stated above, the burden of proving a causal connection between damages and the negligent acts of defendant rests with the plaintiff. The mere possibility that the damages were caused by the negligence of the defendant is not enough. In the present case, although an expert real estate appraiser testified in plaintiff's behalf concerning plaintiff's losses on the sale of real estate, there was little evidence to connect those losses with the loss of the long-term loan. In one attempt to make such a connection, plaintiff testified that lost business opportunity was one of the causes of the financial difficulties which necessitated the sale of the real estate. As we concluded above, plaintiff failed to demonstrate that the loss of business opportunity was a result of a loss of the long-term loan with ICA. Therefore, establishing a causal connection between the sale of the real estate and lost business opportunity fails to establish any causal connection between the sale of real estate and the loss of the long-term loan.
Furthermore, we again note the testimony of plaintiff and his wife that the construction industry suffered a severe slowdown in the period following the closing date of October 31, 1980. It seems probable that plaintiff was forced to sell the real estate, not as a result of the loss of the loan, but as a result of the declining demand in the construction industry. Accordingly, *659 we find that it was error for the jury to award plaintiff this element of damage.
MENTAL ANGUISH
The last element of damage which this Court must consider is the jury's award for mental anguish. Defendant points out that there is a paucity of evidence concerning any mental distress suffered by plaintiff. In this regard, we note that plaintiff did not testify about any mental distress he suffered. The only direct evidence concerning plaintiff's mental anguish was given by plaintiff's wife, whose testimony was as follows:
"Q How has it affected him?
A For him to be able not to provide for his family?
Q Yes, ma'am.
A Well, it'smentally, it's affected him a lot because he was always the type that wanted to give us everything hehe could. Everything we wanted, he tried to provide for us; and it's put a strain on him, as well as the family."
Although mental anguish is by its nature difficult to prove, an award for it must be supported by the evidence. Gele v. Markey, 387 So. 2d 1162 (La.1980); Hayden v. Soule, 271 So. 2d 264 (La.App. 4 Cir.1972); McKowen v. McCraine, 244 So. 2d 45 (La.App. 1 Cir.1971). In Gele, the Supreme Court found the evidence failed to establish mental anguish where one of the plaintiffs simply testified that she and her husband were distraught over a ceiling collapse, but did not attempt to explain their mental states. In the instant case, there is the same lack of any attempt at explaining plaintiff's mental state.
Although it might be assumed that plaintiff suffered some mental anguish given the situation, the burden was on plaintiff to come forth with some proof. Plaintiff could have testified about any mental anguish he had suffered. He did not. Given the paucity of evidence regarding mental anguish, we feel that plaintiff clearly did not prove this element of damage. The jury's award for this element of damage is reversed.
DECREE
For the foregoing reasons,
IT IS ORDERED, ADJUDGED AND DECREED that the judgment of the district court be amended as follows:
That portion of the judgment awarding damages to plaintiffs, Stacey Meyers and Stacey Meyers, Inc., in the amount of $284,160.00 is amended to decrease that award to $237,200.00.
In all other respects, the judgment of the trial court is affirmed.
Costs of this appeal are assessed, one-half against plaintiffs and one-half against defendants.
AFFIRMED AS AMENDED.
NOTES
[1] There was also testimony indicating that plaintiff gave defendant a copy of the commitment as early as February of 1980.
[2] Both the First and Second Circuits, in adopting Professor Johnson's analysis of the effect of comparative negligence on Louisiana tort law (see "Comparative Negligence and the Duty/Risk Analysis", 40 La.L.Rev. 319 (1980)), have stated that tort cases fall into three broad categories. One of those categories is that in which defendant's duty extends to the protection of a plaintiff against his own carelessness. In such a case, contributory negligence and, therefore, comparative negligence, is inapplicable. Dulaney v. Travelers Insurance Co., 434 So. 2d 578 (La.App. 1 Cir.1983); Frain v. State Farm Insurance Co., 421 So. 2d 1169 (La.App. 2 Cir.1982).
[3] In his brief, defendant cites as authority for this contention a case decided by the North Carolina Supreme Court, Pipkin v. Thomas & Hill, Inc., 298 N.C. 278, 258 S.E.2d 778 (1979). While this case does support defendant's contention, we decline to follow example of the North Carolina Supreme Court, feeling that their method of calculating damages does not fully compensate the plaintiff for his losses. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2984295/ | Order filed April 15, 2014
In The
Fourteenth Court of Appeals
____________
NO. 14-14-00240-CR
____________
FORREST WAYNE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Cause No. 1419699
ORDER
The clerk’s record was filed March 25, 2014. Our review has determined
that a relevant item has been omitted from the clerk's record. See Tex. R. App. P.
34.5(c). The record does not contain the application for writ of habeas corpus filed
December 23, 2014.
The Harris County Clerk is directed to file a supplemental clerk’s record on
or before April 25, 2014, containing the application for writ of habeas corpus filed
December 23, 2014.
If the omitted item is not part of the case file, the district clerk is directed to
file a supplemental clerk’s record containing a certified statement that the omitted
item is not a part of the case file.
PER CURIAM | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2610172/ | 485 P.2d 137 (1971)
Sarah A. Wisley MULLENAX, Plaintiff-in-Error,
v.
NATIONAL RESERVE LIFE INSURANCE COMPANY et al., Defendants-in-Error.
No. 70-547, (Supreme Court No. 23906.)
Colorado Court of Appeals, Div. I.
May 11, 1971.
*138 Edward O. Geer, Bill D. LaRue, Denver, for plaintiff in error.
No appearance for defendant in error National Reserve Life Ins. Co.
Yegge, Hall & Evans, Wesley H. Doan, Denver, for defendant in error Rufus A. Wisley, a/k/a Rufus H. Wisley.
Donald L. Dill, Denver, for defendant in error Lucy Morris, formerly known as Lucy A. Spradlin.
Richard B. Bauer, Westminster, for defendant in error Estate of Robert C. Wisley, Rufus A. Wisley, Admr.
Before COYTE, DUFFORD and PIERCE, JJ.
Selected for Official Publication.
COYTE, Judge.
This case was transferred from the Supreme Court to the Court of Appeals pursuant to statute.
The parties appear in the same order here as they appeared below and shall be referred to in the same manner or by name.
The facts are undisputed. In 1949 the plaintiff, Sarah A. Wisley, now known as Sarah A. Wisley Mullenax, married Robert C. Wisley. In 1955 Robert Wisley purchased an insurance policy on his life from the defendant, National Reserve Life Insurance Company, naming as beneficiary: "Sarah A. Wisley, wife, or should she not live to receive payment, to Rufus A. Wisley, father, and Lucy A. Spradlin, mother-in-law, equally or survivor".
The parties to this marriage were divorced two years later, at which time a property settlement was executed, paragraph 8 of which provided:
"The wife hereby conveys, signs and sets over unto the husband all of her right, title and interest in and to any and all other property presently standing in the name of the husband * * *."
Similar terms were applied to the husband as well.
Nine years later, in 1966, Robert Wisley died as the result of an accident, with no change of designated beneficiaries made in the insurance policy.
The plaintiff, Sarah A. Wisley Mullenax, claimed under this policy as principal beneficiary. Also, making a claim was the decedent's father, Rufus A. Wisley, as secondary beneficiary. The defendant, National Reserve Life Insurance Company, admitted liability in general, but stated that it did not know if it should pay Sarah Wisley as principal beneficiary, or Rufus Wisley and Lucy Spradlin as secondary beneficiaries, or the Estate of Robert C. Wisley. Accordingly, it tendered into court the amount of the policy, stipulated to by all parties as the correct amount, and moved for interpleader against all the other parties. This motion was granted and the National Reserve Life Insurance Company no longer is a party to this action.
The trial court found in favor of the defendants, Rufus Wisley and Lucy Spradlin, and against the plaintiff Sarah Wisley and defendant Estate of Robert Wisley, on the grounds that the plaintiff, by her separation agreement entered into in 1957, released all of her rights to the proceeds of this policy. Plaintiff has brought error, urging that as principal beneficiary she is entitled to the full amount of the policy.
The defendant Rufus A. Wisley argues that the trial court was correct in refusing to permit the plaintiff to recover, but erred in allowing the defendant Lucy A. Spradlin to recover one-half of the proceeds.
*139 The first argument to be considered is the defendant Rufus Wisley's contention concerning the policy itself. It is his theory that this is an "Old Line Legal Reserve policy," which requires by its terms that, in order to recover, the beneficiary must have an insurable interest in the life of the insured at the time of the insured's death. Because of the divorce, according to the defendant Rufus Wisley, neither the plaintiff nor her mother is entitled to recover because the divorce severed all of the plaintiff's and her mother's insurable interest in the decedent's life.
Even if the above assertions are true, it would not defeat recovery by the plaintiff or her mother. The record clearly reveals this as an interpleader action in which the insurance company has paid the proceeds into the court and is not interested in the outcome of the suit. The insurer may assert the lack of insurable interest on the part of the beneficiary, but another claimant to the proceeds may not raise this issue. Girdner v. Girdner, 337 P.2d 741 (Okl.); Feely v. Lacey, 133 Mont. 283, 322 P.2d 1104; Bynum v. Prudential Insurance Co., D.C., 77 F. Supp. 56; Matthews v. Matthews, 163 Kan. 755, 186 P.2d 233; Gristy v. Hudgens, 23 Ariz. 339, 203 P. 569. We need not determine if the policy requires plaintiff to have an insurable interest in the decedent's life, for this would be a defense to liability only on the part of National Reserve Life Insurance Company, which chose not to raise it as a bar to plaintiff's recovery when it interpleaded the other parties in this action.
The assertion is also made that, regardless of the policy terms, a former wife does not have an insurable interest in the life of her former spouse so as to be able to recover the proceeds of a life insurance policy.
The policy was purchased and owned by the decedent, not the plaintiff. According to the great weight of authority, where the insured purchases a policy on his own life, he is free to choose whomever he wishes as beneficiary without regard to the insurable interest of that beneficiary. Only where the beneficiary purchases the policy is it required that he have such an interest in the life of the insured. E. Patterson, Essentials of Insurance Law § 37 (2d ed.). We look to the policy in this case and find that the designated principal beneficiary is Sarah Wisley. The decedent was perfectly free to designate whomever he chose as beneficiary, without regard to the insurable interest of that beneficiary. Here he designated his wife, and although later divorced, he took no steps to change his designation. She is entitled as principal beneficiary to recover the full amount of the policy whether or not she had any insurable interest in the decedent's life.
The final question concerns the effect of the separation agreement on the policy. The argument is that the plaintiff by this agreement conveyed her interest in the policy to her husband and therefore is barred from recovery.
It is basic that such agreements must be interpreted in a manner compatible with the clear intent of the parties as manifested by the written terms of the contract. Ilfeld Co. v. Taylor, 156 Colo. 204, 397 P.2d 748.
Taking the policy as a whole, as we have already noted, decedent was its sole owner. By its express terms, the designated beneficiaries were revocable at will by the decedent. At any time he wished the decedent might have changed beneficiaries without the requirement that plaintiff either approve or give her consent.
The terms of the separation agreement required plaintiff to convey all of her "right, title and interest in and to any and all property" held by the husband. The clear meaning of this clause is that plaintiff was conveying unto the decedent any interest in the property to which she might have had a legitimate claim or interest. She had no present interest in this policy, only a mere expectancy. 46 C.J.S. Insurance § 1173b(2). Plaintiff might have renounced or disclaimed her expectancy in *140 the policy by this or any other agreement, but this is sharply distinguishable from the wording of the agreement itself, which speaks of conveying any interest she might have in the decedent's property.
The agreement does not contain a renunciation of her expectancy in the policy and, absent such a specific disclaimer, we will not construe the agreement so as to include a renunciation of her right to take as beneficiary under the policy. It is not the duty of the court to make new contracts for the parties, but merely to interpret the one as written. Yamin v. Levine, 120 Colo. 35, 206 P.2d 596. The agreement has no application to the policy itself. The trial court was in error in holding plaintiff had no right to recover under the policy terms.
Judgment reversed with directions to enter judgment and make distribution of the policy proceeds in accordance with the views expressed herein.
DUFFORD and PIERCE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1471971/ | 59 F.2d 1019 (1932)
UNITED STATES
v.
DONAHUE BROS., Inc.
No. 9363.
Circuit Court of Appeals, Eighth Circuit.
July 22, 1932.
*1020 Wendell Berge, Sp. Asst. to Atty. Gen. (Charles E. Sandall, U. S. Atty., of Omaha, Neb., and John Lord O'Brian, Asst. to Atty. Gen., on the brief), for the United States.
James H. Hanley, of Omaha, Neb., for appellee.
Before GARDNER and SANBORN, Circuit Judges, and NORDBYE, District Judge.
GARDNER, Circuit Judge.
This is an action brought against appellee to recover statutory penalties for the disobedience of an order of the Secretary of Agriculture purporting to have been entered under authority of the Packers and Stockyards Act 1921 (42 Stat. 159 [7 USCA §§ 181-229]). On stipulation of the parties it was tried to the court without a jury. The parties will be referred to as they appeared in the lower court.
The order of the Secretary of Agriculture was entered November 21, 1924, and directed the defendants to cease and desist from violating the Packers and Stockyards Act "(1) by disposing of funds in its possession or control so as to endanger the prompt accounting for payment of the proceeds due owners of live stock, and intermingling its personal accounts with those belonging to shippers and consignors of live stock consigned to it in its capacity as a market agency; (2) by crediting the net proceeds of the sale of live stock to its estray account or other personal account, instead of remitting such proceeds promptly to the shippers; (3) by rendering incorrect account sales to owners and consignors; and (4) in any other manner disclosed by the facts found by the Secretary of Agriculture."
The petition of the plaintiff, all the allegations of which material to this appeal were found by the lower court to be true, alleged the corporate existence of the defendant; that it maintained a place of business at the Union Stockyards, South Omaha, Neb., where it engaged in the business of selling and buying live stock on a commission basis for the account of others, and is a market agency within the meaning and subject to the provisions of the Packers and Stockyards Act of 1921; that as a market agency, it receives *1021 from time to time shipments of live stock for sale, and for the purpose of remitting the proceeds thereof to the persons entitled thereto; that on or about April 23, 1924, the Secretary of Agriculture ordered the institution of an inquiry and investigation for the purpose of determining whether or not the defendant had engaged in unfair practices in violation of the Packers and Stockyards Act and the rules and regulations thereunder, and the defendant had due notice of the issuance of such order. On hearing held pursuant thereto, defendant was found to have violated the act by disposing of shippers' funds so as to endanger prompt accounting for payment due the owners of live stock, and by intermingling its personal accounts with those belonging to shippers of live stock. An order was thereupon entered by the Secretary directing defendant to cease and desist from such practices. It is alleged that the defendant violated this order by converting the proceeds of sales of such stock to its own use, thereby endangering the payment of proceeds due the owners of live stock and by intermingling its personal accounts with those belonging to shippers and consignors. Six specific instances of the violation of the cease and desist order are alleged, and for these violations and failures to obey the order of the Secretary, plaintiff seeks to recover penalty in the sum of $3,000.
The answer is not material because the court found all the allegations of plaintiff's petition to be true, but concluded that a regulation of the Secretary dated June 14, 1923, was legislative in its nature and without authority of law, and that the Secretary exceeded his power and authority in promulgating such regulation, and hence the proceedings before the Secretary were insufficient as a basis for recovery in this action. The court therefore dismissed the action, and the government has appealed.
Section 312 (title 7, § 213, USCA), provides that
"(a) It shall be unlawful for any stockyard owner, market agency, or dealer to engage in or use any unfair, unjustly discriminatory, or deceptive practice or device in connection with the receiving, marketing, buying or selling on a commission basis or otherwise, feeding, watering, holding, delivery, shipment, weighing or handling, in commerce at a stockyard, of livestock.
"(b) Whenever complaint is made to the Secretary by any person, or whenever the Secretary has reason to believe, that any stockyard owner, market agency, or dealer is violating the provisions of subdivision (a), the Secretary after notice and full hearing may make an order that he shall cease and desist from continuing such violation to the extent that the Secretary finds that it does or will exist."
Section 314 of the same act (7 USCA § 215) provides a penalty in the sum of $500 for each violation of a cease and desist order made under the provisions of sections 310, 311, or 312 (7 USCA §§ 211, 212 or 213), and provides that such forfeiture shall be recoverable in a civil suit in the name of the United States.
By section 310 of the act (7 USCA § 211) it is provided, among other things, that if, after hearing, the Secretary is of the opinion that any practice of a stockyard owner or market agency, for or in connection with the furnishing of stockyard services; is or will be unjust, unreasonable, or discriminatory, he may prescribe and determine what regulation or practice is or will be just and reasonable to be followed, and may make an order that the owner or operator shall cease and desist from such violation to the extent to which the Secretary finds that it does or will exist.
Acting under these statutory provisions, the Secretary entered the cease and desist order, for the violation of which this action is brought.
In disposing of the issue, the lower court expressed the view that the action of the Secretary in entering the cease and desist order was bottomed on a regulation promulgated on or about June 14, 1923, which, so far as here pertinent, reads as follows: "No market agency shall make such use or disposition of funds in its possession or control as will endanger or impair the faithful and prompt accounting for and payment of such portion thereof as may be due the owner or consignor of livestock or other person having an interest therein and to this end shall so handle all such funds as to prevent their being intermingled or confused with other accounts or funds of the market agency kept or used for other purposes."
This action, however, is for a violation of the cease and desist order entered upon hearing after proper notice to the defendant, and is not dependent for its validity upon the regulation referred to. The regulation promulgated by the Secretary condemned the practice later covered by the cease and desist order as unfair and unjust within the meaning of the act. Of course, if these practices are not violative of the provisions of the act, *1022 then the Secretary had no authority to enter the cease and desist order; but we are of the view that the regulation promulgated June 14, 1923, was in the nature of an administrative measure designed to advise those subject to the act in advance what practices the Secretary considered to be in violation of the act. It gave notice to the defendant that, as the Secretary construed the act, these practices were forbidden. There was no attempt to legislate by this regulation, but simply to give notice of the Secretary's construction of the act, so that the cease and desist order depends for its validity upon the statutes and not upon the regulation.
The act defines a stockyard service as a service or facility furnished at the stockyards in connection with the receiving, buying, or selling, on commission basis or otherwise, marketing, feeding, watering, holding, in delivery, shipment, weighing, or handling, in commerce, of live stock. It defines the term "market agency" as "any person engaged in the business of (1) buying or selling in commerce livestock at a stockyard on a commission basis or (2) furnishing stockyard services." Section 301 of the act (title 7, § 201, USCA).
The authority of the Secretary to take the action challenged in this suit must be found in the provisions of the Packers and Stockyards Act, and, in the final analysis, the question to be determined is whether or not the practices condemned by the Secretary are within the scope of the act. There can be no doubt that the defendant is a market agency as defined in the act, and hence is subject to proper order of the Secretary of Agriculture. Farmers' Livestock Commission Co. v. United States (D. C.) 54 F.(2d) 375; Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 50 S. Ct. 220, 74 L. Ed. 524; Stafford v. Wallace, 258 U.S. 495, 42 S. Ct. 397, 66 L. Ed. 735, 23 A. L. R. 229.
It is contended by defendant that the practices condemned by the Secretary in his cease and desist order were not subject to his regulation under the act, and that Congress had not disclosed any purpose to legislate in the field of accounting between the commission men and their customers, beyond the matter of requiring full and true disclosure to be made by bookkeeping and furnishing of indemnity in the nature of bonds; that the matter of handling money and safeguarding it had been left by Congress to local law. The act is a very broad and comprehensive law. If we may look to the report of the congressional committee in aid of its interpretation, as was done in Tagg Bros. & Moorhead v. United States, supra, it would seem clear that those in charge of the legislation were impressed with its comprehensiveness. In the report of the House Committee on Agriculture, it is stated that this law, "and existing laws, giving the Secretary of Agriculture complete inquisitorial, visitorial, supervisory, and regulatory power over the packers, stockyards, and all activities connected therewith; that it is a most comprehensive measure and extends further than any previous law in the regulation of private business, in time of peace, except possibly the interstate commerce act."
Further it is stated in this report: "It is not the thought of the committee that the act will in any way interfere with the existing livestock exchanges and similar bodies now organized in the yards, in so far as their rules, regulations, or practices are not found by the Secretary to be unfair or unreasonable. [Italics supplied.]"
Mr. Haugen, who was Chairman of the House Committee on Agriculture, speaking for his committee with reference to this bill, said:
"The secretary is to have exclusive jurisdiction over all transactions connected with the slaughtering and marketing of livestock and livestock products in interstate commerce, subject, of course, to court review; to gather and compel information concerning and to investigate the organization, conduct, practices, and management of the packers and stockyards, including all transactions in or about the stockyards by all concerns or persons dealing on such yards. * * *
"In the case of the stockyards the evils to be dealt with are a multiplicity of more or less minor matters, such as proper rates and charges for the care of cattle at the stockyard and for feed furnished to them, and minor injustices against shippers and purchasers, which, if to be remedied effectively, must be dealt with promptly. [Italics supplied.]"
The defendant as a market agency stood as a fiduciary in relation to the proceeds of sales of live stock handled by it for the benefit of its customers, and the law has always looked with disfavor upon the practice of one who in such a position used such property as his own, or commingled it with his own. Union Stock-Yards Nat. Bank v. Gillespie, 137 U.S. 411, 11 S. Ct. 118, 34 L. Ed. 724; Farmers' & Mechanics' Natl. Bank v. Sprague, 52 N.Y. 605. To do so without authority *1023 from his cestui que trust would not be countenanced by a court of equity and would be condemned generally as bad business practice. The act specifically forbids unfair, unjust, unreasonable, or deceptive practices or devices by market agencies in connection with the marketing of live stock or the performance of stockyard services. The Secretary is granted authority to enforce just and reasonable practices and to prevent those unjust and unreasonable. True, the act does not specify forbidden practices in detail, but the constitutionality of the act is not assailed, and we think could not be successfully assailed on the ground that the forbidden practices are too uncertainly stated. Farmers' Livestock Commission Co. v. United States (D. C.) 54 F.(2d) 375; United States v. American Livestock Commission Co., 279 U.S. 435, 49 S. Ct. 425, 426, 73 L. Ed. 787; Federal Trade Commission v. Raladam Co., 283 U.S. 643, 51 S. Ct. 587, 75 L. Ed. 1324.
In United States v. American Livestock Commission Co., supra, the Secretary of Agriculture entered an order requiring the American Livestock Association to discontinue a boycott by which they refused dealings with the Producers' Commission Association at the Oklahoma National Stock Yards. It was urged that there was nothing in the Stockyards Act which prevented these dealers from refusing to deal with whom they chose. In disposing of this contention, Mr. Justice Holmes tersely said: "But we think that it does not need argument to show that a boycott of a dealer in a stockyard may be an unfair practice under the Act as it is found to have been in this case."
One of the purposes of this act was to protect the owner and shipper of live stock, and to free him from the fear that the channel through which his product passed, through discrimination, exploitation, overreaching, manipulation, or other unfair practices, might not return to him a fair return for his product. The practices indulged in by the defendant stand admitted, and the Secretary found that these practices were unfair. This determination by the Secretary is entitled to great weight. The proper handling of shippers' funds and their proper transmission to the shipper is a part of defendant's duty in performing stockyard services. The sale of live stock contemplated by this act is not completed until all the services which the market agency is called upon to perform have been performed. That service is not complete until the agency has fully accounted to the shipper for the proceeds of the live stock sold. The regulation of any sale which disregards accounting to the shipper for the proceeds would be of doubtful value to the shipper. The contention that Congress only intended to legislate as to the method of handling accounts of shippers on the books of the commission men, it seems to us, is too narrow. The bookkeeping requirements are aids in detecting violations of law. Similar provisions are found in the Grain Futures Act (7 USCA §§ 1-17). But the shippers are not interested primarily in the methods of bookkeeping employed by the commission men. They are directly interested in the practices of the market agency in the matter of remitting to them proceeds of sales. But it is urged that, inasmuch as the act requires the market agency to furnish a bond for the protection of the shipper, this indicates an intent to adopt this as an exclusive remedy. There can be no assurance that the bond required (in this case a $30,000 bond) will fully protect shippers' interests; neither is the requirement for furnishing such a bond inconsistent with the action of the Secretary in demanding that the defendant cease and desist from the practices condemned. If, notwithstanding the demands of the Secretary, the commission men persist in the practice, and by reason of such practice the shippers suffer pecuniary loss, they could then recover on the bond. The prohibition against unfair practices is to protect shippers. The bond requirement is to give shippers a remedy when protection fails.
We are of the view that the practices condemned as unfair by the Secretary and forbidden by his cease and desist order, constitute unfair practices within the scope of the Packers and Stockyards Act, and that the Secretary had authority to enter this order. It is conceded that it was violated; and hence the plaintiff was entitled to recover the penalties provided by statute. The judgment appealed from is therefore reversed, and the cause remanded, with directions to grant the plaintiff a new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2525674/ | 950 N.E.2d 1212 (2011)
HUNT CONST. GROUP
v.
GARRETT.
49S02-1106-CT-365
Supreme Court of Indiana.
June 22, 2011.
Transfer granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1549876/ | 32 F.2d 873 (1929)
APPLYBE et al.
v.
UNITED STATES.[*]
No. 5779.
Circuit Court of Appeals, Ninth Circuit.
May 27, 1929.
James B. O'Connor and Harold C. Faulkner, both of San Francisco, Cal., for appellants.
George J. Hatfield, U. S. Atty., and George M. Naus, Asst. U. S. Atty., both of San Francisco, Cal., for the United States.
Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges.
DIETRICH, Circuit Judge.
On January 2, 1929, the United States district attorney at San Francisco filed an information charging appellants jointly with removing and concealing 390 cases of whisky with the intent to defraud the United States of the tax imposed thereon by law. Without otherwise pleading, appellants on January 26, 1929, filed in the cause separate verified petitions setting up that the cases or sacks "containing twelve bottles each and the contents thereof" (the nature of which was not stated) had been unlawfully taken from their possession by "Federal Prohibition Agents" without search warrant, that the same were then "in the possession and custody of the Prohibition Administrator for the Northern District of California," and that the United States attorney intended to use them on the trial of the information, and praying for an order (1) suppressing and excluding them as evidence, and (2) "directing the Federal Prohibition Administrator" to return them to petitioners.
At the close of the hearing, the court, on February 2d, granted the prayers for the suppression and exclusion of evidence, but ordered the motions or petitions for return of the property to be submitted on briefs to be filed in 10 days. Following this action, upon motion of appellants, consented to by the district attorney, the court on the same day dismissed the information. Thereafter, on February 25th, without opinion an order was made denying the motions for the return of the "liquor," and from this order the petitioners appeal.
It will be noted that the "liquor," or (if in deference to appellants' desire we avoid that term) the sacks, bottles, and "contents," were not seized under a search warrant or any other process, were not taken by the marshal, district attorney, or any other *874 officer of the court, and were never in the possession of the court or any of its officers. The primary purpose of the petitions originally was undoubtedly the suppression of evidence assumed to be pertinent to the criminal charge, and for that purpose so long as the information was pending they were germane to the general subject of litigation and were within approved rules of procedure. Cogen v. United States, 278 U.S. 221, 223, 49 S. Ct. 118.
But manifestly, upon the dismissal of the information on February 2d, in that aspect they had no further function. If therefore they were properly retained at all, it must have been on the theory that they constituted independent proceedings for the return to petitioners of property in the possession of officers of the court. Examples of such proceedings are referred to in the Cogen Case, supra, and the decisions therein cited. But as clearly appears, the liquor had not been seized by aid of any process of the court and was not and never had been in the custody or under the control of any of its officers. In the Cogen Case, supra, it is said: "Applications for return of papers or other property may, however, often be made by motion or other summary proceeding, by reason of the fact that the person in possession is an officer of the court. See United States v. Maresca [(D. C.)], 266 F. 713; United States v. Hee [(D. C.)] 219 F. 1019, 1020. Compare Weinstein v. Attorney General [(C. C. A.)], 271 F. 673." While the decision may not be said to be conclusive on the point, upon reason we think such an independent summary proceeding can be maintained only where the property has been seized under a search warrant or other judicial process or is in the custody or under the control of some officer of the court. In United States v. Maresca (D. C.) 266 F. 713, 717, Judge Hough used this language: "Whenever an officer of the court has in his possession or under his control books or papers, or (by parity of reasoning) any other articles in which the court has official interest, and of which any person (whether party to a pending litigation or not) has been unlawfully deprived, that person may petition the court for restitution. This I take to be an elementary principle, depending upon the inherent disciplinary power of any court of record. Attorneys are officers of the court, and the United States attorney does not by taking office escape from this species of professional discipline. Thus power to entertain this motion depends on the fact that the party proceeded against is an attorney, not that he is an official known as the United States attorney. It is further true that the right to move does not at all depend on the existence of this indictment; it might be made, were no prosecution pending." In United States v. Hee (D. C.) 219 F. 1019, the defendant petitioned the court for return of property upon the ground that without warrant officers connected with the Treasury Department of the United States had illegally taken it from his possession. After stating that "it is entirely well settled that the court has the power, in a summary proceeding such as this, to order the return to the accused of papers and documents wrongfully seized and in the possession of the district attorney, or other officers of the court," Judge Haight said: "I am entirely well satisfied that the conclusion reached by Judge Dodge in the In re Chin K. Shue Case [(D. C.) 199 F. 282] was correct, and that revenue officers, who have seized property pursuant to assumed legislative authority, are not officers of the court, in the sense that the court has power, in a summary proceeding of this kind, to order the return of property illegally seized, at any rate before steps have been taken to have it forfeited. They are officers of another branch of the government, and, in this case, did not assume to act pursuant to any judicial authority or process. If the seizure was unlawful, the defendant undoubtedly may have redress in a plenary action." In the Chin K. Shue Case thus referred to [(D. C.) 199 F. 282] there was a petition for the return of papers wrongfully seized under a search warrant executed by a customs inspector and an inspector of the Department of Commerce and Labor. In denying the petition Judge Dodge said: "In view of all that has been shown bearing upon the questions raised, I am not satisfied that Tighe and Taylor [the two inspectors], or either of them, or their assistants, were, while making the search of these premises, officers of this court in such sense as empowers it to direct them, upon petition, to return the property removed or be adjudged in contempt, or in any way to deal with them under section 268 of the Judicial Code." See, also, Weinstein v. Attorney General (C. C. A.) 271 F. 673.
We conclude that the lower court was without the power to grant the relief prayed for. In view of the fact that the order complained of does not state upon what ground it was made and the possibility that it may be construed as an adjudication upon the merits, the court will be directed to modify it *875 by adding that it is without prejudice upon the merits. With such modification it will be affirmed.
NOTES
[*] Rehearing denied July 15, 1929. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610395/ | 379 P.2d 478 (1963)
Donald Lee FRIEND, Petitioner,
v.
The STATE of Oklahoma, and R. R. Raines, Warden, Oklahoma State Penitentiary, Respondents.
No. A-13337.
Court of Criminal Appeals of Oklahoma.
February 20, 1963.
Donald Lee Friend, pro se.
Charles Nesbitt, Atty. Gen., Hugh H. Collum, Asst. Atty. Gen., for respondents.
*479 BUSSEY, Presiding Judge.
This is an original proceeding instituted by Donald Lee Friend, petitioner herein, now confined in the Oklahoma State Penitentiary at McAlester, Oklahoma, by virtue of five judgments and sentences entered against him in the District Court of Wagoner County on the 30th day of August, 1961, the same reading as follows (in part):
"* * * comes now the defendant in person, in custody of the sheriff, into open court, to receive the judgment and sentence of the Court, upon his plea of guilty to the charge contained in the information filed herein, to-wit: Burglary, 2nd degree. * * *
* * * * * *
"It Is, Therefore, considered, Ordered and Adjudged, by the Court, that defendant, Donald Lee Friend, is guilty of the crime of Burglary, 2nd degree and that he be confined and imprisoned in the State Penitentiary at McAlester, Oklahoma, for the term of Twelve years (12).
* * * * * *
"And it is further Ordered and Adjudged, that the judgment and Sentence herein run concurrently with the judgment and Sentence rendered this date, by this Court * * *."
It is urged by the petitioner that the judgment and sentence above referred to is excessive, null and void in that it imposes a greater punishment than the punishment provided under Title 21 § 1436, "Burglary in the second degree" is punishable by imprisonment in the penitentiary "not exceeding seven years and not less than two years."
*480 The Attorney General in his response concedes that the judgments and sentences rendered herein are a nullity under the authority of Ex parte Custer, 88 Okl.Cr. 154, 200 P.2d 781, wherein this Court held (1) that judgment of conviction and sentence must conform to the punishment prescribed, and must be enforced in conformity with the statute and, (2) where a judgment in toto is void, then a proceeding in habeas corpus to correct the same may be maintained at any time after its rendition.
It is the further position of the Attorney General that, under the circumstances, the District Court should conduct a nunc pro tunc proceeding and enter the proper judgments and sentences based upon the court's findings in said proceedings.
An analogous situation is found in Ex parte Ernest Payton, 45 Okl.Cr. 1, 281 P. 597, wherein this Court held that the trial court may at any time upon proper showing, by appropriate order nunc pro tunc, cause its records to recite the truth and such records, when corrected, make valid that which was apparently defective. See, also, Ex parte Miles, 45 Okl.Cr. 296, 283 P. 268; Ex parte Holmes, 47 Okl.Cr. 5, 287 P. 801; Ex parte Martindale, 47 Okl.Cr. 17, 287 P. 740.
Under the facts herein presented, the Court of Criminal Appeals finds that the District Court of Wagoner County should conduct a nunc pro tunc proceeding correcting the judgments and sentences in Cases # 2578, 2579, 2580, 2581, and 2582, State of Oklahoma v. Donald Lee Friend; that when such proceedings have been held, the findings of the District Court reciting the judgments and sentences rendered therein in the above styled cases should be submitted to this Court; and, that the Warden of Oklahoma State Penitentiary be directed to credit the petitioner herein with the time served under judgments and sentences rendered in Cases # 2578, 2579, 2580, 2581 and 2582 on the 30th day of August, 1961.
IT IS THEREFORE THE ORDER OF THIS COURT, that the petitioner, Donald Lee Friend, be retained in the custody of the Warden of the State Penitentiary at McAlester, and delivered over to the custody of the Sheriff of Wagoner County, or to any person authorized by law to receive said prisoner, and that the petitioner be taken before the District Court of Wagoner County for proper rendition of judgments and sentences.
IT IS THE FURTHER ORDER OF THIS COURT, that the District Judge in and for Wagoner County conduct a nunc pro tunc proceeding determining the charges to which the petitioner entered pleas of guilty and correcting said judgments and sentences.
When the court has concluded its determination in accordance with the procedure as above set forth, and rendered proper judgments and sentences, the district court is directed to submit a written report of said proceedings to this Court, setting forth the findings of the Court, and reciting the judgments and sentences rendered therein in accordance with said findings.
IT IS FURTHER ORDERED that the time served under the judgments and sentences in Cases # 2578, 2579, 2580, 2581 and 2582, now in effect, be credited to the petitioner on the judgments and sentences hereafter rendered by the District Court of Wagoner County in Cases # 2578, 2579, 2580, 2581 and 2582.
When valid judgments and sentences have been rendered in accordance with this opinion, and in compliance with the orders of this court, contained herein, this cause will be dismissed.
NIX and JOHNSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1000809/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7227
QUENTIN MCLEAN,
Plaintiff - Appellant,
versus
M. MICHAEL, C/O Augusta Correctional Center;
A. SANTIAGO, C/O Augusta Correctional Center;
D. L. COOK, C/O Augusta Correctional Center,
Defendants - Appellees.
Appeal from the United States District Court for the Western Dis-
trict of Virginia, at Roanoke. Samuel G. Wilson, Chief District
Judge. (CA-98-119-R)
Submitted: January 31, 2000 Decided: February 8, 2000
Before MICHAEL, TRAXLER, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Quentin McLean, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant Quentin McLean seeks to appeal the district court’s
order dismissing without prejudice his 42 U.S.C.A. § 1983 (West
Supp. 1999) complaint. Initially, we found that McLean’s notice of
appeal was untimely and was filed outside the excusable neglect
period. However, we remanded this case to the district court to
consider McLean’s motion to reopen the appeal period pursuant to
Rule 4(a)(6) of the Federal Rules of Appellate Procedure. The dis-
trict court denied the motion. We find that the district court did
not abuse its discretion in denying McLean’s motion to reopen the
appeal period. See Ogden v. San Juan County, 32 F.3d 452, 455 (10th
Cir. 1994) (standard of review for denial of Rule 4(a)(6) motions).
Consequently, we now dismiss the appeal for lack of jurisdiction
because McLean’s notice of appeal was not timely filed. We dis-
pense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
DISMISSED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8326485/ | Lauriat, Peter M., J.
SAA Group, LLC (“SAA”) brought this action against Old Republic National Title Insurance Company (“Old Republic”) seeking indemnification under a title insurance policy issued by Old Republic insuring a mortgage granted to Washington Mutual Bank (“WAMU”) on property located at 415 Lindsey Street, Attleboro, Massachusetts.
Old Republic has now moved for summary judgment on SAA’s claim against it. For the following reasons, Old Republic’s summary judgment motion is allowed.
BACKGROUND
The pleadings, affidavits, and memoranda set forth the following facts.
Old Republic is a Minnesota corporation with its usual place of business in Andover, Massachusetts. SAA is a Delaware limited liability company with its usual place of business in Woburn, Massachusetts. SAA is affiliated with the Ablitt Law Offices, P.C. (“Ablitt”), of Woburn, Massachusetts.
On or about June 27, 2002, Fleet National Bank (“Fleet”) filed an Open End Mortgage in the Bristol County Registry of Deeds on property at 415 Lindsey Street in Attleboro, Massachusetts (“the Property”) that was intended to secure a $120,000 home equity line-of-credit loan it had made to Ricky and Linda Greigre. In 2003, the Greigres decided to refinance that debt with a loan from the Washington Mutual Bank (“WAMU”), to be secured by a mortgage on the Property, in an amount greater than the Fleet loan. To protect its interest, WAMU purchased a title insurance policy from Old Republic, through its agent, Lenders Title Services, Inc. (“LTS”), whose President is Suzanne Accardo (“Accardo”).
In advance of the closing, LTS obtained from Fleet the pay-off amount of $120,899, for the Greigres’ home equity loan. LTS handled the closing of the refinancing on or about Januaiy 28, 2003, and in connection therewith, recorded WAMU’s mortgage in the Bristol County Registry of Deeds. On February 4, 2003, LTS delivered a check to Fleet in the amount of $120,899 in payment of the Greigres’ home equity loan. Fleet, however, did not freeze or close the Greigres’ home equity loan, and did not send LTS a discharge of its mortgage. Fleet’s failures apparently allowed the Greigres to re-borrow $120,000 against their home equity line-of-credit within days of the closing. At some point after February of2003, Bank of America, N.A. (“BoA”) acquired Fleet.
Late in 2005, the Greigres defaulted on their WAMU loan. WAMU engaged the Harmon Law Offices (“Harmon”) to foreclose on its mortgage. In conducting a title examination on the Property, Harmon noted that Fleet’s prior mortgage had not been discharged. On November 22, 2005, Harmon advised LTS of this encumbrance on the Property, and LTS in, turn, contacted BoA. On December 12, 2005, WAMU assigned the Greigres’ Note and mortgage to DLJ Mortgage Capital, Inc. (“DLJ”). In turn, DLJ engaged Select Portfolio Services, Inc. (“SPS”) to act as its attorney-in-fact and loan servicer in connection with the foreclosure of the WAMU/DLJ mortgage on the Property. SPS engaged the law firm of Ablitt & Charlton (“Ablitt”) to conduct the foreclosure proceedings on behalf of DLJ.
On Januaiy 31, 2006, in an apparent response to LTS’s inquiry, BoA executed a Discharge of Mortgage with respect to the Greigres’ 2002 Fleet home equity line-of-credit loan, and on February 14, 2006, that discharge was recorded in the Bristol County Registry of Deeds. On February 21, 2006, BoA executed a second Discharge of Mortgage with respect to the Greigres’ 2002 Fleet home equity line-of-credit loan, and on March 6, 2006, that discharge was recorded in the Bristol County Registry of Deeds. However, at the times that these mortgage discharge notices were filed, the Greigres still owed Fleet n/k/a/ BoA at least $120,000 on their home equity line-of-credit loan.
On March 29, 2006, BOA—asserting “clerical error and mistake”—executed a Revocation of Discharge of Mortgage, which was recorded in the Bristol County Registry of Deeds on June 30, 2006.
On November 15, 2006, BOA commenced a declaratory judgment action against the Greigres, DLJ and another in the Bristol County Superior Court (the “Bristol Action”) seeking to void and revoke its discharge of the Fleet mortgage. On December 7, 2006, BOA recorded a Memorandum of Lis Pendens against *302the Property with the Bristol County Registry of Deeds. Although Ablitt and DLJ had become aware of the Bristol Action by not later than November 20, 2006, DLJ did not take any steps to defend itself in that case.
On January 4, 2007, Ablitt, representing DLJ, sent a claim letter to Old Republic informing Old Republic that “a recent title examination for the purpose of foreclosing on the said mortgage indicates that a senior mortgage exists in favor of Fleet National Bank in the principal amount of $120,000.” The letter did not disclose, mention or reference the Bristol Action. Old Republic acknowledged receipt of the claim letter the same day, and, as a matter of course, issued a Future Policy Indemnity Letter in which it agreed to “issue a new policy to the successful bidder at the foreclosure sale . . . without exception for this problem.”
On February 8, 2007, BOA was awarded a default judgment in the Bristol Action, thereby restoring its mortgage to first position ahead of DLJ’s. Old Republic was not expressly informed of the Bristol Action by DLJ, SPS, Ablitt, or SAA until October 30, 2007. Moreover, Old Republic was not informed of BOA’s default judgment until December 12, 2007. Consequently, Old Republic was prevented from intervening in the Bristol Action and asserting a variety of viable defenses. Nonetheless, Old Republic informed DLJ that, should DLJ be successful in having the default judgment vacated, Old Republic would defend DLJ in the Bristol Action. DLJ, SPS, Ablitt, and SAA took no steps to remove the default judgment.
On or about April 15, 2008, BOA conducted a foreclosure of the Fleet Mortgage, thereby extinguishing the WAMU Mortgage. DLJ/SPS was the high bidder at the foreclosure sale and agreed to buy the properly for $150,000. Ablitt paid both the bid deposit of $5,000, and the purchase price of $150,000 on behalf of DLJ in connection with the foreclosure sale.
On January 8, 2009, DLJ executed an Assignment of Claim in favor of SAA. SAA then sought indemnification under the Old Republic policy by virtue of this assignment. Old Republic refused, and the present action followed.
DISCUSSION
A motion for summary judgment shall be granted if admissible evidence “show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Mass.R.Civ.P. 56(c). The moving party must affirmatively demonstrate that there are no genuine issues of material fact in dispute. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). “This burden . . . maybe satisfied by demonstrating that proof of that element is unlikely to be forthcoming at trial.” Flesner v. Technical Comm. Corp., 410 Mass. 805, 809 (1991). In response, the nonmoving party “must set forth sufficient facts showing that there is a genuine issue for trial.” Key Capital Corp. v. M&S Liquidating Corp., 27 Mass.App.Ct. 721, 728 (1989), quoting Mass.R.Civ.P. 56(e). A party may not rest on “conclusory statements, general denials, and factual allegations not based on personal knowledge” in opposing a motion for summary judgment. LaBrecque v. Parsons, 74 Mass.App.Ct. 766, 768 (2009).
I.
The first issue is whether Old Republic, by virtue of its refusal to pay SAA’s claim, breached the terms of its title insurance policy. “The interpretation of an insurance policy is a question of law for the trial judge and the reviewing court.” Sullivan v. Southland Life Ins. Co., 67 Mass.App.Ct. 439, 442 (2006). In construing the meaning of an insurance contract, the court must give words their fair meaning in light of the subject matter. Davis v. Allstate Ins. Co., 434 Mass. 174, 179 (2007). The court is bound to interpret an insurance contract from the “viewpoint of a reasonable insured, in order to effectuate the main manifested design of the insurer and insured. Id. at 185.
A.
In assessing whether Old Republic breached the terms of its title insurance policy, the dispositive issue before this court is whether DLJ, SPS, or Ablitt provided Old Republic with timely and effective notice of the pending Bristol Action, such that Old Republic could adequately defend SAA’s mortgage interest in that action. Paragraph Three of the Conditions and Stipulations of the title insurance policy provides in pertinent part that:
The insured shall notify [Old Republic] promptly in writing (i) in case of any litigation as set forth in Section 4(a) below, (ii) in case knowledge shall come to an insured hereunder of any claim of title or interest which is adverse to the title to the estate or interest or lien of the insured mortgage ... If prompt notice shall not be given to the [Old Republic], then as to the insured all liability of the [Old Republic] shall terminate with regard to the matter or matters for which prompt notice is required.
Given the foregoing language, the court must determine whether Old Republic (1) received notice under the policy, and (2) assuming notice was not given, whether Old Republic was actually prejudiced as a result. The court concludes that SAA did not satisfy the notice requirement of the Old Republic insurance policy.
In Johnson Controls, Inc. v. Bowes, 381 Mass. 278 (1980), the Supreme Judicial Court held that “where an insurance company attempts to be relieved of its obligations under a liability insurance policy not covered by G.L.c. 175, §112,1 on the ground of untimely notice, the insurance company will be required to prove both that [(1)] the notice provision was in fact breached and [(2)] that the breach resulted in prejudice to its position.” 381 Mass. at 282 (1980); see also Darcy v. The Hartford Ins. Co., 407 Mass 481, 490 *303(1990) (holding that “an insurer would be able to disclaim coverage because of an insured’s breach of the notice . . . provisions in a policy only if the insurer could prove that any such breach actually prejudiced its position”). Importantly, the Court noted that the basic purpose of a notice requirement is to allow the insurance company “seasonable investigation of the facts relating to litigation.” Johnson, 381 Mass. at 281. “A reasonable notice clause is designed to protect the insurance company from being placed in a substantially less favorable position than it would have been in had timely notice been provided, e.g. being forced to pay a claim against which it has not had an opportunity to defend effectively.” Id. at 282 (emphasis added).
In Darcy, the Court explained that the length of time which elapses before an insurer receives notice “will always be a relevant factor to be considered in determining whether actual prejudice has been shown by an insurer, and the longer the delay, the more likely that prejudice exists.” Id. at 486. However, the Court further stated that before an insurer denies coverage based on untimely notice, the insurer must show some other facts or circumstances that indicate that the “insurer’s interests have actually been harmed.” Id. The Court cited “loss of critical evidence, or testimony from material witnesses . ..” as examples of sufficient facts or circumstances that qualify as prejudicial. Id. Ultimately, the Court in Darcy rejected the insurance company’s argument disclaiming coverage under the policy, because although the insurer had received tardy notice of the pending lawsuit from the insured, any prejudice suffered by the insurance company was the result of the insurance company’s failure to conduct an adequate investigation. Id. at 487.
The Joint Statement of Undisputed Facts in the present case shows that Ablitt sent a “claim letter” to Old Republic on or about January 4, 2007.2 However, the parties disagree as to the effect of this letter. Old Republic asserts that the letter did not provide adequate notice to it because the letter did not state or identify the then pending Bristol Action. Consequently, Old Republic argues that notice was not “prompt,” because it was made aware of the Bristol Action for the first time in October of 2007—nearly eleven months after DLJ itself became aware of the lawsuit.
While SAA admits that its claim letter never explicitly referenced the Bristol Action, it contends that the language was sufficient to cause Old Republic to conduct an inquiry of the claim, and that any reasonable investigation by Old Republic would have uncovered the Bristol Action.
Even construing the facts in a light most favorable to SAA, SAA’s argument is unavailing. The language of the insurance policy is clear: in the event of litigation, DLJ was required to “promptly” notify Old Republic “in writing” about any “litigation.” Implicit in the policy’s plain language is the notion that when notice is given, such notice must contain a certain level of specificity regarding the pendency of any litigation, such that Old Republic could seasonably defend DLJ’s mortgage interest. Instead, the claim letter stated only that, “A recent title examination for the purpose of foreclosing on the said mortgage indicates that a senior mortgage exists in favor of Fleet National Bank ...” The letter made no mention of, or reference to the Bristol Action.
Acceptance of SAA’s argument—that the claim letter, in conjunction with Old Republic’s duty to investigate, provided Old Republic with sufficient notice of the Bristol Action such that its refusal to pay was a breach of contract—effectively requires the insurance policy to be interpreted to mean that, upon notice of a claim, Old Republic bore the responsibility of notifying itself of any pending litigation. This clearly was not the intent of the parties. While it is true that Old Republic has a duty to investigate, under the contract DLJ had an obligation to notify Old Republic explicitly of the Bristol Action. Because the claim letter did not provide adequate notice, this court concludes, as a matter of law, that Old Republic did not receive written notice of the Bristol Action until October 30, 2007, when Old Republic received a fax from Ablitt Law referencing the lawsuit. Given that eleven months elapsed between the time when DLJ and Ablitt first learned of the Bristol Action and the time when they adequately notified Old Republic, the notice of that action was not “prompt” within the meaning of the policy.
B.
Given that DLJ was untimely in providing notice to Old Republic, it must still be shown that DLJ’s failure in this regard actually prejudiced Old Republic. Moreover, the untimely notice must have been the proximate cause of the prejudice caused to Old Republic—that is, Old Republic cannot claim prejudice through its own failure to conduct an adequate investigation. The court concludes that: (1) due to DLJ’s untimely notice, Old Republic was actually prejudiced and (2) that prejudice was not caused by Old Republic’s nonfeasance.
Old Republic contends that had it received timely notice of the Bristol Action, it would have taken steps to defend DLJ’s mortgage interest before a default and default judgment were entered in that action.3 Old Republic asserts that due to DLJ’s failure to provide adequate notice of the suit, Old Republic was required to forfeit several defenses that it could have advanced in the Bristol Action prior to the entry of a default judgment.4 For its part, SAA admits that these defenses were available. Thus, “(Old Republic] was placed in a ’’substantially less favorable position than it would have been in had timely notice been provided." Johnson, 381 Mass. at 282. Moreover, an insurer’s inability to advance viable legal theories, because the insured permitted a default judgment to enter prior to notifying the insurer, satisfies Darcy’s requirement *304that there be specific “facts or circumstances” that show that the insurer has been prejudiced.
The prejudice done to Old Republic was not of its own doing. SAA incorrectly interprets the Court’s decision in Darcy to mean that regardless of whether DLJ’s claim letter contained specific mention of the pending Bristol Action, Old Republic was not justified in denying coverage under the policy because it was Old Republic’s failure to conduct a reasonable investigation that caused the prejudice.
SAA’s argument is fatally flawed. First, Darcy is factually distinguishable from the present case. There, the decision turned in part on the fact that the insurer received actual written notice of the underlying tort suit, which was still in the process of being adjudicated. 407 Mass. at 487. Consequently, the insurer still had ample opportunity to protect its interest prior to judgment, and whatever “prejudice” befell the insurer was the product of its own insufficient investigation. Id. Here, the claim letter did not disclose the existence of any underlying action. Second, even assuming that explicit written notice of a pending suit is not a condition precedent to SAA’s argument, Old Republic’s investigation was reasonable in light of the information provided. First, upon receiving the claim letter, Old Republic took steps to decipher the claim— the letter bore the incorrect date, listed the incorrect policy number, and named the wrong insured lender. Next, Old Republic immediately communicated with LTS, which had closed the WAMU mortgage loan. Then, acting on what Ablitt had communicated in the claim letter, Old Republic proceeded to issue a “Future Policy Indemnity Letter” to DLJ agreeing to issue a new policy to the successful bidder at the foreclosure sale.
ORDER
For the foregoing reasons, Old Republic National Title Insurance Company’s Motion for Summary Judgment is ALLOWED.
G.L.c. 175, §112 applies specifically to motor vehicle liability policies.
The claim letter sent by Ablitt to Old Republic was defective in several respects. According to the parties’ Joint Statement of Undisputed Facts, the claim letter bore the incorrect date (Jan. 4, 2006 instead of Jan. 4, 2007), listed the incorrect policy number, and named the wrong insured lender.
O1d Republic did not receive notice of the Bristol Action until nearly nine months after a default judgment had been entered against DLJ in favor of Bank of America.
Among the available defenses were the following: (1) an estoppel defense based upon Bank of America’s two discharges, which were recorded with the Registry of Deeds: (2) an equitable subrogation defense based upon the fact that the DLJ/WAMU mortgage proceeds were used to pay off a then-existing first mortgage ahead of the Bank of America line of credit; (3) a defense of negligence based upon Bank of America’s failure to close out its line of credit despite receiving instructions to do so; and (4) a defense of breach of Bank of America’s agreement to close the credit line and discharge its junior mortgage. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2592086/ | 75 N.Y.2d 496 (1990)
CBS Inc., Appellant,
v.
Ziff-Davis Publishing Co. et al., Respondents.
Court of Appeals of the State of New York.
Argued February 8, 1990.
Decided April 3, 1990.
Douglas P. Jacobs, Anthony M. Bongiorno and David Boies for appellant.
Leon P. Gold, Robert J. Ward and John P. Stigi III for respondents.
Judges SIMONS, ALEXANDER and TITONE concur with Judge HANCOCK, JR.; Judge BELLACOSA dissents in part and votes to affirm in a separate opinion; Chief Judge WACHTLER and Judge KAYE taking no part.
*498HANCOCK, JR., J.
A corporate buyer made a bid to purchase certain businesses based on financial information as to their profitability supplied by the seller. The bid was accepted and the parties entered into a binding bilateral contract for the sale which included, specifically, the seller's express warranties as to the truthfulness of the previously supplied financial information. *499 Thereafter, pursuant to the purchase agreement, the buyer conducted its own investigation which led it to believe that the warranted information was untrue. The seller dismissed as meritless the buyer's expressions of disbelief in the validity of the financial information and insisted that the sale go through as agreed. The closing took place with the mutual understanding that it would not in any way affect the previously asserted position of either party. Did the buyer's manifested lack of belief in and reliance on the truth of the warranted information prior to the closing relieve the seller of its obligations under the warranties? This is the central question presented in the breach of express warranty claim brought by CBS Inc. (CBS) against Ziff-Davis Publishing Co. (Ziff-Davis).[1] The courts below concluded that CBS's lack of reliance on the warranted information was fatal to its breach of warranty claim and, accordingly, dismissed that cause of action on motion under CPLR 3211 (a) (7). We granted leave to appeal and, for reasons stated hereinafter, disagree with this conclusion and hold that the warranty claim should be reinstated.
I
The essential facts pleaded assumed to be true for the purpose of the dismissal motion are these. In September 1984, Goldman Sachs & Co., acting as Ziff-Davis's investment banker and agent, solicited bids for the sale of the assets and businesses of 12 consumer magazines and 12 business publications. The offering circular, prepared by Goldman Sachs and Ziff-Davis, described Ziff-Davis's financial condition and included operating income statements for the fiscal year ending July 31, 1984 prepared by Ziff-Davis's accountant, Touche Ross & Co. Based on Ziff-Davis's representations in the offering circular, CBS, on November 9, 1984 submitted a bid limited to the purchase of the 12 consumer magazines in the amount of $362,500,000. This was the highest bid.
On November 19, 1984 CBS and Ziff-Davis entered into a binding bilateral purchase agreement for the sale of the consumer magazine businesses for the price of $362,500,000. *500 Under section 3.5 of the purchase agreement, Ziff-Davis warranted that the audited income and expense report of the businesses for the 1984 fiscal year, which had been previously provided to CBS in the offering circular, had "been prepared in accordance with generally accepted accounting principles" (GAAP) and that the report "present[ed] fairly the items set forth". Ziff-Davis agreed to furnish an interim income and expense report (Stub Report) of the businesses covering the period after the end of the 1984 fiscal year, and it warranted under section 3.6 that from July 31, 1984 until the closing, there had "not been any material adverse change in Seller's business of publishing and distributing the Publications, taken as a whole". Section 6.1 (a) provided that "all representations and warranties of Seller to Buyer shall be true and correct as of the time of the closing", and in section 8.1, the parties agreed that all "representations and warranties * * * shall survive the closing, notwithstanding any investigation made by or on behalf of the other party." In section 5.1 Ziff-Davis gave CBS permission to "make such investigation" of the magazine businesses being sold "as [it might] desire" and agreed to give CBS and its accountants reasonable access to the books and records pertaining thereto and to furnish such documents and information as might reasonably be requested.
Thereafter, on January 30, 1985 Ziff-Davis delivered the required Stub Report. In the interim, CBS, acting under section 5.1 of the purchase agreement, had performed its own "due diligence" examination of Ziff-Davis's financial condition. Based on this examination and on reports by its accountant, Coopers & Lybrand, CBS discovered information causing it to believe that Ziff-Davis's certified financial statements and other financial reports were not prepared according to GAAP and did not fairly depict Ziff-Davis's financial condition.
In a January 31, 1985 letter, CBS wrote Ziff-Davis that, "[b]ased on the information and analysis provided [to it, CBS was] of the view that there [were] material misrepresentations in the financial statements provided [to CBS] by Touche Ross & Co., Goldman, Sachs & Co. and Ziff-Davis". In response to this letter, Ziff-Davis advised CBS by letter dated February 4, 1985 that it "believe[d] that all conditions to the closing * * * were fulfilled", that "there [was] no merit to the position taken by CBS in its [Jan. 31, 1985] letter" and that the financial statements were properly prepared and fairly presented Ziff-Davis's financial condition. It also warned CBS that, since all conditions to closing were satisfied, closing was *501 required to be held that day, February 4, 1985, and that, if it "should fail to consummate the transactions as provided * * * Ziff-Davis intend[ed] to pursue all of its rights and remedies as provided by law." (Emphasis added.)
CBS responded to Ziff-Davis's February 4, 1985 letter with its own February 4 letter, which Ziff-Davis accepted and agreed to. In its February 4 letter, CBS acknowledged that "a clear dispute" existed between the parties. It stated that it had decided to proceed with the deal because it had "spent considerable time, effort and money in complying with [its] obligations * * * and recogniz[ed] that [Ziff-Davis had] considerably more information available". Accordingly, the parties agreed "to close [that day] on a mutual understanding that the decision to close, and the closing, [would] not constitute a waiver of any rights or defenses either of us may have" (emphasis added) under the purchase agreement. The deal was consummated on February 4.
CBS then brought this action claiming in its third cause of action[2] that Ziff-Davis had breached the warranties made as to the magazines' profitability. Based on that breach, CBS alleged that "the price bid and the price paid by CBS were in excess of that which would have been bid and paid by CBS had Ziff-Davis not breached its representation and warranties." Supreme Court granted Ziff-Davis's motion to dismiss the breach of warranty cause of action because CBS alleged "it did not believe that the representations set forth in Paragraphs 3.5 and 3.6 of the contract of sale were true" and thus CBS did not satisfy "the law in New York [which] clearly requires that this reliance be alleged in a breach of warranty action." Supreme Court also dismissed CBS's fourth cause of action relating to an alleged breach of condition. The Appellate Division, First Department, unanimously affirmed for reasons stated by Supreme Court. There should be a modification so as to deny the dismissal motion with respect to the third cause of action for breach of warranties.
II
In addressing the central question whether the failure to plead reliance is fatal to CBS's claim for breach of express warranties, it is necessary to examine the exact nature of the *502 missing element of reliance which Ziff-Davis contends is essential. This critical lack of reliance, according to Ziff-Davis, relates to CBS's disbelief in the truth of the warranted financial information which resulted from its investigation after the signing of the agreement and prior to the date of closing. The reliance in question, it must be emphasized, does not relate to whether CBS relied on the submitted financial information in making its bid or relied on Ziff-Davis's express warranties as to the validity of this information when CBS committed itself to buy the businesses by signing the purchase agreement containing the warranties.
Under Ziff-Davis's theory, the reliance which is a necessary element for a claim of breach of express warranty is essentially that required for a tort action based on fraud or misrepresentation i.e., a belief in the truth of the representations made in the express warranty and a change of position in reliance on that belief. Thus, because, prior to the closing of the contract on February 4, 1985, CBS demonstrated its lack of belief in the truth of the warranted financial information, it cannot have closed in reliance on it and its breach of warranty claim must fail. This is so, Ziff-Davis maintains, despite its unequivocal rejection of CBS's expressions of its concern that the submitted financial reports contained errors, despite its insistence that the information it had submitted complied with the warranties and that there was "no merit" to CBS's position, and despite its warnings of legal action if CBS did not go ahead with the closing. Ziff-Davis's primary source for the proposition it urges that a change of position in reliance on the truth of the warranted information is essential for a cause of action for breach of express warranty is language found in older New York cases such as Crocker-Wheeler Elec. Co. v Johns-Pratt Co. (29 App Div 300, affd 164 N.Y. 593).
CBS, on the other hand, maintains that the decisive question is whether it purchased the express warranties as bargained-for contractual terms that were part of the purchase agreement (see, e.g., Ainger v Michigan Gen. Corp., 476 F Supp 1209, 1225 [SD NY 1979], affd 632 F.2d 1025 [2d Cir 1980]). It alleges that it did so and that, under these circumstances, the warranty provisions amounted to assurances of the existence of facts upon which CBS relied in committing itself to buy the consumer magazines. Ziff-Davis's assurances of these facts, CBS contends, were the equivalent of promises by Ziff-Davis to indemnify CBS if the assurances proved unfounded. Thus, as continuing promises to indemnify, the express contractual *503 warranties did not lose their operative force when, prior to the closing, CBS formed a belief that the warranted financial information was in error. Indeed, CBS claims that it is precisely because of these warranties that it proceeded with the closing, despite its misgivings.
As authority for its position, CBS cites, inter alia, Ainger v Michigan Gen. Corp. (supra) and Judge Learned Hand's definition of warranty as "an assurance by one party to a contract of the existence of a fact upon which the other party may rely. It is intended precisely to relieve the promisee of any duty to ascertain the fact for himself; it amounts to a promise to indemnify the promisee for any loss if the fact warranted proves untrue, for obviously the promisor cannot control what is already in the past." (Metropolitan Coal Co. v Howard, 155 F.2d 780, 784 [2d Cir 1946] [emphasis added]; see also, Groen v Tri-O-Inc., 667 P2d 598, 604 [Sup Ct Utah 1983]; Au v Au, 63 Haw 210, 263, 626 P2d 173, 179-180 [Sup Ct Haw 1981]; 1 Corbin on Contracts § 14; 17A CJS Contracts § 342, at 325.)
We believe that the analysis of the reliance requirement in actions for breach of express warranties adopted in Ainger v Michigan Gen. Corp. (supra) and urged by CBS here is correct. The critical question is not whether the buyer believed in the truth of the warranted information, as Ziff-Davis would have it, but "whether [it] believed [it] was purchasing the [seller's] promise [as to its truth]." (Ainger v Michigan Gen. Corp., supra, at 1225; see, e.g., Overstreet v Norden Labs., 669 F.2d 1286, 1291 [6th Cir 1982]; Pritchard v Liggett & Myers Tobacco Co., 350 F.2d 479, 483 [3d Cir 1965], cert denied 382 US 987, opn amended 370 F.2d 95 [3d Cir 1966], cert denied 386 US 1009; CPC Intl. v McKesson Corp., 134 Misc 2d 834 [Sup Ct, NY County].) This view of "reliance" i.e., as requiring no more than reliance on the express warranty as being a part of the bargain between the parties reflects the prevailing perception of an action for breach of express warranty as one that is no longer grounded in tort, but essentially in contract. (See, Ainger v Michigan Gen. Corp., supra, at 1225; Randy Knitwear v American Cyanamid Co., 11 N.Y.2d 5, 10-11, n 2; see, 8 Williston, Contracts § 970, at 485-488 [3d ed].) The express warranty is as much a part of the contract as any other term. Once the express warranty is shown to have been relied on as part of the contract, the right to be indemnified in damages for its breach does not depend on proof that the buyer thereafter believed that the assurances of fact made in the warranty would be fulfilled. The right to indemnification *504 depends only on establishing that the warranty was breached (see, Glacier Gen. Assur. Co. v Casualty Indem. Exch., 435 F Supp 855, 860 [D Mont 1977] [citing Metropolitan Coal Co. v Howard, supra]; 1 Corbin, Contracts § 14).
If, as is allegedly the case here, the buyer has purchased the seller's promise as to the existence of the warranted facts, the seller should not be relieved of responsibility because the buyer, after agreeing to make the purchase, forms doubts as to the existence of those facts (see, Ainger v Metropolitan Gen. Corp., supra, at 1234; see also, Metropolitan Coal Co. v Howard, supra, at 781; Glacier Gen. Assur. Co. v Casualty Indem. Exch., 435 F Supp 855, 860-861, supra; 8 Williston, Contracts § 973 [3d ed]). Stated otherwise, the fact that the buyer has questioned the seller's ability to perform as promised should not relieve the seller of his obligations under the express warranties when he thereafter undertakes to render the promised performance.
The cases which Ziff-Davis cites as authority for the application of its tort-action type of reliance requirement do not support the proposition it urges. None are similar to the case at bar where the warranties sued on are bargained-for terms in a binding bilateral purchase contract. In most, the basis for the decision was a factor other than the buyer's lack of reliance such as, for example, insufficient proof of the existence of the alleged express warranty (see, e.g., Scaringe v Holstein, 103 AD2d 880, 881; Friedman v Medtronic, 42 AD2d 185, 190; Crocker-Wheeler Elec. Co. v Johns-Pratt Co., 29 App Div 300, affd 164 N.Y. 593, supra; Ellen v Heacock, 247 App Div 476, 477) or that the warranty sued upon was expressly excluded by terms of the contract (see, e.g., Caribbean Atl. Airlines v Rolls-Royce Ltd., 39 AD2d 673, affd without opn 31 N.Y.2d 798) or that there was insufficient proof that the express warranty had been breached (see, e.g., 200 E. End Ave. Corp. v General Elec. Co., 5 AD2d 415, affd without opn 6 N.Y.2d 731); and some involve implied rather than express warranties (see, e.g., Millens & Sons v Vladich, 28 AD2d 1045, affd without opn 23 N.Y.2d 998).
Ziff-Davis repeatedly cites and the dissent relies upon language contained in the Appellate Division's opinion in Crocker-Wheeler Elec. Co. v Johns-Pratt Co. (supra) which dealt with a claimed breach of an express warranty pertaining to the fitness of insulating material for a certain use. The court held that there was no actionable express warranty claim *505 because the seller made no warranty with respect to use of the material. The language which Ziff-Davis quotes as a categorical proposition that should control the case before us i.e., "[i]t is elementary that, in order to entitle the plaintiff to maintain an action for breach of an express warranty, it must be established that the warranty was relied on" (emphasis added) is contained in dictum (29 App Div, at 302).[3]
Viewed as a contract action involving the claimed breach of certain bargained-for express warranties contained in the purchase agreement, the case may be summarized this way. CBS contracted to buy the consumer magazine businesses in consideration, among other things, of the reciprocal promises made by Ziff-Davis concerning the magazines' profitability. These reciprocal promises included the express warranties that the audited reports for the year ending July 31, 1984 made by Touche Ross had been prepared according to GAAP and that the items contained therein were fairly presented, that there had been no adverse material change in the business after July 31, 1984, and that all representations and warranties would "be true and correct as of the time of the closing" and would "survive the closing, notwithstanding any investigation" by CBS.
Unquestionably, the financial information pertaining to the income and expenses of the consumer magazines was relied on by CBS in forming its opinion as to the value of the businesses and in arriving at the amount of its bid; the warranties pertaining to the validity of this financial information were express terms of the bargain and part of what CBS contracted to purchase. CBS was not merely buying identified consumer magazine businesses. It was buying businesses which it believed to be of a certain value based on information furnished by the seller which the seller warranted to be true. The determinative question is this: should Ziff-Davis be relieved from any contractual obligation under these warranties, as it contends that it should, because, prior to the closing, CBS and its accountants questioned the accuracy of the financial information and because CBS, when it closed, did so without believing in or relying on the truth of the information?
We see no reason why Ziff-Davis should be absolved from its *506 warranty obligations under these circumstances. A holding that it should because CBS questioned the truth of the facts warranted would have the effect of depriving the express warranties of their only value to CBS i.e., as continuing promises by Ziff-Davis to indemnify CBS if the facts warranted proved to be untrue (see, Metropolitan Coal Co. v Howard, supra, at 784).[4] Ironically, if Ziff-Davis's position were adopted, it would have succeeded in pressing CBS to close despite CBS's misgivings and, at the same time, would have succeeded in defeating CBS's breach of warranties action because CBS harbored these identical misgivings.[5]
We agree with the lower courts that CBS's fourth cause of action, for breach of section 6.1 (f) of the purchase agreement, was properly dismissed inasmuch as section 6.1 (f) was a condition to closing, not a representation or warranty, and was waived by CBS.
The order of the Appellate Division should be modified, with costs to the appellant, by denying the motion to dismiss the third cause of action for breach of warranty and the order should be otherwise affirmed.
BELLACOSA, J. (dissenting).
The issue is whether a buyer may sue a seller, after consummating a business transaction, for breach of an express warranty on which the buyer chose not to rely. The holding discards reliance as a necessary element to maintain an action for breach of an express warranty. Predictability and reliability with respect to commercial transactions, fostered by 90 years of precedent, are thus sacrificed. I respectfully dissent and would affirm the order of the Appellate Division unanimously affirming Supreme Court's application of the sound and well-settled rule.
Plaintiff CBS contracted to purchase defendant Ziff-Davis's *507 consumer magazine group pursuant to an Asset Purchase Agreement (APA). CBS specifically negotiated the right to rely on its own accountant's representations in assessing the validity of the financial information which had been, and would be, provided to CBS by Ziff-Davis (§ 5.1 of the APA). Given the factual and fiscal complexity of this $362,500,000 acquisition, CBS chose to rely on its own investigation. What the CBS inspectors found in the Ziff-Davis books differed significantly from the financial picture the seller had painted. CBS notified Ziff-Davis of the discrepancies by letter on January 31, 1985, four days before the closing date. Despite its protest to the contrary, it had a contractual right under section 6.1 (a) of the APA to avert the closing if "all representations and warranties of Seller to Buyer" were not true on the closing date. Clearly then, CBS chose to rely on the results of its own investigation and made a business judgment to consummate the purchase rather than cancel the deal. It took the business risk of a big deal and tried by this subsequent litigation to mitigate whatever risk, if any, inured from that choice; in other words, CBS wanted to have its cake and eat it, too.
Supreme Court determined CBS did not rely on the Ziff-Davis warranties. The Appellate Division made the same determination and the nonreliance is acknowledged by the majority (majority opn, at 499). The reliance element is thus unnecessarily excised as a matter of law from the legal proposition governing and defining the cause of action. If I am "missing the point" (majority opn, at 506, n 5), I believe it is because that is where the appellant's argument and the state of the law have led me.
Part of CBS's argument is that it should prevail because the closing day letter purports to reserve its rights as to the Ziff-Davis warranties and section 8.1 of the APA purports to be a kind of nonmerger survival clause. On a sui generis contract basis therefore, without affecting the traditional reliance element of the cause of action, this argument is enticing. Nevertheless, I conclude and the majority apparently agrees in this respect that the argument is not dispositive. The warranties given to CBS created a right to rely on the financial data as part of the sales agreement, not a right not to rely on them, then consummate the deal and then sue on them besides. These aspects of the agreement, therefore, merely manifested the parties' intent not to allow the closing to operate as a waiver of CBS's right to rely a right which was surrendered before the closing. If this issue were dispositive, it *508 would render the case and the contract entirely sui generis and there would be no need to address or alter the long-standing test with its reliance element. However, the court confronts and decides the broader issue, and on that we see and understand the case all too well in a fundamentally different way.
"It is elementary that, in order to entitle the plaintiff to maintain an action for breach of an express warranty, it must be established that the warranty was relied on." (Crocker-Wheeler Elec. Co. v Johns-Pratt Co., 29 App Div 300, 302, affd 164 N.Y. 593.) This plain language proposition has been recognized by this court and by the Appellate Division (see, Randy Knitwear v American Cyanamid Co., 11 N.Y.2d 5, 9, 11, 15-16; see also, County Trust Co. v Pilmer Edsel, Inc., 14 N.Y.2d 617, 621 [Burke, J., dissenting]; see, Butler v Caldwell & Cook, 122 AD2d 559, 560, lv denied 73 N.Y.2d 709, appeal dismissed 73 N.Y.2d 849; Scaringe v Holstein, 103 AD2d 880; Zucker v Siegel, 54 AD2d 979; Friedman v Medtronic, Inc., 42 AD2d 185, 190; see also, Hellman v Kirschner, 191 NYS 202 [App Term, Lehman, J.]). The majority declares the oft-quoted principle of Crocker-Wheeler "is not to be followed" (majority opn, at 505, n 3), based in part on a dormant tort/contract categorical bifurcation drawn largely from Ainger v Michigan Gen. Corp. (476 F Supp 1209). Also, part of the justification for this departure from stare decisis in the field of common-law commercial transactions where the burden for change is very high is Professor Williston's "criticism" of Crocker-Wheeler. Examination of the complete section of the quoted text, however, discloses a significant qualification: "[I]t is generally and rightly held that inspection by the buyer does not excuse the seller from liability for * * * an express warranty, if the difference between the goods and the description was not detected" (8 Williston, Contracts § 973, at 501 [3d ed] [nn omitted; emphasis added]). "The difference" was definitively detected here by CBS pursuant to its express contractual right to personally assess the financial data.
In exchange for the long-standing, well-regarded and well-founded rule, New York law is subordinated to a theory advanced in Ainger v Michigan Gen. Corp. (476 F Supp, supra, at 1226). Among the problems of this approach, however, is that in affirming Ainger the Court of Appeals for the Second Circuit emphasized the limited impact of the District Court's categorical discussion of the precise issue before us. After stating that the District Court Judge's "finding of reliance *509 made a discussion of New York law unnecessary," the Second Circuit said "[b]ecause there was reliance in this case, we will not speculate how the New York courts would decide a case in which there was none." (Ainger v Michigan Gen. Corp., 632 F.2d 1025, 1026, n 1.) The reliance on CPC Intl. v McKesson Corp. (134 Misc 2d 834) also seems misplaced. Again, the trial court in that case extensively discussed the reliance question. However, the appellate courts in an entirely different procedural review significantly minimized the discussion of the pertinent subject matter (see, CPC Intl. v McKesson Corp., 70 N.Y.2d 268, 285 ["plaintiff, in contracting to purchase (defendant's corporation), relied solely on the warranties"], 120 AD2d 221, 229 ["plaintiff relied solely upon the express warranties"]). Lack of reliance, therefore, was not part of the holdings in Ainger or CPC, even at their trial level citations by the majority. Yet those cases are accorded significant deference on the critical issue and they override superior longer-standing sources.
Finally, while I agree that analogy to the Uniform Commercial Code is "instructive" (majority opn, at 506, n 4), I believe the directly on-point express warranty section, UCC 2-313, emphasizes the need to stand by our precedents and thus affirm. Official comment 3 of that section indicates that were this a transaction governed by the Uniform Commercial Code, CBS's nonreliance would take the seller's warranties out of the agreement, especially after a buyer consummates the deal with full knowledge and with open disagreement concerning key financial data (UCC 2-313, comment 3; 1 White and Summers, Uniform Commercial Code § 9-5, at 450-451 [Practitioner's 3d ed]).
Thus, we are presented with no binding or persuasive authorities sufficient to warrant overturning a venerable rule of the kind used especially in the commercial world to reliably order affairs in such a way as to reasonably avoid litigation (see, Cardozo, Selected Writings of Benjamin Nathan Cardozo, The Growth of the Law, at 236 ["In this department of activity (commercial law), the current axiology still places stability and certainty in the forefront of the virtues."]). Allowing CBS to consummate the deal, and then sue on warranted financial data it personally investigated and verified as wrong beforehand, unsettles the finality, "stability and certainty" of commercial transactions and business relationships.
*510CBS chose for business reasons it knows best to complete its significant acquisition at the impressively high agreed price with its cyclopean eye wide open. That tips the scales in favor of retaining and applying the traditional rule requiring a reliance element to sue for breach of warranty.
I would affirm the order in its entirety and leave the law where it was and the parties where they put themselves.
Order modified, etc.
NOTES
[1] Ziff-Davis is a privately held corporation and is a wholly owned subsidiary of defendant Ziff Corporation. Ziff Corp. is the guarantor of the purchase agreement at issue. For ease of reference, when addressing arguments raised by these defendants, I will refer to the defendants collectively as Ziff-Davis.
[2] CBS's remaining claims, other than cause of action four (discussed infra, at 499) were also dismissed in prior orders by the lower courts. No issues have been raised as to these dismissed claims.
[3] We note that this dictum has been criticized (see, 8 Williston, Contracts § 973, at 501 [3d ed]) and to the extent Crocker-Wheeler can be broadly read to require the rule of "reliance" urged by Ziff-Davis in this case it is not to be followed.
[4] In this regard, analogy to the Uniform Commercial Code is "instructive". While acceptance of goods by the buyer precludes rejection of the goods accepted (see, UCC 2-607 [2]), the acceptance of nonconforming goods does not itself impair any other remedy for nonconformity (see, UCC 2-607 [2]), including damages for breach of an express warranty (see, UCC 2-714; see generally, 1 White and Summers, Uniform Commercial Code § 10-1, at 501-502 [Practitioner's 3d ed]; see also, Atwater & Co. v Panama R. R. Co., 255 N.Y. 496, 501-502).
[5] We make but one comment on the dissent: in its statement that our "holding discards reliance as a necessary element to maintain an action for breach of an express warranty" (dissenting opn, at 506), the dissent obviously misses the point of our decision. We do not hold that no reliance is required, but that the required reliance is established if, as here, the express warranties are bargained-for terms of the seller. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3101075/ | COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00086-CV
In the Interest of A.R.F., a child § From the 323rd District Court
§ of Tarrant County (323-96013J-12)
§ July 25, 2013
§ Opinion by Justice Walker
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
By _________________________________
Justice Sue Walker | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2610206/ | 485 P.2d 667 (1971)
26 Utah 2d 88
John R. CHATTERLEY et al., Plaintiffs, Respondents and Cross-Appellants,
v.
OMNICO, INC., and Interface Computer, Inc., Defendants, Appellant and Cross-Respondent.
No. 12122.
Supreme Court of Utah.
May 17, 1971.
*668 Homer F. Wilkinson, Gary A. Weston, of Bettilyon & Howard, Salt Lake City, for appellants.
Del B. Rowe, Salt Lake City, for respondents.
CROCKETT, Justice:
John Chatterley and eleven others obtained judgment against Interface Computer, Inc., which operated its business in Salt Lake City, and its parent corporation, Omnico, Inc., a Washington State based holding company, for unpaid wages, severance pay and other benefits. The basic issue in this lawsuit is whether the parent corporation Omnico, which now appeals and attacks the judgment against it, can be held for those obligations. Upon a trial of the issues the court found in favor of the plaintiffs and against Omnico: that Interface did not have a valid board of directors and officers, that its affairs were actually operated by Omnico. Accordingly, the court "pierced" the corporate veil of Interface and rendered judgment against defendant Omnico to the extent of $13,941 of the claims of the plaintiffs.
Interface Computer, Inc., was incorporated in Utah in December of 1968 by F. McKay Smith and two others for purposes centered around rendering computer services. The articles set up a board of four directors. In April 1969 Mr. Smith, the principal stockholder, sold 80 per cent, or 480,000 shares, of the Interface stock to defendant Omnico. On April 28 the Omnico board of directors, and Smith representing the other outstanding Interface shares, met in a shareholders' meeting. They voted to increase the number of directors of Interface from four to seven, elected Eddie M. Peterson, who was chairman of the Omnico board and of the boards of each of several Omnico subsidiaries, as chairman of the Interface board; and elected McKay Smith as president and executive officer of Interface.
In the fall of that year, September and October of 1969, Interface was failing to meet its payroll to the plaintiffs. On October 17 they met and formulated certain demands, including that they were looking to Omnico for payment, which were mailed to the executive officers of both Interface and Omnico. No response was received from either. All of the plaintiffs were terminated either before or by a letter dated October 29, 1969, from Mack Call, then temporary president of Omnico and a member of the Interface and Omnico boards. Most of them were on "blue slip"[1] basis; and after proper demand their wages remained unpaid.
In attacking the fixing of responsibility on it, Omnico first urges error in the determination that Interface did not have a valid board of directors nor validly elected officers. These conclusions were grounded on two findings: (1) That the amendment made in the April 28 meeting to the Interface *669 articles was never filed with the Secretary of State as required by statute; and (2) That the new Interface board of directors never met as such, but that its functions were performed by the Omnico board of directors. We have no disagreement with Omnico's argument, based on Jackson v. Crown Point Mining Company[2] that the mere failure to file an amendment changing the number of directors on an otherwise properly constituted and functioning board is not sufficient grounds to invalidate the board or the action it takes. In attempting to apply the ruling of that case here Omnico fails to take into account the second aspect of the two findings just quoted above. In the Jackson case, the board met regularly and conducted the business of the corporation. This is in contrast to what occurred in this case, as will appear below.
Defendant essays the position that the meetings of the Omnico board consisting of 15 members, six members of whom were members of the seven-man Interface board, should also be considered as meetings of the latter board. On the other hand, plaintiffs point out certain aspects of those meetings in justification of the trial court's conclusion that it was the Omnico board which was responsible for the operation of the Interface business, and that any distinction between Omnico board and Interface was consistently disregarded: In such meetings there was never the formality usually observed of adjourning the meeting of the Omnico board and convening one of the Interface board. Although only the six-man Executive Committee of the Omnico board where members of the Interface board, whenever Interface business was taken up, the entire 15-man Omnico board considered and voted on it.
There are a number of examples of actions by the Omnico board on Interface business, including employees' reassignment, termination of duties, and a resolution that its executive officer should "forthwith effectuate a 20 per cent reduction of Interface's salary overhead." It is of further interest that at the only meeting actually called as a combined meeting entitled as: "A special meeting of the board of directors of Omnico, Inc., and a meeting of the shareholders and board of Omnico's five subsidiaries above named," no Interface business was touched upon. At this and other meetings, McKay Smith was not listed as either present or absent, as were all of the directors of Omnico. If they had been in fact meetings of the Interface board on which Mr. Smith was a director, his presence or absence should have been shown.
Defendant's urgence that the trial court must have been so "confused" by these combined meetings and the minutes thereof that he was impelled to the wrong result is not convincing. We note here that the disputation between the parties as to whether Interface actually had a valid board of directors and validly elected officers is not alone of critical importance. What has been said about it has a bearing upon the more important and controlling aspect of this case in accordance with the views adopted by the trial court, to which the minutes tend to give corroboration and support: that it was Omnico and its board of directors who were actually operating the business of Interface.
In another facet of Omnico's attempt to upset the trial court's determination that Interface was merely its instrumentality, it points out that neither ownership of a majority of stock, nor the fact that the same persons were officers and directors in the parent (Omnico) and the subsidiary (Interface) would make the former liable for the obligations of the latter.[3] With this we have no disagreement, and we realize that these are common business practices. Nor do we have any difference with Omnico's further averment that: "* * * the corporate *670 entity is only ignored when the ends of justice require it. Some element of unfairness, something akin to fraud or deception, must be present in order to disregard the corporate fiction."[4] It is so apparent as to hardly require stating that the corporate veil should not be so pierced except where considerations of justice so require.
In this situation the consideration of justice which so requires is simply that a controlling corporation, such as Omnico, should not be permitted to manage and operate a business from which it stands to gain whatever profit may be made, have the advantage of the efforts of those who serve it, and then use the nomenclature of another corporation as a facade to insulate it from responsibility for paying for such services. We appreciate that this is of course the point of sharp disagreement and dispute in this case. It seems to be another of the constantly recurring situations where the parties, with an eye single to the rightness of their own contentions, each select and place emphasis on those aspects of the evidence which tend to support their own point of view. Inasmuch as it is a matter upon which reasonable minds might differ, the traditional rule of review applies and is dispositive of the issue here: that it is the prerogative of the trial court to find the facts; that in reviewing the record we assume that he believed and regarded as important and persuasive, those aspects of the evidence and the reasonable inferences fairly deducible therefrom which support the findings and judgment.[5]
Defendant's last point is that the trial court erred in awarding benefits to which the plaintiffs were not entitled, and payment for time not actually worked. This apparently included some time that some of them used to look for and be interviewed for other employment. No one doubts that "an employee is bound to exercise faithful, loyal and honest service to his employer."[6] There is indication that whatever irregularities there were occurred with the consent of their immediate superior. In circumstances where wages were long past due, there is no basis for any such imputation of disloyalty to their employer as to warrant a reduction in the wages as found due by the trial court.
Plaintiffs have taken a cross-appeal, seeking to augment the judgment by claimed penalty wages under Sec. 34-28-5(1), U.C.A. 1953; (1969 P.Supp.):
Separation from payroll * * * (1) Whenever an employer separates an employee from his payroll, the unpaid wages of such employee shall become due immediately, and the employer shall pay such wages to the employee within 24 hours of the time of separation * * *.
In case of failure to pay wages due an employee within 24 hours of a demand therefor, the wages of such employee shall continue from the date of separation until paid, but in no event to exceed sixty days, * * *. The employee may recover * * * in a civil action.
It is apparent that this statute is intended to impose sanctions where there is a wilful failure of an employer to pay wages. Inasmuch as there appears to have been a bona fide dispute as to whether Omnico was responsible for payment, the trial court was not obliged to make such further award against it.
The judgment is affirmed. The parties to bear their own costs on appeal.
CALLISTER, C.J., and TUCKETT, HENRIOD and ELLETT, JJ., concur.
NOTES
[1] "Blue slip" is the informal name given the involuntary separation report required for eligibility for unemployment compensation under the Employment Security Act, Title 35, Chap. 4, U.C.A. 1953.
[2] 21 Utah 1, 59 P. 238.
[3] Steven v. Roscoe Turner Aeronautical Corp., 7 Cir., 324 F.2d 157; American Trading and Production Corp. v. Fischback & Moore, Inc., D.C., 311 F. Supp. 412.
[4] American Trading and Prod. Corp., footnote 3 above, at 416.
[5] See Huber v. Deep Creek Irr. Co., 6 Utah 2d 15, 305 P.2d 478; Bramel v. Utah State Road Comm., 24 Utah 2d 50, 465 P.2d 534.
[6] Chiodo v. General Waterworks Corp., 17 Utah 2d 425, 413 P.2d 891. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610394/ | 76 Cal.App.2d 740 (1946)
ELIZABETH E. BRYANT, Respondent,
v.
KANAU MARSTELLE, Appellant.
Civ. No. 15300.
California Court of Appeals. Second Dist., Div. One.
Nov. 8, 1946.
John Van Aalst for Appellant.
Daniel A. Knapp for Respondent.
WHITE, J.
By her amended complaint, containing two causes of action and filed herein, plaintiff alleged in her first cause of action that she was the owner of certain described improved real property in the city of Los Angeles; that on or about February 10, 1940, she "permitted the defendant to occupy ... an apartment located over a garage" on the real property here in question; "said premises to be held and possessed by defendant for a period of two years without rental"; and that as a condition precedent to said tenancy "defendant voluntarily agreed to install plumbing, etc., in said premises and repair and remodel the roof and walls thereof." It is then alleged that prior to the 20th day of November, 1944, plaintiff was served with a notice from the Planning Commission of the city of Los Angeles requiring her to conform to the provisions of section 13.04 of the Los Angeles Municipal Code by causing the upper floor of said garage, occupied by defendant, to be forthwith vacated.
That on November 20, 1944, plaintiff served on defendant a written notice to vacate said premises on December 21, 1944. Said notice to vacate specified as the ground therefor, that the further occupancy of said premises by defendant was in violation of the foregoing Los Angeles Municipal Code provision. That defendant failed and refused to remove from said premises and that at the time this action was instituted remained in possession and occupancy thereof. *743
By her second cause of action, plaintiff sought to quiet title in herself to the property in question.
Defendant filed an answer in which she admitted that plaintiff permitted her to occupy the premises above referred to but denied that the terms of such occupancy were as set forth in plaintiff's amended complaint, and generally denied the other allegations therein contained. As a separate defense, defendant alleged that, on February 10, 1940, she was a medical student, and "well acquainted with the profession and science of nursing the sick"; that on and before the last mentioned date the parties hereto were acquainted with each other, and that plaintiff, "desiring from time to time to make use of the professional qualities of the defendant, and the plaintiff from time to time accommodating ailing, sick and elderly people in her own home as patients, and wishing to avail herself of the valued services of the defendant," offered defendant the living facilities aforesaid. That defendant "at the special instance and request of the said plaintiff, did agree that the said defendant would, at her own cost and expense, refurnish, recondition, and rebuild those certain premises mentioned herein, and if the said defendant did so improve the said premises so as to make them livable and inhabitable then the said defendant would have the use of said premises as a place for study and living, for her own use and purpose, to do with, to use and occupy, and to hold possession thereof as long as the defendant saw fit to do so." It is then alleged that pursuant to the aforesaid oral agreement, defendant spent the sum of approximately $1,500 "in rebuilding, redecorating, reconditioning and in installing plumbing and sanitation devices and appliances. ..."
Defendant prayed that the court decree that she "has a present and existing right to retain and occupy the said premises as a place of abode and for study as long as the defendant desires to do so"; and that the court find that she did spend the aforesaid sum of $1,500 upon the portion of the premises occupied by her; that in event the court determined that her occupancy of that portion of the premises in the rear of the property would be a violation of the above mentioned municipal ordinance, that the court find the reasonable value of the use of said portion of the property from February 10, 1940, to the date of the trial, and that defendant have judgment for the difference between the sum so determined and the sum of $1,500 expended by defendant, as aforesaid. *744
Following trial before the court, sitting without a jury, and the waiver of findings, the court entered judgment for the plaintiff, quieting title in her to the property in its entirety, and that "defendant be and hereby is required to forthwith remove from said premises, and it is further ordered that a Writ of Assistance issue out of the above named Court to enforce the same."
"It is Further Ordered, Adjudged and Decreed that plaintiff have and recover from defendant the sum of one hundred ninety dollars ($190.00) as damages arising from her holding over that portion of said premises set forth in the notice to vacate, dated November 20th, 1944, and accruing subsequent thereto, with interest thereon at the rate of seven per cent (7%) per annum until paid, together with plaintiff's costs and disbursements incurred in this action amounting to the sum of $20.25."
Defendant does not dispute plaintiff's title to the property and appeals only from that portion of the judgment as set out above in quotation marks.
As grounds for reversal, appellant urges:
"I. That the evidence is insufficient to show an agreement between appellant and respondent respecting the term of occupancy by the appellant; that the tenancy was to terminate upon completion of appellant's medical course in Los Angeles."
"II. That this case does not involve a lease between the parties, nor a tenancy at will or at sufferance, but a license, coupled with a consideration."
"III. That Section 13.04, Los Angeles Municipal Code, has no application to appellant's case herein at issue."
"IV. Respondent is estopped from collecting rent for failure to register housing accommodations with O. P. A."
[1] Where, as here, findings have been waived, it is axiomatic that all reasonable inferences will be drawn from the evidence, and that the most favorable construction will be drawn therefrom to support the judgment (Benjamin Moore & Co. v. O'Grady, 9 Cal.App.2d 695, 699 [50 P.2d 847]).
Bearing this rule in mind, with reference to the nature of the agreement of the parties hereto, we find in the record evidence given by the plaintiff in part as follows:
"A. When I took her over to the property and she saw the lay of rooms and she saw the condition of the garage, and when we got back to the house where I was living, she wanted *745 to know if I would let her fix the garage up so that she could use it, the next two years, at least, for she was preparing herself for a course of study in chemistry at Berkeley and that she had to make her credits, she wanted to have a quiet place to study in. And I asked her, I asked her how much she thought it would cost and she said not too much if I would let her use the second-hand flooring that Mr. Hunt, who was an architect, had left there when I bought it, that she didn't think it would run $350. But I thought it would run more than that. But she said no, that__________ Marstelle said no, that she could get a second-hand bath tub in that and kitchen fixtures, and the stool; and her greatest expense would be to connect the sewerage about 35 feet from the building; that the light and the gas fixtures and the water run to the first floor and she would only have to take them up from there." Plaintiff further testified that the defendant paid her no rent, performed no services whatever for her, and that plaintiff paid the utility bills such as gas, water and light.
With further reference to the term defendant was to occupy the quarters in question, plaintiff testified: "She (defendant) said it would take her at least two years, maybe; she said it might be less but she said she didn't think it would be."
[2] Although the testimony given by the defendant was in direct conflict with much of plaintiff's testimony and was that plaintiff told her that she could have the quarters in question "as long as I wanted," nevertheless, plaintiff's testimony furnished a basis for the court to have found that the agreement between the parties was that defendant was to occupy the premises for the term of her medical course prior to her entry into the College of Medicine at Berkeley, but not to exceed two years, provided that at her own expense she installed certain facilities and reconditioned said premises. In the absence of findings it will be presumed that the court did so find, and that the judgment would be supported by a finding that plaintiff did not orally agree with defendant that the latter "would keep the garage until I had finished my medical and then I would return to her without removing any of the fixtures ..., that I could have it as long as I wanted," as testified to by defendant.
[3] Defendant contends that the relationship between her and the plaintiff was not one of landlord and tenant but of *746 licensor and licensee. It being undenied that the agreement was not made in consideration of rent, manifestly it was not a lease (Dean v. Brower, 119 Cal.App. 412, 415 [6 P.2d 580]). [4] We may therefore accede to appellant's contention that she was in possession under a license, which, in respect to real estate, is defined in Emerson v. Bergin, 76 Cal. 197, 201 [18 P. 264], as "An authority to do a particular act, or series of acts, on another's land without possessing any estate therein." And the same case is authority for the statement that "a mere license may be revoked at any time at the pleasure of the licensor."
[5] However, appellant urges, and correctly so, that this rule is not without its modifications and exceptions. Where the licensee has expended in the execution of the license, money or its equivalent in labor, in reliance upon the license, his rights under the license "will continue for so long a time as the nature of it calls for" (Stoner v. Zucker, 148 Cal. 516, 520 [83 P. 808, 113 Am.St.Rep. 301, 7 Ann.Cas. 704]). But the same case, pages 519, 520, furnishes authority for the statement that such exception to the general rule is applicable only when a right under a license is not specifically restricted, in which event the right "is commensurate with the thing of which the license is an accessory," and will continue "for so long a time as the nature of it calls for." [6] In the instant case there was substantial evidence to support a finding that "the nature of the license" was for appellant to use the premises as a habitation while she was "preparing for a Berkeley medical course" and was "specifically restricted" to a term, fixed, according to respondent's testimony, by appellant herself, as not more than two years. Hence, assuming that appellant entered upon the premises as a licensee, respondent had a right to revoke the license, under the general rule, at any time after the expiration of the 2-year period.
[7] Appellant next contends that section 13.04 of the Los Angeles Municipal Code, referred to in respondent's notice to vacate as the basis of such notice, has no application to the case at bar. It is appellant's contention that under the city ordinance, respondent's structures having been in existence at the time the applicable restrictive provisions of the ordinance were adopted, came within the purview of certain provisions of such zoning ordinance which exempted therefrom "a nonconforming building, structure or improvement *747 ... which lawfully existed on any lot or premises at the time the first zoning regulation became effective with which such building, structure, or improvement did not comply in every respect."
Appellant asserts that respondent's notice to vacate was based upon a mistake of law, and, that respondent could have successfully resisted any attempt to prosecute her under the penal provisions of the ordinance which made a violation of its terms a misdemeanor.
In giving notice to respondent that in permitting the upper floor of the garage to be occupied she was guilty of a misdemeanor, and requiring her to within 15 days cause said premises to be vacated, the Los Angeles Municipal Planning Commission contended that two families were occupying the premises in a zone restricted to single family residence. True, respondent might, after long and possibly expensive litigation, obtain a judicial adjudication nullifying the demand made upon her by the municipal authorities. But we do not view the rights of a licensee under the facts herein, as imposing upon the licensor any such obligation. Furthermore, as heretofore pointed out, the time of appellant's occupancy under the license was "specifically restricted" to not more than two years, and was permitted to continue for nearly five years. Therefore, respondent was not required, in order to terminate appellant's occupancy of the premises, to rely upon the demand of the municipal authorities to cause the premises occupied by appellant to be vacated. There was substantial evidence that the limited term of the license had long since expired when the notice to vacate was served.
[8] Finally, appellant urges that "respondent, before claiming rents due her, cannot determine monthly rental of premises without conforming to O. P. A. regulations." This contention, urged for the first time on appeal, is evidently predicated on that portion of the judgment awarding respondent "the sum of one hundred ninety ($190.00) dollars as damages arising from her holding over that portion of said premises set forth in notice to vacate, dated November 20, 1944, and accruing subsequent thereto." Appellant's claim in this regard is without merit. It is conceded that no rent whatever was asked for or collected from appellant during the nearly five years of occupancy by her of the premises up to the date of service upon her of the notice to vacate. Upon the trial, the only evidence relating to the *748 rent went to the question of damages, and the court permitted testimony as to rental value of the premises from the date which appellant was required under the notice to surrender the premises, viz., December 21, 1944, which, it was testified, was $20 per month, unfurnished. This testimony went solely to the measure of damages, and, as recited in the judgment, the award based upon such testimony was particularly designated "as damages." Manifestly, the rent control regulations or rules promulgated by the Rent Control Division of the O. P. A. have no application thereto.
We find no error in the record, and the judgment appealed from is affirmed.
York, P. J., and Doran, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876522/ | 349 Mich. 18 (1957)
84 N.W.2d 333
McKENZIE
v.
McKENZIE.
Docket No. 1, Calendar No. 46,790.
Supreme Court of Michigan.
Decided July 31, 1957.
Edward N. Barnard, for plaintiff.
Shock, Bolton & Graham (Frederick R. Bolton, of counsel), for defendant.
KELLY, J.
After 26 years of married life plaintiff and defendant decided they should dissolve their *19 marital union and plaintiff should seek an absolute divorce. Preliminary to starting such action, an agreement (dated September 8, 1949) was entered into between plaintiff and defendant whereby defendant gave to his wife the home they were living in, the furniture, and further provided that "if and when a decree is entered" plaintiff should receive "the sum of $12,500" and that defendant "shall further pay to the plaintiff as alimony the sum of $500 per month for a period of 5 years from the date upon which a decree is entered."
After filing her bill of complaint (September 12, 1949), plaintiff substituted attorneys. A series of conferences between her substituted attorney and the defendant resulted in her attorney's letter of January 9, 1950, to the defendant informing him that, in addition to the preliminary agreement (September 8, 1949) entered into by him with his wife before the divorce action was commenced, defendant had agreed to also pay the plaintiff's dentist and hospital bills, keep up the insurance payments for 5 years, pay for his daughter's education, provide expenses for his wife's round trip to California, pay to plaintiff-wife $2,500, and "at the end of 5 years, either party may apply to the court for a change in the monthly alimony based upon the circumstances that exist."
On January 11, 1950, defendant answered the letter and agreed to all the items plaintiff's attorney had set forth, but did not refer to the 5-year period at the end of which either party had the right to apply for a change in the monthly alimony.
Defendant was not represented by counsel, nor was he personally present, at the divorce hearing held before Honorable Thomas J. Murphy. After plaintiff's attorney's letter to defendant was introduced, the court stated:
*20 "He (defendant) does not expressly agree to the alimony. He says nothing in his letter there and it sounds like he intended to stop after 5 years."
Plaintiff's attorney assured the court that the letter represented the agreement between the parties, and said: "We propose to serve him with a copy of the decree," to which the court answered, "All right."
The court's decree (February 9, 1950) provided for $500 per month alimony for 5 years, and at the end of 5 years the parties could apply to the court for a modification of the monthly amount of alimony.
Five years after the decree was entered, plaintiff-wife filed her petition to modify the decree in regard to alimony (April 22, 1955), alleging that after 5 years she had such a right under the decree of February 9, 1950, to seek "modification of the monthly sum of alimony;" that during said 5-year period her living expenses had increased; that she was not well and under the care of a physician and unable to work; that defendant's income had increased, and that the alimony payments should be continued and increased to the amount of $600 per month.
Plaintiff's petition was followed by defendant's petition to modify the decree of divorce, alleging that in view of changing conditions he was no longer able to make the payments of $500 per month and that the alimony should be terminated, and that the income "from her (plaintiff's) investments and the alimony which has been faithfully paid in the period of 5 years, last past, has been more than adequate compensation and is wholly sufficient to support and maintain this plaintiff."
On August 1, 1955, the friend of the court made a report on plaintiff's and defendant's petitions, which report disclosed that since the decree of divorce the husband had remarried; that the wife's statement that she was not in good health was supported by a doctor's statement that she was under *21 his "care for arthritis, heart trouble, and hypertension," and that she reports to the doctor's office once a week; that the defendant husband was asking the court "to terminate all alimony and medical expenses because the property settlement was agreed upon that she would receive $500 per month for 5 years and that it would be terminated after 5 years;" that the alimony record disclosed that he had paid plaintiff $29,500 during the 5-year period. The friend of the court's report concluded as follows:
"According to the facts presented in this report, there does not appear to be any change of circumstances to warrant final termination of the permanent alimony. The wife is unemployed and under medical care. The husband's financial circumstances are substantially the same as reported at the time of investigation on his previous petition to modify the decree.
"It is recommended that the decree of divorce be modified to provide for the continuance of the $500 per month permanent alimony until the further order of the court."
Defendant filed his objections to the recommendations of the friend of the court, and attached thereto a copy of the property-settlement agreement of September 8, 1949, and alleged that the decree of divorce as entered did not reflect the court's understanding of the intention of the parties and/or the property-settlement agreement.
Both plaintiff's and defendant's petitions for modification of decree were heard together, resulting in the court's order of August 3, 1955, that:
"The court having found and determined and does hereby find, determine and adjudge that the said provision of alimony is subject to modification; and the friend of the court having carefully investigated the matter and having considered the information furnished to him in regard to the circumstances of *22 the parties and recommended that the decree of divorce be modified to provide for the continued payment of $500 per month permanent alimony until the further order of the court * * *
"It is hereby ordered that the provision of the said decree insofar as the said decree relates to alimony, may be and the same hereby is modified so as to require the defendant to pay to the plaintiff, through the friend of the court, the sum of $500 per month from and after the 9th day of February, 1955, and continuing monthly thereafter and hereafter until the further order of the court."
Within 20 days after the trial court's order, defendant filed a petition for rehearing and in support thereof attached his attorney's affidavit to the effect that no testimony was taken at the hearing for modification of decree. The record does not disclose that defendant made a request that testimony be taken to establish fraud, or for any other purpose, or that the petition challenged the original decree for fraud.
The court, after hearing arguments of counsel, denied defendant's petition for rehearing (October 28, 1955). Counsel for defendant then advised the court of their intention to appeal to this Court and requested the trial judge to file his reasons for denying defendant's petition for rehearing.
On November 8, 1955, the trial court filed said reasons in an opinion, stating that at the time the original hearing was held and plaintiff testified, he called attention to the fact that there was some question in regard to the court's right to consider alimony after the 5-year period and he was advised by plaintiff's attorney that he would serve defendant with a copy of the decree so there would be no question about it. The court then stated:
"The record does not clearly show when the defendant was served with a copy of the decree, but the *23 record does show that several years thereafter motions were made to modify this particular section of the decree, and that at the end of the 5 years a motion was filed by Mr. Barnard to modify the decree to continue the alimony in behalf of the wife, and a motion was also filed on behalf of the defendant by his attorney to modify the decree so that it would eliminate any future alimony.
"Nothing was said in that motion by the defendant about the decree not being in conformity with the property settlement agreement of the parties. It was only after the friend of the court recommended that the alimony be continued that the defendant took the position that the decree did not correspond to the actual property settlement between the parties and that it was a fraud upon him.
"I am of the opinion that the defendant knew and fully understood the provisions of the decree allowing the court to extend the payment after the 5 years. His action in filing 2 motions to modify and in asking the court to modify the decree at the end of the 5 years certainly shows that he knew what the decree contained, and that he made no objection to it until after the friend of the court made his recommendation.
"In view of the above I am of the opinion that the decree corresponded with the actual property settlement agreement between the parties at the time the divorce decree was granted and that the written agreement had been modified by the parties.
"I am also of the opinion that the defendant was familiar with the terms of the decree in reference to either party applying for modification at the end of the 5 years, and that if the decree did not meet the agreement between the parties he has waited too long to complain about the same; that he has been guilty of laches and of failure to move with proper dispatch on discovering the claimed mistake or fraud."
*24 We agree with the trial court. Affirmed. Costs to appellee.
DETHMERS, C.J., and SHARPE, SMITH, EDWARDS, VOELKER, CARR, and BLACK, JJ., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611721/ | 150 Cal.App.2d 488 (1957)
CONSOLIDATED LOAN COMPANY (a Corporation), Respondent,
v.
LOUIS HARMAN, Appellant.
Civ. No. 22197.
California Court of Appeals. Second Dist., Div. Two.
Apr. 26, 1957.
Franklin D. Laven for Appellant.
Phillips & Gooing, William R. Phillips and Homer H. Gooing for Respondent.
ASHBURN, J.
Appeal from judgment rendered against defendant Louis Harman upon a continuing guaranty signed by him.
Defendant's wife (under the name of Charlotte Silver) was a partner with Fred Gusinow in conducting business under the name of Frosty Foods. The partnership needed more money, had been refused further credit at the Santa Monica branch of Bank of America, was about to try the Bishop branch but did not expect to succeed. Gusinow explained the situation to defendant, who agreed to give a continuing guaranty of any indebtedness of Frosty Foods not exceeding $50,000 at any one time. Gusinow told him that he "would need another guarantee made out to the Bank of America or any other lending institution to take it to in the event the bank in Bishop did not accept it, which I felt certain they would not." A printed form of the bank was used. It was addressed to and ran in favor of Bank of America National Trust and Savings Association "or any other accredited lending institution," the quoted words being typed into the form. Plaintiff was licensed by the state as a money lender under the Personal Property Brokers License Act and was engaged in buying conditional sales contracts from dealers. The court found that plaintiff was a "duly accredited lending institution."
After delivery of the document to plaintiff and before any money was advanced by it, plaintiff's manager, Mr. Owens, struck out the words "Bank of America National Trust and Savings Association or any other accredited lending institution" and substituted "Consolidated Loan Co." Defendant had previously been told that the bank had declined a loan and that plaintiff had accepted the guaranty and would handle the financing; defendant said this was all right. He was also told that Consolidated would put its own name on the guaranty, and he made no objection thereto. This having been done, conditional sales contracts were purchased from Frosty Foods by plaintiff. Frosty Foods soon went into bankruptcy, owing plaintiff $6,014.16, for which amount judgment was rendered in favor of plaintiff against Harman. Defendant *491 knew of the fact of plaintiff's advancing moneys from time to time on the strength of the guaranty.
[1] An alteration of a written instrument made after delivery and without previous consent vitiates the obligation, at the option of the other party, if the alteration pertains to a material matter,--if it enlarges or diminishes the obligation, but not where it merely identifies the intended obligee. (2 Am.Jur., 60, p. 642; 3 C.J.S., 30b, p. 940.) [2] The original guaranty in this case ran in favor of an alternative class,--"any other accredited lending institution," and plaintiff, being within that class, was named as an anticipated obligee. When the instrument was so changed as to eliminate all other potential obligees and to confine the obligation to the one institution which advanced money, the alteration did not rise to the dignity of a material one.
Section 1700, Civil Code, provides that a "material alteration of a written contract, by a party entitled to any benefit under it, or with his consent, extinguishes all the executory obligations of the contract in his favor, against parties who do not consent to the act." Section 1982, Code of Civil Procedure: "The party producing a writing as genuine which has been altered, or appears to have been altered, after its execution, in a part material to the question in dispute, must account for the appearance or alteration. He may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or otherwise properly or innocently made, or that the alteration did not change the meaning or language of the instrument. If he do that, he may give the writing in evidence, but not otherwise."
[3] The test of materiality of the alteration is whether it changes the rights or duties of the parties, or either of them. "The old rule was that any change in a written contract made by a party thereto without the knowledge or consent of an obligor thereon discharged such obligor from liability thereunder. This rule has been much relaxed, and the rule in most jurisdictions now is that the change must be a material change. [4] The materiality of the change, however, does not depend upon whether or not the party not consenting thereto will be benefited or injured by the change, but rather upon whether or not the change works any alteration in the meaning or legal effect of the contract. (Turner v. Billagram, 2 Cal. 520; Humphreys v. Crane, 5 Cal. 173.) A material alteration is one that works some change in the *492 rights, interests, or obligations of the parties to the writing." (Lasky v. Bew, 22 Cal.App. 393, 395-396 [134 P. 358].) " 'A material change or alteration of an instrument is one which causes it to speak a language different in legal effect from that which it originally spoke' ... [5] Any change made in a document after its execution, which merely expresses what would otherwise be supplied by intendment is immaterial, and the document is in effect unaltered by it." (Cavitt v. Raje, 29 Cal.App. 659, 660-661 [156 P. 519].) To the same effect are, Coleman v. Dawson, 110 Cal.App. 201, 208 [294 P. 13]; Houk v. Williams Bros., Ltd., 58 Cal.App.2d 573, 578 [137 P.2d 737]; 3 Cal.Jur.2d, 2, p. 198, 10, p. 203; 3 C.J.S., 4, p. 905, 79, p. 925.
Appellant's reliance upon Woodard v. Grover, 156 Cal. 581 [105 P. 736], is misplaced. In that instance the name of E. S. Grover had been substituted for that of M. A. Grover as one of the parties of the second part to a contract; this was done after delivery and without the consent of the other party. It was held to be a material alteration which destroyed the obligation of the parties of the second part. That is far different from the situation at bar. The guaranty when delivered ran in favor of "Bank of America National Trust and Savings Association or any other accredited lending institution." This was an offer to guarantee indebtedness incurred in favor of any lender who came within the general description of "accredited lending institution." When one such company accepted the guaranty and advanced money on it the described class then narrowed to that one lender. When that company substituted its own name in place of the general language describing a class, it did not make the writing speak in any different way. Had it remained in its original form the lender could have recovered upon it after advancing the money. Following the change it had the same right, a recovery of no more and no less money than it would have taken had the change not been made.
[6] Appellant argues that plaintiff is not an "accredited lending institution" because it is not licensed under the Bank Act. The record affords no basis for that conclusion. Plaintiff is licensed as a money lender under the Personal Property Brokers License Act (now Fin. Code Ann., div. 9, ch. 2, 22200 et seq.). Such a license issues only after investigation by the commissioner as to financial responsibility, experience, character and general fitness of the applicant. (Fin. Code Ann., *493 22206.) [fn. 1] "Accredited" is not a technical term, nor was it so used in this instance. According to Webster's New International Dictionary, Second Edition, it means: "1. Publicly or officially sanctioned or authorized; provided with credentials; also, accepted as valid or credible. ... 2. Officially vouched for or guaranteed as conforming to a prescribed or desirable standard; as, an accredited school or college. ..." [7] Primarily, the business of Frosty Foods was selling home freezers to consumers on conditional sales contracts, which were then transferred by it to the lending institution with recourse against Frosty Foods in case of default by the vendee. That is a business more appropriate to a personal property broker than a bank. (See Fin. Code Ann. 22009 and 22050.) The court's holding with plaintiff in this regard was well grounded.
Defendant being apprised of the change in the written guaranty and of the advancing of moneys by plaintiff on the strength of same, made no objection whatever; he enjoyed the full benefit of plaintiff's reliance upon the altered instrument in that his wife's firm received and used plaintiff's advances until Frosty Foods went into bankruptcy.
[8, 9] Houk v. Williams Bros., Ltd., supra, 58 Cal.App.2d 573, declares that a material alteration of a contract without consent of the other party "renders the instrument voidable as to such non-consenting party"; also that the contract thus made voidable may be ratified by subsequent consent. Quoting from 6 Williston on Contracts, rev. ed., 5319, 1896 and 1897, it is said: " 'Ratification, subsequent to the alteration, has as full effect as authority originally granted, and ratification may be shown by any conduct from which assent can fairly be implied. Silence may be enough. It has been well said, "The rule is just and supported by the authorities that, where a document has been altered and notice of such alteration is brought to the attention of the parties affected, it is their duty to disavow it at once, or within a reasonable time after learning *494 thereof, or they are bound by the document as altered." ' " (P. 579.) We have that precise type of consent and ratification here.
[10] Appellant argues that a guaranty is a contract required to be in writing (Code Civ. Proc., 1973, subd. 2), and hence authority of an agent to make a material alteration therein must be in writing (Civ. Code, 2309). The argument is misplaced. The alteration under discussion was made by plaintiff. The agent to whom counsel refers merely conveyed information to and from defendant. The statute of frauds and section 2309, Civil Code, are not involved in this case.
Appellant's arguments are largely directed to sufficiency of the evidence to support the findings concerning his knowledge and consent to the alteration. Pursuant to the rule governing courts of review we have proceeded on the basis of the evidence and inferences favorable to respondent. [11] The duty rests upon an appellant who asserts insufficiency of the evidence to demonstrate that fact (New v. New, 148 Cal.App.2d 372, 383 [306 P.2d 987]). This the appellant has failed to do.
The attempted appeal from order denying a new trial is dismissed.
Judgment affirmed.
Moore, P. J., and Fox, J., concurred.
NOTES
[fn. 1] 1. Fin. Code Ann. 22206. "Upon the filing of the application and the payment of the fees and the approval of the bond, the commissioner shall investigate the facts, and if he finds that the financial responsibility, experience, character, and general fitness of the applicant, and its members if the applicant is a copartnership or association, and its officers and directors if the applicant is a corporation, are such as to command the confidence of the community and to warrant belief that the business will be operated honestly, fairly, and efficiently within the purposes of this division, he shall issue and deliver a license to the applicant to engage in business in accordance with the provisions of this division, at the location specified in the application." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610400/ | 61 Wn.2d 611 (1963)
379 P.2d 719
VERDA JEANNE MOORE, Appellant,
v.
LYLE DEAN MOORE, Respondent.[*]
No. 36260.
The Supreme Court of Washington, Department Two.
March 14, 1963.
Edward P. Ferris, for appellant.
John L. Reeder, for respondent.
DONWORTH, J.
Appellant instituted this action seeking a divorce from her husband. In her complaint she alleged facts constituting cruelty or personal indignities rendering her life burdensome.[1] Her husband, respondent herein, cross-complained, alleging cruel treatment and personal indignities rendering life burdensome, and specifically charging that appellant had been conducting improper associations with other men. The case, tried to the court, resulted in both parties being denied a divorce and appellant being *613 granted a decree of separate maintenance. Respondent has not cross-appealed.
Appellant asserts error in the trial court's finding that neither party had proved grounds for a divorce, and in denying her motion for judgment notwithstanding the decision or, in the alternative, for a new trial.
The trial court, before denying the post-trial motions of appellant, in a memorandum decision, thoroughly reviewed the facts and several decisions of this court. It concluded that it would be unjust to the parties and contrary to the rules of law to grant either party a divorce, and it reaffirmed its previous oral decision.
The evidence submitted by appellant was directed toward trying to show that respondent had physically abused her and their two children (aged 13 and 10 at the time of the trial) and that he used improper language toward her and in the presence of the children.
It is apparent from the oral and memorandum decisions that the trial court believed little, if any, of the testimony of appellant and her witnesses in regard to the events to which they testified. However, the trial court was of the opinion that this marriage had been marred by discord from its inception (a period of 13 years), that the parties were incompatible, and that they had provoked each other into whatever conduct they now claim to be improper. The court stated in its oral decision:
"Now then, what have we here before us in the facts in this case? I think the most that we have in this case perhaps, is two people that are so constituted that they are like vinegar and soda toward each other, and then when they mix there is an explosion. You put the two together and you have an explosion; you set up a chemical reaction that is contrary to both of them and I think that that is the attitude of both of these people. There is no question in my mind but that the defendant in this instance here, has magnified his feelings of jealousy; his feelings of distrust. That is, from the facts which have been presented here, that he has magnified those things out of all proportion or justification. On the other hand, I think this plaintiff has conducted herself in such a manner as to deliberately *614 create such a feeling as that in the mind of the defendant so that it appears to the court there is provocation on both sides here. Now this is a provocation that has been continuing, apparently, ever since these people have been married. It has been some twelve or thirteen years. The record shows that they were married in January, 1947. Apparently for thirteen years here this same attitude has been existing between these parties. Now they endured it all that time. I think each of them realized the situation as it existed. I don't think either one of them, so far as their personal indignities were concerned, were particularly disturbed over them. It had just become a way of life with them...."
And, in its memorandum decision, filed 2 months after the trial, the court said:
"While all of their married life there has been more contention and controversies between them than was conducive to the general tranquility of the home, yet these difficulties have been little more than the give and take ordinarily experienced between married couples, particularly taking in consideration the characteristics of the parties. The testimony and documentary evidence in the case show each of them were sometimes rather rough and crude in their speech and action toward each other. Their difficulties usually arose over small matters and on the spur of the moment and apparently were as soon forgotten. The plaintiff appears to have delighted in telling the defendant of the attention she received from other men which, in turn, created spurts of temper, harsh words from the defendant causing him to act impulsively and to say and do things for which he was immediately remorseful. There is no evidence of infidelity on the part of the plaintiff nor are there any improper acts on the part of the defendant that were not immediately forgiven by the plaintiff...."
The trial court appeared to have several reasons for denying each party the divorce requested: (1) whatever conduct which would otherwise be improper was provoked, (2) that neither party considered the conduct of the other as rendering life burdensome, and (3) that appellant immediately forgave or condoned any improper conduct of respondent.
[1] We have, on numerous occasions, said that, in determining whether the grounds of cruelty or personal indignities *615 rendering life burdensome have been proved, a subjective test must be used. Best v. Best, 48 Wn. (2d) 252, 292 P. (2d) 1061 (1956); Saffer v. Saffer, 42 Wn. (2d) 298, 254 P. (2d) 746 (1953); Detjen v. Detjen, 40 Wn. (2d) 479, 244 P. (2d) 238 (1952); Baselt v. Baselt, 37 Wn. (2d) 461, 224 P. (2d) 631 (1950).
In the instant case, appellant did not offer any expert testimony on the effect of the alleged conduct of respondent upon her physical or mental health. Appellant's counsel asked her, "Now have his actions caused you any mental suffering or worry or physical suffering or worry?" To which appellant replied, "I would say they have, yes." The trial court had the parties before it for several days, observed their demeanor, and had the right to believe or disbelieve either party. Even if appellant's own testimony were sufficient to establish the subjective element (if believed by the trial court), we cannot say that its determination here was wrong as a matter of law.[2]
Appellant takes the position, in her brief, that respondent's slapping her is per se cruel treatment and grounds for divorce, citing Schmidt v. Schmidt, 51 Wn. (2d) 753, 321 P. (2d) 895 (1958), and Metcalf v. Metcalf, 50 Wn. (2d) 167, 310 P. (2d) 254 (1957).
[2] In the instant case, appellant testified to only one slapping incident with particularity (which occurred some 6 years before the trial). The trial court indicated some doubt as to the credibility of that testimony. Respondent denied this particular incident, but admitted that he had, in the past, struck appellant. The circumstances are not related other than the testimony of respondent that he had to strike appellant in his own defense, and that he had never struck her about the face. More significant than this testimony is the fact that appellant could not point to particular *616 incidents or relate their circumstances. As the trial court observed:
"The only slapping incident to be found in the testimony with any certainty occurred some 6 years prior to the commencement of this action. There is some testimony of the plaintiff that the defendant slapped her on many occasions but she could not remember the time, place, or why."
This is not a case of a "beating" as related in the Schmidt case, supra. Under the facts of this case we cannot say that, when a man slaps his wife, this is per se a ground for divorce without regard to circumstances.[3]
Finally, the trial court concluded that appellant had forgiven any wrongful conduct on the part of respondent.
"... There is no evidence of infidelity on the part of plaintiff nor are there any improper acts on the part of defendant that were not immediately forgiven by the plaintiff...." (Italics ours.)
[3] Appellant testified that she had lived with respondent up to May 18, 1960, and had carried on marital relations on a normal basis. At this time, respondent went to work in Alaska on a seasonal construction job, returning September 26, 1960. Appellant filed her complaint for divorce on September 13, 1960, while her husband was still in Alaska. We have said that mere continuance or resumption of normal marital relations is usually sufficient to establish condonation where the misconduct complained of consists of relatively isolated incidents of infidelity or cruelty; but, where the criticized action constitutes a course of conduct over a long period of time, continuation of cohabitation is not necessarily proof of condonation. Murray v. Murray, 38 Wn. (2d) 269, 229 P. (2d) 309 (1951).
There was no evidence of misconduct on the part of respondent while he was working in Alaska which would revive any claim of alleged prior misconduct as grounds for divorce.
*617 [4] We emphasize the fact that respondent's trip to Alaska was not a breakup of the home. Respondent went there to provide a greater income for his family. Between May 18, 1960, and September 26, 1960, respondent sent approximately $2,850 home to appellant. On cross-examination, appellant was asked in regard to letters she had been writing to respondent: "September 6th weren't you writing letters saying you were looking forward to his coming home?" She replied: "I could not say whether it was that late or not. We had been looking forward to his coming home. We naturally would." (Italics ours.) Even if grounds for divorce were sustained by the evidence, such a finding would not support a decree of divorce where the alleged wrongful conduct is condoned. Robinson v. Robinson, 23 Wn. (2d) 93, 159 P. (2d) 903 (1945).
The trial court, in its memorandum decision, stated:
"While it is quite `evidence' that the married life of these parties during the last 3 years has not been very pleasant, there having been quarrels and squabbles between them during that time, but the evidence reveals more a condition of incompatibility and temporary dissatisfaction of each of the parties with the other than cruel treatment or personal indignities rendering their lives burdensome...."
[5] Under the facts of this case, the trial court was not in error when it denied the parties a divorce and granted appellant a decree of separate maintenance. As we said in Neff v. Neff, 30 Wn. (2d) 593, 594, 192 P. (2d) 344 (1948):
"This is a situation where it is easy to say that there is nothing to be gained by keeping this man and this woman yoked together; but neither incompatibility, uncongeniality, dissatisfaction, nor unhappiness constitutes grounds for divorce. McNary v. McNary, 8 Wn. (2d) 250, 111 P. (2d) 760; Yost v. Yost, 16 Wn. (2d) 601, 134 P. (2d) 79."
[6] The trial court's findings of fact in divorce actions are entitled to great weight. Murray v. Murray, supra; Sinnott v. Sinnott, 27 Wn. (2d) 520, 179 P. (2d) 305 (1947). After reviewing the record, we are of the opinion that the trial court's ultimate finding of fact that neither party has proved grounds for divorce, when read in light of its oral *618 and memorandum decisions, is supported by substantial evidence. Therefore, the judgment of the trial court is affirmed.
OTT, C.J., and HAMILTON, J., concur.
FINLEY and HUNTER, JJ., concur in the result.
NOTES
[*] Reported in 379 P. (2d) 719.
[1] Plaintiff alleges in her complaint, generally, that defendant has rendered her life burdensome, but does not allege "cruel treatment" in the statutory language. However, she alleges that defendant has, among other things, "physically abused the Plaintiff on different occasions by striking and hitting her."
In appellant's brief, the nature of the action is characterized as an action for divorce upon the ground of personal indignities rendering life burdensome. At the same time, it is stated that defendant cross-complained for divorce upon the ground of cruel treatment and personal indignities rendering his life burdensome.
Although it is argued in the brief that the acts of respondent-defendant constituted cruel treatment, it is difficult to ascertain whether appellant-plaintiff, at the trial, was relying on only one or both of the alternative grounds for divorce provided in RCW 26.08.020(5). This takes on added significance when it is noted that this court has said that there may be acts that are per se cruel treatment, but that personal indignities rendering life burdensome always contain a subjective element.
[2] We note that the answer of appellant did not indicate what kind of effects she was testifying about whether worry due to mental or physical suffering. Furthermore, there was an absence of any expert opinion. In Johnson v. Johnson, 50 Wn. (2d) 56, 308 P. (2d) 967 (1957) (a child custody case), we indicated that medical questions such as nervousness are questions calling for expert opinion.
[3] In note 1, supra, we indicated that appellant characterized the ground for her divorce action as being personal indignities rendering life burdensome not cruelty. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/326740/ | 513 F.2d 771
Alex A. POPEKO, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
No. 74-1799.
United States Court of Appeals,Fifth Circuit.
May 30, 1975.
Harriet E. Miers, Dallas, Tex. (Court-appointed), for petitioner-appellant.
Jeremiah Handy, Asst. U. S. Atty., San Antonio, Tex., for respondent-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before GOLDBERG and RONEY, Circuit Judges, and GROOMS, District Judge.
RONEY, Circuit Judge:
1
On this appeal from denial of 28 U.S.C.A. § 2255 relief, we affirm. This is the third time Alex Popeko has appeared before this Court to contest his 1960 conviction on two counts of causing to be transported in interstate commerce falsely made, forged and counterfeited securities in violation of 18 U.S.C.A. § 2314 and one count of conspiracy to commit the substantive offense. On direct appeal, this Court affirmed Popeko's conviction. Popeko v. United States, 294 F.2d 168 (5th Cir. 1961).
2
On a subsequent appeal from the denial of a motion for correction of an illegal sentence under Rule 35, F.R.Crim.P., we affirmed on the basis of the previous direct appeal affirmance of the conviction and sentence. Popeko v. United States, 309 F.2d 752 (5th Cir. 1962).
3
In the instant case Popeko reasserts the identical argument which he made in the Rule 35 proceeding: that, although he cashed two different cashier's checks in San Antonio, Texas, one at one bank and one at another, there was only one interstate transportation under 18 U.S.C.A. § 2314, because both checks were mailed in a single envelope from the Federal Reserve Bank in San Antonio to the Federal Reserve Branch Bank at Detroit, Michigan. He asserts, therefore, that there was only one crime and the two ten-year consecutive sentences on the substantive counts were illegal. The district court in this § 2255 proceeding held that Popeko committed two separate offenses under § 2314 because he passed the checks in two different and separate transactions, even though the checks were subsequently mailed in one envelope to Detroit. We find that whether these facts constitute two crimes or a single crime is foreclosed from initial consideration by this panel because we are bound by the decision on the Rule 35 appeal.
4
The single argument upon which Popeko bases his claim for § 2255 relief is identical to that presented in the Rule 35 proceeding. Denial of relief in that proceeding requires denial of relief here. It is the firm policy of this Circuit that one panel will not overrule the decision of another panel. This may be done only by the Court sitting en banc. See, e. g.,, United States v. Lewis, 475 F.2d 571, 574 (5th Cir. 1972); United States v. Bailey, 468 F.2d 652, 669 (1972), aff'd, 480 F.2d 518 (5th Cir. 1973) (en banc); United States v. Hereden, 464 F.2d 611, 613 (5th Cir.), cert. denied, 409 U.S. 1028, 93 S. Ct. 472, 34 L. Ed. 2d 322 (1972); Manning v. M/V "Sea Road," 417 F.2d 603, 610-611 n. 10 (5th Cir. 1969).
5
Although Popeko acknowledges that he presented his "single offense" argument on his Rule 35 appeal, he contends that the Court did not decide the merits of the point in that proceeding. Popeko reasons from the affirmance of the denial of Rule 35 relief on the basis of the affirmance in the direct appeal, where he did not raise the "single offense" argument. A review of the briefs and the opinion in the direct appeal confirms that the point was neither asserted nor considered there. The entire opinion in the subsequent Rule 35 appeal is as follows:
6
PER CURIAM.
7
The judgment of the trial court denying the motion of appellant to correct his sentence under Rule 35, Federal Rules of Criminal Procedure, is based on the previous affirmance by this Court, Popeko v. United States, 5th Cir., 294 F.2d 168, of the conviction and sentence.
The order of the trial court is therefore
8
Affirmed.
9
309 F.2d at 752. Popeko, therefore, concludes that no panel of this Court has ever considered his "single offense" argument or resolved it adversely to him because the Court has never addressed the issue by written opinion.
10
We have gone back to the original file in the Rule 35 proceeding in this Court to evaluate the merits of this contention. We conclude that whether it said so or not, the Court necessarily ruled adversely to Popeko on his "single offense" argument. Popeko's sole argument on that appeal was that his actions constituted a single crime. His sole claim for relief was from the illegality of two consecutive ten-year sentences. In response, the Government argued two points on the appeal: first, that Popeko could have raised his "single offense" argument on direct appeal and, therefore, the decision of this Court on Popeko's direct appeal was res judicata as to that argument; and second, that Popeko's acts constituted two crimes and, therefore, his sentence was legal and not available for Rule 35 relief. The Government was plainly wrong in its res judicata argument. The law was then, and is now, that the contention made by Popeko could be raised on a Rule 35 motion even if it could have been, but was not, raised on direct appeal. Callanan v. United States,364 U.S. 587, 589 n. 3, 81 S. Ct. 321, 5 L. Ed. 2d 312 (1961); 8A Moore's Federal Practice § 35.04 (2d ed. 1975); 2 Wright, Federal Practice & Procedure § 584 (1969). In fact, such a contention may be made on a Rule 35 motion even if it were previously raised on direct appeal. Heflin v. United States, 358 U.S. 415, 79 S. Ct. 451, 3 L. Ed. 2d 407 (1959). Therefore, it appears to us that when this Court affirmed the denial of Rule 35 relief, the panel necessarily held that Popeko's acts constituted two crimes, as the Government contended, and rejected Popeko's argument that he had committed only a "single offense."
11
While the Eighth Circuit has held that such facts constitute two offenses under 18 U.S.C.A. § 2314, Amer v. United States, 367 F.2d 803 (8th Cir. 1966), the Ninth Circuit has decided that facts similar to those in the case sub judice constitute only one offense under the same statute, Gilinsky v. United States, 368 F.2d 487 (9th Cir. 1966). A full understanding of the Rule 35 appeal discloses that this Court went the way of the Eighth Circuit in Popeko's own case. The language of the short per curiam opinion affirming denial of Rule 35 relief on the basis of the opinion in Popeko's direct appeal may seem confusing, but the precedential authority of an appellate ruling is found in what the court necessarily decided in order to reach a result. Where a precedent surfaces, albeit previously undisclosed because an opinion fails to articulate the basis of the court's decision, we must follow that precedent, absent any decisions of this Circuit or the Supreme Court to the contrary.
12
Affirmed. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2610419/ | 379 P.2d 57 (1963)
71 N.M. 405
Helen M. PARSONS, Petitioner-Appellee,
v.
EMPLOYMENT SECURITY COMMISSION of New Mexico, Respondent-Appellant.
No. 7025.
Supreme Court of New Mexico.
January 11, 1963.
Rehearing Denied March 12, 1963.
*58 A.M. Frazier, Albuquerque, for appellant.
Paul "Pablo" Marshall, Socorro, for appellee.
MOISE, Justice.
This is an appeal by the Employment Security Commission of New Mexico, hereinafter referred to as the Commission, from a judgment reversing its decision denying certain unemployment benefits to Helen M. Parsons, hereinafter referred to as Petitioner.
The facts are fairly simple and are not in dispute. Petitioner is a married woman who has worked as a grocery clerk, her last employment having been in a store in Grants, New Mexico. Upon her husband's being laid off from his work, petitioner quit her job on November 15, 1958, and accompanied her husband to Apache Creek, New Mexico, where they owned some property. Apache Creek is a very small rural community with one grocery store that hires one full-time clerk. Some twelve miles distant is the small rural community of Reserve which also has one grocery store which employs one full-time clerk and two high school students. Petitioner could do office work but has not applied for any. She is not interested in work as a waitress, nor is she willing to leave Apache Creek or Reserve to find work. Petitioner has applied regularly for work at the two grocery stores and although they indicate a willingness to employ her if they have an opening, neither of them have offered her a position. Her old job in Grants remained available at all times.
Petitioner was not disqualified by the Commission from drawing benefits by virtue of the voluntary leaving of her job to accompany her husband to his new domicile and was paid benefits for eighteen weeks whereupon her employee benefits were exhausted for that year.
On November 25, 1959, petitioner initiated a second series of claims, all of which were denied by the Commission on the ground that she had removed from the labor market and was not available for work and was not actively seeking work as required for eligibility *59 for benefits by § 59-9-4(c), N.M.S.A. 1953.
Although the Commission complains that the trial court did not accord to the Commission's findings the weight to which they are entitled under the law, and made findings of its own, we do not feel that the situation here present requires that we consider this point. The trial court did not file any decision as required by our rules (§ 21-1-1(81) (c), N.M.S.A. 1953) and decisions, M.R. Prestridge Lumber Co. v. Employment Security Commission, 50 N.M. 309, 176 P.2d 190. On the other hand, it incorporated in its judgment statements that it had jurisdiction; that petitioner had quit her last job in Grants on November 15, 1958, to accompany her husband to Apache Creek; that she had properly filed her claims for benefits; and that she had made efforts to obtain suitable employment in the Apache Creek-Reserve area. This is followed by a conclusion that petitioner had not removed herself from the labor market, and a judgment granting her the benefits denied by the Commission.
As we view the case, the court, while accepting the undisputed facts, determined as a matter of law that petitioner had not removed herself from the labor market, was available for work, and actively seeking work so as to make her eligible for the statutory benefits.
Section 59-9-4, N.M.S.A. 1953, so far as material, reads:
"An unemployed individual shall be eligible to receive benefits with respect to any week only if the commission finds that * * *.
"(c) He is able to work and is available for work, and is actively seeking work."
Whereas the Commission, in its brief, alludes to the fact that petitioner was unemployed because of her own voluntary act of quitting her job to accompany her husband away from Grants where work remained available to her, and that she remained unemployed because of her own choice not to return to Grants, we do not consider that we are called upon to decide if she was at fault in so doing. The Commission did not so rule when it recognized petitioner's claims during eighteen weeks of the year immediately following her first becoming unemployed. Neither did the Commission deny the benefits here sought for any such reason.
The question which is decisive of this appeal, and which we are called upon to decide, is: Was petitioner available for work and actively seeking work?
The Commission determined that petitioner was not "available for work," applying a rule adopted by it which reads as follows:
"A claimant who removes from one place to another will be held to have thereby withdrawn from the labor market if there is substantial evidence establishing that (1) little or no work opportunities exist in the new area, thereby precluding employment, (2) the claimant is unwilling or unable to secure work outside the area, (3) the evidence of these two factors is borne out by the claimant's unemployment over a substantial period."
That this rule correctly describes the requirements to establish a claimant as available for work under the decisions of certain courts cannot be doubted. See 13 A.L.R. 2d 874, 883, citing cases from Georgia (Huiet v. Schwob Mfg. Co., 196 Ga. 855, 27 S.E.2d 743; Huiet v. Atlanta Gas Light Co., 70 Ga. App. 233, 28 S.E.2d 83; Huiet v. Callaway Mills, 70 Ga. App. 538, 29 S.E.2d 106), Indiana (Walton v. Wilhelm, 120 Ind. App. 218, 91 N.E.2d 373), and Missouri (Wiley v. Carroll (Mo. 1947), 201 S.W.2d 320). To these may be added the state of Idaho. See Claim of Sapp, 75 Idaho 65, 266 P.2d 1027.
However, there are cases holding differently. These cases are cited in 13 A.L.R. 2d 874, 880, and are from Connecticut (Reger v. Administrator, Unemployment Compensation Act, 132 Conn. 647, 46 A.2d 844), Ohio (Leonard v. Unemployment Compensation Board, 148 Ohio St. 419, 75 N.E.2d 567), and Pennsylvania (Sturdevant Unemployment Compensation Case, 158 Pa. *60 Super. 548, 45 A.2d 898; Felegy Unemployment Compensation Case, 158 Pa.Super. 567, 45 A.2d 906). We would also class Delaware (Ashmore v. Unemployment Compensation Commission, 46 Del. 565, 86 A.2d 751) and Virginia (Dan River Mills, Inc. v. Unemployment Compensation Commission, 195 Va. 997, 81 S.E.2d 620) in this group.
We have considered the two lines of cases and have concluded that the condition whereby the absence of numerous work opportunities in an area to which a claimant has moved injects a test different and more stringent than is demanded by the law, or than it is clear the legislature intended. This is particularly true in view of our announced adherence to a rule of liberal construction to accomplish the remedial and humanitarian ends intended by the legislature as stated in the policy declaration in § 59-9-2, N.M.S.A. 1953. Graham v. Miera, 59 N.M. 379, 285 P.2d 483.
The note writer in 13 A.L.R. 2d 874, 876, concludes that the difference between the two lines of opinion can generally be explained by the fact that one group applies a rule of strict construction, whereas the other follows a policy of liberal interpretation of the statute. As already noted, we are committed to the second group and are satisfied with the result to which this leads us under the facts here present.
The following, quoted from Reger v. Administrator, Unemployment Compensation Act, supra, is to our minds pertinent in our case:
"* * * The only question is whether or not upon the facts found the plaintiff was `available for work' within the meaning of the act.
"An explanation and definition of the meaning of this phrase has been well set forth in these words: `The availability requirement is said to be satisfied when an individual is willing, able, and ready to accept suitable work which he does not have good cause to refuse, that is, when he is genuinely attached to the labor market. Since, under unemployment compensation laws, it is the availability of an individual that is required to be tested, the labor market must be described in terms of the individual. A labor market for an individual exists when there is a market for the type of services which he offers in the geographical area in which he offers them. "Market" in this sense does not mean that job vacancies must exist; the purpose of unemployment compensation is to compensate for the lack of appropriate job vacancies. It means only that the type of services which an individual is offering is generally performed in the geographical area in which he is offering them.' Freeman, 55 Yale L.J. 123, 124. `In short, the test of a worker's availability is subjective. As long as no provision of the Act disqualifies him, he is entitled to its benefits * * * when he has exposed himself unequivocally to the labor market.' Mishaw v. Fairfield News, 12 Conn. Super. Ct. 318, 321.
"Upon the facts found, there are two aspects of the case to be considered. The decisive question under the first is: Was there a market for the type of services the plaintiff could perform in the area where she was? The fact that there are more persons in the area qualified for a certain type of position than there are positions of this kind to be filled does not necessarily negative the existence of such a market. The question is not whether the plaintiff has a reasonable opportunity to get work of the kind she can do, but whether there is a `labor market' for such work. The commissioner concluded that the plaintiff had removed herself from an active labor market to a locality where none existed. In view of the meaning of `labor market' as just explained, it is apparent that there are neither subordinate facts found by the commissioner nor anything else in the record to sustain the conclusion that *61 there was no such labor market in and around Ozark."
We would also direct attention to the comment in 17 Fordham L.R. 150, discussing the merits of the results in the two lines of cases noted above, and particularly criticizing the reasoning and result in Wiley v. Carroll, supra. See also, 4 Vanderbilt L.R. 206; 158 A.L.R. 396, 411; 165 A.L.R. 1382, 1388.
A word should be added concerning the statutory provision that to be entitled to benefits a person must be "actively seeking work." This requirement is inextricably tied to the question of availability, and the two are argued together by the Commission. As pointed out by Freeman in 55 Yale L.J. 123, 129, "Besides being able and willing to work an individual, to be available for work, must be ready to work, for, if he is not, his unemployment is due not necessarily to a lack of suitable job opportunities, but to conditions which prevent his performing work." To our minds, the requirement of "actively seeking work" is something more than passively being willing and ready if an opportunity presents itself. Lore v. Unemployment Compensation Commission, 46 Del. 576, 86 A.2d 856. To be eligible, a claimant must have done everything reasonably to be expected under the circumstances present of one wanting work in order to find it. Jacobs v. Office of Unemployment Compensation and Placement, 27 Wash.2d 641, 179 P.2d 707. The facts concerning petitioner's efforts have been recounted. To say that the exertion expended by her in order to find work was something less than could reasonably be expected under all the circumstances is again applying a strict rule of interpretation, whereas liberality is intended. We think the trial court was correct in its conclusion that petitioner should not be adjudged ineligible for not having done more than she did, and in particular, under the circumstances, in not having extended her efforts by moving to an area with better opportunities of employment, in order to obtain work.
From the foregoing, it follows that the trial court did not err in determining that under the facts as found by the Commission, as distinguished from legal conclusions, petitioner was entitled as a matter of law to the benefits of the act, and the judgment appealed from should accordingly be affirmed.
It Is So Ordered.
CARMODY and NOBLE, JJ., concur.
COMPTON, C.J., and CHAVEZ, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610422/ | 379 P.2d 86 (1963)
71 N.M. 447
In re Crime Investigation of Bribery of Public Officials.
STATE of New Mexico, Plaintiff and Appellant,
v.
Claud WYLIE, J. W. Jones, and Charles Lewis, Movants and Appellees.
No. 7090.
Supreme Court of New Mexico.
February 19, 1963.
Earl E. Hartley, Atty. Gen., George Richard Schmitt, William E. Snead, Asst. Attys. Gen., Santa Fe, for appellant.
Nordhaus & Moses, C. Derwood Knight, Albuquerque, for appellee Claud Wylie.
Jones & Stiff, Albuquerque, for appellee Charles Lewis.
Sutin & Jones, Albuquerque, for appellee J.W. Jones.
CARMODY, Justice.
A committee of the House of Representatives of the United States Congress, called the "Blatnik Committee," conducted an investigation with respect to the use of federal funds in the construction of highways. As a result of the investigation, the committee made a report and, based thereon, the district attorney of the Third Judicial *87 District filed motions under the provisions of § 41-3-8, N.M.S.A., 1953 Comp., asking the court to order the issuance of subpoenas for certain witnesses. The motions were all entitled "In Re: Crime Investigation of Bribery of Public Officials," and were docketed in Dona Ana County on the criminal docket under Cause No. 10,560. The court granted the motions ex parte, and directed that the clerk issue subpoenas for the individuals to appear and testify before the district attorney. Thereupon, the proposed witnesses appeared by counsel and moved to quash the issuance of the subpoenas and vacate the order. After argument, the court entered its order quashing the subpoenas and dismissing the proceedings. The district attorney thereupon moved for an appeal, which was granted, and the cause was docketed in this court. After the filing of the state's brief in chief, the three proposed witnesses filed a motion to dismiss the appeal. This opinion is limited to the ruling on this motion.
The movants (appellees) claim that the state has no right to appeal under the provisions of § 41-15-3, N.M.S.A., 1953 Comp., incorporated under the rules of the supreme court as § 21-2-1(5) (4), N.M.S.A., 1953 Comp., which provides:
"4. The state shall only be allowed an appeal or writ of error in criminal cases when an indictment, complaint or information is quashed, or adjudged insufficient upon an interlocutory motion, or judgment is arrested."
Contrariwise, the state (appellant) urges that this is not a criminal case, but is a civil one, and that the rules of civil procedure apply; that therefore the state should be allowed an appeal under the provisions of § 21-2-1(5) (6), N.M.S.A., 1953 Comp., which is as follows:
"6. Appeals under the authority of Laws 1937, ch. 197 [21-10-5], from final judgments in all special statutory proceedings, shall be allowed within the time and in the manner provided for appeals from final judgments in civil actions except where otherwise provided by statute in existence upon the effective date of Laws 1937, ch. 197 [21-10-5]. Where on said date there was existing a statute authorizing an appeal from judgments, final or otherwise, in certain special statutory proceedings, the time and manner of taking such appeal shall be governed by the special statute relating thereto, the provisions of which in this behalf being continued in full force and effect as rules of court under Rule 86 of the rules of the district courts."
It would seem to be admitted by the state that, if this is a criminal case, there is no right of appeal. Thus, the state must, of necessity, to sustain its contention, urge that the case is a civil one.
The statute under which this proceeding was originally instituted, insofar as is pertinent, reads (§ 41-3-8, N.M.S.A., 1953 Comp.):
"* * * Second. The prosecuting attorney may on approval of the district judge, issue subpoenas in felony cases and call witnesses before him when the grand jury is not in session and have them sworn and their testimony reduced to writing and signed by the witnesses, at the cost of the county, and when taken shall file the same with the clerk of the district court, to be used for impeachment purposes only. Such examination must be confined to some felony committed against the statutes of the state and triable in that county, and the evidence so taken shall not be receivable in any civil proceeding. * * *"
This particular statute, although slightly amended by the Laws of 1927, ch. 132, and Laws of 1955, ch. 47, with respect to matters which are not concerned herein, was a part of ch. 144 of the Laws of 1925, which had for its purpose the vitalizing of the "information" amendment to the constitution, to provide for the trial of an accused in a criminal case prior to his commitment to the district court. The entire chapter dealt with the procedure on preliminary *88 hearings, what was required therein, the duties of the magistrate and the rights of the defendant. There is nothing in the act which, in any sense, would support the state's contention that the instant proceeding is civil in its nature. The legislative intent is to be gathered from an examination of the entire act, 2 Sutherland Statutory Construction, 3d ed., § 4704, and this statute relates entirely to criminal matters. The very language of the portion of the section quoted points to the fact that the legislature was considering felony cases. The direction that the procedure could only be followed and "must be confined to some felony" should make this obvious. In addition, the fact that the evidence so taken "shall not be receivable in any civil proceeding" is inconsistent with the state's contention that the case is, in any sense, a civil one.
Even though we decline to hold that the instant proceeding is a criminal case, principally because, ordinarily, a criminal case is only commenced with the filing of an indictment or an information (see, State v. McMath, 1929, 34 N.M. 419, 283 P. 51; State v. Valdez, 1947, 51 N.M. 393, 185 P.2d 977), and although we are constrained to note the claimed similarity between this proceeding and a grand jury investigation, which the United States Supreme Court has held to be a "criminal case" (Counselman v. Hitchcock (1892), 142 U.S. 547, 12 S. Ct. 195, 35 L. Ed. 1110; United States v. Monia (1943), 317 U.S. 424, 63 S. Ct. 409, 87 L. Ed. 376), nevertheless it is obvious that this proceeding is not a civil case. An illustration should suffice to dispose of this argument: If we were to assume that the district attorney had complied with the statute and had actually filed a felony case, and that he subsequently obtained court approval to issue subpoenas under the provisions of the above section, such a request to issue subpoenas would, of necessity, be in the criminal case itself; and were the court to refuse to issue the subpoenas upon the request, or, having originally authorized the issuance, subsequently quashed the subpoenas, the district attorney could not have appealed, because the case would obviously be a criminal one, from which appeals are granted only as permitted by § 41-15-3, supra.
Thus, in the present instance, it would seem incongruous to allow an appeal on the contention that it was a special civil proceeding, because the statute had not been followed initially by the filing of a felony case, whereas if the statute had been followed, there would have been no appeal allowed under the statute. The state further argues that this particular proceeding was civil in its nature and became such when the appellees sought to quash the order directing the issuance of the subpoenas. The assertion is that at that time there were party litigants on opposite sides of the case, the district attorney on the one side and the appellees on the other; that in such a situation the case became a special statutory proceeding, which did not have special rules authorizing appeals, and that, therefore, § 21-2-1(5) (6), N.M.S.A., 1953 Comp., was applicable. We do not believe that the procedure followed by the state in this instance can convert the initial proceeding from one in the nature of a criminal matter into a special statutory proceeding from which an appeal would be allowed. It is obvious that the motion to dismiss the appeal is well taken and should be sustained.
The parties also argue the question whether a writ of mandamus would be proper to compel the issuance of the subpoenas in the instant case. In view of our ruling, which is dispositive of the motion to dismiss, we decline to advise the parties with respect to this matter, because to do so would be mere dicta.
The motion to dismiss the appeal will be granted and it is so ordered.
COMPTON, C.J., and NOBLE, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611725/ | 310 P.2d 407 (1957)
Dorothy OSMUN, Appellant,
v.
Marvin Neil OSMUN, Respondent.
No. 3916.
Supreme Court of Nevada
April 30, 1957.
Wright & Eardley, Elko, for appellant.
F. Grant Sawyer, Elko, for respondent.
EATHER, Justice.
This is an appeal from an order modifying a decree of divorce to change custody of two minor children. Custody of the children (a boy age 6 and a girl age 3 at the time the suit was brought in 1954) was, by the decree of divorce, awarded to their mother. By the order of modification custody was changed to the father. The mother has taken this appeal. She contends that the trial court was guilty of abuse of discretion in that there is no evidence of such change of circumstances as would warrant the modification under the recognized law of this state: Elsman v. Elsman, 54 Nev. 20, 31, 2 P.2d 139, 3 P.2d 1071, 10 P.2d 963; Abell v. Second Judicial District Court, 58 Nev. 89, 71 P.2d 111; State ex rel. Groves v. First Judicial District Court, 61 Nev. 269, 125 P.2d 723. We concur in this view.
One year elapsed from the date of the original decree to the date of the father's petition for modification. By the decree the mother was allowed $65 a month for the support of the children. She had no means of her own, no job, no home of her own. It was anticipated that she would be able to provide herself with all necessities for the proper care of the children, making her home in Salt Lake City. After the decree was granted she decided to return to school in Salt Lake City in order to better equip herself for employment. A week after the granting of the decree the parties agreed that for the current school year and until the summer of 1955 the *408 father should take the children to Imlay, Nevada, to live with him. The mother's reasons for this agreement undenied by the father, were that with her attending school and working she would not have time to give the proper attention to the children; that the school situation was better for the children in Imlay; that the father had just completed service in the navy and felt that having the children with him would aid him in his adjustment to civilian life. From that time on the children remained with the father.
Just prior to filing his petition for modification he remarried; his financial position has improved since the original decree was rendered and accordingly his ability to provide a stable home for the children. No change of circumstances has been shown so far as affected the ability of the mother to care for the children. Her situation appears to be precisely the same as at the time the decree was rendered. There is no question whatsoever of her fitness or of her affection for the children.
The father contends that the experience of the intervening period itself demonstrates the mother's lack of ability to care for the children. This is not so. She is no less able now than when the decree was granted. She has not yet had an opportunity to demonstrate her ability to care for the children and the trial court is not yet able to judge of her abilities on the basis of experience. Her surrender of the children was voluntary and in line of her plan to secure further schooling, which plan she has now abandoned. Her voluntary temporary surrender of the children in the light of what she felt to be her best interests cannot be permitted to result in prejudice to her.
The only material change of circumstances apparent in the record is the improvement of the father's circumstances. In our opinion, such change, standing alone, cannot be justification for a change of custody. Traditionally it is considered to warrant a change in the amount of allowance more appropriately than change of custody.
Respondent places great reliance on Bemis v. Bemis, 89 Cal. App.2d 80, 200 P.2d 84, but a careful reading of the majority opinion in that case, in our opinion, supports the view we have taken.
Reversed and remanded with instructions that the order modifying the decree be set aside. Costs to the appellant.
BADT, C.J., and MERRILL, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1913875/ | 981 A.2d 1080 (2009)
293 Conn. 936
Anthony SHELTON
v.
COMMISSIONER OF CORRECTION.
Supreme Court of Connecticut.
Decided October 14, 2009.
Michael Oh, special public defender, in support of the petition.
John A. East III, senior assistant state's attorney, in opposition.
The petitioner Anthony Shelton's petition for certification for appeal from the Appellate Court, 116 Conn.App. 867, 977 A.2d 714 (2009), is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1913880/ | 981 A.2d 312 (2009)
COM.
v.
GUZMAN.
No. 1930 MDA 2007.
Superior Court of Pennsylvania.
June 10, 2009.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611732/ | 210 Or. 273 (1957)
310 P.2d 313
HEWITT
v.
THOMAS ET AL
Supreme Court of Oregon.
Argued April 18, 1957.
Reversed and remanded April 24, 1957.
M.P. Gallagher, Ontario, argued the cause for appellant. *274 On the briefs was Cecelia P. Galey, Sweet Home.
Orval Thompson argued the cause for respondents. On the brief were Weatherford & Thompson, Albany, and F.D. Mayer, Lebanon.
Before PERRY, Chief Justice, and LUSK, WARNER and KESTER, Justices.
REVERSED AND REMANDED.
KESTER, J.
This appeal presents the question of the sufficiency of the complaint in an ejectment action. No demurrer was filed, but on trial defendants objected to the introduction of any evidence on the ground that the complaint failed to allege that plaintiff or his predecessors in title had possession within ten years.[*] The trial court sustained the objection and entered judgment dismissing the complaint, from which plaintiff appeals.
The statutes provide for the content of a complaint in ejectment,[] and this complaint followed the statutes. *275 It alleged:
"I
"The plaintiff now is and at all times since April 22, 1952, has been owner in fee simple and entitled to the possession of the following described premises in the City of Sweet Home, Linn County, Oregon, to-wit:
"[Property described by metes and bounds.]
"II
"The defendants, Thomas, are now and at all times herein mentioned have been husband and wife and are now and at all times herein mentioned have been acting as the owners of said real property. The defendants, Doe, whose true names are to the plaintiff unknown, and as plaintiff is informed and believes are husband and wife, and they and each of them are now and for some time past have been in the actual possession of said premises as the tenants of the defendants, Thomas.
"III
"The defendants and each of them do now and since April 22, 1952, have continuously and unlawfully withheld the possession of said premises from the plaintiff to plaintiff's damage in the sum of $400.00.
"IV
"The value of rents, issues and profits of said premises from the 22nd day of April, 1952, and while the defendants have excluded the plaintiff therefrom is the sum of $390.00."
Defendants in their answer pleaded affirmatively the statute of limitations and also adverse possession, but they now contend:
"* * * that before a cause of action can be stated, it must appear from the complaint that it is not barred by the statute of limitations governing that particular case and if it appears from the complaint *276 that the statute of limitations has run, then the complaint does not state a cause of action because the action is barred."
1. The latter portion of the quoted statement is correct, but the complaint in this case does not show on its face that the statute has run. The first portion of the statement is incorrect, as the statute of limitations is an affirmative defense that must be pleaded in the answer if the defect does not appear on the face of the complaint. ORS 12.010, 16.260 (7), 16.290 (1), 16.330. The cases relied upon by defendants, such as DeMartini v. Hayhurst, 154 Or 663, 62 P2d 1, were ones where it appeared on the face of the complaint that the statute had run, and it was therefore incumbent on plaintiff to plead grounds for tolling the statute.
2, 3. Defendants argue that the limitation period for ejectment is of a different character than that for other types of action, because the statute not only provides that the action "shall be commenced within ten years," but it goes on to say that "no action shall be maintained for such recovery unless it appears that the plaintiff * * * was seised or possessed * * * within ten years * * *." They contend that "maintain" means to "commence," and "appears" means "appears in the complaint." We cannot agree. We think that a complaint which complies with ORS 105.010 is sufficient, in the absence of facts appearing on its face which invoke the bar of limitations.
4. Defendants also argue that the passage of 10 years "not only bars the remedy but it extinguishes the right, and vests a perfect title in the adverse holder." Granting that adverse possession, when all the elements are shown, operates to create a new title, it does not follow that a complaint in ejectment must negative adverse possession by the defendant. To so hold would *277 require us to overrule the numerous cases holding that one who claims under adverse possession must plead and prove all the elements thereof. e.g. Reeves v. Porta, 173 Or 147, 144 P2d 493. Defendants recognized this when they pleaded both the statute of limitations and adverse possession in their answer.
We hold that the complaint was sufficient, and the court erred in dismissing it and entering judgment for the defendants. The judgment is reversed, and the case is remanded for further proceedings.
NOTES
[*] ORS 12.050. "An action for the recovery of real property, or for the recovery of the possession therof [sic], shall be commenced within 10 years. No action shall be maintained for such recovery unless it appear that the plaintiff, his ancestor, predecessor, or grantor was seised or possessed of the premises in question within 10 years before the commencement of the action."
[] ORS 105.005. "Any person who has a legal estate in real property and a present right to the possession thereof, may recover possession of the property, with damages for withholding possession, by an action at law. The action shall be commenced against the person in the actual possession of the property at the time, or if the property is not in the actual possession of anyone, then against the person acting as the owner thereof."
ORS 105.010. "The plaintiff in his complaint shall set forth:
"(1) The nature of his estate in the property, whether it be in fee, for life, or for a term of years; including, when necessary, for whose life and the duration of the term.
"(2) That he is entitled to the possession thereof.
"(3) That the defendant wrongfully withholds the property from him to his damage for such sum as is therein claimed.
"(4) A description of the property with such certainty as to enable the possession thereof to be delivered if there is recovery." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610405/ | 93 Ariz. 129 (1963)
379 P.2d 119
In the Matter of the ESTATE of William W. MACKEVICH, aka Witold Mackevich, and aka William Mackevich, deceased.
Raymond YVOSKIS, Appellant,
v.
Andromeda MACKEVICH, Appellee.
No. 6955.
Supreme Court of Arizona. En Banc.
February 27, 1963.
*130 Charles Christakis and Peterson, Sullivan & Estrada, Phoenix, for appellant.
Cunningham, Carson & Messinger, Phoenix, for appellee.
UDALL, Vice Chief Justice.
This is a will contest. The proponent of the will is the decedent's nephew, the contestant his surviving spouse. The issues were tried to the court, and judgment was entered in favor of the wife, appellee in this court. The lower court ruled that decedent's will was revoked by operation of law as a result of his subsequent marriage to the appellee.
The facts are these: In 1952 William or Witold Mackevich, the deceased, made a will naming his then wife Sarah as primary beneficiary and executrix and naming *131 his nephew, Raymond Yvoskis, the proponent-appellant, as secondary beneficiary and alternate executor. Sarah predeceased William by about two years. Shortly after Sarah's death, William met the appellee, Andromeda, and a courtship of a year and a half's duration ensued. In contemplation of their decision to marry, William and Andromeda contacted a real estate broker with whom Andromeda was acquainted and requested that he draw for them an agreement to assure each would continue in the ownership of his or her separate property in the event their impending marriage resulted in a divorce.[1] The following was produced:
"AGREEMENT
Phoenix, Arizona
October 21, 1957
This agreement entered into by and between William W. Mackevich and Andromeda DeLancy,
WITNESSETH: Wherein the above mentioned are contemplating entering the Holy Bonds of Matrimony, and both parties now own real property previous to this marriage, be it understood and agreed that when at such time as either one shall pass away by death, then such real property shall be divided as follows:
One-half shall go to the heirs of the deceased person, and One-half go to the surviving spouse;
All real property acquired during this marriage and all personal property owned at the time of death shall go to the survivor of this union, and
Should this marriage fail and end in a divorce, then all properties held personally before this marriage shall be retained by such person as it were before marriage and that there will be no unfair advantage taken by either party in any circumstances."
This instrument was signed by William and Andromeda and acknowledged before the realtor-draftsman, who was also a notary public.
On October 24th, 1957, William and Andromeda were married. About six weeks after the marriage the couple was involved in an automobile accident. William died from injuries sustained in this accident on January 12, 1958.
Andromeda petitioned for letters of administration and the appellant petitioned for letters testamentary and for probate of the 1952 will. At a consolidated trial the court *132 ruled in favor of Andromeda, holding that the will was revoked by operation of A.R.S. § 14-134.[2] The court further held that the agreement made by William and Andromeda three days prior to their marriage violates A.R.S. § 25-201[3] and was therefore void.
The appellant contends that the agreement of October 21, 1957 is a valid prenuptial agreement or marriage contract which makes provision for the decedent's wife and thereby precludes the revocation of his will by operation of A.R.S. § 14-134. He argues that A.R.S. § 25-201 must be limited to apply only to agreements which attempt to alter the statutory pattern of descent of community property, citing Williams v. Williams, 29 Ariz. 538, 243 P. 402 (1926) in support of this proposition. This limitation is necessary, he states, to give meaning to A.R.S. § 14-134 which obviously contemplates that valid marriage contracts may make provision for the wife out of the husband's separate property. In addition, he contends that the appellee is estopped to assert the invalidity of the agreement because William Mackevich entered into his marriage with her in reliance upon the effectiveness of this agreement.
The appellant misconceives the significance of the Williams decision, supra. There the parties entered into an antenuptial agreement that each would have independent control during the marriage of separate property owned before the marriage and also agreed upon a settlement to be effective in case of divorce. The Court said, "[i]t may be that such an agreement is perfectly valid in settling any rights which appellee acquired in the separate property of appellant by reason of the marriage," and then held the provisions relating to a divorce settlement invalid. Since the Williams agreement in no way purported to govern the distribution of separate property at the death of either party, the quoted dictum is not authority that A.R.S. § 25-201 is limited in application to agreements involving community property. Furthermore, we cannot agree with appellant that unless this section is so limited it must necessarily *133 be violated by any marriage contract providing for the wife out of separate property as contemplated by A.R.S. § 14-134. Many forms of ante-nuptial marriage contracts, such as present transfers of money or property, executory agreements to transfer property, agreements to devise or bequeath property, and agreements to settle trusts do not have any effect in altering statutory patterns of descent and distribution.
It is true that ante-nuptial agreements which would violate A.R.S. § 25-201 have been upheld in jurisdictions not having similar statutes. Typical of these is the agreement of the husband that a lump sum or set portion of his estate will be paid to the wife out of the husband's estate if she survives as his widow. In return the wife agrees to renounce any other claim she may have upon her husband's estate. E.g. Veeder v. Veeder, 195 Iowa 587, 192 N.W. 409, 29 A.L.R. 191 (1923) and cases cited annot. 1 A.L.R.2d 1260 (1948). Fairness dictates that such contracts be upheld in states where the statutory right of a widow to take a forced share of her husband's estate may result in injustice where parties marry late in life and have children by previous marriages.
But our legislature has established different policies. Our community property laws assure to a wife her share of community property acquired during the marriage, and she is given no right to share in her husband's separate estate against his will. Thus, fairness does not require she be permitted to renounce such a right. On the contrary, A.R.S. § 25-201 provides that the parties to a prospective marriage cannot, by contract, alter statutory patterns of intestate succession, either by attempting to establish a new order of descent, or by renouncing, in advance, rights of intestate succession which result from the marriage. Settlements agreed upon by the parties must be accomplished by legally recognized inter vivos or testamentary methods. See Groesbeck v. Groesbeck, 78 Tex. 664, 14 S.W. 792 (1890) and other cases decided under Tex.Civ.Stat. art. 4610, the statute from which A.R.S. § 25-201 was adopted.
The ante-nuptial agreement of William Mackevich and Andromeda DeLancy does not purport to alter presently existing property rights. By it, the parties neither act nor promise to act in the future to transfer property by legally recognized methods. Its intended effect is to establish an order of descent of property at the death of one of the spouses,[4] which *134 order of descent differs from that established by the laws of this state. For this reason the agreement is in direct violation of A.R.S. § 25-201 and is invalid.
Coincidentally, the distribution of William's property which would be made if the agreement were effective appears to be the same as that dictated by the governing statutes. The appellant has made nothing of this point, and this coincidence does not change our decision. The agreement itself has as its object the fixing of one order of distribution where the statutes provide several patterns of distribution depending on the circumstances. If Andromeda (who had an adult daughter) had been the first to die, the distribution plan of the agreement would have substantially varied from that dictated by the statutes. The same would be true if William and Andromeda would have had a child of their marriage.
Appellant contends, however, that the appellee is estopped to deny the validity of the agreement and the will. He cites Biggerstaff's Ex'rs v. Biggerstaff, 95 Ky. 154, 23 S.W. 965 (1893) where the parties to an ante-nuptial contract agreed that neither would have an interest in the property of the other during the marriage. The court assumed the agreement to be valid and held that the widow had no interest which would permit her to contest probate of the will. The decision does not rest on the theory of estoppel. Other cases where this theory was applied contain the elements of a valid estoppel, e.g. Lant's Appeal, 95 Pa. 279, 40 Am.Rep. 646 (1880); Hudnall v. Hamm, 183 Ill. 486, 56 N.E. 172, 48 L.R.A. 557 (1899). These elements are missing in the present case as the lower court found that William Mackevich did not enter into marriage in reliance upon provisions of the agreement relating to disposition of property at the death of either party. This finding is amply supported by evidence that the terms of this portion of the agreement were inserted by the draftsman without the knowledge of either of the parties to the agreement, and that after the agreement was prepared, neither of the parties read it. The charge of estoppel is without merit.
It follows that, as no provision was made for the wife by a valid and effective marriage contract, the 1952 will was revoked by operation of law under A.R.S. § 14-134, In re Anderson's Estate, 14 Ariz. 502, 131 P. 975 (1913); Corker v. Corker, 87 Cal. 643, 25 P. 922 (1891).
There was no error and the judgment is affirmed.
BERNSTEIN, C.J., and STRUCKMEYER, JENNINGS and LOCKWOOD, JJ., concur.
NOTES
[1] William's first wife, Sarah, had commenced divorce proceedings against him before her death, and the possibility that Andromeda would "broom him out" concerned him. We are not called upon to decide the validity of the provisions of this agreement relating to divorce settlement. Cf. Williams v. Williams, 29 Ariz. 538, 243 P. 402 (1926).
[2] "A.R.S. § 14-134. Presumption of revocation of will by subsequent marriage of testator
"If after making a will, the testator marries and the wife survives him, the will is presumed to be revoked unless provision has been made for the wife by marriage contract, or unless she is provided for in the will, or is mentioned therein in such way as to show an intention not to revoke the will, but no other evidence to rebut the presumption of revocation shall be received."
[3] "A.R.S. § 25-201. Ante-nuptial contracts; limitations; execution by minor
"A. Parties intending to marry may enter into agreements not contrary to good morals or law. They shall not enter into an agreement or make a renunciation the object of which is to alter the law of descent of property either with respect to themselves or inheritance by their children or posterity which either may have by any other person, or with respect to their common children. * * *"
[4] It appears as a point of interest that if, as appellant desires, the agreement were held to be valid and to control the distribution of William's property, the appellant would not share in this distribution. The gift of one half of William's separate property to his "heirs" requires reference to the intestate pattern of distribution and under A.R.S. § 14-201(2.), since William had no surviving father or mother, this half also goes to his wife. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/219930/ | Case: 10-20004 Document: 00511523247 Page: 1 Date Filed: 06/28/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 28, 2011
No. 10-20004
Summary Calendar Lyle W. Cayce
Clerk
YOUNG AGAIN PRODUCTS, INC.,
Plaintiff–Appellee
v.
JOHN ACORD, MARCELLA ORTEGA;
Defendants–Appellants
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:09–MC–282
Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Defendants–Appellants John Acord and Marcella Ortega (collectively, “the
Judgment Debtors”) have appealed from various orders entered in the district
court that allowed Plaintiff–Appellee Young Again Products, Inc. (“Young Again”
or “the Judgment Creditor”) to levy execution on all of the Judgment Debtors’
business assets, in addition to their real and personal property, to satisfy a
foreign judgment. Young Again moved to dismiss this appeal shortly after it was
filed on the grounds that: (i) Acord and Ortega lacked standing because they had
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 10-20004 Document: 00511523247 Page: 2 Date Filed: 06/28/2011
No. 10-20004
disclaimed all interest in the subject matter of the appeal, and (ii) because the
appeal was taken from a series of non-final orders, this court lacked jurisdiction
to consider the matter. The motion was carried with the case until the parties
submitted briefing on the merits. For the reasons set forth below, we find that
Young Again’s motion to dismiss is well taken and should be GRANTED, and
this APPEAL DISMISSED.
I
In 2004, Young Again brought suit against Acord, Ortega, and Supplement
Spot, LLC in the U.S. District Court for the District of Maryland alleging
trademark and copyright infringement, among other claims. In March 2009, the
district court in Maryland entered a default judgment against Acord and Ortega
and awarded Young Again damages in the amount of $3,832,832.40.1 Acord and
Ortega appealed the judgment to the U.S. Court of Appeals for the Fourth
Circuit, where a decision remains pending.
In June 2009, Young Again registered the Maryland judgment in the U.S.
District Court for the Southern District of Texas, where Acord and Ortega reside
and own real property. 28 U.S.C. § 1963 allows a party to register one federal
court’s money judgment in another federal district court as a precursor to
enforcement of the original judgment in the latter court. See Home Port Rentals,
Inc. v. Int’l Yachting Grp, Inc., 252 F.3d 399, 404 (5th Cir. 2001). A judgment so
registered has the same effect as a judgment of the district court of the district
where registered and may be enforced in like manner. See 28 U.S.C. § 1963. In
light of Young Again’s proper registration of the Maryland judgment, the district
court in the Southern District of Texas issued, inter alia, two writs of execution,
a writ of garnishment, and an order allowing Young Again to levy execution on
the Judgment Debtors’ business assets and real and personal property located
1
Supplement Spot, LLC had been dismissed from the litigation in the interim.
2
Case: 10-20004 Document: 00511523247 Page: 3 Date Filed: 06/28/2011
No. 10-20004
in Texas. This present appeal, notice of which was filed in December 2009,
involves various claims of error in the district court’s several writs and orders.
While Young Again was attempting to collect on its judgment against the
Judgment Debtors in the district court, a separate action was underway in the
U.S. Bankruptcy Court for the Southern District of Texas. There, the
bankruptcy trustee for Supplement Spot, LLC brought an adversary proceeding
against Acord and Ortega to recover assets that were fraudulently transferred
from the Supplement Spot, LLC estate. In February 2010, six weeks after Acord
and Ortega filed notice of appeal in the instant case, they entered into an Agreed
Judgment in the bankruptcy court that disposed of that case. As part of that
agreement, Acord and Ortega stipulated that:
Any and all personal property seized by Young Again Products, Inc.
(the “Supplement Spot Assets”) in connection with Civil Action No.
09–MC–0282, styled Young Again Products, Inc. v. John Acord, et
al., pending in the United States District Court for the Southern
District of Texas . . . constitutes property of the Supplement Spot,
LLC bankruptcy estate and/or was acquired with proceeds of
property fraudulently transferred from the Supplement Spot, LLC
bankruptcy estate.
The Agreed Judgment further stipulated that “Marcella Ortega and John Acord
disclaim any interest in the Supplement Spot Assets.” With one exception, the
personal property at issue in this appeal involves Supplement Spot Assets
entirely.
As to Acord and Ortega’s interest in real property—which was included in
the writs of execution issued by the district court and subject to seizure, but not
discussed in the Agreed Judgment entered in the bankruptcy court—the
Judgment Debtors’ counsel explained to the district court that the property at
issue was in foreclosure and that Acord and Ortega no longer had any interest
to protect in the property. The record supports this representation.
3
Case: 10-20004 Document: 00511523247 Page: 4 Date Filed: 06/28/2011
No. 10-20004
II
“To qualify as a case fit for federal-court adjudication, ‘an actual
controversy must be extant at all stages of review, not merely at the time the
complaint is filed.’” Arizonans for Official English v. Arizona, 520 U.S. 43, 67
(1997) (quoting Preiser v. Newkirk, 422 U.S. 395, 401 (1975)). “[I]f an event
occurs while a case is pending on appeal that makes it impossible for the court
to grant ‘any effectual relief whatever’ to a prevailing party, the appeal must be
dismissed.” Church of Scientology v. United States, 506 U.S. 9, 12 (1992) (quoting
Mills v. Green, 159 U.S. 651, 653 (1895)). Whether an actual controversy
remains at this stage of the litigation is a question that we review de novo. See
Harris v. City of Houston, 151 F.3d 186, 189 (5th Cir. 1998).
A
Young Again first contends that Acord and Ortega no longer have standing
to appeal the district court’s various writs and orders. This is because, Young
Again claims, the Judgment Debtors expressly disclaimed any interest in the
personal property seized by Young Again as part of the bankruptcy case. And,
as to the real property that was the subject of the district court’s orders, Young
Again notes that, by their own admission, Acord and Ortega no longer have any
interest to protect in that property. Thus, the argument goes, the subject matter
of this appeal has become moot and the appeal should be dismissed. We agree
with this argument in part.
The starting point for our analysis of mootness “is the familiar proposition
that ‘federal courts are without power to decide questions that cannot affect the
rights of litigants in the case before them.’” DeFunis v. Odegaard, 416 U.S. 312,
316 (1974) (quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971)). Here, the
Judgment Debtors have indeed disclaimed the bulk of their rights in the
personal property that Young Again had seized pursuant to the district court’s
writs of execution. But not all.
4
Case: 10-20004 Document: 00511523247 Page: 5 Date Filed: 06/28/2011
No. 10-20004
As described above, the Agreed Judgment entered in the bankruptcy court
stipulated that Acord and Ortega disclaimed their interest in “any and all
personal property seized by Young Again Products, Inc.” in connection with the
writs and orders that are the subject of this appeal. But in addition to this
clause, which is all-inclusive on its face, the Agreed Judgment also includes a
provision reserving in the Judgment Debtors certain rights relating to a limited
number of personal property items.2 An attachment to the Agreed Judgment
(“Exhibit 1") sets out several items of Acord and Ortega’s personal property that
were to be specifically exempted from the bankruptcy estate’s interest.3 By
implication, the interest in these specific items of personal property remained
vested in the Judgment Debtors and was not disclaimed entirely, as Young
Again contends.
And so, given that some of the items described in Exhibit 1 were, in fact,
seized when the U.S. Marshals levied execution on the Judgment Debtors’
2
Paragraph 3 of the Agreed Judgment provides that:
Notwithstanding paragraph 2 [the clause excerpted in Section I above], the
Trustee hereby disclaims the bankruptcy estate’s interest in the items listed on
the attached Exhibit 1. If the Trustee recovers any of the items listed on
Exhibit 1, he shall provide written notice of such recovery to Joe A. Izen, Jr.
[the Judgment Debtors’ attorney] and the Defendants shall have 15 days, from
the day written notice is provided, to take possession of the recovered items.
3
Exhibit 1 specifically exempted the following:
1. Any and all photographs owned by Kenneth Acord or Sean Ortega, including
photographs or inscriptions of family members of the Acord and/or Ortega family(s)
2. Any family paintings owned by Kenneth Acord or Sean Ortega, including 2 oil portraits
of members of the Acord and/or Ortega family ancestors
3. Airplane and other miscellaneous toy models owned by Kenneth Acord and/or Sean
Ortega
4. Miscellaneous military memorabilia owned by Kenneth Acord and/or Sean Ortega
5. Sean Ortega’s uniform collection
6. The pill making machines located in Forth Worth, Texas and leased by Natural Labs
(see the attached “description of Leased Pill Making Machine”)
7. The Croix de Guerre earned by Marcella Ortega’s father in World War I.
5
Case: 10-20004 Document: 00511523247 Page: 6 Date Filed: 06/28/2011
No. 10-20004
property, Acord and Ortega have shown a justiciable interest in these specific
items. They have, however, disclaimed their interest in the remainder of the
personal property seized by Young Again in its efforts to execute the district
court’s writs and orders. We find that Acord and Ortega’s claims are moot as to
all personal property not described in Exhibit 1.
As for the real property that was subject to levy under the district court’s
order, we note that only one parcel of land is at issue in this case—the real
estate located at 9022 Deer Lodge Road, Magnolia, Texas. As the Judgment
Debtors’ counsel explained to the district court in a motions hearing in
November 2009, this property was in foreclosure and Acord and Ortega no longer
had any interest to protect in the property. The record on appeal supports this
representation and includes the mortgagee’s notice of foreclosure and sale on the
real property located at 9022 Deer Lodge Road. Because Acord and Ortega are
without any interest in the only real property at issue in this appeal, they have
no rights in real property that an order of this court could serve to vindicate. See
Brown v. New Orleans Clerks & Checkers Union Local No. 1497, 590 F.2d 161,
164 (5th Cir. 1979) (holding defendants’ appeal from the grant of an injunction
moot because “[t]his court could fashion no order that would change the
relationship of the parties.”).
The Judgment Debtors filed this appeal requesting certain, specific relief
based on alleged errors in the district court’s various writs and order. After
initiating the appeal, Acord and Ortega either disclaimed or conceded their lack
of interest in most all of the property rights that had satisfied Article III’s actual
controversy requirement. With the exception of the personal property described
in the Agreed Judgment’s Exhibit 1, we can no longer grant Acord and Ortega
meaningful relief as to their claims and their appeal must be dismissed as moot.
6
Case: 10-20004 Document: 00511523247 Page: 7 Date Filed: 06/28/2011
No. 10-20004
B
Next, Young Again contends that we lack jurisdiction to consider what
remains of this appeal—the Judgment Debtors’ claims relating to the seizure of
personal property described in Exhibit 1—because the appeal was taken from a
non-final order. We agree. Under Texas law,4 the general rule is that a court
order issued “for the purpose of carrying into effect an already-entered judgment
is not a final judgment or decree and cannot be appealed as such.” Kennedy v.
Hudnall, 249 S.W.3d 520, 523 (Tex. App. 2008) (citing Wagner v. Warnasch, 295
S.W.2d 890, 892–93 (Tex. 1956); see also Schultz v. Fifth Judicial Dist. Court of
Appeals at Dallas, 810 S.W.2d 738, 740 (Tex. 1991), abrogated on other grounds
by In re Sheshtawy, 154 S.W.3d 114 (Tex. 2004) (“[T]he usual writs and orders
to aid in execution to collect a final money judgment are not, in general,
appealable orders.”).5
Here, the district court entered two writs of execution, a writ of
garnishment, several temporary restraining orders, and an order allowing Young
Again to levy execution on the Judgment Debtors’ business assets, all so that
Young Again could satisfy its $3.83 million judgment against them. Acord and
Ortega appealed from all of these writs and orders. But in light of our holding
above, the writs of execution that authorized seizure of the Exhibit 1 property
are the only judgments left before us. All other writs and orders appealed from
have been mooted by the Judgment Debtors’ litigation position towards their
real and personal property. And because what remains of this appeal stems
4
FED. R. CIV. P. 69(a) requires that the procedure on execution “must accord with the
procedure of the state where the court is located,” except that any statute of the United States
governs to the extent applicable. The Judgment Debtors do not contend that any provision of
the Bankruptcy Code or any other federal statute directs the method or procedure for
execution of the registered judgment.
5
This rule is subject to exceptions not applicable here. See Schultz, 810 S.W.2d at 740
(finding turnover order which resolved property rights and acted “in the nature of a mandatory
injunction” to be appealable).
7
Case: 10-20004 Document: 00511523247 Page: 8 Date Filed: 06/28/2011
No. 10-20004
from the district court’s writs of execution, we lack jurisdiction to consider the
matter further. See Wolter v. Donaldson, 79 S.W.3d 160, 162 (Tex. App. 2002)
(“Neither a writ of execution nor an order incident to a writ of execution is
appealable.”).
III
Young Again’s motion to dismiss this appeal for lack of standing and want
of jurisdiction is GRANTED.
APPEAL DISMISSED.
8 | 01-03-2023 | 06-28-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1519191/ | 806 S.W.2d 795 (1991)
Robert A. CAULLEY, Petitioner,
v.
Ruth CAULLEY, Respondent.
No. C-9274.
Supreme Court of Texas.
March 6, 1991.
Rehearing Overruled April 24, 1991.
*796 Kenneth C. Kaye, League City, for petitioner.
Bill De La Garza, David M. Oualline, Houston, for respondent.
OPINION
MAUZY, Justice.
Robert and Ruth Caulley were divorced in Ohio in 1981. In 1987, Ruth filed suit in Harris County seeking to enforce an Ohio divorce judgment that ordered Robert to pay Ruth alimony. She obtained a money judgment for $34,625 against Robert from the 269th District Court of Harris County. On September 10, 1987, the Harris County District Clerk issued a writ of execution on the judgment and forwarded the writ to the Sheriff of Houston County, where Robert owned property. The writ was returned "Nulla Bona" because a homestead exemption was on file in the Houston County Clerk's office. Ruth then filed an Application for Turnover Order in the 269th District Court. She disputed the homestead exemption and asked the court to order the district clerk to reissue a writ of execution on the property, and to order that each of Robert's paychecks be turned over to her until her judgment against him was satisfied. On February 2, 1988, the trial court again ordered the district clerk to issue a writ of execution upon the Houston County property. The trial court also appointed a receiver and ordered Robert to turn over $2500 of his $2700 net monthly wages to the receiver in order to satisfy the money judgment against him.
*797 Robert appealed and contended in the court of appeals that the homestead designation is determined by the claimant's state of mind. He also contended that the turnover statute (Tex.Civ.Prac. & Rem.Code § 31.002) is unconstitutional under Art. XVI, § 28 (prohibition against garnishment) when used to order a judgment debtor to turn over his wages to a creditor. The court of appeals rejected Robert's arguments and affirmed the judgment of the trial court. 777 S.W.2d 147. We affirm the lower courts' judgment regarding the homestead designation, but we reverse the trial court's order that Robert must turn over 90% of his net wages in order to satisfy the judgment against him.
I. Homestead Exemption
One month after the September, 1981 divorce from Ruth, Robert married Christine in Texas. Before the marriage, Christine had an urban home in Harris County upon which she had established a homestead exemption. After the marriage, the couple made this home their residence. In 1983, Robert and Christine jointly purchased a 150-acre farm in Houston County. This was the property upon which the trial court ordered execution.
Along with the original issuance of a writ of execution, an abstract of judgment was recorded in the Houston County Clerk's office on September 23, 1987. On October 16,1987, Robert filed a declaration that the Houston County property was his rural homestead. On October 19, 1987, Christine sought to "undesignate" the couple's Harris County residence as an urban homestead. Once homestead rights are shown to exist in property, they are presumed to continue, and anyone asserting abandonment has the burden of proving it by competent evidence. Sullivan v. Barnett, 471 S.W.2d 39 (Tex.1971). The trial court entered Findings of Fact and Conclusions of Law in which it found that the urban home in Harris County was the homestead of Robert and Christine. Robert contended on appeal that there was no evidence to support this finding by the trial court. 795 (Tex. 1991)
The court of appeals reasoned that testimony at trial revealed that Robert and Christine "spent at least 60% of the nights of the year" at their Harris County home. 777 S.W.2d at 150. Additionally, the court of appeals held that Robert tried to designate the Houston County property as homestead only after Ruth sought to enforce her judgment against that property. Id. Thus, the court of appeals correctly held that some evidence supported the trial court's finding that the urban home in Harris County was the homestead of Robert and Christine. Robert argued in both the court of appeals and in this Court that the Houston County property would become the couple's permanent home in a few years and that this indicates an intention on their part to make this their homestead property. While occupying a piece of property as homestead, a person cannot establish a homestead right in another place by "attempting to live there in the future". O'Brien v. Woeltz, 94 Tex. 148, 58 S.W. 943, 945, modified on rehearing, 94 Tex. 154, 59 S.W. 535 (1900); Johnston v. Martin, 81 Tex. 18,16 S.W. 550, 550-551 (1891). Therefore, Robert's argument is without merit. We hold that the trial court and the court of appeals correctly decided that the Houston County property was not Robert's and Christine's homestead, and we affirm that portion of the judgment.
II. Turnover Order
We need not reach Robert's constitutional challenge to the turnover statute because the trial court's order in this case is expressly prohibited by the 1989 Amendment to the turnover statute. In 1989, the following section was added to Tex.Civ.Prac. 31.002:
(f) A court may not enter or enforce an order under this section that requires the turnover of the proceeds of, or the disbursement of, property exempt under any statute, including Section 42.0021, Property Code. This subsection does not apply to the enforcement of a child support obligation or a judgment for past due child support, (emphasis added). *798 The new section was intended to specifically exempt paychecks, retirement checks, individual retirement accounts and other such property exempted under the bankruptcy code.[1] Though the amendment was not effective until June 15, 1989, it is retroactive in its effect.[2] Therefore, the added section controls even though the district court's judgment was entered before its effective date. The trial court ordered that Robert must turn over his wages to a receiver on the first and fifteenth days of each month until the judgment is satisfied. We hold that this order violates § 31.002(f) of the Texas Civil Practice and Remedies Code. By prohibiting the turnover of the proceeds of property exempt under any statute, this section necessarily prohibits the turnover of the proceeds of current wages. Tex.Prop.Code § 42.002(8) (listing current wages as one of the personal property items exempt from attachment, execution, and seizure by creditors). We therefore reverse the judgment of the court of appeals affirming the trial court's order requiring Robert to turn over his wages to a court-appointed receiver.
In sum, we affirm the judgment of the court of appeals regarding Robert's homestead designation, and we reverse the judgment of the court of appeals affirming the trial court's order requiring Robert to turn over his wages to a court-appointed receiver.
OPINION ON REHEARING
MAUZY, Justice, concurring.
I concur with the majority's decision to overrule Ruth Caulley's Motion for Rehearing, but I write separately because of this Court's failure to address Robert Caulley's constitutional challenge to the turnover statute, Tex.Civ.Prac. & Rem.Code Ann. § 31.002.
In our original opinion, we held that the trial court's order that Robert must turn over his wages to a receiver violated § 31.002(f) of the Texas Civil Practice and Remedies Code, which prohibits the turnover of proceeds of property exempt under any statute. See page 797-98. The majority of the Court did not find it necessary to address Robert's argument that the trial court's order directing Robert to turn over his future paychecks violates our state constitution's prohibition of garnishment of wages.
I would hold that the trial court's order violates Article XVI, § 28 of the Texas Constitution. This section provides:
No current wages for personal service shall ever be subject to garnishment, except for the enforcement of court-ordered child support payments.[1]
See also Tex.Civ.Prac. & Rem.Code Ann. § 63.004 (current wages for personal services are not subject to garnishment).
To discern the meaning of the term "garnishment" as used in the constitution, this Court must examine the "history of the time out of which it grew ... the evils intended to be remedied and the good to be accomplished____" Edgewood Indep. School Dist. v. Kirby, 111 S.W.2d 391, 394 (Tex.1989) (citing Markowsky v. Newman, 134 Tex. 440, 136 S.W.2d 808, 813 (1940)). The constitutional framers included the garnishment exemption as a reaction to the great expansion of creditor's remedies during the early part of the nineteenth century. 2 G. Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis 759 (1977). At the time of the Constitutional Convention, garnishment was the only judicial mechanism available by which a creditor could effectively seize cash, paychecks or wages from *799 a debtor. See Toben & Toben, Using Turnover Relief to Reach the Non-Exempt Paycheck, 40 Baylor L.Rev. 195, 200-202 (1985) (citing Price v. Brady, 21 Tex. 614 (1857)). Despite this fact, the constitutional framers sought to protect wages through the broad language adopted in Article XVI, § 28.[2] Except for the 1983 amendment to allow garnishment of wages for the collection of child support, this constitutional protection for wages has remained undisturbed in our state constitution.
This Court has recognized that as times and circumstances change, terms of art and law must be willing to change with them. In Associated Indemnity Corp. v. Oil Well Drilling Co., 258 S.W.2d 523, 529 (Tex.Civ. AppDallas 1953), affirmed, 153 Tex. 153, 264 S.W.2d 697, 700 (1954) (expressly approving of the language of the court of appeals), the court of appeals stated:
[O]ur law, even our statutory law, is a living thing capable of adjustment within certain limits to meet varying circumstances. Our law is not forever and immutably fixed like the rules of syntax of the ancient dead Latin and Greek languages. An example of what we mean is our exemption statute, Art. 3832, subd. 10, V.A.C.S. When passed in 1870, the statute named a "carriage" as exempt property. The statutory language has remained unchanged to this day. Certainly in 1870 the legislature did not have automobiles in mind when it used the word "carriage." Yet our courts had no difficulty in holding that the word "carriage" must be interpreted to include automobiles, (citation omitted).
Orders requiring turnover of paychecks have exactly the same effect as garnishment. The framers of the constitution had no way of predicting under what guise involuntary sequestering of income might be presented by future generations. The term they chosegarnishmentcan only be construed to mean there shall be no involuntary sequestering of income other than for child support.[3]See, e.g., City of Houston v. Nelius, 693 S.W.2d 567, 569 (Tex.App.Houston [14th Dist.] 1985, writ dism'd) (treating withholding of wages as prohibited by Article XVI, § 28 even though the withholding was not technically garnishment). The exemption's goal was to protect the debtor's use of proceeds from the paycheck. See Sloan v. Douglass, 713 S.W.2d 436, 440 (Tex.AppFort Worth 1986, writ ref'd n.r.e.); J.M. Radford Grocery Co. v. McKean, 41 S.W.2d 639, 640 (Tex.Civ.App.Fort Worth 1931, no writ); Bell v. Indian Live-Stock Co., 11 S.W. 344, 346 (Tex.1889).
Subsection (f), on which we based our holding in this case, was added to § 31.002 in 1989. The new section was intended to clarify that paychecks, retirement checks, individual retirement accounts, and other such property are exempt from the type of turnover order issued by the trial court in this case. See page 798. This statute recognizes that the framers used "current" in the usual sense it is used in business contexts, i.e., to refer to an obligation of the employer that is presently enforceable, and that would otherwise be subject to garnishment. Cf. Somers v. Keliher, 115 Mass. 165, 167 (1874) (holding future earnings, earnings not yet accrued, cannot be assigned).
A turnover order directed at Robert's wages would also ultimately prove unenforceable because the Texas Bill of Rights prohibits the trial court from enforcing a turnover order by imprisonment for debt. Article I, § 18 of the Texas Constitution provides: "No person shall ever be imprisoned for debt." This prohibition has appeared *800 in every version of our constitution. See Beaumont Bank v. Buller, 806 S.W.2d 223, 225 and n. 2 (April 3, 1991) (Mauzy, J., dissenting) (outlining the history and debates of the framers involved in drafting these constitutional provisions against imprisonment for debt); Raborn v. Davis, 33 Tex.Sup.CtJ. 249, 250 (Feb. 21, 1990), withdrawn, 795 S.W.2d 716 (Tex.1990) (Mauzy, J., concurring) (enforcement of a turnover order by imprisonment for contempt is an unconstitutional imprisonment for debt under Article I, § 18 of the Texas Constitution).
This Court has recognized some exceptions to the prohibition of imprisonment for debt. See Ex parte Davis, 101 Tex. 607, 111 S.W. 394, 395-96 (1908) (child support is not a debt); Dixon v. State, 2 Tex. 482, 483-84 (1847) (imprisonment for debt does not apply to criminal cases). In this case, however, enforcement of the turnover order by imprisonment for contempt would clearly violate the constitution because the underlying debt that Robert owes Ruth arises from a traditional debtor-creditor relationship.
In sum, the trial court's order threatened Robert with two constitutional transgressions: garnishment of current wages, in violation of article XVI, section 28; and imprisonment for debt, in violation of article I, section 18. The legislature's enactment of section 31.002(f) does remove those threats in this case; but it does not diminish the vitality of those constitutional provisions which, from the earliest days of this state, have shielded individuals from similar abuses of the law.
NOTES
[1] House Committee On The Judiciary, Bill Analysis, Tex.H.B. 1029, 71st Leg., R.S. (1989).
[2] `This Act applies to the collection of any judgment, regardless of whether the judgment is rendered before, on, or after the effective date of this Act." Acts 1989, 71st Leg., R.S., ch. 1015, § 2, 1989 Tex.Gen.Laws 4112.
[1] Originally, the section read: "No current wages for personal services shall ever be subject to garnishment". However, the Texas legislature amended the section to add the exception for child support in 1983. See Tex.H.R.J. Res. 1, 68th Leg., 1983 Tex.Gen.Laws 6693. This amendment was approved by the voters of Texas on November 8, 1983.
[2] Earlier versions of this section were rejected by the Committee on General Provisions. See Journal of the Constitutional Convention of the State of Texas Begun and held at the City of Austin September 6, 1875 at 120 and 535. The framers chose to give all citizens, regardless of their wealth or earning capacity, the right of protection against garnishment. An earlier version limiting the protection to citizens who made wages above a certain dollar-figure amount was rejected. Id. at 557.
[3] There was no provision for garnishment in Texas until the 1983 amendment to Article XVI, § 28 of the Texas Constitution, in which the child support exception was approved by Texas voters. See n. 1 for legislative history of the amendment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8326486/ | Lauriat, Peter M., J.
SAA Group, LLC (“SAA”) brought this action against Lenders Title Services, Inc. (“LTS”) for breach of contract in connection with LTS’s role as closing agent for Washington Mutual Bank (“WAMU”), SAA’s predecessor in interest, and the issuance of a mortgage on property located at 415 Lindsey Street, Attleboro, Massachusetts.
Lenders Title Services has now moved for summary judgment on SAA’s claims against it. For the following reasons, Lenders Title Services summary judgment motion is denied.
BACKGROUND
The pleadings, affidavits, and memoranda set forth the following facts. SAA is a Delaware limited liability company with its usual place of business in Woburn, Massachusetts. SAA is affiliated with the Ablitt Law Offices, P.C. (“Ablitt”) ofWoburn, Massachusetts. LTS is a corporation with its usual place of business in Johnston, Rhode Island.
On or about June 27, 2002, Fleet National Bank (“Fleet”) filed an Open End Mortgage in the Bristol County Registry of Deeds on property at 415 Lindsey Street in Attleboro, Massachusetts (“the Property”) to secure a $120,000 home equity line-of-credit loan it had made to Ricky and Linda Greigre. In 2003, the Greigres decided to refinance that debt with a loan from WAMU, to be secured by a mortgage on the Property, in an amount greater than the Fleet loan. To protect its interest, WAMU purchased a title insurance policy from Old Republic, through its agent, LTS, whose president is Suzanne Accardo (“Accardo”).
In advance of the closing, LTS obtained from Fleet a full pay-off amount of $120,899, for the Greigres’ home-equity loan. LTS conducted the closing of the refinancing on or about January 28, 2003, and in connection therewith, recorded WAMU’s mortgage in the Bristol County Registry of Deeds. On February 4, 2003, LTS delivered a check to Fleet in the amount of $120,899 in full payment of the Greigres’ home-equity loan. Fleet, however, did not freeze or close the Greigres’ home-equity loan and did not deliver to LTS a discharge of its mortgage. Fleet’s failures apparently allowed the Greigres to re-borrow $120,000 against their home equity line-of-credit within days of the closing. At some point after February of 2003, Bank of America, N.A. (“BOA”) acquired Fleet.
Late in 2005, the Greigres defaulted on their WAMU loan. WAMU engaged the Harmon Law Offices (“Harmon”) to foreclose on its mortgage. In conducting a title examination of the Property, Harmon noted that Fleet’s prior mortgage had not been discharged. On November 22, 2005, Harmon advised LTS of this encumbrance on the Property, and LTS in, turn, contacted BOA. On December 12, 2005, WAMU assigned the Greigres’ Note and mortgage to DLJ Mortgage Capital, Inc. (“DLJ”). In turn, DLJ engaged Select Portfolio Services, Inc. (“SPS”) to act as its attorney-in-fact and loan servicer in connection with the foreclosure of the WAMU/DLJ mortgage on the Property. SPS engaged the law firm of Ablitt & Charlton (“Ablitt”) to conduct the foreclosure proceedings on behalf of DLJ.
On January 31, 2006, in an apparent response to LTS’s inquiry, BOA executed a Discharge of Mortgage with respect to the Greigres’ 2002 Fleet home equity line-of-credit loan, and on February 14, 2006, that discharge was recorded in the Bristol County Registry of Deeds. On February 21, 2006, BOA executed a second Discharge of Mortgage with respect to the Greigres’ 2002 Fleet home equity line-of-credit loan, and on March 6, 2006, that discharge was recorded in the Bristol County Registry of Deeds. However, at the times that these mortgage discharge notices were filed, the Greigres still owed Fleet n/k/a BOA at least $120,000 on their home equity line-of-credit loan.
On March 29, 2006, BOA—asserting “clerical error and mistake”—executed a Revocation of Discharge of Mortgage, which was recorded in the Bristol County Registry of Deeds on June 30, 2006.
On November 15, 2006, BOA commenced a declaratory judgment action against the Greigres, DLJ, and another in the Bristol County Superior Court (“the Bristol Action”) seeking to void and revoke its discharge of the Fleet mortgage. On December 7, 2006, BOA recorded a Memorandum of Lis Pendens against the Property in the Bristol County Registry of Deeds. Although Ablitt and DLJ had become aware of the Bristol Action by not later than November 20, 2006, DLJ did not take any steps to defend itself in that case.
On January 4, 2007, Ablitt, representing DLJ, sent a claim letter to Old Republic informing Old Republic that “a recent title examination for the purpose of foreclosing on the said mortgage indicates that a *306senior mortgage exists in favor of Fleet National Bank in the principal amount of $120,000.” The letter did not disclose, mention or reference the Bristol Action. Old Republic acknowledged receipt of the claim letter the same day, and, as a matter of course, issued a Future Policy Indemnity Letter in which it agreed to “issue a new policy to the successful bidder at the foreclosure sale . . . without exception for this problem.”
On February 8, 2007, BOA was awarded a default judgment in the Bristol Action, thereby restoring its mortgage to first position ahead of DLJ’s. Old Republic was not expressly informed of the Bristol Action by DU, SPS, Ablitt, or SAA until October 30, 2007. Moreover, Old Republic was not informed of BOA’s default judgment until December 12, 2007. Consequently, Old Republic was prevented from intervening in the Bristol Action and asserting a variety of viable defenses. Nonetheless, Old Republic informed DU that, should DU be successful in having the default judgment vacated, Old Republic would defend DU in the Bristol Action. DU, SPS, Ablitt, and SAA took no steps to remove the default judgment.
On or about April 15, 2008, BOA conducted a foreclosure of the Fleet mortgage, thereby extinguishing the WAMU mortgage. DU /SPS was the high bidder at the foreclosure sale and agreed to buy the property for $150,000. Ablitt paid both the bid deposit of $5,000, and the purchase price of $150,000 on behalf of DU in connection with the foreclosure sale.
On January 8, 2009, DU executed an Assignment of Claim in favor of SAA. SAA then sought indemnification under the Old Republic policy by virtue of this assignment. Old Republic refused, and the present action followed.
DISCUSSION
A motion for summary judgment shall be granted if admissible evidence “show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Mass.R.Civ.P. 56(c). The moving party must affirmatively demonstrate that there are no genuine issues of material fact in dispute. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). “This burden ... maybe satisfied by demonstrating that proof of that element is unlikely to be forthcoming at trial." Flesner v. Technical Comm. Corp., 410 Mass. 805, 809 (1991). In response, the non-moving party “must set forth sufficient facts showing that there is a genuine issue for trial.” Key Capital Corp. v. M&S Liquidating Corp., 27 Mass.App.Ct. 721, 728 (1989), quoting Mass.R.Civ.P. 56(e). A parly may not rest on “conclusoiy statements, general denials, and factual allegations not based on personal knowledge” in opposing a motion for summary judgment. LaBrecque v. Parsons, 74 Mass.App.Ct. 766, 768 (2009). When appropriate summary judgment may be entered against the moving party. Mass.R.Civ.P. 56(c).
I.
There are two separate but intertwined claims before the court, one sounding in contract and the other in tort. The first claim relates to whether LTS fulfilled its contractual obligations to WAMU despite providing clear title nearly three years after the transaction took place.1 The second claim is whether LTS is liable in tort for failing to provide Fleet contemporaneously with (1) the Greigres’ pay-off check and (2) authorization to close the line of credit and discharge instructions. This decision addresses each potential basis for liability in turn.
A.
In assessing whether LTS breached the terms of its contract with WAMU, this court must determine what LTS’s primary obligations were under the contract. The interpretation of an unambiguous, written contract presents a question of law for the court. Hiller v. Submarine Signal Co., 352 Mass. 546, 549-50 (1950). A court must interpret an unambiguous contract according to it plain meaning. S. Union Co. v. Dep’t of Public Util., 458 Mass. 812, 820 (2011). Contract language is ambiguous “only if it is susceptible of more than one meaning and reasonably intelligent persons would differ as to which meaning is the proper one.” Id., quoting Citation Ins. Co. v. Gomez, 426 Mass. 379, 381 (1998).
According to the “Lender’s Closing Instructions,” LTS was obligated to satisfy the following condition relating to the title of the Property:
[LTS] is to clear the title of all liens and encumbrances to insure that [WAMU] holds a valid first lien position . . . [and] the Policy must be free and clear of all items not accepted herein and [LTS] indemnifies and holds [WAMU] harmless from any and all costs, damages, and liability, which may result from exceptions on the title no so accepted.
Joint Appendix of Exhibits, Tab 11.
Additionally, the parties explicitly agreed that “the loan [was] scheduled to close on 2/3/2003 . . . [and] [t]he loan must close on 2/3/2003.” If the loan failed to close, “[LTS] must return all funds and documents to [WAMU].”
In Massachusetts, “parties have the right to make a stated time for performance the essence of the contract.” Porter v. Harrington, 262 Mass. 203, 207 (1928). Unless such a provision is waived by the parties, these agreements are binding on the parties, and “are given effect in equity and law.” Id.; see also Preferred Underwriters v. New York, N.H. & H.R Co., 243 Mass. 457, 463-64 (1923). In situations where parties do not indicate that time is of the essence, parties must perform within a reasonable amount of time. Id.
In the present case, the parties take differing views as to the effect of the contractual language. LTS argues that its contractual obligation to provide “clear title” *307was satisfied the moment BOA recorded the mortgage discharge—albeit three years after the fact. LTS reasons that the recordation was conclusive evidence of the removal of the encumbrance on the Property, and that it elevated WAMU’s mortgage to first position. LTS concludes that because WAMU’s mortgage was eventually placed in first position, it cannot be found to have breached the terms of the contract.
SAA does not dispute that the recordation had the temporary effect of placing WAMU’s mortgage lien in first position. Rather, SAA argues that LTS breached the contract by failing to contemporaneously provide Fleet with (1) the Greigres’ pay-off check and (2) the Greigres’ authorization to close the line of credit and discharge the Fleet mortgage. SAA reasons that these failures allowed the line of credit to remain open just long enough to allow the Greigres to redraw against it. In turn, this failure led BOA to eventually file the Bristol Action and to undo the discharge. Additionally, SAA contends that LTS breached its contract with WAMU simply by failing, for three years, to put WAMU’s mortgage interest in first position.
Based on the parties’ arguments, the court concludes that SAA must prevail on its breach of contract claim. First, the contract plainly states that performance was due on February 3, 2003. Based on this express provision, the court concludes as a matter of law that the parties intended “time to be of the essence.”2 Such an intent makes perfect sense within the context of the transaction because any delay could have—and did in fact—result in the very situation now at issue. Accordingly, LTS breached its contract with WAMU by failing to provide Fleet with the documentation necessary to close the line of credit and discharge the mortgage on February 3,2003. It is evident that Fleet could not possibly “close” the account without all the requisite paperwork in-hand. Failing to provide Fleet with the Greigres’ authorization to dose the account and discharge instructions until February 12, 2003 resulted in significant adverse consequences, and was a clear breach of contract.
The parties’ intent that “time be of the essence” produced an even more glaring breach—the Fleet mortgage remained undischarged for nearly three years. The fact that three years elapsed without any party taking notice or questioning LTS’s material failure, does not excuse the fact that the WAMU mortgage remained in second position. Thus, in violation of contract’s terms, the Properly remained encumbered by the Fleet mortgage long after the agreed-upon closing date, and LTS did nothing to rectify the situation. Moreover, LTS’s argument that its contractual obligation was satisfied upon BOA discharging its mortgage is unavailing. This argument ignores the three-year hiatus during which LTS ignored its contractual duty to ensure that WAMU’s mortgage was in first position. The fact that BOA was successful in having the discharge revoked only exacerbates LTS’s breach by once again encumbering the Property.
The court concludes that LTS materially breached its contract with WAMU by failing to expeditiously move to ensure that the WAMU’s mortgage enjoyed first position, and SAA is entitled to summary judgment in its favor on this claim. See Mass.R.Civ.P. 56(c).
B.
The next issue is whether LTS’s negligent performance of its contractual duties provides a simultaneous and independent basis for relief in tort. “To prevail on a negligence claim, a plaintiff must prove that the defendant owed the plaintiff a duty of reasonable care, that the defendant breached this duty, that damage resulted, and that there was a causal relation between the breach of the duty and the damage.” Jupin v. Kask, 447 Mass. 141, 146 (2006).
The question is therefore whether LTS owed WAMU a duty of care. The court concludes that it did not. It is true that parties entering a contract are obligated to both perform the agreed-upon services and to perform those services using ordinary care. See Abrams v. Factory Mut. Liability Ins. Co., 298 Mass. 141, 143 (1937) (“When a party binds himself by contract to do a work or to perform a service, he agrees by implication to do a workmanlike job and to use reasonable and appropriate care and skill in doing it. This is true whether the work consists in building a house, repairing an automobile, treating a patient or defending against a claim or a lawsuit.”); see also Hartford Cas. Ins. Co. v. New Hampshire Ins. Co., 417 Mass. 115, 118 (1994). However, that a party might breach its contract by failing to exercise a reasonable and appropriate level of skill does not transform that contractual obligation into a special duty of care recognized in tort law. See Jupin, 447 Mass. at 146. A duty in tort “finds its source in existing social values and custom.” Mullins v. Pine Manor College, 389 Mass. 47, 51 (1983). By contrast, any obligation between contracting parties arises out of the agreement itself.
Accordingly, the court concludes that LTS did not owe WAMU any special duty of care, and therefore SAA’s negligence claim against it must fail as a matter of law.
ORDER
For the foregoing reasons, Defendants, Lenders Title Services, Inc. and Suzanne Accardo’s Motion for Summary Judgment is ALLOWED in Part and DENIED in part. Summary judgment shall enter in favor of SAA Group, LLC on its breach of contract claim against the defendants pursuant to Mass.R.Civ.P. 56(c), and summary judgment shall enter in favor of the defendants on SAA Group, LLC’s negligence claim.
Fleet’s initial mortgage discharge was subsequently voided in the Bristol Action.
The portion of the agreement setting forth the closing date provision reinforces the parties’ intent that the transaction be time sensitive. Directly preceding the “checked” box, by which the parties indicated their intent that the closing occur on 2/3/2003, there is an “unchecked” box that, if checked, would have meant that 2/3/2003 was an “estimated closing *308date.” The juxtaposition of the two boxes (i.e. “estimated closing date” versus “firm closing date”), and the parties’ affirmative election of the latter, is dispositive as to the parties’ intent regarding time of performance. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1492401/ | 6 Md. App. 572 (1969)
252 A.2d 487
GEORGE VICTOR FRANKLIN
v.
STATE OF MARYLAND.
No. 275, September Term, 1968.
Court of Special Appeals of Maryland.
Decided April 23, 1969.
The cause was argued before MURPHY, C.J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.
Joseph H. Kaplan and John Henry Lewin, Jr., for appellant.
Thomas M. Downs, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State's Attorney for Baltimore City, and Stephen E. Harris, Assistant State's Attorney for Baltimore City, on the brief, for appellee.
MURPHY, C.J., delivered the opinion of the Court.
Appellant was charged under four separate indictments in the Criminal Court of Baltimore with (1) armed robbery of Robert Smith on August 15, 1967, (2) armed robbery of John Ellerbee on August 29, 1967, (3) assault with intent to murder Ellerbee on August 29, 1967, and (4) armed robbery of Bertie Heath on September 3, 1967. The indictments were consolidated for trial before the court sitting without a jury. The State proceeded first with the offenses against Ellerbee and the following evidence was adduced in connection with these crimes:
Ellerbee testified that at 9:55 p.m. on August 29, 1967, while *574 driving his Good Humor truck, he was robbed at gun point by a man whom he identified in court as the appellant. Ellerbee stated that after appellant shot him four times, he took $150.00 from him. He testified that he also identified appellant from a number of photographs shown to him by the police on September 1 or 2, 1967 while he was in the hospital.
Detective Carmello Currelli testified that he showed Ellerbee nine photographs on September 1 or 2 and that Ellerbee picked out appellant as the individual who shot and robbed him. The officer stated that he procured a warrant for appellant's arrest and on September 5, 1967, served it on him at the Eastern Police Station where he was then being held in confinement on another offense; that he then advised appellant "of his rights" and appellant declined to say anything at that time. The State then closed its evidence in the Ellerbee cases and the court overruled a defense motion for a judgment of acquittal.
The State next proceeded with the indictment charging the armed robbery of Robert Smith, a Baltimore Transit Company driver. Smith testified that on August 15, 1967 at approximately 11:00 p.m., four boys got on his bus, that two of them stood in the front of the bus while the other two stood in the rear, and that he was robbed at gun point by the two in front.
Ronald Nelson testified that he and appellant were on Smith's bus between 10:00 and 11:00 p.m. on August 15; that two other boys in the front of the bus held up the driver; that he (Nelson) promptly left the scene, observing as he left that appellant moved to the front of the bus and that the three boys ran from the bus with appellant carrying "the box."
Sergeant Steven Tabeling testified that he obtained a warrant for appellant on September 4, 1967 and arrested him on the street at approximately 3:00 p.m. that day. The Sergeant's testimony clearly showed that he gave appellant all warnings required under Miranda v. Arizona, 384 U.S. 436, and that appellant expressly stated that he understood the warnings and did not want an attorney. The Sergeant was then asked:
"Q. Did you have occasion to question Mr. Franklin concerning this holdup on the bus?
"A. Yes, I asked him about the holdup and about several other ones.
*575 "Q. Right now, we are concerning ourselves only with the holdup.
"A. He denied any knowledge of holding the bus up."
The State then concluded its evidence in the Smith robbery and the court overruled appellant's motion for a judgment of acquittal.
The State then called the indictment charging the armed robbery of Bertie Heath. The victim in that case testified that at 12:55 p.m. on September 3, 1967, four boys came into the Arundel Ice Cream store where she worked, one of whom, Michael Thames, was previously known to her; that after sitting in the store for a brief period one of the boys, whom she identified in court as the appellant, held her up at gun point and took $330.00. She testified that she observed appellant for about ten minutes while the crime was in progress. She was then asked whether she attended a lineup and, objection then being made to any lineup identification without a proper foundation first being established, the State interrupted Miss Heath's testimony and called Sergeant Tabeling as a witness. The Sergeant testified that a lineup was held on September 5 at 6:00 p.m. in connection with the Heath robbery, at which appellant was represented, at his request, by court-appointed counsel. Tabeling testified that Miss Heath picked appellant from the lineup as the robber. Bertie Heath then resumed her testimony and stated that while she picked out Thames from the lineup, she didn't identify appellant at that time because he was wearing a hat in the lineup but was hatless when he robbed the store. She testified that she had earlier identified appellant from his photograph, a photograph in which he was hatless. Miss Heath concluded her testimony by stating that she was positive that appellant was the boy who held her up.
Michael Thames testified as a State witness and made an in-court identification of appellant as the person who committed the armed robbery upon Miss Heath.
Having concluded all of its direct testimony in the cases against appellant, the State rested. Appellant then testified on his own behalf and denied that he shot or robbed Ellerbee. He stated that he was at the home of Charles Clark at the time of *576 the crime.[1] He admitted being on the bus but denied any complicity in the Smith robbery. He admitted his presence in the Arundel Ice Cream store but said that he was there by himself and was not involved in any robbery at that time. In response to a question by the State's Attorney on cross-examination, appellant denied making any statements to the police admitting that he held up Miss Heath and the Arundel Ice Cream store. He testified that he told the police that he did not commit that crime.
The appellant having concluded his defense, the State called Sergeant Tabeling in rebuttal and asked him whether appellant made "any statements to you concerning this holdup at the Arundel Ice Cream store?" Over appellant's objection, the Sergeant replied that on September 6, 1967, he had taken appellant to his home to search for guns and that "en route back to Eastern District, while en route, he stated that he was in several holdups, one of the holdups being the Arundel store on Harford Avenue."
Upon this evidence, the court found appellant guilty of the armed robbery and assault with intent to murder Ellerbee and imposed consecutive sentences thereon of twenty and fifteen years, respectively. The court also found appellant guilty of the armed robbery of Heath and imposed a sentence of twenty years thereon, to be served consecutively with the sentence imposed under the Ellerbee armed robbery indictment, but concurrently with the aggravated assault sentence. The sentences thus imposed totalled forty years and were to be served under the jurisdiction of the Department of Correction. The court found appellant not guilty of the Smith robbery.
I
Appellant contends that the trial court erred when, as part of the State's case on rebuttal, it admitted the statement allegedly made by him to Sergeant Tabeling that "he was in several *577 holdups, one of the holdups being the Arundel store on Harford Avenue." Appellant urges that the State did not, in its case-in-chief, offer any incriminating admissions or a confession; that it did not lay any foundation for the introduction of his alleged statements to the police and did not show that appellant was advised of his Miranda rights, and a waiver thereof secured, prior to interrogating him on September 6, the day the admissions were allegedly made; and that the failure so to advise him of his rights under Miranda was particularly important in view of the fact that he had refused to talk to the police on September 4 and 5. He urges that while the statement only admitted complicity in the Arundel Ice Cream store holdup involving Bertie Heath, it was offered for the purpose of discrediting him and impairing his credibility as a witness; and that since he testified on his own behalf as to all the indictments, the rebuttal testimony, if believed, would have had the effect of destroying his credibility, not only as to the ice cream store robbery, but as to the other cases to which he testified as well.
We think it clear from the evidence that before Sergeant Tabeling interrogated appellant on September 4, 1967, he complied fully with the Miranda requirements. While Detective Currelli testified that on September 5 he advised appellant "of his rights" prior to interrogating him, such unparticularized testimony is insufficient to demonstrate compliance with the Miranda decision. See Hale v. State, 5 Md. App. 326. And there was no evidence of any kind that appellant was advised of his Miranda rights, and a waiver thereof secured, on September 6 when appellant made his incriminatory statement that he robbed the Arundel store. We think it plain from the record that appellant was in police custody at that time, as he was then under arrest and in a police car. Although it is not entirely clear that the statement was made in response to interrogation by the police, see Campbell v. State, 4 Md. App. 448, we think that the circumstances were such as implicitly indicate that appellant's statement was responsive to custodial questioning by the police. Even though appellant was fully advised on September 4 of his Miranda rights, he was subjected to further custodial interrogation on September 5 and 6 without, insofar as the record shows, again being afforded the requisite warnings and an effective *578 waiver of his rights being secured; and while it may not be necessary in all circumstances to restate the substance of the Miranda warnings at each successive interrogation, we believe that in this case, where the State obtained a statement on September 6, proof showing only that the Miranda warnings were given on September 4 would fall short of compliance with the dictates of the Miranda decision. See Brown v. State, 6 Md. App. 564.
The fact that appellant's admissions may have been used for the purpose of impeaching his credibility as a witness, rather than as substantive evidence of his guilt, does not, in our judgment, dispense with the requirement that the State affirmatively show on the record that the statement was in compliance with the requirements of Miranda v. Arizona, supra. That case holds at page 476 that the warnings thereby required, together with the waiver of "Miranda rights," must be shown as "prerequisites to the admissibility of any statement made by defendant"; that no distinction may be drawn between inculpatory and exculpatory statements; that "statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication"; that these statements "are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement"; and, at page 479, that unless and until the required warnings and waiver are demonstrated by the prosecution at trial, "no evidence obtained as a result of interrogation can be used against him." While it cannot be questioned that the court in Miranda was primarily concerned with the admissibility of custodial statements as substantive proof of guilt of the accused, the majority of jurisdictions which have considered the question have held that the procedural safeguards prescribed by Miranda are equally applicable to the admissibility of a prior inconsistent statement to impeach credibility. See Breedlove v. Beto, 404 F.2d 1019 (5th Cir.); United States v. Fox, 403 F.2d 97 (2nd Cir.); Groshart v. United States, 392 F.2d 172 (9th Cir.); Wheeler v. United States, 382 F.2d 998 (10th Cir.); State v. Brewton, 422 P.2d 581 (Ore.); Commonwealth v. Padgett, 237 A.2d 209 (Pa.). Compare Walder v. United States, 347 U.S. 62 *579 and People v. Kulis, 221 N.E.2d 541 (N.Y.Ct.App.). In brief then, the rule is this: If the veracity of an accused testifying in his own behalf is to be attacked by a prior inconsistent or contradictory statement made while he was undergoing a custodial interrogation, the State must affirmatively show that the statement was made after the accused had been fully advised of all of his rights and had effectively waived them in accordance with the standards prescribed in Miranda. See also the Annotation appearing in 89 A.L.R. 2d 478, entitled "Impeachment of Accused as Witness by Use of Involuntary or Not Properly Qualified Confession."
We think it too apparent to require discussion that the improper admission of such impeaching evidence was clearly prejudicial to appellant's defense of the Arundel store (Heath) robbery and requires a reversal of that conviction.[2] But it does not follow that the improper admission of that evidence also necessitates a reversal of the Ellerbee convictions, as the record clearly shows that the State's rebuttal evidence was confined to showing that appellant had made a prior inconsistent statement with respect only to his participation in the Arundel store robbery. As heretofore indicated, appellant had been specifically asked on his cross-examination by the State's Attorney and specifically denied that he had ever admitted holding up Miss Heath and the Arundel store. On rebuttal, the State asked Sergeant Tabeling: "Did the defendant make any statements to you concerning this holdup at the Arundel Ice Cream store." Appellant's general objection to this question was directed at the Sergeant's response, a response itself limited to the case in *580 which the answer was sought the Arundel holdup of Miss Heath. While the answer of the witness indicated that appellant's denial was false, and that he also admitted complicity in other unspecified holdups, we are satisfied that this evidence, although improperly received for want of a proper Miranda foundation, did not affect appellant's defense against the Ellerbee charges to the extent that the error prejudicially infected his defense against those charges. That defense one of alibi was itself severely undermined by the failure of the appellant to call Charles Clark, his alleged alibi witness to testify in his behalf at the trial. The reason stated by appellant for Clark's failure to appear was that Clark was working. Unsubstantial on its face, appellant's reason for not summoning Clark was further undermined when appellant's counsel advised the court that he could not locate Clark at the address given him by the appellant. Under these circumstances, the effect, if any, of the erroneous admission of the rebuttal evidence in the Arundel robbery case, could not be more than minimal in its application to the trial of the Ellerbee cases, having at most a slight tendency to show that appellant, having lied about confessing to the Arundel robbery, was generally not to be believed as a witness in his own behalf. Bearing in mind that the case was tried before the court without a jury, and that the court acquitted appellant of the robbery of Smith, we hold that no proper basis exists for reversal of the Ellerbee convictions. In so concluding, we have considered United States v. Johnson, 337 F.2d 180 (4th Cir.), relied upon by appellant but find it factually inapposite.
II
Finally, appellant urges that trial counsel's representation of him was so inadequate as to deprive him of due process of law and his right to counsel under the Sixth Amendment. As we observed in Boswell v. State, 5 Md. App. 571, the matter of competency of trial counsel was not tried and decided below and is not properly before us for review. We have consistently declined to consider the question of competency of counsel when raised for the first time on direct appeal for the reason, among others, that counsel has no opportunity to defend himself. The appellant is not precluded from a determination of the matter *581 under post conviction procedures available to him where the determination may be made following an evidentiary hearing.
As to the first count of Indictment 4344Y (robbery with a deadly weapon) and the first count of Indictment 4345Y (assault with intent to murder): Judgments affirmed.
As to the first count of Indictment 4343Y (robbery with a deadly weapon): judgment reversed and case remanded for a new trial.
NOTES
[1] Clark was not called as a witness in appellant's behalf. Defense counsel advised the court that Clark could not be located at the address given him by appellant.
[2] In view of our conclusion, we need not decide whether the lower court also erred, as appellants appear correctly to contend, when it admitted, through the rebuttal testimony of Sergeant Tabeling, an extrajudicial statement purportedly made by Thames, in appellant's presence, that appellant committed the Arundel (Heath) robbery. If it was intended by the State to thereby show that appellant maintained silence in the face of Thames's accusation of his guilt, error would have been committed, as appellant was then in custody and his failure to deny his guilt could not be used against him. See Duckett v. State, 3 Md. App. 563, and cases cited at page 578. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4561320/ | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 28 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10031
Plaintiff-Appellee, D.C. No.
3:08-cr-00022-LRH-WGC-1
v.
TERRANCE HOFUS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted August 14, 2020**
San Francisco, California
Before: HAWKINS and CHRISTEN, Circuit Judges, and GRITZNER, *** District
Judge.
Terrance Hofus appeals a 12-month sentence and several conditions of
supervised release imposed in revocation of supervised release proceedings. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa, sitting by designation.
review the sentencing decision for abuse of discretion and other challenges for plain
error. United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc);
United States v. Bell, 770 F.3d 1253, 1256 (9th Cir. 2014). We have jurisdiction
under 18 U.S.C. § 3742 and 28 U.S.C. § 1291 and affirm in part, vacate in part, and
remand.
Hofus first argues the district court committed procedural error in imposing
Hofus’s 12-month sentence without clearly specifying it used the correct Criminal
History Category in arriving at that sentence. The record reflects that the probation
office calculated Hofus’s recommended sentence range of 8 to 14 months by using
a Criminal History Category of VI instead of V. At sentencing, however, defense
counsel alerted the district court to the discrepancy and that the appropriate guideline
range was 7 to 13 months. On hearing this, the district court noted that its intended
sentence was within that range and then proceeded to sentence Hofus at 12 months
“in agreement with the recommendation from the probation department.” The
district court then announced various reasons to support the 12-month sentence,
noting its history with the case and various attempts throughout the years at leniency.
Given this record, we find any error in calculating Hofus’s sentence harmless. See
United States v. Munoz-Camarena, 631 F.3d 1028, 1030 (9th Cir. 2011) (per curiam)
(errors in calculating a defendant’s Guidelines range are reviewed for harmless
error); see also Molina-Martinez v. United States, 136 S. Ct. 1338, 1346 (2016).
2
(“There may be instances when, despite application of an erroneous Guidelines
range, a reasonable probability of prejudice does not exist. . . . The record in a case
may show, for example, that the district court thought the sentence it chose was
appropriate irrespective of the Guidelines range.”). We therefore affirm his
sentence.
Hofus next challenges the imposition of a lifetime term of supervised release
and four special conditions, which we review for plain error. See Bell, 770 F.3d at
1256. The Government concedes that Special Conditions 3 and 6 should be
remanded but argues the district court did not plainly err otherwise. Following our
recent decisions in United States v. Lupold, 806 F. App’x 522, 524 (9th Cir. 2020)
and United States v. Burleson, No. 19-10262, 2020 WL 4218317, at *2 (9th Cir. July
23, 2020), we find the district court plainly erred in imposing Special Conditions 3
and 6, but not Special Condition 5 and Standard Condition 12. Specifically, Special
Condition 3’s phrase “that would compromise your sex-offense specific treatment”
is vague; and Special Condition 6’s requirements that Hofus must “warn any other
people who use these computers that the computers may be subject to searches
pursuant to this condition” and install monitoring software on any computer he uses
are vague and overbroad. See Lupold, 806 F. App’x at 525–26. We vacate these
conditions accordingly and remand to the district court to modify these conditions.
3
As to the lifetime term of supervised release, we find no plain error as the
district court explained its necessity given Hofus’s history of non-compliance. See
United States v. Hammons, 558 F.3d 1100, 1103–05 (9th Cir. 2009).
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
4 | 01-03-2023 | 08-28-2020 |
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